[HISTORY: Adopted by the City Council of the City of Lewes 10-15-2018.[1] Amendments noted where applicable.]
[1]
Editor's Note: This ordinance also repealed former Ch. 9,
Code of Conduct, adopted 12-14-1992, as amended.
A.
This
chapter shall be known as the "City of Lewes Code of Ethical Conduct."
B.
This
chapter is effective upon approval by the Public Integrity Commission
following enactment by Mayor and City Council and supersedes prior
provisions of this chapter except that any existing proceedings of
the Board of Ethics as of the effective date of this chapter shall
proceed under the provisions of this chapter in effect when those
proceedings were initiated.
C.
This
chapter shall be applicable to all officials (elected and appointed,
whether or not compensated) and to all employees (whether full-time
or part-time) of the City of Lewes.
D.
The
City of Lewes adopts the statement of policy of The General Assembly
of the State of Delaware, as set forth in the State Employees',
Officials' and Officials' Code of Conduct, 29 Del. C. § 5802,
as part of the code of conduct for Officials and employees of the
City of Lewes. As adopted for the City of Lewes, that statement of
policy is as follows:
[Added 5-23-2022[1]]
(1)
In our democratic form of government, the conduct of Officials and
employees of the City must hold the respect and confidence of the
people. They must, therefore, avoid conduct that is in violation of
their public trust or which creates a justifiable impression among
the public that such trust is being violated.
(2)
To ensure propriety and to preserve public confidence, Officials
and employees of the City of Lewes must have the benefit of specific
standards to guide their conduct and of some disciplinary mechanisms
to guarantee uniform maintenance of those standards. Some standards
of this type are so vital to government that violation thereof should
subject the violator to criminal penalties.
(3)
In our democratic form of government, it is both necessary and desirable
that all citizens should be encouraged to assume public office and
employment, and that, therefore, the activities of Officials and employees
of the City of Lewes should not be unduly circumscribed.
[1]
Editor's Note: This ordinance also renumbered former Subsection
D as Subsection E.
E.
It
is the purpose of this chapter to establish and provide for adherence
to the high standards of ethical conduct for officials and employees
of the City of Lewes to ensure public confidence in, and to protect,
the integrity of City government. To this end, this chapter applies
to all discussions, debates, proposals, initiatives, and actions concerning
any "matter," as defined in this chapter.
As used in this chapter, the following terms shall have the
meanings indicated:
An official's or employee's parent, spouse, child (natural
or adopted), sibling, grandparent or grandchild, whether whole, half,
or step.[1]
Any person employed by and receiving compensation from the
City of Lewes on a full- or part-time basis. "Employee" does not include
an individual holding an elected or appointed position with the City
of Lewes.
An official or employee has an employment interest if he
or she, or his or her close relative, is discussing possible employment
(whether compensated or not), or a change in the terms and conditions
of employment, with a person having a matter pending before the City
of Lewes.
Any corporation, company, partnership, proprietorship, or
other organization, including nonprofits.
An official or employee possesses a financial interest if
he or she or a close relative could be financially affected, directly
or indirectly, by a matter. A financial interest does not include
an ownership interest equal to 1% or less in a public company.
Any issue, initiative, application, ordinance, or similar
item, and anything requiring an action or inaction by a City official
or employee in their official capacity, that has been suggested or
proposed, formally or informally, and has not been finally resolved,
whether executive, legislative, or adjudicatory in nature.
[Amended 5-23-2022]
A person who holds an elected or appointed position with
the City of Lewes.
Any individual or entity.
A personal or private interest in a matter is an interest
that tends to impair the impartiality of an official or employee in
the performance of his or her official duties with respect to that
matter. A personal or private interest includes, but is not limited
to, any financial or employment interest that is affected, directly
or indirectly, by a matter.
[1]
Editor's Note: The former definition of "bias," which immediately
preceded, was repealed 5-23-2022.
An official or employee of the City of Lewes shall:
A.
Pursue
the interests of the City of Lewes in official actions.
B.
Avoid
official actions or inactions that, from the perspective of a reasonable
person, do or might give the appearance of pursuit of personal or
private interests before the interests of the City of Lewes.
C.
Exercise
impartial and independent judgment based on analysis and consideration
of the record of a matter, applicable law and precedent, and the best
interests of the City of Lewes. Decisions and actions of the employees
and officials of the City should be the result of the exercise of
independent judgement concerning a matter. Reliance on race, marital
status, genetic information, color, age, religion, sex (including
pregnancy), sexual orientation, gender identity, national origin,
or any other protected classification under state or federal law,
or stereotypes based on the foregoing factors, are examples of prohibited
actions. However, advocacy for a position or initiative, policy, action,
or position reflecting the exercise of independent and impartial judgement
based on analysis and consideration of the record of a matter, applicable
law and precedent, and/or the best interests of the City of Lewes
is always appropriate.
[Amended 5-23-2022]
E.
Cooperate
fully and forthrightly with all proceedings of the Board of Ethics.
F.
No
official or employee shall use his or her position to secure special
privileges, advancement, gain, or exemptions for himself, herself,
or others whether for compensation, gratuity or without any compensation
or gratuity.
G.
No
official or employee shall solicit, demand, accept, or agree to accept
from another person anything of a value for or because of any official
action taken or to be taken or which could be taken or any legal duty,
to be performed or which could be performed by such official or employee.
H.
No
official or employee shall, beyond the scope of such public position,
disclose confidential information gained by reason of such public
position nor shall an official or employee otherwise use such information
for personal gain or benefit.
I.
No
official or employee, in the course of his or her public responsibilities,
shall use the granting of sexual favors as a condition, either explicit
or implicit, for an individual's favorable treatment by the City.
[Amended 5-23-2022]
All voting members of elected public bodies of the City shall
disclose to the City Manager, in writing, their interests in real
estate located in or contiguous to the City and in any entity doing
business in the City. Such disclosures shall be made within 20 days
following the effective date of this requirement, election, or appointment,
whichever is earlier, shall be amended within 20 days following any
change in the information disclosed, and shall be publicly available.
[Amended 5-23-2022]
An official or employee who has a personal or private interest
in or concerning a matter or is unable to exercise independent judgement
must recuse himself or herself from discussion, consideration, review,
and voting on the matter, and may do so without disclosing the nature
of the conflict or interest.
In any case where a person has a statutory responsibility with
respect to action or inaction on any matter in which he or she may
have a personal or private interest and there is no provision for
the delegation of such responsibility to another person, nor is there
any provision for the designation of another person to take action
or refrain from taking action, the person may exercise responsibility
with respect to such matter, provided that he or she promptly, after
becoming aware of such personal or private interest, files a written
statement with the City Council fully disclosing the personal or private
interest and explaining why it is not possible to delegate responsibility
for the matter to another person.
A.
The
City shall not make or enter into any contract in excess of $500 for
materials, supplies, work, or labor for the benefit and use of the
City with any official or employee of the City or with any entity
in which any official or employee has a financial interest unless
all the elected members of the City Council, other than the interested
official or employee, vote to execute such contract. Any such contract
executed without such unanimous vote and consent shall be absolutely
null and void.
B.
Any
person being awarded a contract with the City in excess of $5,000
shall execute such documents as may be required by the City and shall
represent that no person has been retained to solicit or secure the
contract with the City upon an agreement or understanding for a commission,
percentage, brokerage or contingent fee, excepting for bona fide employees,
bona fide established commercial agencies maintained by the person
representing the contracting party for the purpose of securing business.
A.
There
is hereby established a Board of Ethics for the City of Lewes consisting
of five members, residents of the City, appointed by the Mayor and
confirmed by a majority vote of all the members of the City Council.
Neither i) the Mayor, ii) any other member of the City Council, iii)
any other state or local elected official, iv) any member of the City's
Planning Commission, Board of Adjustment, Finance Committee, or Historic
Preservation Architectural Review Commission, nor v) any employee
of the City, shall be a member of the Board of Ethics.
[Amended 5-23-2022]
B.
Each
member of the Board of Ethics shall be appointed for a term of three
years; provided, however, that upon the original appointments, one
member shall be appointed for a term of one year; two members for
a term of two years; two members for a term of three years. Each member
shall be eligible for reappointment and may be removed from office
during the term thereof for neglect of duty, gross misconduct in office
or for a violation of this chapter.
C.
The
Board shall elect from among its own number a Chair and a Secretary,
each of whom shall serve for a period of one year or until their respective
successors have been duly appointed and qualified. Any vacancy among
the members of the Board shall be filled in the same manner as the
original appointment and shall be for the remainder of the unexpired
term.
D.
The
Board shall meet upon the call of its Chair or upon a written request
by a majority of the members of the Board. The Board shall adopt rules
for the conduct of its meetings and for the holding of hearings. A
majority of the Board shall constitute a quorum for the transaction
of any business; provided, however, that the affirmative vote of three
members is required for the conduct of any disciplinary hearing or
for the imposing of any sanctions.
E.
The
Chair shall preside at all meetings. The Secretary shall maintain
the books and records of the Board and shall keep and maintain a complete
set of minutes of all meetings and hearings conducted by the Board.
F.
All
complaints received by the Board concerning an alleged violation of
this chapter and all proceedings before the Board concerning such
allegations shall be confidential, and confidentiality of all such
complaints and proceedings, including the disposition thereof, shall
be maintained unless public disclosure is requested, in writing, by
the official or employee whose conduct is the subject of the complaint
or hearing or the Board determines, after a hearing, that a violation
has occurred.
G.
It
shall be the duty and responsibility of the Board of Ethics to administer
and implement the provisions of this chapter. To that extent, the
Board of Ethics may:
(1)
Recommend to the City Council from time to time such rules of conduct
for officials and employees of the City as it shall deem appropriate,
including provisions and amendments to this chapter.
(2)
Hear and investigate complaints and transmit findings to the City
Council or the City Manager.
(3)
Issue written advisory opinions upon the request of any City official
or employee concerning the applicability of this chapter to any particular
factual situation.
(4)
Refer to the City Solicitor for investigation any alleged violation
of this chapter and, after notice and hearing, recommend by resolution
such disciplinary action as it may deem appropriate to the City Council.
The Board of Ethics may also dismiss, without reference to the City
Solicitor, any complaint which the Board of Ethics determines is frivolous
or fails to state a violation.
(5)
Maintain a file of its proceedings, waiver decisions and advisory
opinions with a view toward achieving consistency of opinions and
recommendations subject to the confidentiality requirements of this
chapter.
H.
Any
person who, while a member of the Board of Ethics, becomes a candidate
for elective office shall be disqualified from sitting on any complaint
received by the Board of Ethics while such person is a candidate.
[Amended 5-23-2022]
[Amended 5-23-2022]
A.
Upon
receipt of a complaint signed under penalty of perjury by any person
("complainant") or upon its own motion, the Board of Ethics shall,
through its counsel, conduct a preliminary inquiry into any alleged
violation of this code. A complaint shall be filed either by mail
addressed to, or by hand delivery to, the Board of Ethics through
City Hall.
B.
Preliminary
inquiry. The Board of Ethics shall keep information, records, and
proceedings relating to a preliminary inquiry confidential. A preliminary
inquiry shall be limited to publicly available information and the
contents of the complaint.
(1)
The Board shall, however, have the authority to refer the matter
to law enforcement officials during a preliminary inquiry or at any
time thereafter without providing notice to the subject of the inquiry.
The Board of Ethics shall endeavor to complete its preliminary inquiry
within 60 days of its initiation.
(2)
If the Board determines after a preliminary inquiry that no reasons
exist to proceed to an investigation, the Board shall terminate the
inquiry and so notify the complainant and the person who had been
the subject of the inquiry. If the Board determines that the complaint
is frivolous, it shall so state. For purposes of this chapter, a "frivolous"
complaint is a complaint which alleges a substantially insignificant
or trivial violation of the Code of Ethics or a minor violation which
occurred as the result of inadvertence or innocent error.
C.
After
a preliminary inquiry, the Board may initiate an investigation, through
its counsel, to determine if there has been a violation of the Code
of Conduct. The Board shall keep information, records, and proceedings
relating to an investigation confidential until a final determination
is made, except as otherwise provided in this chapter.
(1)
No Board investigation may be commenced until the person who is the
subject of the investigation has been notified by the Board and provided
a general statement of the alleged violation. Service of notice is
complete upon mailing, which shall be by certified or registered mail.
(2)
If an investigation indicates that no violation has been committed,
the Board shall immediately terminate the investigation and send written
notice of such determination to the complainant and the person who
is the subject of the investigation.
(3)
After the receipt of the complaint, the preliminary inquiry and the
initiation of the investigation, the Board secretary shall promptly
contact the members of the Board as well as the complainant and the
person who is the subject of the investigation (hereinafter "respondent"),
in order to ascertain a date and time when a hearing may be convened
on such complaint. As soon as a date and time have been agreed upon
for a hearing before the Board, the Board secretary shall send written
notice of such scheduling to complainant and the respondent.
(4)
The Board secretary shall also send a copy of these rules of procedure
to the complainant and the respondent. If either the complainant or
the respondent advises the Board secretary that he or she is represented
by legal counsel or other representative, a copy of these rules of
procedure shall be provided to that attorney or representative.
(5)
Any party to a hearing before the Board of Ethics has the right to
be represented by an attorney.
(6)
The record of hearing before the Board of Ethics shall be preserved
on audio recording equipment. Any party to a hearing shall have the
right to arrange for the services of a certified court reporter to
transcribe all or any portion of the proceedings. Such court reporter
services shall be paid for by the party requesting such services or
by both parties if mutually agreed upon prior to the hearing.
(7)
Prior to the commencement of the evidentiary portion before the Board
of Ethics, any party may challenge the jurisdiction of the Board over
the matter complained of. The Board of Ethics may raise jurisdictional
questions sua sponte. The Board shall satisfy itself that it has jurisdiction
over respondent and the subject matter of the complaint before proceeding
with the remainder of the hearing.
(8)
The Board shall have the authority to dismiss any complaint which
it deems to be frivolous.
(9)
The Board shall be provided legal assistance during the course of
the hearing by the City Solicitor or designee. The Board may elect
to designate its legal counsel to serve in the capacity as law officer
during the conduct of the hearing. At any appropriate point in the
proceedings, the Board shall have the right to adjourn to an executive
session in order to seek the advice of its legal counsel.
(10)
At the outset of a hearing, a party, or his or her representative,
shall be offered the opportunity to make an opening statement summarizing
the position of that party as well as what that party believes the
evidence will show. The complainant shall make an opening statement
first, followed by that of the respondent.
(11)
The complainant shall present his or her case first. Evidence shall
be presented in the form of testimony, documents, or other demonstrative
evidence. All witnesses shall testify under oath. In order to testify
at a hearing, a witness shall be called by one of the parties or by
the Board. The Board may request a proffer from the party calling
a witness so that the Board may determine if their testimony is likely
to be repetitive or cumulative. Members of the public not called to
testify by a party or by the Board shall not be permitted to testify.
Any witness called by any party or the Board shall be subject to cross-examination
by any other party. Members of the Board may question any witness.
[Amended 5-23-2022]
(12)
The Board of Ethics shall have the power to compel the attendance
of witnesses and/or the production of documentary evidence by the
issuance of a subpoena. Such subpoenas may be issued by the Board
sua sponte. A party seeking to compel the attendance of a witness
or the production of documents shall request the issuance of an appropriate
subpoena not less than seven days prior to the date of the relevant
hearing. The application shall be granted upon a concise showing by
such person that the proposed testimony or evidence is relevant or
is reasonably calculated to lead to the discovery of relevant evidence
and is not otherwise available. The application shall be denied if
not made at a reasonable time or if the testimony or evidence would
be merely cumulative. Such subpoenas shall be issued by the Chairman
of the Board of Ethics on behalf of the Board by hand delivery or
by first-class mail, certified return receipt requested.
(13)
In any proceeding before the Board of Ethics, upon the request of
any person charged with the violation of this chapter, such person
shall be permitted to inspect, copy or photograph books, papers, documents,
photographs or other tangible evidence which may be used as evidence
against that person in a disciplinary hearing which is material to
the preparation of his defense.
(14)
In any proceeding before the Board of Ethics, if the City Solicitor
or the Board at any time receives any exculpatory information respecting
an alleged violation against any person, it shall forthwith make such
information available to such person.
(15)
In order to be admissible, all evidence shall be relevant and material
to the issues before the Board. Evidence will be excluded which is
unduly cumulative, repetitive, or scandalous.
(16)
After the evidentiary portion of the hearing has been concluded,
each party shall have an opportunity to make a closing statement to
the Board. The complainant shall give a closing first, followed by
the respondent. The complainant may then make a brief rebuttal closing.
(17)
As promptly as possible after the close of the hearing, the Board
of Ethics shall deliberate and come to a decision on the complaint.
In arriving at its decision in a particular case, a majority of the
Board shall be satisfied that the complainant has proved, by clear
and convincing evidence, that a provision of the Code of Ethics has
been violated by respondent.
[Amended 5-23-2022]
(18)
As soon after a vote as may be practicable, the Board shall issue
a written decision which sets forth its findings of fact, conclusions
of law, and decision on the complainant. Said written decision shall
be forwarded to the parties or their representatives. The written
decision on a particular complaint shall constitute the minutes of
the Board of Ethics with respect to the matter.
(19)
All decisions of the Board of Ethics shall be maintained by the Board
secretary. If the Board of Ethics has determined that a violation
of the Code of Ethics has occurred, it shall establish the penalty
of such violation, including, but not limited to:
(a)
Issue a written reprimand or censure of that person's conduct.
(b)
With respect to any municipal employee or municipal officer,
other than an elected official, remove, suspend, demote or take other
appropriate disciplinary action with respect to that person without
regard to any limits imposed by the City of Lewes Personnel Policy
but within the limits of the Constitution and other laws of this state.
The Board of Ethics, with respect to an honorary official, may recommend
that appropriate action be taken to remove the official from office.
(20)
The parties to a hearing may, with the consent of the Board of Ethics,
agree to waive or dispense with any of the aforementioned rules of
procedure. If the complainant and the respondent agree to any such
change, a request to proceed in another fashion shall be submitted
to the Board of Ethics not less than seven days prior to the date
of the relevant hearing.
(21)
Hearings conducted pursuant to this chapter shall be closed to the
public unless the respondent requests an open hearing.
(22)
A respondent, upon receipt of the decision of the Board of Ethics,
may file a petition for reconsideration before the Board of Ethics
within 10 days of the issuance of such decision. Such petition for
reconsideration shall stay action by the Mayor and City Council until
the Board of Ethics determines the status of such petition for reconsideration.
(23)
In the event that the Board of Ethics finds that any person has violated
any provision of this chapter, said person shall have a right of appeal
to the Superior Court of any such finding and of any sanctions imposed
with respect thereto by filing a notice of appeal with the Superior
Court within 30 days of the final action by the Board of Ethics in
a particular case. The appeal shall be on the record without a trial
de novo. If the court determines that the record is insufficient for
its review, it shall remand the case to the Board of Ethics for further
proceedings on the record. The Court's review, in the absence of actual
fraud, shall be limited to a determination of whether the Board of
Ethics' decision was supported by substantial evidence on the record.
The burden of proof in any such appeal shall be on the appellant,
all pursuant to 29 Del. C. § 5810A.
D.
A
member of the Board of Ethics shall not participate as a member of
the Board in any proceeding relating to his or her conduct. A member
of the Board who has been found by the Board to have violated this
chapter shall be ineligible to serve again as a member of the Board.
E.
A
member of the Board of Ethics may disqualify himself or herself from
participating in any investigation of the conduct of any person upon
submission in writing and under oath of an affidavit of disqualification
stating that he cannot render an impartial and unbiased decision in
a case in which he seeks to disqualify himself.
[Amended 5-23-2022]
A.
In addition
to any other penalty set forth herein:
(1)
Any
person who knowingly or willfully violates any provision of this chapter
shall be subject to prosecution for a violation of criminal law.
(2)
A prosecution
for a violation of this section shall be subject to the time limitations
of 11 Del. C. § 205.
(3)
The
Superior Court shall have exclusive jurisdiction over prosecution
for all criminal violations of the Code of Conduct.
(4)
The
Board of Ethics, in its determination of a violation, will explicitly
state its judgement concerning knowing or willful violation, and if
such violation has been determined, may refer the matter to the office
of the Attorney General for prosecution. Those who are not held to
have knowingly or willfully violated the Code of Conduct shall not
be subject to criminal prosecution. This determination does not limit
the imposition of other penalties as set forth in this Code of Conduct.
