At a recent workshop, Milford City Council received ethics training by Max B. Walton, a partner with Connolly Gallagher LLP. Walton provided details on ethics requirements under the Delaware Public Integrity Commission (PIC). Prior to the workshop, Julie Morris spoke during the pre-meeting public comment session.
“Since tonight’s workshop is about ethics, I thought this would be a good time to remind some people that council members are independently elected, they should be able to vote their judgment without being publicly pressured or chastised for disagreeing with the mayor. The same should be true of the Planning Commission and Board of Adjustments. Those members should never have to wonder whether questioning staff, questioning an applicant or disagreeing with the mayor could affect their reappointment. I also would like tonight’s discussion to clearly explain where the mayor’s authority ends and the city manager’s authority begins, particularly when it comes to directing staff and influencing administrative decisions.”
When he began his presentation, Walton asked if the city had their own ethics board and Vice-Mayor Jason James, who was sitting in for Mayor Todd Culotta who was running late, said the city did not. Instead, they relied on the state.
“Then this will be apropos to you because if there is an ethics complaint, it goes to the Public Integrity Commission,” Walton said. “You don’t want to be investigated by the PIC. Ultimately, the administer anything that deals with public integrity and sometimes they issue advisory opinions. As I go through these, you will see that these standards may be interpreted differently by your solicitor and me. This is why sometimes municipalities get an advisory opinion from the PIC.”
According to Walton, there are specific things that council should not participate in if they have a financial or private interest or one that may impair a person’s judgement in the performance of their duties. For instance, if there is a chance a councilperson could make money on a decision, they should recuse themselves.
“What if it is your wife? What if it is your cousin, your second cousin, your third cousin, your best friend?” Walton asked. “What if it is a multinational corporation and you own one share of stock in the company? This is where that gets tricky. When that comes up, you go to your solicitor and he makes the determination. If it is determined there is a conflict, you recuse yourself. If Chris [Coleman, City Manager] has a conflict, he steps away and appoints someone else to handle it.”
Walton pointed out that there are specific guidelines for when someone should recuse themselves, but there are occasions when the appearance of impropriety could be viewed as unethical. Councilman Jason James asked Walton if the fact that his brother-in-law was the chief of the Carlisle Fire Company, which is a volunteer department, was he required to recuse himself from votes related to the fire company. James pointed out that he has in the past, but only when it was related to a large financial matter.
“I would say yes, but only because your brother-in-law is making the presentation to council,” Walton said. “Now, if your brother-in-law was not the chief, it would not be a problem, but because he is presenting for the company, my recommendation would be recusal.”
James asked if it was an ex-family member, mentioning that if there was a divorce that meant there was no longer a family connection. Walton said that would be different as there was no family connection any longer, but he would still talk to the solicitor to be sure there was no ethical reason for James to vote.
“You guys go into Executive Session on occasion,” Walton said. “It is an absolute violation of the public integrity statutes to disclose any information from executive session.”
Walton explained that in one municipality he represented, the mayor accidentally sent an email regarding what was discussed in executive session to the wrong address. That error cost the city $45 million due to a breach of confidence. When it came to code of conduct, Walton cautioned council to avoid doing anything that even had the appearance of violating the public trust.
“The PIC has the ability to dismiss frivolous stuff, which they often do,” Walton said. “But you don’t want to be in one of their trials. You could have a reprimand or censure. You could be demoted. There could be a recommendation to remove you from office. It is hard to remove you guys from office, by the way, but it can be done. For some violations, you can face a year in jail and a $10,000 fine. I’ve been doing this for 26 years and I have never seen anyone get a fine anywhere near $10,000 or spend time in jail.”
As for employees, council sets policy and the manager enforces it, Walton said explained.
“The biggest problem I see is interference with managers across the state,” Walton said. “Council tends to get involved in employment decisions and that is not their role. You may be thinking that never happens, but if it does, employees can file complaints. If you make a directive to a city employee, you are liable because you are a city official and the employees have constitutional protections.”
Another area where council could face ethics issues was with developments coming before them.
“Let’s assume for a minute you were running for office, and a big development was coming before council,” Walton said. “You campaign that you think this should not be approved. You get elected on that promise. In Delaware law, you are now publicly prejudiced, and you are now not allowed to participate. I know a member of the public talked about the Board of Adjustments. They shouldn’t be subject to political influence. They act like judges and they must decide the case based on what is in front of them.”
According to Walton, the Board of Adjustments rules on conditional uses and other matters as a judge rule in a court case. It is not the same as when council or the planning commission is deciding on the matter. In many cases, the Board of Adjustments cannot be swayed by public opinion as they must rule only on code and requirements.
“When it comes to social media, create two pages,” Walton said. “One is your personal page where you put up pictures of your grandkids, you and your wife on vacation. The other is your public page where you can respond to constituents with questions or put information out about city business. But what happens when you block someone from your personal page? As long as you are not talking about city business on your personal page, you can block people, but you should have another public page where you do not block anyone.”
James again asked about recusing oneself when there is a concern.
“When I recuse myself, I don’t just sit there and wait for the vote,” James said. “I get up and walk out of the room.”
Walton confirmed that was true. He recommends that anyone who recuses themselves leave council chambers and return once the vote is completed.
Councilwoman Madula Kalesis questioned the social media restrictions, saying she was guilty of commenting on social media when council made a decision she did not agree with.
“So, let’s say Milford had a 1,200-unit subdivision that was controversial,” Walton said. “If you speak out against it ahead of time on social media, you are disqualified from voting on the matter. I fit passes by a slim margin, you go out afterwards and comment that you hate that decision, that is different. But I am going to tell you if there is a thought you should recuse, my advice would be to recuse.”
Walton will be giving training on Senate Bill 23 and House Bill 450 as those have major implications for land use in counties and municipalities.
