[HISTORY: Adopted by the City Council of the City of Lewes 12-14-1992. Amendments noted where applicable.]
This chapter shall be known as "The City of Lewes Code of Conduct."
This chapter shall be applicable to all elected and appointed officials and to all employees of the City of Lewes.
It is the purpose of this chapter to ensure the propriety and the preservation of public confidence in the officials and employees of the City of Lewes and to establish ethical standards for those officials and employees which will protect the integrity of the government of the City of Lewes.
For the purposes of this chapter, the following definitions shall be applicable unless the context clearly indicates to the contrary:
- The City of Lewes.
- CLOSE RELATIVE
- A person's parents, spouse, children (natural or adopted) and siblings of the whole and half blood.
- Any money, thing of value or any other economic benefit of any kind or nature whatsoever conferred on or received by any official or employee of the City in return for any service rendered or to be rendered by the official or employee or by another.
- Includes all employees of the City of Lewes.
- FINANCIAL INTEREST
- An interest in a private enterprise which a person has if:
- A. He has a legal or equitable ownership interest in the enterprise of at least 1% or more in the case of a corporation whose stock is regularly traded on an established securities market or he has a legal or equitable ownership interest in an enterprise other than that of a corporation whose stock is not regularly traded on an established securities market of at least 10%.
- B. He is an employee, officer, partner, director, manager, trustee of an enterprise and receives from that enterprise during the immediate preceding calendar year or might reasonably expect to receive from the enterprise during the current or next calendar year income in excess of $5,000 for services as a manager, employee, agent, partner, member, director or officer of such private enterprise.
- C. He is a creditor of a private enterprise in an amount equal to at least 1% of the total debt in the case of a corporation whose securities are regularly traded on an established securities market or of at least 10% of the total debt of an enterprise whose securities are not regularly traded on an established securities market.
- HONORARY OFFICIAL
- An appointed member of a board or commission of the City
of Lewes who receives or expects to receive not more than $5,000 in
compensation for such service in a calendar year, not including any
reimbursement for expenses.[Added 4-20-2009]
- Any payment, gratuity or benefit paid or to be made on behalf of any bidder, contractor, prospective contractor, subcontractor, prospective subcontractor or any person associated with any of them to any official or employee as an inducement or reward for the employment of a contract, subcontract, order or favor.
- Any application, petition, request, business dealing, contract, subcontract or any other transaction of any sort with the City of Lewes.
- Any elected or appointed official of the City of Lewes and all members of any committee or commission appointed by the Mayor of the City of Lewes or appointed by the City Council.
- OFFICIAL RESPONSIBILITY
- Any direct administrative or operating authority at any level, either exercisable alone or with others, either personally or through subordinates to approve, disapprove, recommend or otherwise direct action on behalf of the City of Lewes.
- Any individual, natural person, joint stock company, partnership, voluntary association, society, club, firm, company, corporation, business trust, organization for any other group acting as a unit, or the manager, lessee, agent, servant, partner, member, director, officer or employee of any of them.
- PERSONAL OR PRIVATE INTEREST
- An interest in a matter which intends to impair the independent judgment of an official or employee in the performance of his duties with respect to that matter.
- PRIVATE ENTERPRISE
- Any activity conducted by any person, whether conducted for
profit or not for profit and includes the ownership of real and personal
property. "Private enterprise" does not include the activities of
the state or any other political subdivision of the state or any agency,
authority or instrumentality thereof.[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II)]
The following standards of conduct shall be applicable to all officials, whether elected or appointed, and all employees of the City:
No official or employee shall participate on behalf of the City in the review or disposition of any matter pending before the City or before a committee or commission thereof in which he has a personal or private interest; provided, however, that the prohibition set forth herein shall not apply if the person who has official responsibility with respect to the matter requests any person who has a personal or private interest to respond to questions concerning any such matter.
A person has an interest which tends to impair the person's independence of judgment and the performance of the person's duties with respect to any matter when:
Any action or inaction with respect to the matter would result in a financial benefit or detriment to accrue to the person or close relative to a greater extent than such benefit or detriment would accrue to others who are members of the same class or group of persons; or
The person or a close relative has a financial interest in a private enterprise, which enterprise or interest would be affected by any action or inaction on a matter to a lesser or greater extent than like enterprises or other interests in the same enterprise.
No official or employee shall use his position to secure special privileges or exemptions for himself or others whether for compensation, gratuity or without any compensation or gratuity.
No official or employee shall solicit, demand, accept or agree to accept from another person anything of a pecuniary 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.
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.
No officer or employee, in the course of his 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.
In any case where a person has a statutory responsibility with respect to action or nonaction on any matter in which he 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 to refrain from taking action, the person may exercise responsibility with respect to such matter, provided that he 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.
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 partnership in which any official or employee is a general partner or in any corporation in which any official or employee is a director or controlling stockholder or with any firm or company in which any official or employee is pecuniarily interested 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.
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.
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 elected members of the City Council. Neither the Mayor nor any member of the City Council nor any employee of the City shall be a member of the Board of Ethics.
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.
The Board shall elect from among its own number a Chairman 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.
The Board shall meet upon the call of its Chairman 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.
The Chairman 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.
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.
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:
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.
Hear and investigate complaints and transmit findings to the City Council or the City Manager.
Issue written advisory opinions upon the request of any City official or employee concerning the applicability of this chapter to any particular factual situation.
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.
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.
Any person who, while a member of the Board of Ethics, becomes a candidate for the office of Mayor or for the office of City Councilperson shall be disqualified from sitting on any complaint received by the Board of Ethics while such person is a candidate.
Complaints. Upon 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.
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 public available information.
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.
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.
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.
No 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.
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.
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.
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.
Any party to a hearing before the Board of Ethics has the right to be represented by an attorney.
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.
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.
The Board shall have the authority to dismiss any complaint which it deems to be frivolous.
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.
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.
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. 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.
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.
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.
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.
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.
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.
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 a preponderance of the evidence, that a provision of the Code of Ethics has been violated by respondent.
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.
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:
Issue a written reprimand or censure of that person's conduct.
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.
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.
Hearings conducted pursuant to this chapter shall be closed to the public unless the respondent requests an open hearing.
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.
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.
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.
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.
In addition to any other penalty set forth herein, any person violating any of the provisions of this chapter shall be deemed guilty of a misdemeanor and, upon conviction thereof in a court of competent jurisdiction, shall be fined not less than $50 nor more than $200 or be imprisoned for a term of not more than 20 days, or both, and shall pay the costs of prosecution.