January 26, 2005

County Council president Paul Clark, with the support of six Council members, managed to fire controversial auditor Robert Hicks -- an action which political observers have been saying was inevitable since Hicks directly challenged the former Gordon administration nine months ago.

During a special session of Council on Jan. 25, Clark referred briefly to an audit committee meeting on Jan. 20, but did not otherwise disclose a specific reason for offering a motion to end Hicks's services, effective immediately. Neither Councilwoman Karen Venezky, who seconded Clark's motion, nor any of the five other members who voted with them in its favor said anything during the stormy session.

There was no question, however, that Clark regarded a seemingly minor usurpation of his authority by Hicks in connection with the audit committee meeting as a proverbial 'last straw'. As Delaforum previously reported, Clark reacted angrily after Hicks arranged for a member of Wilmington city

government's audit staff to take minutes. Council's finance committee had previously agreed that Clark, as Council president and the person to whom Hicks reported administratively, would provide staff support for the committee.

Hicks made it clear before his ouster that he will not go quietly.

He said he had engaged Thomas Neuberger, a lawyer who specializes in discrimination cases, to represent him. In a letter to Clark and Council, Hicks requested protection under provisions of the county's 'whistleblower' law.

Robert Hicks

Accepting Clark's invitation to make a statement before the vote, Hicks referred to his firing as a payback. He said it was a "reward [for] helping to provide transparency to government."

Councilman Jea Street, the most vehement of three Council members who spoke on Hicks's behalf, said he detected overtones of racial discrimination. Both Hicks and Street are black men.

Street's main point, however, was that Clark's motives were political. "My view is that you were gunning for him from the gate," Street said. "You said, 'I'm the new president; I've got seven votes; I'm going to take him out'."

Referring to the likelihood of a lawsuit over the firing, Street said, "You're going to spend $1 million to get rid of someone because he supported your opponent." That evidently referred to Councilman Penrose Hollins who lost to Clark in the primary election for the Democratic nomination to run for council president.

At an executive committee meeting before the special session, Clark was supportive of Hollins's continuing as Council's president pro-tem; that is, the member who fills in for the president when he is absent. All 13 members supported Hollins in that regard.

County Executive Christopher Coons later told Delaforum that he was "upset" to learn about the firing. "If I were still on Council, I would have voted to keep Hicks and provide him with a clearer job description, additional staff and better direction," he said. However, he added, "I respect Council's right to make their own decisions regarding Council personnel."

Coons was largely responsible for Hicks's hiring while he was Council president and  publicly supported the auditor on several occasions.

John Wheeler, chairman of the audit committee, later told Delaforum that it is "too early to tell about his (Hicks's) performance" because the committee did not begin functioning until October, 2004. The committee completed work on a formal job description defining the auditor's responsibilities at the Jan. 20 meeting.

Regarding the firing, however, Wheeler said he "can't say I'm surprised." He said he had been notified of the special meeting and its purpose, but was unable to attend because of a prior commitment.

He did attend a Council finance committee meeting earlier in the day at which he endorsed Hicks's request for Ernst & Young, the national accounting firm which audits the county's financial reports, to perform a financial risk assessment for county government. Reversing a previous vote rejecting the proposal, the committee unanimously approved conducting the assessment. At that meeting, Wheeler also said that the audit committee "thinks the county auditor should do more auditing."

Councilman Robert Weiner at the special session said that Council's having imposed several administrative responsibilities unrelated to auditing upon Hicks and having denied him a staff was a deliberate effort to render him ineffective. "He was set up for failure," Weiner said.

Hollins criticized Clark for not disclosing reasons for Hicks's firing. Calling it "a very extreme action" which did not appear justified in light of commendations for Hicks's work from several sources, including representatives of Ernst & Young, Hollins said, "The public and Mr. Hicks should hear why."

Clark replied that the firing was "for reasons I don't think it appropriate to discuss" in a public meeting. Hicks had exercised his right under the state's Freedom of Information Act to have the special meeting open to the public instead of being held behind closed doors.

While convening the meeting, which was held after Council's regular session and an executive committee meeting, Clark cited various provisions in law which defined Hicks's status as being employed 'at will'. That is a term which implies a person can be terminated for any reason or even for no reason. The law gives Council hiring and firing authority for the auditor position.

Hollins said, however, that "fundamental fairness [dictates that] you let someone know the reason you're going to end their career."

When John Flaherty, of Common Cause of Delaware, shouted from the audience that the meeting, which had been called on short notice, was illegal and that the public had a right to know reasons, Clark ruled that he would "not take public comment on a personnel matter." He threatened to have Flaherty ejected from the chamber if he persisted.

In the statement he read to Council, Hicks said he was being 'rewarded' for:

● "Issuing an audit report that warned against using A.I.S. Risk Management Services ... as a middleman for delivering county business to the law firm of the former C.A.O.'s (chief administative officer Sherry Freebery) brother (Michael Freebery)." (A.I.S. was the firm name used by Lynn Moroz, a former county employee then working as an independent contractor.)

● "Reporting to Council that the executive branch, without Council's knowledge, had modified the county's contract with A.I.S. Risk Management Services so that the contract automatically renewed without Council approval."

(The first two items referred to Hicks's first report as the auditor which was issued in April, 2004, and touched off the controversy over his role.)

● "Reporting the previous county attorney's (Timothy Mullaney) failure to comply with New Castle County's residency law."

● "Blowing the whistle on a series of meetings that failed to comply with the Delaware Freedom of Information Act concerning $15 million of taxpayer money."

(That referred to a meeting at which Council members Venezky, William Tansey and Patty Powell and former member Robert Woods agreed to support a request from Wilmington city government for a public safety grant. The law prohibits a majority of a public body from discussing public business amng themselves. At the time of the meeting, four members were a Council majority.)

● "Speaking candidly with the public concerning audit and financial matters."

● "Performing the county auditor job professionally and correctly."

When it was called to a vote Clark's motion was voted up by himself, James Bell, Powell, Joseph Reda, Timothy Sheldon, George Smiley and Venezky. Voting against it were John Cartier, Hollins, Street, Tansey and Weiner. David Tackett responded "present" when he was called upon to vote.

2005. All rights reserved.

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