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A Legislative Inspector General (LIG) for Delaware
The Trump administration left a legacy of the worst corruption in our nation’s history. The Committee for Responsibility and Ethics in Washington (CREW) has documented 3,700 conflicts of interest. Congress is now working to pass HR 1—For the People Act of 2021 overhauling campaign funding and ethics enforcement at the federal level.
We’ve also come to fully appreciate the importance of our state government. The institutions which govern our lives including education, healthcare, justice, environment, elections, infrastructure, etc. are primarily governed at the state and local level. During the recent assault on our democracy, state governments became a bulwark defending the rule of law.
However, our Delaware General Assembly has artfully used their lawmaking power to exempt themselves from the section of the Delaware Code known as the “State Employees’, Officers’ and Officials’ Code of Conduct” and from the oversight of the Public Integrity Commission.
In 2015 the Center for Public Integrity gave Delaware an F, ranking the First State 48th in systems to deter corruption in state government. According to Deborah Moreau, the Delaware Public Integrity Commission’s lawyer, “that leaves the Delaware General Assembly with something of an honor system when it comes to public ethics laws.”
Over past decades with virtually no limitations or oversight, some legislators have taken advantage of the “honor system”. A few legislators have used their power with self-dealing impunity to gain personal advantage. No one in our society should be above the law including the Delaware General Assembly.
As Thomas Jefferson warned, “Every government degenerates when trusted to the rulers of the people alone. The people themselves therefore are its only safe depositories.”
This is a proposal for legislative ethics reform in Delaware requiring legislation creating both a Delaware State Inspector General and a Legislative Inspector General (LIG). These new Inspector Generals would refer cases to the recently upgraded DOJ Division of Civil Rights and Public Trust for investigation and prosecution. This proposal for ethics reform also refines and clarifies the role of legislative ethics committees.
Need for a LIG for Delaware
For several years, reformers have advocated for a State Inspector General for Delaware. Given the ethical challenges Delaware faces at all levels of government, it is critical for Delaware to create a new State Inspector General’s office.
The foundation of the Inspector General concept is independence. Appendix A Presents the Inspector selection process as presented in the latest draft of the bill supported by DelCOG. The “blue-ribbon Selection Committee” consists of members from 13 non-governmental organizations. There are also six members from government including one appointed by the Governor, four from the General Assembly, and one by the Public Defender’s Office.
In contrast, all 7 members of the current Public Integrity Commission are appointed by the Governor with no input from non-governmental organizations. The Governor unilaterally appoints the watchdogs who are supposed to oversee his administration.
The current draft of the DelCOG bill calls for one State Inspector General. However, 21 of the 34 states with State Inspector Generals have multiple Inspector Generals for different functions and jurisdictions. The Inspector General concept is flexible and can be adapted to meet the needs of individual states.
Delaware has had an ineffective Public Integrity Commission (PIC) lacking both independence and resources. The proposed legislation to create a State Inspector General presents the opportunity to replace the current Public Integrity Commission with an LIG. Two states, Illinois and Ohio, currently have LIGs.
The State Inspector General would appoint and oversee the work of the LIG as part of an independent system striving for honesty in government.
Legislative Oversight is a Specialized Function
There are different categories of ethics enforcement including state agencies, local government, campaign funding and legislative oversight. These categories have unique functions.
While oversight of state agencies focuses on contracting, purchasing, and often discrimination, legislative oversight primarily involves conflicts of interest in enacting legislation. Legislators are not full time and many have jobs and businesses outside the legislature.
Only about 25% of the Delaware General Assembly are “full time legislators”. Another roughly 25% are self employed and the remaining 50% hold part-time or full-time jobs. With three quarters of our legislators earning income outside the legislature, there are situations which create conflicts of interest.
The office of the LIG would incorporate the staff and functions of the current Public Integrity Commission (PIC) which would be abolished. The two PIC staff members currently register and monitor the activities of lobbyists, and that function would continue as part of the new office.
The LIG would establish procedures for inviting and adjudicating tips and complaints regarding potential conflicts of interest. This new office would also institute whistle blower protections to protect sources of information.
Oversight Should be Proactive and Preventive
Currently lacking any meaningful oversight, conflicts of interest are reported in the media and linger for years without resolution. Sometimes legislators resign because of reported ethics violations with no formal action having been taken.
A proactive approach could avoid much of this rearview controversy about ethics violations. The ethics oversight process starts with filing financial disclosure forms. We currently lack a meaningful review for these forms which are extremely perfunctory without meaningful financial data.
The ethics reform legislation which establishes the office of the new LIG should also provide clear guidelines for more comprehensive financial disclosure forms which might include tax returns for multiple years as well as information on employment, investments and pension information for legislators and their families. Financial disclosure forms are the foundation of ethics enforcement.
Candidates filing for office should be required to provide comprehensive financial disclosure information prior to running. These forms should be reviewed on a timely basis and conflicts of interest identified prior to the legislator assuming office. Legislators with acknowledged conflicts would execute agreements with the LIG’s office specifying the circumstances under which they would recuse from voting.
LIG Would Perform Ethics Bill Reviews
Financial disclosure information would be organized into a database identifying potential conflicts for all General Assembly members. Criteria would be developed categorizing legislation for ethics reviews.
The analogy for this process would be the Comptroller General’s review of the financial impact of legislation requiring a fiscal note. The LIG would provide an “ethics note” indicating which legislators would have to recuse from voting. Legislators would be prohibited from sponsoring legislation when a conflict of interest was identified.
Like the Comptroller General’s process, these reviews would be coordinated to avoid delaying the legislative process unnecessarily. The ethics review process would be highly automated.
Not all bills would be reviewed. A substantial percentage of bills are not subject to conflicts of interest. Mirroring the fiscal note process, bills could undergo committee hearings while the ethics review is ongoing but would be required before a floor vote. This screening would not catch every conflict of interest. It would depend on the quality of the disclosure data as well as the effectiveness of the automated process. Nevertheless, this preliminary review should be able to identify many basic conflicts and dissuade legislators from sponsoring legislation when there is a conflict of interest. This upfront automated review applies oversight enforcement where the “rubber hits the road” or in this case before legislation is enacted.
DOJ Division of Civil Rights and Public Trust (DCRPT)
The Division of Civil Rights and Public Trust was created by Matt Denn in 2015. In an April 2020 press release, Attorney General Kathy Jennings issued a press release announcing that the “Civil Rights and Public Trust arm of Dept. of Justice gains new status”. Below is a quote from the press release.
“Delaware’s Division of Civil Rights and Public Trust has an upgraded place in the state’s Department of Justice. The division was elevated from office status last week when Gov. Carney signed Senate Bill 96.
State Attorney General Kathy Jennings says the change gives it independence from the rest of the DOJ in way that’s now statutorily mandated.
“The independence of their role is very important,” said Jennings. “And when I say independence of their role I mean independence from all of the other divisions of our office. They operate on their own.”
The division investigates all police involved shootings, alleged violations of public trust by public officials and alleged actions of discrimination. It also conducts investigations where the DOJ’s other responsibilities might present the appearance of a conflict of interest.
Jennings adds the Division’s workload has been heavy and getting heavier, but to date, it’s been a small entity within DOJ with limited resources.
She notes the legislation passed allows the Division of Civil Rights and Public Trust to grow, including the addition of another Deputy AG assigned to it.
She says the change also ensures the division will remain in place long-term, no matter who is Attorney General.
Jennings also announced this week she tapped Deputy Attorney General Mark Denney to lead the Division of Civil Rights and Public Trust.
Denney has been with the state Dept. of Justice since 2007 and Jennings says his experience makes him the right person to serve as director.
“We’re just incredibly lucky with his background and ability to put together very complex sensitive investigations and see them through to trial,” said Jennings. “He’s done it all there is not one area in criminal law for example that Mark hasn’t touched and has expertise in.”
This upgraded DCRPT doesn’t have the independence of an Inspector General. The Division reports to the Chief Deputy Attorney General in DOJ and DOJ’s budget is controlled by the General Assembly.
Nevertheless, the Attorney General has used her authority to strengthen this new Division within the current framework. DOJ has yet to exercise authority over an elected official, but that would clearly be within the mandate of this newly empowered Division.
DOJ has the expertise and the resources to investigate and prosecute public corruption cases. DCRPT has acted on referrals from the Public Integrity Commission and should be able to support the new Inspector Generals to improve ethics enforcement in Delaware.
Role of Legislative Ethics Committees
Delaware’s legislative ethics committees have been largely inert over past decades. The legislative librarian has no record of a Senate ethics inquiry since 1986. The House Ethics Committee took disciplinary measures against John Atkins following DUI and domestic abuse arrests in 2007.
Atkins resigned but switched has party affiliation from Republican to Democrat and was re-elected a few months after resigning. He served three more terms as a Democrat exhibiting continuing DUI/domestic abuse behavior in 2012 and 2014 which was his last year in office.
The role of legislative ethics committees would change with the appointment of a LIG. It’s challenging for legislators to police each other. Their job is to pass legislation and they need to work together.
Under the reform proposal, the process of identifying, investigating, and prosecuting cases would shift to the LIG and DCRPT. Legislative ethics committees would be informed as cases move through the process and would be consulted when sanctions are applied.
Some sanctions including forced resignation, prohibition from running again, or loss of committee assignments should be applied by the legislature with guidance from the enforcement authorities.
Ethics Reform Legislation
In addition to creating the new offices of State Inspector General and LIG, ethics reform legislation would be required to establish a detailed Standard of Conduct and guidelines for ethical behavior. Issues typically addressed in ethics legislation include:
Financial disclosure requirements and deadlines
Revolving door provisions
Separation of legislative and executive powers
Prohibited conduct and conflicts of interest
Restrictions on fund raising
Protection of whistle blowers
Open meetings guidelines
State contracts or leases
State programs and loans
Disclosure of close economic associations
Acceptance or solicitation of gifts
Restrictions on earned income and honoraria
Disclosure of Representation
Sanctions for both current and former members
Conduct of lobbyists
This position paper offers a framework for legislative ethics reform building on the proposed Inspector General bill by adding a second LIG and including reform provisions typically included in ethics legislation passed by other states.
The General Assembly should work with reform advocates and stakeholders to expand and refine the draft Inspector General bill for introduction this session.