State Public Integrity Commission
minutes
September 20, 2011
1. Call to Order: 10:00 a.m. Present: Chair Barbara Green, Vice Chair William Dailey; Commissioners: Wilma Mishoe, Jeremy Anderson and Lisa Lessner; Commission Counsel Janet A. Wright; and Administrative Assistant Jeannette Longshore. Commissioner Mark Dunkle arrived at 10:30
2. Minutes: Commissioner Dailey moved to accept; Commissioner Mishoe 2nd; approved.
3. Administrative Items:
(a) Budget – PIC’s Budget Narrative was completed. The Commission was asked to calculate a 1% cut using the total of the personnel line and the operating budget line. The personnel line cannot be cut. That means the operating budget must be cut by 6%. That would make it $30,441.00, less than a penny per person of those in the Commission’s jurisdiction. UPDATE: The Office of Management and Budget will consider PIC’s budget at its hearings on November for the Department of State on Thursday, November 10, 2011, 9:00 AM, Senate Chambers.
(b) Training –
(1) Financial Disclosure - Chinese Delegation- August 25, 2011. A Chinese Delegation received training on the Financial Disclosure Law. They were from Changchun, and plan to adopt similar laws for their local government. There were 19 officials and a translator attending.
(2) Ethics Training Oct. 5th – Ethics Training in Wilmington
Oct. 13th - Ethics Training in Dover
Commissioner Mishoe attended the ethics class held for DNREC employees. All Commissioners were invited to attend an Ethics training class anytime. Commissioners who are lawyers can receive CLE credits. UPDATE: The October 5th training was cancelled because only three people registered. They attended the October 13 training.
(c) 10-31 Case Update: Hanson Appeal – All briefs are filed, and are available on request. UPDATE: No Court decision as of October 18, 2011.
(d) 11-08 and 11-10 Case Update: The Commission previously ruled to dismiss all but one charge alleged in these complaints. The remaining charge was under investigation. The official is no longer in office, and the Commission lacks jurisdiction once they are no longer in office, except for allegations pertaining to post-employment law violations. This allegation did not pertain to that law. Complainants will be notified that the sole remaining charge is dismissed, and that no evidence was found up to that stage to substantiate the charge.
(e)11-24 Case Update: At the June meeting, an applicant did not appear. Her supervisor was called and said she was on her way. The Commissioners waited for about an hour. She did not notify the Commission that she would not, or could not, attend. PIC’s Chair was to follow up. This month, the Chair reported that she contacted the applicant and her supervisor about the applicant not appearing, or letting the Commission know she could not attend. This is the first time a State employee failed to appear without any explanation. The applicant said she was not sure why she was to meet with the Commission; that peers had told her to come (however, she personally completed the disclosure form required when a State employee works for a private company that does business with the State). She said she was out sick that day, and did not have a number to call (although her supervisor had said she was on her way). The Chair thinks the applicant is now highly aware of the importance of attending, or notifying the Commission if she cannot. The Chair asked if anyone had concerns or felt more follow-up was needed. By consensus, no further action was required.
(f) News Article on PIC Commissioners’ Personal Interest in the Hanson case. A letter to the editor of the News Journal said PIC’s Commissioners would benefit from the decision against Ms. Hanson. The writer gave absolutely no facts on how he reached that conclusion. Counsel reaffirmed that no Commissioner has any interest in the Hanson decision. None live in, or own property in, Dewey Beach or vote there; none have a business there; none are connected to the developer, none have any investment in the development, etc. Also, a number of local articles reported that the Chair is a Real Estate Agent in Rehoboth Beach. However, again they give no facts on why she would have a conflict. Again, she is not involved with any matter pertaining to the parties or the development, etc. By consensus, the Commissioners decided that it would take no action to respond.
(g) PIC Elections: Once a year PIC elects officers. Chair Green will send the election procedures to each Commissioner prior to the next meeting.
4. Executive Session: Commissioner Dailey moved; Commissioner Mishoe 2nd; unanimously approved.
5. 11-41 Outside Employment
A State employee works part-time for a private enterprise. It contracts with a State agency. She filed the required disclosure of her financial interest in the private company. 29 Del. C. § 5806(d). She does not deal with, and is not involved in the contract, with the company. Thus, in her State job, she does not review or dispose of matters related to that company. 29 Del. C. § 5805(a)(1). In her private job, she does not get involved with, nor does she have, any clients from her own agency. The contract is with a different Department. Thus, she is not representing or assisting the private company before her own agency. 29 Del. C. § 5805(b)(1). She is not using State resources or State time to perform her private work which is barred by the provision against using public office for personal benefit or gain. 29 Del. C. § 5806(e). Commissioner Dailey moved there was no conflict at present, but if anything changes, she should contact the Commission. Commissioner Lessner 2nd; approved.
6. 11-39 Outside Employment
A State employee works part-time in sales for a private enterprise. He filed a disclosure of his outside employment, but was not mandated to do so. It is only required if the private enterprise does business with, or is regulated by, the State. 29 Del. C. § 5806(d). No facts suggested the company does business with any State agency. Specifically, it does not do business with his agency. Thus, he would not review or dispose of matters related to the company, nor represent or assist it before his agency. 29 Del. C. § 5805(a)(1) and (b)(1). He does not use State time or resources to perform the private work. 29 Del. C. § 5806(e). Commissioner Dailey moved there was no conflict as the company has no relationship with his agency, and the opinion should say he was not required to file. Commissioner Anderson 2nd; approved.
7. 11-42 No Jurisdiction
A visitor to the State was given a speeding ticket. The Commission can only act on alleged violations of “this chapter.” 29 Del. C. § 5809(3). Counsel drafted a response stating PIC has no jurisdiction over speeding tickets issued to out of State visitors. However, in light of his concern that the speed limit radically dropped from 55 m.p.h. to 25 m.p.h., he was provided with the contact information for DelDOT, which had already said it would look at that area regarding the sudden drop in speed. Commissioner Mishoe moved there was no jurisdiction, with some edits suggested by Commissioner Anderson. Commissioner Dailey 2nd; approved. UPDATE: PIC was provided a report by DelDOT, which found no sudden drop where he received his ticket, but is working with the Town regarding warnings on other areas where there are sudden drops in speed. A copy was sent to complainant.
8. 11-43/ 44 Anonymous - No Jurisdiction
Two individuals, independent of each other, sent anonymous letters regarding how a Department is managed. Neither letter identified any person or any facts involving actions allegedly contrary to the Code. Both writers had a return address on their envelopes, so a draft letter was prepared stating that the Commission only has jurisdiction over the provisions in Title 29, Chapter 58, Delaware Code. 29 Del. C. § 5809(3). It was suggested that they may want to send the letter anonymously to the Cabinet Secretary. Commissioner Dailey moved that the draft letter be accepted; Commissioner Dunkle 2nd; approved. UPDATE: Both letters were returned as “No Such Address.”
9. 11-37 – No Jurisdiction
A prisoner, convicted after a bench trial, alleged the Judge did not properly control the courtroom or properly render a decision. He also alleged the two prosecutors used improper evidence. Counsel drafted a letter saying the Commission lacks jurisdiction because: (1) it only has jurisdiction over Judges for purposes of financial disclosure reports. 29 Del. C. § 5812(n)(1)(e-i). The allegation was not related to the Judge’s report; and (2) while State employees, including prosecutors, are subject to the Code, the allegations did not pertain to any Code provision. The Commission can only act on alleged violations of “this chapter.” 29 Del. C. § 5809(3). Commissioner Dailey moved to accept the draft letter; Commissioner Anderson 2nd; approved.
9. 11-30 Vendors Paying For Meals
Two State employees are working on an agency policy to cover items such as accepting meals from private vendors. Their request referenced the Merit Rules[[1]] and the Governor’s Executive Order No. 1[[2]]. The Commission has no jurisdiction over Executive Orders or rules not in the Code of Conduct. It noted that it was possible that the Order or Merit Rules could conflict with the Code of Conduct statute on accepting things of value. They identified three situations where they wanted to know if agency employees could accept meals paid for by private entities:
(1) lunch sessions where a vendor that does business, or is seeking to do business, with the agency would give a presentation on the products or processes they offer. Attendees would usually be field level employees who would be using the product everyday or using the process, but not necessarily upper management types. Attendees would potentially provide comments to their supervisor because they have the front-line experience. No one would be required to attend because it would be during their lunch hour. Generally, no credits would be received by the attendees. It was thought that if the vendor provided lunch employees would be more likely to attend; a benefit to the agency would be that if it is done during the employees’ lunch time, it will not take them away from work;
(2) training sessions by qualified instructors, not sales representatives, given to persons required to have the accredited training, and not scheduled just for the lunch hour; and
(3) recognition breakfasts for agency employees who had exemplary performances related to safety. The breakfast would be during State work hours. This request arises because of budget cuts that caused them to discontinue some things that, in the past, were paid for out of the agency’s budget. They would not solicit vendors to provide the breakfast and the value would be in the range of $10 per employee, for the quarter in which they won the safety breakfast for the least amount of personal injuries or damage to equipment. They said it would make it somewhat of a competition to get the agency employees thinking about safety, and sort of reward them for their role in providing savings through safety measures. They said generally the organization paying for the meals in all three situations would be companies that contract, or ones that would like to contract with the agency.
They said the agency provides training in a variety of ways. Some is done in-house and meals are not provided; attendees bring their own. They also do training through other organizations. Employees attend courses through the Office of Management and Budget’s statewide training program on things like the “soft skills,”—fundamentals of leadership, those kind of things. Their meals are not paid for by the agency or the State. Some training is also given to maintain certification for certain employees, and they can get credits that may help them in their career ladder, or meet the training requirements for their field. Some must obtain the credits as part of their State job, but that is not the majority. They said if it is required training, and employees are told they must attend, the agency pays for the training, but not necessarily for meals. Other training would be something that could enhance their knowledge in the area where they work because they may find new products that do something more efficiently. Using it may not be their immediate plan, but they are aware of it. Commissioner Dunkle moved that it would be a conflict to accept the meals from vendors doing business, or seeking to do business, with the agency over the lunch hour where the training is not accredited; and for the recognition breakfasts; and it might also appear that the State statute on meals for State employees was being circumvented. State law has specific rules on approved recognition programs and when food can be provided. 29 Del. Code § 5950 and §5112(b)(3). However, meals could be accepted, but not solicited, from organizations not doing business, or seeking to do business, with the agency, if it is accredited training offered by qualified instructors. Commissioner Mishoe 2nd; approved.
11-03 – Superintendent of Smyrna School District Deborah Wicks – Nepotism – Update on Waiver[[3]] Ms. Wicks had a conflict due to a personal or private interest in her son’s employment with the School District. 29 Del. C. § 5805(a)(1). The Commission previously granted a waiver so that the Assistant Superintendent could supervise Ms. Wicks’ son. Ms. Wicks was to recuse from any issues pertaining to her son. She also was to advise the Board of Education and her employees of the restrictions. The Commission received information that she: participated in a matter related to her son’s work; had not informed her staff of the restrictions although she had had the opinion for about 4 months; and had not informed the Commission that her son previously applied for essentially the same job, just months before his present job was posted. The Commission gave her 30 days to respond to its concerns because it concluded she had not followed its advice regarding putting employees on notice of her restrictions; she had not restricted her conduct as directed; and had not “fully disclosed” the facts pertaining to her son’s prior consideration for essentially the same job. Her response did not satisfy the Commission and she was notified that it would meet to decide if it would revoke the waiver. Ms. Wicks appeared with Assistant Superintendent Patrick Williams, and the School District’s Attorney. She stated there was a misunderstanding on the limits of her restrictions; she did not think that it would be important to the Commission for her to tell them about a job her son did not get; and she was delayed in notifying her staff of the restrictions due to a family illness. Mr. Williams said it was Ms. Wicks’ managing style to be directly involved in the work of all her employees. The Board had requested that the waiver be extended to allow Ms. Wicks to work directly with her son. Commissioner Anderson moved that the Commission reaffirm its earlier findings of a conflict, with the additional details added; that it continues to be a conflict; that the Commission will not revoke the present waiver, but it will not grant a broader waiver that would allow her to work directly with her son as that would defeat the purpose; and that after the written opinion is issued, she will have 30 days to advise the Commission of whether there has been compliance. Commissioner Lessner 2nd; approved.