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9/21/2009
Lingering vacancies on NCCo Ethics Commission questioned; Weiner: vacancies "create the impression that county government is not serving the public well." - News Journal

Councilman Robert Weiner said officials need to set aside petty politics because the vacancies "create the impression that county government is not serving the public well."

"Both the executive and legislative branches have failed to do a good job, and the problem is now worse than it has been," he said.

Lingering vacancies on NCCo Ethics Commission questioned

'Ample people ready to serve' -- yet positions remain unfilled for months

BY ANGIE BASIOUNY • THE NEWS JOURNAL • SEPTEMBER 21, 2009

New Castle County has been slow in keeping a full complement of members on its Ethics Commission for nearly a year, sometimes hampering its ability to do its job.

The commission, which investigates the conduct of government officials and employees and offers guidance on appropriate behavior, has seven seats appointed jointly by the county executive and County Council.

But two seats have been vacant since one member resigned to move out of state last year and another resigned in the spring to take a political job.

The final term of a third member has expired, yet he is continuing to serve until a replacement is named. And a fourth member, Chairman Thomas P. Collins, is awaiting confirmation for a second term after his first expired June 30.

The New Castle County Ethics Commission needs four members to have a quorum for most proceedings, and four affirmative votes to draw conclusions on ethics investigations.

Council members and County Executive Chris Coons are taking the blame, acknowledging they have dragged their feet in nominating and confirming appointments.

"It's a matter of the council and administration agreeing on who is going to serve," Councilman Penrose Hollins said. "We have ample people ready to serve on the Ethics Commission and I feel we should move forward. We all share the need to fill these vacancies."

Councilman Robert Weiner said officials need to set aside petty politics because the vacancies "create the impression that county government is not serving the public well."

"Both the executive and legislative branches have failed to do a good job, and the problem is now worse than it has been," he said.

The lack of sitting members has forced the commission to dismiss two recent complaints, including an investigation into controversial e-mails sent by Council President Paul Clark that called into question his ties with developers.

Two weeks ago, the commission tried to hold its monthly meeting, but had to reschedule for Wednesday because only three members could attend.

The issue is that the commission is at risk of not fulfilling its real mission, Chairman Collins said. "The main points are: Why are there vacancies, and why should there even be a risk?"

Councilman Joe Reda nominated the Rev. Pat Harris of United Methodist Baptist Church in Marshallton to the commission nine months ago. But her confirmation was held up partly because computer glitches kept her online application from being filed.

After three tries, Reda finally took Harris into the Ethics Commission office to fill out the application form by hand.

Council and Coons must cross-approve each other's nominations. Coons last week interviewed retired police officer Jim Keeley, brother of state legislator Helene Keeley, to fill the second vacant position. He was nominated in May.

Interviews also are pending with real estate broker Vincent White, nominated months ago.
"We are making good progress toward having a full Ethics Commission and should be done with that by the end of the month," Coons said.

When Coons took office in January 2005 the panel existed only on paper, with no sitting members. In the years before, when Coons was council president, the commission resigned en masse after a dispute with County Executive Tom Gordon over funding and independence.

The panel wanted more money to conduct investigations, and it wanted to move its office out of the same building as the county executive and council.

The commission office, which is open three days a week, is now inside the Gilliam Building directly behind the New Castle County Government Center in Corporate Commons, near New Castle.

"The independence of the Ethics Commission is something that has been very important to me," Coons said. "We now have in place an effective auditing committee, a financial advisory committee and a revived and sustainable Ethics Commission, and I think all three of those are important to having a transparent and publicly accountable county government."

But the commission, which can impose sanctions ranging from a written reprimand to a recommendation of removal from office, is not entirely independent.

The commission is not vested with authority to legislate, so it follows an Ethics Code crafted by council.

Councilman George Smiley, who has taken the lead in drafting legislation to revise the code in the past four years, said every change has been made with the consent of commission members.
That includes rewriting the code of conduct to use language that mirrors the state's ethics law; eliminating the discretion of county department managers to determine whether employees can accept gifts valued at less than $50; and giving the commission discretion to notify the subject of a complaint immediately after the complaint is filed, rather than waiting until a preliminary inquiry is completed.

The changes have all passed without controversy until now. Smiley has another ordinance in the works that would prohibit the commission from releasing a "final order" unless its members have reached a majority opinion on whether an ethics violation has occurred.

Collins has said he is worried the regulation would have a chilling effect on public information. Without a final order, in some cases residents would not know that an investigation had occurred.

The ordinance will be discussed during the commission's meeting this week. Some council members, including Hollins and Weiner, have said they will not support it.

"We're all elected based on the public's trust in us, and I don't want to diminish that by sealing something from the public," Hollins said. "That flies in the face of open government."
Councilman David Tackett said he feels the council has "let the commission down" by not filling the vacancies and said he wants commission members to meet with council to discuss what they need from the government to do their jobs better.

John Flaherty, a lobbyist who formerly worked for the government watchdog group Common Cause, has a suggestion.

He'd like to see the commission end the practice of redacting names in its reports, which are available online or in the commission office.

Redaction of names prevents citizens from knowing who made the complaint and who was the target of an investigation, he said.

Council members, Coons and Collins said the redaction is necessary to protect the identity of people falsely accused and to prevent the commission from being used for revenge.

But Flaherty disagrees. "The veil of secrecy doesn't extend to us," he said of residents.
In 2005, he lodged a very public ethics complaint against Clark over a vote the council president took on a land rezoning in which his wife, an attorney, was the representative.

Flaherty's action prompted another revision of the Ethics Code, which now requires complaints be filed in the office, by mail or via e-mail to ensure the confidentiality of all parties.

"It's never been used as a vendetta," Flaherty said of the commission. "It's the other way around. The public has a right to know what's going on in New Castle County government."

The members are not paid and volunteer their time to research and resolve ethical questions that often set precedent for county officials and employees.

Elected officials and certain county employees are required to submit yearly financial disclosure forms to the commission. That requirement led to the discovery of former Chief
Administrative Officer Sherry Freebery's $2.3 million loan from an heiress who had a development project pending before the county.

Freebery was later indicted on corruption charges and pleaded guilty to one felony count of making a false statement to a bank for failing to include the loan on a mortgage application.
She was sentenced to one year of probation and ordered to pay fines and court costs.
Coons and others point to that incident as an example of the worth of the commission.

"I fully don't understand why it should take us the amount of time it has with these ethics vacancies," Hollins said. "We need to give this our fullest attention. The seats need to be filled as fast as practical."

Contact Angie Basiouny at 324-2796 or abasiouny@delawareonline.com.

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