At a recent meeting, Milford City Council learned more about the Public Integrity Commission and how their Code of Ethics could impact them. The purpose of the Public Integrity Commission is to ensure propriety, public respect and confidence by setting specific standards of conduct for state personnel, government employees without unduly circumscribing activities.
“You are subject to the PIC or Public Integrity Commission as it applies to all local governments that don’t have their own Code of Conduct,” Max Walton, Esquire of Connolly Gallagher LLP, said. “You are able to but do not have to set up your own Board of Ethics if you want, but it has to meet the same requirements as the state code and it has to be approved by the PIC.”
According to documents provided to council, PIC has the power to recommend rules of conduct, issue advisory opinions, investigate through counsel, hold hearings and take or recommend, disciplinary action. They also maintain records, follow the rules, subpoena witnesses as well as prepare manuals and guides. PIC assists agencies, employees and officials in administering the provisions of the law while also requesting agencies provide assistance to the Commission as needed to do their job. They also administer and implement financial disclosure provisions and lobbyist registration provisions.
“The first issue that could be an ethical dilemma is conflict of interest,” Walton said. “You’re not allowed to participate ethically in something where you have a personal or private interest, that could impair your judgement. This is the way I look at it. If it is your wife, daughter, kid or if you’re going to make money off of it, you shouldn’t be participating.”
Walton explained that there were gray areas, however, such as a former business partner, a second cousin. In areas where a conflict of interest is not clear, he suggested referring the issue to the city solicitor to make the call.
“Another is that no employee or officer may represent or assist any private enterprise with respect to a matter before the city unless it is in the exercise of that person’s job duties,” Walton said. “So, that doesn’t mean you can’t meet with someone about a development project, but you can’t be scheming with them to make sure something gets approved. Now, if you are the planning director, working with a developer on their plans is part of the job, but there is a fine line between advocating and doing the job.”
According to Walton, the PIC use an appearance of impropriety test, so the level of ownership or value of the project may not be used to determine an ethical violation. They can determine a violation simply because there is an appearance of impropriety. In addition, PIC does not allow any public official to represent or assist a private enterprise on matters involving the governmental entity they represented for two years after leaving employment or office.
“This is why all DelDOT engineers who leave the state go to Maryland for two years,” Waltons said. “Then they can come back. That happens a lot in environmental as well. You are not permitted to disclose confidential information. There is also the Code of Conduct where you should act in a way that does not make it appear you are violating public trust and avoid even the appearance of impropriety.”
Walton pointed out that he had known the new city solicitor, Greg Morris, for years. If he was representing someone in front of council, the fact that he knew Morris was not improper. However, if he and Morris worked for the same firm, that would be an impropriety.
“The PIC view of what is an appearance of impropriety is kind of strict,” Walton said. “I’ll use an example. [A council person] owns a rental property and the city was voting on imposing a rental permit fee that was $200 per permit. If you asked PIC, I guarantee they would say you would have to recuse yourself because that was a financial burden on you personally. By that same token, all of you live within city limits and you vote on a five percent tax increase, that should still fall under the appearance of impropriety, so the lens is very difficult.”
The advice Walton gave was to not do anything that would appear to impair judgement on a decision.
“We had a robust discussion today on whether the police could accept a tray of cookies, and they can,” Walton said. “But what if it is a bottle of bourbon, or wine. I guess now with marijuana sales, it could be a plate of marijuana gummies. Value has no bearing; it could be anything that PIC viewed as the appearance of impropriety. I don’t think they would say anything about a tray of cookies given to the city and placed out for anyone, but just be sure that if gifts are given, you are aware that you could be faced with an ethical violation”
Walton told council that especially in small towns it was difficult to walk that fine line. One example was a councilperson walking home and it started raining. A business owner stops and gives them a ride home. If that business owner has something come before council the next day, the councilperson could be required to recuse themselves to avoid the appearance of impropriety.
Mayor Todd Culotta asked what the penalties were if PIC filed an ethical violation and council was found guilty.
“It depends on what the violation was, but it is a pretty steep fine,” Walton said. “They can revoke payment, undo contracts. They can’t take away your seat, but they can recommend you not be part of the body anymore. If you are offered gifts, run it by the solicitor before accepting.”
Disclosing confidential information was another area where PIC’s rules were very strict, Walton stated. He relayed the story of a case where confidential information was released that cost a city to lose a $45 million judgement. He also suggested that council be aware who was awarded contracts because if PIC learned a council person voted for a contract that a relative had a financial benefit from, they could file ethics charges.
“Lawyers try to pick off those that they perceive to be opponents, they do FOIAs and they do all kinds of things to find out where you have spoken out against or for something,” Walton said. “The peril is that if you should recuse yourself and you don’t, your failure to recuse taints the entire body and changes the outcome. So, even though it may have been a six or seven decision, the decision gets reversed.
“So, a case in Elsmere about ten years ago,” Walton said. “They were trying to fire the police chief. The chief said that the only reason he was being fired was because he refused to hire the nephew of a council person. The council person did not recuse himself and, even though it was a unanimous decision, PIC ruled it was otherwise tainted and the police chief came back.”
Walton pointed out that when a friend or relative was a candidate for a position, the best way to avoid the appearance of impropriety was not to vote on their hiring. It was better for the council person to recuse themselves to avoid the appearance of impropriety. Walton was asked about campaign donations.
“You can give political contributions, but there could be issues,” Walton said. “I live in Newark, and I liked the guy who was running for mayor. Gave him $200 toward his campaign. Apparently, that information got out on some message board and people were up in arms. The next thing I know, it is out there I am trying to buy legal work from the city of Newark. It didn’t matter that the City Manager controls who hires attorneys in Newark, not the mayor.”
Culotta pointed out that there were finance reporting requirements and limitations.
“Yes, but the question is who is giving those contributions? Under the law, it doesn’t matter, but it can be used as a political weapon, but it is not a legal issue,” Walton said.
