Rules adopted by the Wilmington Ethics Commission pursuant to Wilm. C. Ch.2, Div. 6, City of Wilmington Employees' and Elected and Appointed Officials' Code of Conduct ("Code of Conduct").
ARTICLE I – STRUCTURE OF COMMISSION
- Chair. The Commission shall elect from among its membership, a Chair to serve at the pleasure of the membership. The Chair shall preside at meetings of the Commission. Until a Chair is so elected, the members of the Commission shall select a Temporary Chair. The Chair shall be the spokesperson for the Commission.
- Vice-Chair. The Commission shall elect from among its membership a Vice-Chair to serve at the pleasure of the membership. The Vice-Chair shall preside at meetings of the Commission in the absence of the Chair.
- An Assistant City Solicitor, assigned to the Commission by the City Solicitor, shall attend Commission meetings and hearings, shall take, or cause to be taken, minutes of meetings and transcribe, or cause to be transcribed, testimony at hearings in the absence of a court reporter. The Assistant City Solicitor shall maintain the books, records, files, and hearings of the Commission in a defined place within the City Solicitor's Office.
- The Principal Office of the Commission shall be located in the Louis L. Redding City/County Building, Wilmington, and all complaints, responses, correspondence, and other documents relating to Commission business shall be filed at or mailed to the principal office whose address is:
Wilmington Ethics Commission
c/o City Solicitor's Office
Louis L. Redding City/County Building
800 North French Street, 9th Floor
Wilmington, Delaware 19801
ARTICLE II – ADMINISTRATIVE MATTERS
- Commission Meetings
- Place of Meetings. The Commission shall meet to conduct its business at its principal office in Wilmington, but may meet, hold hearings, and exercise its powers and duties, at any other place in the City. When necessary, and with the approval of the other Commission members present at the meeting, a member may participate in the meeting by telephone. Telephone participation is not permitted at hearings.
- Notice. The Chair, or in the Chair's absence, the Vice-Chair, shall fix the time and place for all meetings and hearings of the Commission, including any special meetings.
- Quorum. Four (4) members of the Commission shall constitute a quorum, and if a quorum is present, a vacancy on the Commission shall not impair the right of the remaining members to exercise all the powers of the Commission. Disciplinary hearings may be conducted and sanctions may be imposed only by the affirmative action of at least four (4) Commission members.
- Executive Session. Commission meetings may be held in executive session when permitted by law.
- Subcommittees. Consisting of no more than three (3) Commission members may be designated by the Chair, or the Vice-Chair in the Chair's absence, to perform non-binding general administrative matters of the Commission<
- Subpoenas. The Commission shall be authorized to issue subpoenas, which shall be on forms used by the City Solicitor pursuant to the City charter and shall bear the signature or facsimile signature of the City Solicitor, or an authorized Assistant City Solicitor, except that in any case of a Special Prosecutor, the Chair, or in the Chair's absence, the Vice-Chair shall sign subpoenas. Such forms will be available in the City Solicitor's Office.
- Examination of Commission Files/Records. Subject to the confidentiality requirements of the Code of Conduct, the files and records of the Commission may be examined in accordance with the requirements of the Delaware Freedom of Information Act, 29 Del. C. Ch. 100 and in the following manner:
- A request must be made in writing, during regular business hours, to the City Solicitor's Office on a form provided for that purpose.
- The City Solicitor's Office first shall determine whether or not the material in the requested file or record is subject to the confidentiality provisions of the Code of Conduct. If it is determined that the requested material is not subject to the confidentiality provisions of the Code of Conduct, then the City Solicitor's Office shall next determine whether the requested material is deemed public under 29 Del.C. Ch. 100. If the requested material is determined to be public, the person requesting such examination will be permitted to do so only in the City Solicitor's Office during regular business hours.
ARTICLE III – INVESTIGATIONS
Upon the sworn Complaint of any person, or on its own initiative, the Commission shall proceed in accordance with the following rules:
- Review Complaint. The Commission shall meet and review the Complaint to determine by affirmative vote of at least four (4) of its members whether the Complaint is frivolous or fails to state a violation. If the Commission so determines, the Complaint shall be dismissed. If the Commission determines that the Complaint does states a violation, then the Commission shall:
- Set the matter down for hearing; or
- Refer the matter to the City Solicitor for investigation; or
- Retain Special Counsel to investigate the matter if the Complaint is against the Mayor, or if the investigation cannot be performed by the City Solicitor's Office because due to a conflict of interest or due to prior commitments of personnel or resources.
- Referred Matters. The Commission shall refer matters for investigation to the City Solicitor or Special Counsel, in writing, setting forth the nature of the alleged violation and requesting that the matter be thoroughly investigated and concluded as promptly as practicable.
- Report of Investigation. The City Solicitor or the Special Counsel, shall report the results of such investigation to the Commission by:
- Filing a complaint with the Commission stating the nature of the violation of the Code of Conduct; or
- Filing a report with the Commission stating that there is no sufficient basis upon which to file a Complaint and the reasons for such conclusion.
- Commission Action Following Investigation. If a complaint is filed, or if the Commission, based on a preliminary inquiry, determines that there is reason to believe that a violation has occurred, the Commission will set the matter down for hearing and the Complaint shall be prosecuted by the City Solicitor or Special Counsel. If, following such investigation, no Complaint is filed, the Commission may dismiss the matter or take such other action as it deems necessary and as provided in the Code of Conduct.
ARTICLE IV – HEARINGS AND DECISIONS
If a written Complaint is filed with the Commission and the Commission determines that it should be scheduled for a hearing, the Commission shall proceed in accordance with the following rules:
- Prosecuting Attorney. The City Solicitor shall be the Prosecuting Attorney in all disciplinary proceedings before the Commission, except where Special Counsel has been retained. The investigatory and prosecutorial functions of the City Solicitor shall be performed by personnel who are not serving as legal counsel to the Commission.
- Respondent. The person charged in the Complaint with violating the Code of Conduct shall be referred to herein as Respondent. Respondent is entitled to retain legal counsel.
- Complaint. The Complaint shall be filed in the Office of the Ethics Commission and served on Respondent and shall specifically identify each section of the Code of Conduct, which Respondent is alleged to have violated, and facts upon which each alleged violation is based. A copy of these rules of the Wilmington Ethics Commission shall be attached to the Complaint and served on Respondent.
- Service. Service upon Respondent shall be made by personal service, by an individual authorized by the Commission, or by registered or certified mail sent to the last known dwelling place or work place of Respondent.
- Response to Complaint. Within fourteen (14) days after service of the Complaint on Respondent, Respondent shall file with the Office of the Ethics Commission, and serve on the Prosecutor and the Wilmington Ethics Commission, a written response to the Complaint. Service shall be by personal service or by first class, registered or certified mail.
- Scheduling Hearing. After the Response to the Complaint is filed and served, the Commission shall schedule a hearing and serve Respondent with notice of the hearing date, time, and location.
- Hearing Transcript. A transcript of the hearing shall be made and retained in the City Solicitor's Office, subject to the confidentiality requirements of the Code of Conduct and the Freedom of Information Act.
- Inspection and Copying. The Respondent shall be permitted to inspect, copy, and photograph books, papers, documents, photographs, or other tangible objects which will be used as evidence against Respondent and which are material in preparation of his or her defense.
- Exculpatory Information. If the City Solicitor or the Commission at any time receives any exculpatory information respecting an alleged violation, it shall forthwith make such information available to the Respondent.
- Subpoenas. The Respondent may apply to the Commission for the issuance of subpoenas for the appearance of witnesses and for the production of documents. The application shall be granted upon a concise showing that the proposed testimony and 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.
- Pre-Hearing Conference. At his or her discretion, the Chair, or a designee, may hold a pre-hearing conference to discuss matters deemed relevant to the fair and efficient conduct of the proceedings, including, but not limited to the following:
- the identification of witnesses and their expected testimony;
- the identification of documents and other tangible evidence and objections thereto; and
- stipulations of facts.
- Evidence. The Commission determines the admissibility of evidence offered by the parties. The Commission may exclude evidence which lacks relevance, or which is privileged or cumulative. The Commission shall not be bound by the Delaware Uniform Rules of Evidence and may adopt alternative methods of taking evidence.
- Burden of Proof. The burden of proving violations of the Code of Conduct is on the Prosecutor and such violations must be proven by a preponderance of the evidence.
- Order of Proceedings:
- The Chair or the Chair's designee shall open and preside at the hearing. All testimony of witnesses shall be under oath or affirmation. A Respondent may enter a plea to a charge at any stage of the proceedings.
- An opening statement by the Prosecutor.
- An opening statement by Respondent.
- Witnesses and other evidence by the Prosecutor.
- Witnesses and other evidence by Respondent.
- Rebuttal witnesses and other evidence by the Prosecutor, if appropriate.
- Witnesses may be cross-examined by the opposing party after each witness has testified. Commission members may also question witnesses.
- Closing argument by the Prosecutor.
- Closing argument by Respondent.
- Rebuttal closing argument by the Prosecutor, if appropriate.
- Post-Hearing Briefs and Oral Argument may be required at the discretion of the Commission.
- Sanctions. Sanctions may be imposed only by the affirmative vote of at least four (4) Commission members.
- Written Decisions. After hearing, the Commission shall render a written decision, which shall set forth: a) findings of fact, based on the evidence, b) conclusions of law as to whether Respondent violated the Code of Conduct, and c) if a violation is found, the sanctions imposed by the Commission. If appropriate, Commission members may issue dissenting opinions.
- Motion for Reconsideration. Any Motion of Reconsideration must be filed and served within ten (10) days after the date of the Commission's Decision. The motion shall briefly and succinctly state the grounds on which it is based. Grounds for reconsideration shall include errors of law, material violations of the Commission's Rules, and newly discovered evidence not reasonably available at the time of the hearing and not merely cumulative of evidence presented at the hearing. Within ten (10) days after service of the motion, the opposing party may file and serve a response. The Commission will determine, from the motion and response, whether reconsideration will be granted and, if so, what procedure will be followed.
- Confidentiality. All proceedings before the Commission, relating to an alleged violation of the Code of Conduct, shall be confidential pursuant to the requirements of Wilm. C. '2-345(h) and the Freedom of Information Act.
- Time Limitations set forth in these Rules may be extended or shortened, for good cause, at the discretion of the Commission.
- Disqualification. A member of the Commission may disqualify himself or herself from participating in any investigation or hearing upon submission of a fully executed Affidavit of Disqualification stating that he or she cannot render an impartial or unbiased decision in the case in question.
ARTICLE V – REQUESTS FOR WAIVERS AND ADVISORY OPINIONS
Wilm. C. '2-340 addresses "Prohibitions relating to conflicts of interest" and Wilm. C. '2-341 addresses the "Code of Conduct." Pursuant to Wilm. C. '2-342, the Commission may grant Waivers and issue Advisory Opinions with respect to the prohibitions of Sections 2-340 and 2-341. Requests for Waivers and Advisory Opinions are governed by the following rules:
- Written Application. The individual or City Agency seeking a Waiver or Advisory Opinion shall apply to the Commission, in writing, setting forth in detail the relevant provisions of '2-340 and/or '2-341 and the specific reasons why the application should be granted.
- Quorum – Majority Vote. A Waiver may be granted, or an Advisory Opinion issued, only by the affirmative action of the majority of the commission members where a quorum is present.
- Standards for Waiver. The Commission may grant waiver to the specific prohibitions of Sections 2-340 and or Section 2-341 if it is determined that the literal application of such prohibition in a particular case is not necessary to achieve the public purposes of the Code of Conduct or would result in undue hardship on any employee, officer, official or City agency, provided that such waiver does not conflict with the provisions of the City Charter, including but not limited to Article IX, Chapter 2. Any such waiver may be granted only by written decision of the Commission.
- Advisory Opinions. Upon written request of an individual or City agency, the Commission may issue a written advisory opinion as to the applicability of the code of conduct to any particular fact situation.
- Testimony Before Commission. Prior to reaching its Decision on the Application for Waiver or an Advisory Opinion, the Commission may request that the applicant, or others with pertinent knowledge, attend a meeting of the commission and testify. The Commission may in its discretion require that the testimony be under oath.
- Reconsideration. Any Motion for Reconsideration must be filed and served within ten (10) days after the date of the Commission's Decision and shall briefly and succinctly state the grounds on which the motion is based. Grounds for reconsideration shall include errors of law, material violations of the Commission's Rules, and newly discovered evidence not reasonably available at the time of the hearing and not merely cumulative of evidence presented at the hearing. Within ten (10) days after service of the motion, a Commission member may serve a response to each ground asserted in the motion. The Commission will determine from the motion and response whether reconsideration will be granted and, if so, what procedure will be followed.
- Reliance. Any person who acts in good faith reliance upon any Waiver Decision or Advisory Opinion of the Commission shall not be subject to discipline or other sanction under the Code of Conduct with respect to the matters covered by the Waiver Decision or Advisory Opinion, provided there was a full disclosure to the Commission of all material facts.
- Confidentiality. Any application for a Waiver or Advisory Opinion, and any proceedings or decisions with respect thereto, shall be maintained confidential by the Commission in accordance with the provisions of Chapter 2 of the City Code.
ARTICLE VI – ORDER OF BUSINESS AT MEETINGS
- The order of business at all meetings shall be as follows:
- Roll Call.
- Reading of the Minutes of the previous meeting and action thereon. The Minutes may be adopted and approved or corrected without a reading in their entirety upon a motion by the Commission. In the absence of such motion, the Minutes shall be deemed approved.
- Report of Committees.
- Unfinished Business.
- New Business.
- Miscellaneous Business.