September 21, 2004

County Council's personnel committee urged County Executive Tom Gordon to fire Timothy Mullaney, the county attorney, for failure to comply with a directive to correct what apparently is violation of the law requiring certain county government employees to live in the county.

The committee agreed unanimously at a meeting on Sept. 20 to send a letter to Gordon to that effect and at least some members indicated they are considering following up with a formal resolution if Gordon does not do so. Council does not have the authority to actually do the firing. As is the case with its other standing committees, all seven Council members sit on the personnel committee.

In another matter before the meeting, the committee agreed to refer to the new audit committee a several-items complaint by Ronald Morris, the county's chief financial officer, against auditor Robert Hicks. The tone of that referral appeared supportive of Hicks after he provided explanations of each of the charges.

Hicks earlier said in an audit report that he 'discovered' that Mullaney's primary residence is in Kent County and that, contrary to the law, Mullaney did not move into New Castle after being appointed to head the Law Department. Mullaney maintained unofficially that his using his parent's house in New Castle County at various times constitutes residency.

Hicks directed Mullaney to provide, by Sept. 7, a written plan for correcting the situation. When that deadline passed without a response, Hicks referred the matter to the state attorney general's office for advice on what should be done next. The residency requirement is contained in state law, but no penalty for violating it is provided.

At the committee meeting, it was agreed that a reply from the attorney general is not likely to be forthcoming soon. But members rejected a suggestion by Councilman Robert Woods that the matter simply be allowed to rest because "the problem will resolve itself in a couple of months" when Gordon leaves office in early January and Mullaney, a political appointee, goes with him.

Council president Christopher Coons said that the issue cannot wait for that because "we've got a county attorney who is not in compliance with the law." He said there is no real question of where Mullaney's primary residence is located.

County personnel director Patricia DiIenno acknowledged that, beyond asking for place of residence on its application form, the Human Relations Department makes no effort to verify residency.

Moreover, Coons added, Mullaney's not only ignoring Hicks's directive but also his apparent refusal to explain himself "is what pushes this from nonobservance of the law to utter disregard of Council." Mullaney, who frequently attends Council committee meetings, was not at the personnel committee meeting.

Councilman Penrose Hollins, who chairs the personnel committee, said, "We should and we deserve to get replies."

Coons said he is "increasingly concerned about how many times this Council is ignored" by the Gordon administration.

Councilman Robert Weiner said that it is ironic that the administration's insistence on its chairman's meeting residency requirements previously was a contributing factor to the resignations of all members of the county Ethics Commission. At that time, "residency was of the utmost importance," he said.

Weiner also questioned whether Mullaney's being out of compliance with the law negates "his authority to act on behalf of the county."

Morris's complaints against Hicks mostly involved allegations that the auditor does not follow established county procedures. The principal items were that he does not supply complete information about telephone calls for which he seeks reimbursement, that he paid for five professional-development sessions in advance of actually signing up for them, and that he uses Council's credit card account to make purchases instead of submitting purchase orders.

Hicks said he uses his personal cellular telephone to discuss tips from employees and others that should be kept confidential and blacks out the last four digits of telephone numbers identifying the calls to preserve confidentiality. That is necessary, he said, because of a county policy of regarding telephone calls and e.mail exchanges as open to monitoring.

"I have to assume that somebody might be listening in," he said, adding that his effectiveness as an auditor depends upon complainants trusting that he will not reveal their identities. As a result of taking steps to assure that is so, the number of complaints and tips he is receiving has increased significantly in recent weeks and contributed to a backlog of prospective audits.

Hicks said that his method of documenting requests for reimbursement "was acceptable through 2003." He questioned why he "didn't have a problem getting [his] reimbursement until 2004" and suggested that may have "had to do with retribution to my issuing my audit report in April, 2004." The report was critical of the Gordon administration in several respects.

The professional-development sessions, he said, were paid for because of an offer to "get five for the price of four" with the understanding that which sessions would be attended would be determined later. He has since attended all five sessions, he said.

Coons confirmed that Hicks made the direct purchases, most if not all of which involved relatively small amounts, after conferring with him and receiving approval.

Morris told the committee that he "stands by" all of his complaints. "Everybody else who has an expense account has to go through the process. ... Mr. Hicks is not treated any differently," Morris said.

"I have no bones with Mr. Hicks. I just have some problems with what he has done," Morris added.

Some Council members were not buying that. "I don't recall anybody else being given this much scrutiny," Hollins said. Weiner said that has "has made it impossible for him to do what we hired him to do."

Coons said Hicks, who grew up in Philadelphia, has satisfied a claim, made at the time he was interviewed for the auditor position, that he is "tough enough to push back if anybody challenged him." Coons said it will now be up to the audit committee, which is composed of five outside volunteers from the auditing profession, to determine whether "rather minor judgment calls" add up to "a firing offense."

Woods took umbrage at what he described as a false message circulating on the Internet to the effect that four members of Council, presumably including himself, were dissatisfied with Hicks and were out to fire him.

Hollins ended that part of the meeting by quipping, "All the bloggers can now excuse themselves. Nobody is going to get fired."

2004. All rights reserved.

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