State Public Integrity Commissioner Minutes

August 18, 2009

1. Call to Order: 10:03 a.m. Present: Chairman Terry Massie; Vice Chair Barbara Green; Commissioners William Dailey, Dennis Schrader, Wayne Stultz, and Mark Dunkle; Commission Counsel Janet A. Wright, and Administrative Assistant, Jeannette Longshore.

2. Minutes: Commissioner Stultz moved to accept; Commissioner Dailey seconded; approved.

3. Election:Chairman Massie moved to recommend Vice ChairBernadette Winston as Chair; Commissioner Stultz as Vice Chair of Policies and Procedures; and Commissioner Dailey as Vice Chair of Personnel. Commissioner Schrader seconded; approved.

4. Administrative Items - Counsel update:

(a) Budget: When the Department of State (DOS) decided to split PIC’s budget into contract, supplies, and travel lines, it did not contact PIC about its needs. As a result, the amount in the travel line does not include sufficient travel funds for the Commissioners’ mileage to meetings or Counsel’s mileage to give training classes. PIC notified DOS to transfer funds from the contract line. As of the last meeting, Debbie-Cain Johnson said Tim Ferrier would decide. Since then, DOS e-mailed that the Budget Office said only $400 can be transferred. That still will not cover the costs.PIC again discussed its concerns on DOS controlling PIC’s budget as it is an independent agency, but may not be seen as such when DOS makes decisions about its budget. PIC wrote to the Governor, the Budget Director, DOS Cabinet Secretary Bullock, and the Joint Finance Committee several months ago. PIC received no response.

(b) Lobbyists:Notice was sent to file quarterly reports. Seventeen (17) failed to file. The second and final notices gave 10 days to file or have their registration cancelled. The list is on PIC’s website and in Legislative Hall.

(c) Financial disclosure: Candidates for Senator Adams’ and Representative Booth’s seats were notified to file. Defeated candidates were inactivated. The forms are kept for 5 years after the person is no longer a public officer.

(d) Sudan Visitors: Delaware’s Economic Development Office, International Section, is hosting Sudan dignitaries. They want to discuss Delaware’s ethics law. PIC representatives will attend the Wilmingtonmeeting.

5. Executive Session: Commissioner Stultz moved; Commissioner Dunkle seconded; approved.

6. 09-35 - Outside Employment

A State employee investigates abuse claims. He wants to accept a job with a vendor. It contracts with his Department, but not his Division. He has no official duties related to the vendor. He will not represent or assist it before his agency, nor accept agency clients. If one of his private clients have an abuse claim filed with his agency, he will recuse. Commissioner Dailey moved it would not be a violation if he follows these restrictions. Commissioner Stultz seconded; approved.

7. 09-37 Outside Employment

A State employee is a trainer at a State agency. She asked if she could also substitute teach in State schools.What she will teach will depend on the School’s needs when she is asked to substitute. She must follow the regular teacher’s plan.It is possible, depending on the assignment, that the teacher’s plan may call for instruction on areas related to her State job. Her State agency’s training materials are usually public records. For some training, the documents are distributed to attendees. She will not disclose any non-public information. Further, if the areas of teaching touch on her training areas, it is unlikely she would teach the exact same program as prepared for her agency, because it is for a different audience, different purpose, etc. She will focus on the established plan, which may require more generalized teaching on the subject of her State training. Commissioner Schrader moved no violation; Commissioner Dunkle seconded; approved.

8. 09-38 – Personal/Private Interest

Commissioner Dunkle recused.

A State agency publicly announced a contract. After bids were submitted, a State employee was put on the Selection Committee. A vendor contacted her agency concerned about a conflict due to her past affiliation with vendors who worked on such contracts prior to this one. Part of her contact with the vendors was for the State in a different capacity. She later volunteered, and worked, for two vendors.The agency withdrew the contract. It will re-issue. Commissioner Schrader moved that it is a moot point to consider a conflict as the agency is re-announcing, and it is unknown if she will be asked to serve on the Selection Committee. If so, she may then seek advice. Chairman Massie seconded; approved.

9. 09-36 – Post-Employment

A State attorney asked if he may accept a post-employment job with a vendor that contracts with his State office. He was the office’s legal advisor, and had dealings with the vendor.

As an attorney, he must comply with the Delaware Lawyers’ Rules of Professional Conduct (DLRPC). The Delaware Supreme Court regulates their conduct.However, DLRPC Rule 11.1 says government attorneys may be subject to government conflict laws. The reason for PIC’s review is not to regulate lawyers, but decide to what extentthe government will consent to representation by that attorney in government matters in their private capacity. DLRPCRule 11.1, cmt. 1.The vendor identified areas of work for any attorney who is hired. It included such matters as internal personnel issues; business related issues, etc. The personnel issues do not involve the State. The business area might include work connected to the State. Chairman Massie moved that if he recuses from the work done by him in his State capacity, it would not violate the post employment law, e.g., not work on matters under the contract which he worked on for the State, etc., Commissioner Dailey seconded; approved.

10.09-34 – Local Official’s Interest in a Private Entity’s Board

A Mayor asked if it was a conflict for him to also be a Board member of a private entity. His official duties include hearings and appeals of certain City business. The entity, or its members, might seek action through that official channel. However, City Council plans to change the structure in that area, replacing him and other officials with public citizens. That would end any conflict in that position.

Healso moderates and controls Council meetings. He, a City Manager, and Council set the agenda. He votes in case of a rare tie. His lone vote could carry the day. He said the public contacts him on City matters. He and the public cannot know in advance if he will need to vote to break a tie on matters pertaining to the private entity’s issues.

He also appoints certain City Commission members, with Council’s approval. He and a City Manager are ex-officio members of one of those Commissions. They cannot vote or hold office.The Commission makes City recommendations to the City Manager and Council that may include recommendations that impact on the private entity, which the Mayor would review, and might discuss.

As a private entity’s Board member, he has a fiduciary duty to act in its best interest; conversely, his public duty is to act in the broader public interest. Chairman Massie moved that the Mayor resign from the private Board. Commissioner Dailey seconded; passed with 1 dissent, Commissioner Schrader.

11. End Executive Session:Commissioner Dailey moved; Commissioner Stultz seconded; approved.

12. Next Meeting: September 15, 2009.

13.Adjourned 11:55a.m. - Commissioner Dailey moved; Chairman Massie seconded; unanimously approved.

August 18, 2009 Minutes