Back in July, an interesting entry appeared on the agenda of a Delaware Public Integrity Commission meeting. Someone had made a complaint about a school board member voting on his brothers raise.
The complaint to be heard was titled # 19-27 "Complaint--Conflict of Interest School board member voted for his brother’s pay raise" (The revealing minutes of this meeting are posted below)
If true that is clear impropriety, and certainly the appearance of impropriety.
Sources later revealed to me that the complaint involved Indian River School Board Vice President Rodney Layfield. His brother is Bradley Layfield, the principal of Sussex Central High School in the IRSD. Sources also said the complaint my have come from a fellow school board member.
The matter was discussed at that July Public Integrity Commission meeting and the minutes reveal that the "complaint was substantiated" and a hearing would take place.
That hearing took place last week during the September meeting of the Public Integrity Commission, but the resolution of the matter remains shrouded in secrecy.
After the scheduled hearing last week, I asked Board Member Rodney Layfield a direct question via text to gain some clarity on the allegations against him.
I asked, "State Lawmaker tells me about 'complaint about Rodney w/ Public Integrity Commission' (relating to IRSD). Did Public Integrity rule on anything? What was the outcome?"
He answered, "Mr. Gaffney as much as i would like to explain how my family and i have been besmirched, I must say 'No comment and please refer to the PIO of the IRSD, David Maull.........sir' Thank You"
I asked IRSD spokesman David Maull these questions:
Q: Did elected board member Rodney Layfield recently appear before the public integrity commission after a complaint from another board member?
Q: What is the outcome of that complaint?
Here is the official response from Mr. Maull:
“There was no determination that an Indian River board member committed an ethics violation. Rather, there was a complaint resolved without an admission of responsibility and without consequence. It is alarming that someone violated the law by leaking the news of this matter to the press. Moreover, Title 29 section 5805(e) specifically prohibits any person from disclosing any information required to be maintained confidential by the Public Integrity Commission. Thus, this effort to besmirch a public official by leaking the matter to the press is illegal and not worthy of comment.”
It was interesting to me that Mr. Layfield and the School District both used the word "besmirch". I feel they must have worked together to craft such an answer. By the way, why is the School District answering for specific elected school board members anyway?
I can assure you that my sources are not bound by any confidentiality rules. I can also assure you of something called the First Amendment to the US Constitution.
Anyway, what WASN'T answered was, "HOW WAS THE COMPLAINT RESOLVED?"
Why be so secretive? HOW was this resolved? The public has a right to know.
This caller to the Dan Gaffney Show MAY have an answer when he suggests that being a State Police officer as well as a school board member MAY have something to do with it (Mr. Layfield is also Capt. Layfield with the Delaware State Police)
Here are the minutes from the July Public Integrity Commission meeting relating to "19-27" the complaint about a school board member with a few sections underlined by me:
19-27—Complaint Personal Interest
Any person may file a sworn Complaint alleging violations of Title 29, Delaware Code, ch. 58. 29 Del. C. § 5810(a). On June 11, 2019, [a person] submitted a sworn Complaint against [a board member]. PIC received the Complaint via U.S. Mail on June 24, 2019. The Complaint was not notarized in the appropriate format. 29 Del. C. § 4328(3). See Hanson v. PIC, 2012 WL 3860732 (Del. Super. Aug. 30, 2012) (aff’d PIC v. Hanson, 69 A.3d 370 (Del. 2013). However, assuming the notarization could be easily fixed and re-submitted at a later date, the Commission reviewed the Complaint to determine if the allegations were frivolous or failed to state a violation. 29 Del. C. § 5809(3); Commission Rules, p.3, III(A).
At this stage of the proceedings all facts were assumed to be true. 29 Del. C. § 5808(A)(a)(4). Allegations that were deemed to be frivolous or that failed to state a claim should be dismissed. 29 Del. C. § 5809(3). However, seeing no frivolous allegations suitable for dismissal, the Commission then examined the allegations to determine if a majority of the Commission had reasonable grounds to believe a violation may have occurred. Id. "Reasonable grounds to believe" is essentially whether there was any reasonably conceivable set of circumstances susceptible of proof of the allegation. Spence v. Funk, 396 A.2d 967 (Del. Super., 1978) (interpreting motion to dismiss under Super. Ct. Civ. Rule of Procedure 12(b)).
The Commission’s jurisdiction is limited to interpreting Title 29, Del. C., ch. 58. See, e.g., 29 Del. C. § 5808(a) and § 5809(2). It may only act if it has jurisdiction over the party charged and jurisdiction over the complaint’s substance.
A. Personal Jurisdiction
[The board member] fell within the definition of “State employee” and was subject to the State Code of Conduct. 29 Del. C. § 5804(12)(a)(3). B. Subject Matter Jurisdiction
The Commission may only address alleged violations of "this chapter"-Title 29, ch. 58. 29 Del. C. § 5810(h). The Complaint alleged that [a board member] discussed and voted on a [matter involving a family member]. In so doing, it was alleged that he/she violated the Code of Conduct’s prohibition against reviewing and disposing of matters in which the official has a personal or private interest (29 Del. C. §§ 5805(a)(1) and (2)) and creating an appearance of impropriety amongst the public. 29 Del. C. § 5806(a). Both of those allegations fell within the Commission’s jurisdiction.
In the spring of 2018, the board decided to review salaries paid to [various employees under the purview of the board]. In pursuit of that endeavor, the board formed a committee to work on the project. The committee met in executive session and discussed the project in May, June, July and August 2018. During those meetings, [board member] discussed salaries, including the proposed salary of [a family member]. In August 2018, the salary recommendations were presented to the full board and discussed at length. During a public meeting in September 2018, [a board member] voted in favor of the salary adjustments. At no time did [the board member] recuse him/herself from discussing and advocating for [the family member’s] recommended salary adjustment.
[Complainant] contacted the board President and raised concerns about whether it was appropriate for [the board member] to participate in, and vote on, the salary plan. [The board President] passed that information to the board’s legal counsel. The board’s counsel interpreted the statute as allowing [the board member] to vote on the salary plan and suggested that [Complainant] was confused about how to apply the statute. [Complainant] filed the Complaint because the board did not take any steps to correct what he/she perceived to be an ethics violation.
IV. Applicable Law A. In their official capacity, employees may not review or dispose of matters if they have a personal or private interest in a matter before them. 29 Del. C. § 5805(a)(1).
A personal or private interest in a matter is an interest which tends to impair a person’s independence of judgment in the performance of the person’s duties with respect to that matter.” 29 Del. C. § 5805(a)(1). As a matter of law, a person has a personal or private interest if any decision “with respect to the matter would result in a financial benefit or detriment to accrue to the person or a close relative to a greater extent” than others similarly situated or if “the person or a close relative has a financial interest in a private enterprise which would be affected” by a decision on the matter to a greater or lesser degree than others similarly situated. 29 Del. C. § 5805(a)(2)(a) and (b). ‘Close relative’ is defined as “a person's parents, spouse, children (natural or adopted) and siblings of the whole and half-blood.” 29 Del. C. § 5804(1).
A personal or private interest is not limited to narrow definitions such as “close relatives” and “financial interest.” 29 Del. C. § 5805(a)(2). Rather, it recognizes that a State official can have a
“personal or private interest” outside those limited parameters. It is a codification of the common law restriction on government officials. See, e.g., Commission Op. Nos. 00-04 and 00-18. When there is a personal or private interest, the official is to recuse from the outset and even neutral and unbiased statements are prohibited. Beebe Medical Center v. Certificate of Need Appeals Board, C.A. No. 94A01-004 (Del. Super. June 30, 1995), aff'd., No. 304 (Del., January 29, 1996).
Obviously, [the board member’s family member] was a ‘close relative’. As such, [the board member] should not review and dispose of matters pertaining to [the family member] while serving in his/her official capacity on the board. However, despite the law, [the board member] discussed and voted on [the family member’s] salary instead of recusing him/herself as was proper.
Officials subject to the State Code of Conduct often argue that their actions “with respect to the matter” did not result in “a financial benefit or detriment to accrue to the person or a close relative to a greater extent than others similarly situated” because their actions involved other people, in addition to their relative, and that everyone in similar classifications received the same treatment. That reasoning is flawed. The legal parameters of § 5805(a)(1) are not defined by § 5805(a)(2).
First, the Code of Conduct has a clear and specific definition section. See, 29 Del. C. § 5804. Second, within the clear text of § 5805(a)(1), the second sentence reads “a personal or private interest is one which tends to impair independence of judgment. . . . ” Thus, within that provision the law spells out what constitutes a “personal or private interest.” Third, the Delaware Supreme Court has affirmed an interpretation of § 5805(a)(1) independent of § 5805(a)(2). See, Beebe Medical Center v. Certificate of Need Appeals Board, Del. Super., C.A. No. 94A-01-004, Terry, J. (June 30, 1995), aff’d, Del. Supr., No. 304, Veasey, C. J. (January 29, 1996). Fourth, the Commission has held that § 5805(a)(1) is a codification of the common law restriction on public officials having a personal or private interest. Commission Op. Nos. 97-24; 97- 30; and 00-04. That is because conflict of interest statutes generally do not abrogate common law conflict of interest principles. 63C Am. Jur. 2d Public Officers and Employees § 253 (1997). The [relative was one of numerous employees whose salary was being reviewed by the committee. However, the relative was only one of two people [in a particular category]. The Complaint specified that the salaries of the [two people in that category] were considered separately during discussions of the salary review project. As a result, even within the broader context of salary discussions, [the family member’s] salary was discussed on a narrower scale of one out of two.
As a result of the aforementioned conduct the Commission determined it was reasonable to believe that violations of both 29 Del C. §§ 5805(a)(1) and 5805(a)(2)(a) occurred. B. Employees may not engage in conduct that may raise suspicion among the public that they are engaging in conduct contrary to the public trust. 29 Del. C. § 5806(a).
The purpose of the code is to insure that there was not only no actual violation, but also not even a “justifiable impression” of a violation. 29 Del. C. § 5802. The Commission treated that as an appearance of impropriety standard. Commission Op. No. 07-35. The test was whether a reasonable person, knowledgeable of all the relevant facts, would still believe that the official’s duties could not be performed with honesty, integrity and impartiality. In re Williams, 701 A.2d 825 (Del. 1997). Thus, in deciding the appearance of impropriety issue, the Commission looked at the totality of the circumstances. See, e.g., Commission Op. No. 97-23 and 97-42. Those circumstances were examined within the framework of the Code’s purpose which is to achieve a balance between a “justifiable impression” that the Code was being violated by an official, while not “unduly circumscribing”
their conduct so that citizens are encouraged to assume public office and employment. 29 Del. C. §§ 5802(1) and 5802(3).
The Commission considered the totality of the circumstances surrounding [the board member’s] discussion and vote on his/her [family member’s] salary and whether it was likely to create an appearance of impropriety amongst the public. First, the salary discussions were held in executive session, as is required when discussing personnel matters, but it also meant that the process was not transparent. Second, [the board member’s] input and vote on salaries [for the particular category] was focused on two people, one of whom was [a family member]. Third, it would be difficult for [the board member] to argue that requiring his/her recusal for matters pertaining to [the relative’s] employment would be ‘unduly circumscribing’ his/her conduct because it was a small part of his/her overall board duties. In mitigation, [the board member had sought advice] regarding his/her ability to vote. The Commission decided it was unlikely that the public would believe that [the board member’s] actions were directed towards the classification of the position without being influenced by [the family relationship].
V. Decision Because [Complaint’s submission] was not properly notarized, the Commission decided to rule on the Complaint before them, assuming that [Complainant] would re-submit the Complaint with the proper notarization. 29 Del. C. §§ 5809(3) and 5810(a). The Commission decided that the allegations in the Complaint were substantiated by adequate facts to support a reasonable inference of a violation and the matter would be set for a hearing after the Complaint was re-submitted.
Moved—Commissioner Manus; seconded—Commissioner Whetzel. Vote 6-0, approved.
According to the Public Integrity Commision the minutes of the September hearing on this matter will be known in mid October of 2019.