September 9, 2004

Eleven candidates for election to New Castle County Council missed the deadline for filing financial disclosure statements with the Ethics Commission. Although they all have since met the requirement, their omissions sparked a move by the commissioners to strengthen the law they are charged with enforcing. 

First priority, discussion at a commission meeting on Sept. 8 indicated, will be to provide for fines or penalties for non-compliance with provisions of the ethics code.

In a broader context, civic activist Alan Muller took advantage of the public comment portion of the meeting to chide the commission for what he said was its failure to deal appropriately with "the serious ethical challenges existing in county government at the highest level." As a result, he said, "the commission is sinking under a cloud."

Chairman Dennis Clower responded that the volunteer panel is "trying to do all we can do within the framework of the law."

Earlier in the meeting Clower appointed Stephanie McCellan to convene a committee-of-the-whole to come up with a 'package' of proposed changes in the ethics code for presentation to County Council. That grew out of discussion about a draft of a possible ordinance prepared by commission attorney Rosemary Killian which grew out of the candidates' late filing .

In response to an inquiry from Delaforum after the public session, she identified the recalcitrant candidates as: Michael Shaw and Marlene White, Seventh District; Carl Dunn, George Lossť and William Smith, Eighth District; Timothy Sheldon, Ninth District; Mark Murowany and Jea Street, 10th District; Christopher Reed, 11th District; and James Burton and Frederick Fitzgerald, 12th District.

Killian told the commission that they all responded promptly to reminder letters and the filings were completed by Aug. 17. The deadline was July 30. The fact that that also was the deadline for filing their candidacy may have resulted in the need to file a financial statement getting lost in the last-minute rush to meet the candidacy filing deadline, she said.

Reports were filed by the 26 other candidates for Council and other county offices, either before the July deadline or, in the cases of those holding office in or employed by county government, before May 1.

Whether or not it was a contributing factor in the late filings, Killian said "nobody has ever enforced" compliance with the financial disclosure deadline.

She decided to do so to the extent of asking the county Law Department whether the commission was required to not accept late filings and thereby keep the offenders off the ballot. County attorney Timothy Mullaney advised that failure to file a financial disclosure report on time "is not fatal to the candidacy" of the late filer and, if elected, he or she can be installed in office, provided a statement is filed before the time comes to take the oath of office.

Noting that "no clear penalty is currently codified for late filing," Mullaney suggested in his opinion that consideration be given to having County Council enact penalties.

Killian's draft proposed imposing a $10-a-day penalty for not meeting the deadline, but pushing the deadline back to a week after the candidacy filing deadline. A penalty is imposed as a result of a civil action while a fine is the consequence of criminal wrongdoing, she explained.

Commission member Laura Grober questioned the logic of Mullaney's apparent conclusion that a late filer can run for office and get elected so long as the filing comes before he or she actually takes office. Grober suggested that a late filer should be barred from running because the purpose of filing the financial report "is so the public gets to look at it" before deciding for whom to vote.

In response to Muller and an earlier criticism from John Flaherty and Maryann McGonegal, of Common Cause of Delaware, Clower said the commission is unable call much public attention to its activities because it is restrained by privacy laws to keep much of its basic work confidential while it is in progress.

Flaherty had asked whether the commission was investigating a report published in the News Journal in July to the effect that Sherry Freebery, the county's chief administrative officer, had not reported a $600,000 investment in a shopping center in Sussex County. Clower said the law prohibits him from saying whether or not it is investigating.

Confidentiality aids in bringing breeches in ethical conduct forward, Killian said. "Confidentiality doesn't protect the commission. ... It puts the commission in the position of not being able to defend itself."

Since the commission was reconstituted with its present members just over a year ago, it has issued and made public more orders and opinions than its predecessor commission did between the time it was established in 1990 and 2002, when its members resigned en masse during a dispute over financing, she said. That information is made public and is available on the commission's pages on the county government Web site, she added.

"I sympathize with the public if they can't see what we're doing," McCellan said.

© 2004. All rights reserved.

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