State Public Integrity Commission

January 22, 2013

1. Call to Order: 10:00 a.m. Present: Wilma Mishoe, Chair; Commissioners: William Dailey; Mark Dunkle, Esq.; Lisa Lessner; and Jeremy Anderson, Esq.; Commission Counsel Janet A. Wright; and Administrative Assistant Jeannette Longshore.

2. Minutes: Commissioner Dunkle moved to accept; Commissioner Dailey 2nd; approved.

3. Administrative Items

(a) Commission Counsel’s Retirement. Commission Counsel advised the Commission that she plans to retire in approximately 3 months (end of April). UPDATE: Ad has been placed with the Delaware State Bar Association Journal, In Re. Will be open for applications until the end of March. Additionally, a more detailed description will be provided to any attorney who inquires, and is provided at the end of these minutes.

JOB ANNOUNCEMENT

Attorney
(This Position is Exempt from the State of Delaware Merit System)
Closing Date: / 3/31/2013 11:59:00 PM
Type of Recruitment: / Open Competitive
Salary: / Yearly: $73,334.00/Min - $97,778.00/Mid
Pay Grade: / A16
Employment Type: / Anticipated Vacancy
Employment Term: / Regular
Agency: / State/Public Integrity Commission
Location(s): / O'Neill Building: (410 Federal St, Dover, DE, 19901)
Contact Name and Phone: / Janet Wright 302-739-2399
Submit Resume to:
Top of Form
SUMMARY STATEMENT
The Delaware Public Integrity Commission (PIC) has an opportunity for an Attorney (Commission Counsel) to serve as the legal representative of the Commission.
ESSENTIAL FUNCTIONS
1.  Assisting the Commission in preparing and publishing manuals and guides explaining the duties of individuals covered by Title 29 Delaware Code, Chapter 58, educating individuals covered by Chapter 58 about its requirements and purposes, and giving instructions and public information materials to facilitate compliance with, and enforcement hereof.
2.  Providing legal counsel to the Commission concerning any matter arising in connection with the exercise of its official powers or duties.
3.  Reviewing information coming to the attention of the Commission relating to potential violations of Chapter 58.
4.  Investigating information coming to the attention of the Commission that, if true, would constitute a violation of any provision of Chapter 58.
5.  Prosecuting disciplinary proceedings.
6.  Employing and supervising staff.
7.  Maintaining permanent records of all advisory, waiver, investigatory and prosecutorial matters.
8.  Performing any other tasks requested by the Commission concerning any matter arising in connection with the exercise of its official powers or duties. (e.g. Administrative duties; budget management, annual reporting, etc.)
JOB REQUIREMENTS
(1) Applicant Attorneys must have education, training and/or experience demonstrating competence.
(2) Must be member of the Delaware Bar.
BENEFITS
To learn about the benefit package, GO TO: http://ben.omb.delaware.gov/
SELECTION PROCESS
Applications evaluated based upon a rating of training and experience.

(b) Training

Date / Agency / Title No.
01/17/2013
04/30/2013 / DelDOT
DelDOT / Ethics in Government 18
Ethics in Government
07/20/2013 / DelDOT / Ethics in Government
10/22/2013 / DelDOT / Ethics in Government
1/8 – 1/10/2013 / Lobbyists / Lobbyists Database – est. 24
01/22 and 23/2013 / Public Officers / Financial Disclosure Database -2

(c) Legislation H.B.13 Would bar former General Assembly members from lobbying for 1 year after leaving office. If it passes, it will take effect January 1, 2015. It has been introduced several times in the past without success.

(d) The Governor will submit his proposed budget next week. There are not a lot of surplus funds and we have to submit our budget with a 1% proposed cut. UPDATE: Proposed Budget introduced. Proposes $192.2 for PIC. H.B. 30. That does not cut PIC’s operating budget. It leaves it the same as last year, $30, 600—still less than 1 cent per person over whom PIC has jurisdiction.

(e) PIC Database/Lobbying Reports – The new data base was up and running by the statutory January 1, 2013 start date. S.B. 185. The Dept. of Technology is requiring a more secure system by adding more steps to access the database, which some people have had a few problems with. We are working with the vendor, Delaware Interactive, to make the transition as painless as possible. That included 3 training sessions for lobbyists at Leg Hall beginning January 8 through January 10, 2013. Lobbyists’ quarterly reports were due not later than January 20, 2013, but 94 did not file on time. The high number of 94 who did not file by the required date is in part because the reminder notice of the January 20, 2013 was sent with the vendor’s address and many lobbyists were suspicious of an address they did not recognize and considered the notice possible spam. That problem has been rectified and all future notices will be sent showing a PIC e-mail address. The first notice of delinquency was sent to each lobbyist on 1 and 4 February. UPDATE: As of February 14, 2013, 30 had not filed. A second notice to the lobbyists and to the organizations they represent will be sent February 19, 2013.

(f) Hanson Brief – PIC’s Opening Brief was filed. Ms. Hanson filed a motion to affirm the Superior Court decision rather than filing an Answering Brief. Under the Supreme Court Rules, PIC cannot respond to a Motion to Affirm. Supreme Ct. Rule 25. The Court will act on that before anything else happens. UPDATE: Ms. Hanson’s Motion to Affirm was denied on February 11, 2013. She now has 20 days to file an answering brief (on or about March 4); PIC will have 20 days after that to file its reply brief (on or about March 24). Supreme Ct. Rule 25.

4. Executive Session – Pursuant to 29 Del. C. § 10002 (g) (9)--Executive Session. Also, pursuant to 29 Del. C. § 10004(6 ) - Executive Session to discuss non-public records (29 Del. C. § 10002(6) Written statements required for advisory opinions, waivers and complaints are subject to the confidentiality standards in 29 Del. C. § 5805(f), 29 Del. C. § 5807(d) ; and 29 Del. C. § 5810(h). By statute, proceedings are closed unless the applicant for the advisory opinion requests a public meeting, 29 Del. C. § 5805(f), 29 Del. C. § 5807(d), or the person charged in a complaint requests a public meeting. 29 Del. C. § 5810(h). No applicant for an advisory opinion scheduled for this meeting requested an open meeting. Commissioner Dailey Moved; Commissioner Dunkle 2nd; approved.

5. 12-44 –Jurisdiction

Commission Counsel sent a letter to a citizen explaining why the Commission did not have jurisdiction over her concerns, e.g., Sheriff’s sale of her home, etc. The Commission reviewed the letter because the individual had said she wanted to call Commission Counsel to testify (there is no litigation pending) and the rest of the contact was also odd. The Commission took no further action.

6. 12-39 Follow-up– Delaware City Code of Conduct

The changes by the Town were made consistent with the Commission’s prior advice on how to make it as stringent as State law, and some suggested technical corrections (e.g., add paragraph numbering for ease of citation). Commissioner Dunkle moved that the revised proposed Delaware City local government Code of Conduct is as stringent as State law. 29 Del. C. § 5802(4). Commissioner Dailey 2nd; approved.

7. 12-45 – Outside Employment

A Division Director asked if he could accept part-time employment with a company that previously had a contract with a different State agency, than the one he works for, but has fulfilled that contract and is not expected to seek further work in Delaware. Thus, he would have no occasion to review or dispose of matters pertaining to the company. 29 Del. C. § 5805(a)(1). That also would mean he would not have an occasion to represent or otherwise assist the private enterprise before his own agency. 29 Del. C. § 5805(b)(1). The work he would perform would be related to regulatory matters in a totally different State. His State job deals with the same type of regulatory matters, and the company had asked if he would be interested in working on such matters. The company had previously dealt with him when he worked for a different State before coming to Delaware. He would perform the work during non-State hours, and without using State resources, e.g., fax, phone, computer. While the work would pertain to another State, he does not expect it to involve much travel, but can work from home. Those facts did not suggest that he had used, or would use, his Delaware position to obtain the job, or perform the work. 29 Del. C. § 5806(e). Commissioner Dunkle moved that his request be approved as long as he returns to the Commission if the company seeks to do business with the State of Delaware, 29 Del. C. § 5806(d), and does not improperly use or disclose any confidential information gained from his State job. 29 Del. C. § 5806(f) and (g). Commissioner Anderson 2nd; approved.

8. 12-42 and 12-43 – Dr. Imran Trimzi; Dr. Mary Diamond; Steve Yeatman – Contracting with State agency. – Waiver Granted so proceedings are a matter of public record. 29 Del. C. § 5807(a). Commissioner Dailey moved that a waiver be granted until the beginning of the next fiscal year. Commissioner Dunkle 2nd; approved. As a waiver was granted, the Commission’s opinion becomes a matter of public record so that the public will know why the waiver occurred. 29 Del. C. § 5807(a).


January 31, 2013

Imran Trimzi, M.D.

Residency Program Director

DE Psychiatric Center

DHSS

1901 North DuPont Highway, Springer Rm. 223

New Castle, DE 19720

Mary Diamond, D.O., M.A., M.P.A

Chief Psychiatrist, DE Psychiatric Center

DSAMH Medical Director

1901 North DuPont Highway, Springer Rm. 7

New Castle, DE 19720

12-42 and 12-43 – Contracting with the State

Hearing and Decision by: Wilma Mishoe, Chair; Commissioners: William Dailey, Mark Dunkle, Esq., Lisa Lessner and Jeremy Anderson, Esq.

Dear Doctors Trimzi and Diamond, and Mr. Yeatman:

The Public Integrity Commission (PIC) reviewed the Department of Services for Children, Youth and their Families (DSCYF) request for a waiver to allow it to privately contract with Doctors Imran Trimzi and Mary Diamond. Based on the following law and facts, a waiver is granted until the beginning of the new fiscal year, because of the dire need to provide psychiatric services to children at the Terry Children’s Center. It is our understanding that the positions will be publicly noticed for bidding at that time.

I. Applicable Law and Facts

(A) State employees who have a financial interest in a private enterprise that does business with, or is regulated by the State, must file a full disclosure with PIC as a condition of commencing and continuing employment with the State. 29 Del. C. § 5806(d). Doctors Trimzi and Diamond’s private contract with the State constitutes a “private enterprise” and their employment constitutes a “financial interest.” 29 Del. C. § 5804(9) and § 5804(5)(b). Both have complied with this requirement.

(B) State employees may not review or dispose of State matters if they have a personal or private interest in the matter. 29 Del. C. § 5805(a)(1). Here, the State matter was their private contracts. However, Dr. Trimzi and Dr. Diamond work for a totally separate Department—Health and Social Services (DHSS). Thus, they were not in any manner responsible for the contract, as that was a matter handled by Mr. Yeatman and others at DSCYF.

(C) State employees may not represent or otherwise assist a private enterprise before the agency with which they are associated by employment. 29 Del. C. § 5805(b)(1). As noted, the Doctors work for a totally separate agency, DHSS, so they will have no occasion to deal with their own agency.

(D) State employees may not contract with the State if the contract is for more than $2,000 unless there is public notice and bidding. 29 Del. C. § 5805(c). Here, the agency has not yet publicly noticed and bid the contracts, and requests that a waiver be granted.

On the written request of any State agency, or an individual subject to the Code, the Commission may grant a waiver to the specific prohibition if the Commission determines that the literal application of the law is not necessary to serve the public purpose, or would result in an undue hardship on an employee, officer, official or State agency. 29 Del. C. § 5807(a).

Here, the agency seeks a waiver based on the following facts: In early 2012, it lost two full-time Child Psychiatrists who worked in the Terry Children’s Center. Such psychiatrists are required to have an additional two years of training in Child and Adolescent Psychiatry over psychiatrists not in that specialty. As a result, they usually have increased payments to be made on student loans, so the salary can be a critical issue. As far as State of Delaware employment, these positions have a lower salary than the rate paid to full-time Psychiatrists in DHSS, even though those positions do not require the additional 2 years for training required for Child Psychiatrists. Pulling from other States also is difficult because there has been a recognized national shortage of Child and Adolescent Psychiatrists in studies identified to DFYCF in September 25, 2012, and this shortage has been on-going since at least 2006, and is expected to continue. Moreover, due to changes in Delaware laws that require a more stringent background investigation of Physicians who deal with children, it can take longer for out-of-State licensees to receive a State of Delaware license which they must have for the positions.

Efforts made to fill the full-time positions included multiple job notice advertisements in the Regional Council of Child and Adolescent Psychiatry of the Delaware Valley (Philadelphia and Southern New Jersey region) and the Regional Council of Child and Adolescent Psychiatry of Delaware. The agency also distributed the job notice to members of the Psychiatric Society of Delaware, and contacted provider services including Delaware Guidance, Psychiatry at Crozier-Keystone Health System, and Child Guidance Resource Center, and had the Director of the Department of Child and Adolescent Psychiatry at Jefferson University Hospital assist in recruiting attempts. The only applicant for the full-time State job would not even accept an interview because of the pay offered.