DIVISION 6. - CITY EMPLOYEES' AND ELECTED AND APPOINTED OFFICIALS'CODE OF CONDUCT

The following words, terms and phrases, when used in this division, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:

City agency means any office, department, board, commission, committee, or entity of the city or of the mayor and city council of the city.

City employee means any person who receives compensation as an employee of the city or of a city agency; or who serves as an appointed member, trustee, director or the like of any city agency and who receives or reasonably expects to receive more than $5,000.00 in compensation for such service in a calendar year, not including any reimbursement for expenses. "City employee" does not include honorary city officials.

Close relative means a person's parents, spouse, children, natural or adopted, and siblings of the whole and half blood.

Commission or ethics commission means the city ethics commission established by this division.

Compensation means any money, thing of value or any other economic benefit of any kind or nature whatsoever conferred on or received by any person in return for services rendered or to be rendered by himself or another.

Financial interest in private enterprise means that a person:

(1)

Has a legal or equitable ownership interest in the enterprise of more than ten percent (one percent or more in the case of a corporation whose stock is regularly traded on an established securities market);

(2)

Is associated with the enterprise and received from the enterprise during the last calendar year or might reasonably be expected to receive from the enterprise during the current or the next calendar year income in excess of $5,000.00 for services as an employee, officer, director, trustee or independent contractor; or

(3)

Is a creditor of a private enterprise in an amount equal to ten percent or more of the debt of that enterprise (one percent or more in the case of a corporation whose securities are regularly traded on an established securities market).

Honorary city official means a person who serves only in an honorary capacity as an appointed member, trustee, director or the like of any city agency and who receives or reasonably expects to receive no compensation or not more than $5,000.00 in compensation for such service in a calendar year, not including any reimbursement for expenses.

Matter means any application, petition, request, business dealing or transaction of any sort.

Private enterprise means any activity conducted by any person, whether conducted for profit or not for profit and includes the ownership of real or personal property. Private enterprise does not include any activity of the state or of any political subdivision or of any agency, authority or instrumentality thereof, or, more specifically, of the city or of any department, agency, board, commission, authority, or instrumentality thereof.

Officer means:

(1)

The mayor;

(2)

The president and all members of city council;

(3)

The city treasurer;

(4)

All city department heads, including the city clerk, the director of public safety, the budget director, and the director of planning;

(5)

The chief judge and associate judges of the municipal court and all court commissioners; and

(6)

The appointed and ex officio members of city boards and commissions.

(Ord. No. 92-073(sub 1), § 1(20-104), 11-5-92; Ord. No. 93-097, § 1, 12-16-93)

Cross reference— Definitions and rules of construction generally, § 1-2.

State law reference— Similar provisions, 29 Del. C. § 5804.

Sec. 2-338. - Purpose.

This division shall be construed to promote high standards of ethical conduct in city government.

(Ord. No. 92-073(sub 1), § 1(20-103), 11-5-92)

State law reference— Similar provisions, 29 Del. C. § 5803.

Sec. 2-339. - Legislative findings and statement of policy.

(a)

Generally. The city council finds and declares as matters of public policy goals and objectives for all city elected and appointed officials, city employees and honorary city officials, the provisions of this section.

(b)

The public trust. In our democratic form of government, the conduct of officers and employees of the city must hold the respect and confidence of the people. They must, therefore, avoid conduct which is in violation of their public trust or which creates a justifiable impression among the public that such trust is being violated.

(c)

Standards. To ensure propriety and to preserve public confidence, officers and employees of the city must have the benefit of specific standards to guide their conduct and of some disciplinary mechanisms to guarantee uniform maintenance of those standards. Some standards of this type are so vital to government that violation thereof should subject the violator to criminal penalties.

(d)

Public service. In our democratic form of government, it is both necessary and desirable that all citizens should be encouraged to assume public office and employment, and that, therefore, the activities of officers and employees of the city should not be unduly circumscribed.

(e)

Performance of duty.

(1)

Elected and appointed city officers and city employees shall promote the delivery of the highest level of quality service to all city residents, and shall promote a professional and efficient interchange of services and information between their respective city departments.

(2)

Elected city officers are obligated to uphold the fundamental legal principles of our system of government, as set forth in the United States Constitution, the state Constitution, and the city charter, as well as all applicable provisions of federal, state and local law and court decisions. They are bound to do so, and the failure to so act shall constitute malfeasance in office.

(3)

No city employee shall be penalized, disciplined or dismissed by any other city employee or appointed or elected officer for performing his duties in accordance with the city charter, the city Code or established city policy. Any city employee who believes that he has been penalized, disciplined or dismissed as the result of the performance of his duties may seek redress through the city's personnel grievance and appeals process.

(f)

Duty to report.

(1)

Whenever any elected or appointed city officer or city employee is required in the normal course of his employment to provide information to the city council, the mayor's office, or to any city department, board or commission, such information shall be provided in a complete and accurate manner.

(2)

Any elected or appointed city officer or city employee who is aware of a material deficiency in the delivery of services to city residents or between departments, or is aware of a condition or circumstance which necessitates an appropriate response by city government shall report such matter to the appropriate city department in order that appropriate action may be taken.

(3)

Elected or appointed city officers or city employees in supervisory capacities shall encourage input from city employees regarding the operation of their respective departments. They should also recognize those city employees who contribute in significant ways to the improvement of city services or to the operational quality of their respective departments.

(g)

Abuse of office.

(1)

No elected city officer shall agree to sponsor legislation, or to influence in any manner, the formulation or passage of legislation in exchange for political contributions or promises thereof.

(2)

No elected city officer shall vote for, or promote in any manner whatsoever, legislation affecting any subject matter in which he has a substantial interest. Any such interest shall be disclosed by said elected officer prior to a vote on any such legislation, and said elected officer shall vote "present" when called upon to vote.

(3)

No elected or appointed city officer or city employee shall utilize the influence of his office or position for personal pecuniary gain, or to unduly influence the behavior of others, or to avoid the legal consequences of his personal conduct.

(h)

Fairness.

(1)

Elected and appointed city officers and city employees shall strive for the highest standard of fairness in all of their activities.

(2)

In the workplace, such city officers and employees should strive for the fair application of employment conditions and policies, and attempt to create a working environment in which all persons can achieve their full potential.

(3)

When providing city services, such city officers and employees shall strive to ensure that city services are provided equally to all members of the community. In so doing, such city officers and employees should attempt to address barriers to such services which may arise due to conditions of poverty, conditions of disability or special needs, or to the effects of past patterns of discrimination.

(4)

This standard of fairness shall also imply a commitment by elected and appointed city officers and city employees to prevent and eliminate any and all discrimination in any action by the city government itself, or by any of its departments, boards, commissions, agencies or any other authorized entities on the basis of race, creed, color, national origin, age, religion, sex, sexual orientation, marital status, economic status, or handicap or other disability.

(i)

Use of private information. In the course of their official responsibilities, elected and appointed city officers and city employees are often privy to categories of information which are of a private nature and are legally protected from public disclosure. Elected and appointed city officers and city employees shall maintain the privacy of such information, and they shall not take advantage of such information for personal gain, or the personal gain of friends or family.

(j)

Use of illegal drugs. Illegal drug use poses a threat to the individual user, to the user's co-workers, and to the general public. Elected and appointed city officers and city employees shall commit themselves to ensuring that the city's work force and work environment are drug free. All city employees, except elected officials and municipal court judges, are subject to the provisions of chapter 40 of this Code. In all cases, any conviction of the provisions of the state code, the Uniform Controlled Substances Act (16 Del. C. § 4701 et seq.), shall be deemed to be a crime of moral turpitude.

(Ord. No. 92-073(sub 1), § 1(20-102), 11-5-92; Ord. No. 00-121, § 1, 11-16-00)

State law reference— Similar provisions, 29 Del. C. § 5802.

Sec. 2-340. - Prohibitions relating to conflicts of interest and political activities.

(a)

Restrictions on exercise of official authority.

(1)

No city employee, officer or honorary city official may participate on behalf of the city in the review or disposition of any matter pending before the city in which he has a personal or private interest, provided, that upon request from any person with official responsibility with respect to the matter, any such person who has such a personal or private interest may nevertheless respond to questions concerning any such matter. A personal or private interest in a matter is an interest which tends to impair a person's independence of judgment in the performance of his duties with respect to that matter.

(2)

A person has an interest which tends to impair his independence of judgment in the performance of his duties with respect to any matter when:

Any action or inaction with respect to the matter would result in a financial benefit or detriment to accrue to the person or a close relative to a greater extent than such benefit or detriment would accrue to others who are members of the same class or group of persons; or

The person or a close relative has a financial interest in a private enterprise which enterprise or interest would be affected by any action or inaction on a matter to a lesser or greater extent than like enterprises or other interests in the same enterprise.

(3)

In any case where a person has a statutory responsibility with respect to action or nonaction on any matter where he has a personal or private interest and there is no provision for the delegation of such responsibility to another person, the person may exercise responsibility with respect to such matter, provided, that promptly after becoming aware of such conflict of interest, he files a written statement with the ethics commission fully disclosing the personal or private interest and explaining why it is not possible to delegate responsibility for the matter to another person.

(b)

Restrictions on representing another's interest before the city.

(1)

No city employee, officer or honorary city official may represent or otherwise assist any private enterprise with respect to any matter before the city agency with which the employee, officer or official is associated by employment or appointment.

(2)

No city employee, officer or honorary city official may represent or otherwise assist any private enterprise with respect to any matter before the city.

(3)

This subsection shall not preclude any city employee, city officer or honorary city official from appearing before the city or otherwise assisting any private enterprise with respect to any matter in the exercise of his official duties.

(c)

Restrictions on contracting with the city.

(1)

No city officer or employee shall benefit from or be interested in any contract with the city, nor solicit any contract and shall not enter into any contract with the city (other than an employment contract).

(2)

No private enterprise in which a city officer or city employee has a legal or equitable ownership of more than 20 percent (more than one percent in the case of a corporation whose stock is regularly traded on an established securities market) shall enter into any contract with the city, other than an employment contract.

(d)

Postemployment restrictions. No person who has served as a city employee, city officer or honorary city official shall represent or otherwise assist any private enterprise on any matter involving the city, for a period of two years after termination of his employment or elected or appointed status with the city, if he gave an opinion, conducted an investigation or otherwise was directly and materially responsible for such matter in the course of his official duties as a city employee, officer or honorary official.

(e)

Unauthorized disclosure of confidential information. No person shall disclose any information required to be maintained confidential by the commission under sections 2-341(d), 2-342(b) or 2-345 of this chapter.

(f)

Abuse of office.

(1)

No elected city officer shall agree to sponsor legislation, or to influence in any manner, the formulation or passage of legislation in exchange for political contributions or promises thereof.

(2)

(3)

(4)

Conduct of appointed city officers/city employees: Appointed city officers or city employees are prohibited under this section from engaging in certain political activities during scheduled work hours or at any other time while present at a city facility or in a city vehicle or wearing an official city uniform. The prohibited activities by appointed city officers and city employees are:

(1)

Seeking to influence the giving or withholding of a vote for, any candidates in any general, special or primary election;

(2)

Soliciting monetary or other contributions on behalf of any political party, political action committee or candidate for public office;

(3)

Using e-mail for political campaign purposes during scheduled work hours or while present in a city facility;

(4)

Using any city resources for the activities described in 1, 2, 3; or,

(5)

Directing, ordering or otherwise coercing any appointed city officer or city employee to violate this section.

Scheduled meetings of city council and its committees shall be considered the scheduled work hours for elected council members, the mayor, the city treasurer, and all other city officers and employees in attendance on city business.

Conduct of elected officials: Elected officials are prohibited under this section from engaging in certain political activities during scheduled work hours or while present in a city facility. The prohibited activities for elected officials under this section (f)(4)(b) are:

(1)

Arranging, participating or directing others to engage in the conduct of any political phone bank. A violation of this section shall occur when two or more phones are used simultaneously for political campaigning purposes by city employees or others within or outside a city facility during the scheduled work hours of the participants;

(2)

Distributing or directing city employees to distribute campaign literature during scheduled work hours or while present in a city facility;

(3)

Erecting or directing city employees to erect campaign lawn signs during scheduled work hours or while present in a city facility; or

(4)

Using e-mail for political campaign purposes during scheduled work hours or while present in a city facility; or

(5)

Ordering or otherwise coercing any appointed city officer or city employee to violate this section.

(g)

Criminal sanctions.

(1)

Any person who knowingly or wilfully violates any provision of this section shall be guilty of a misdemeanor, punishable for each such violation by imprisonment of not more than one year and by a fine not to exceed $10,000.00.

(2)

A prosecution for a violation of this section shall be subject to the time limitations of 11 Del. C. § 205

(h)

Contracts voidable by court action. In addition to any other penalty provided by law, any contract entered into by any city agency in violation of this division shall be voidable by the city agency; provided, that in determining whether any court action should be taken to void such a contract pursuant to this division, the city agency shall consider the interests of innocent third parties who may be damaged thereby. Any court action to void any transaction must be initiated within 30 days after the city agency involved has, or should have, knowledge of such violation.

(Ord. No. 92-073(sub 1), § 1(20-105), 11-5-92; Ord. No. 02-125(sub 1), § 1, 1-9-03)

State law reference— Similar provisions, 29 Del. C. § 5805.

Sec. 2-341. - Code of conduct.

(a)

Each city employee, city officer and honorary city official shall endeavor to pursue a course of conduct which will not raise any justifiable suspicion among the public that he is engaging in acts which are in violation of his public trust and which course of conduct will not reflect unfavorably upon the city and its government.

(b)

No city employee, city officer or honorary city official shall have any interest in any private enterprise nor shall he incur any obligation of any nature which is in substantial conflict with the proper performance of his duties in the public interest. No city employee, city officer or honorary city official shall accept other employment, any compensation, gift, payment of expenses or any other thing of monetary value under circumstances in which such acceptance may result in any of the following:

(1)

Impairment of independence of judgment in the exercise of official duties;

(2)

An undertaking to give preferential treatment to any person;

(3)

The making of a governmental decision outside official channels; or

(4)

Any adverse effect on the confidence of the public in the integrity of the government of the city.

(c)

No city employee, city officer, or honorary city official shall acquire a financial interest in any private enterprise which he has reason to believe may be directly involved in decisions to be made by him in an official capacity on behalf of the city.

(d)

Any city employee or city officer who has a financial interest in any private enterprise which is subject to the regulatory jurisdiction of, or does business with, any city agency, and any honorary city official who has a financial interest in any private enterprise which is subject to the regulatory jurisdiction of, or does business with, the city agency on which he serves as an appointee shall file with the ethics commission a written statement fully disclosing the same. Such disclosure shall be confidential and the ethics commission shall not release such disclosed information, except as may be necessary for the enforcement of this section. The filing of such disclosure statement shall be a condition of commencing and continuing employment or appointed status with the city.

(e)

No city employee, city officer or honorary city official shall use his public office to secure unwarranted privileges, private advancement or gain.

(f)

No city employee, city officer or honorary city official shall engage in any activity beyond the scope of his public position which might reasonably be expected to require or induce him to disclose confidential information acquired by him by reason of his public position.

(g)

No city employee, city officer or honorary city official shall, beyond the scope of his public position, disclose confidential information gained by reason of his public position nor shall he otherwise use such information for personal gain or benefit.

(h)

No city employee, city officer or honorary city official, in the course of his public responsibilities, shall use the granting of sexual favors as a condition, either explicit or implicit, for an individual's favorable treatment by that person or a city agency.

(i)

Elected city officers are obligated to uphold the fundamental legal principles of our system of government. No such officer shall knowingly fail to uphold those legal principles as set forth in the Constitution of the United States, the state Constitution and the city charter, as well as, all applicable provisions of federal, state and local law and court decisions, and any such knowing failure shall constitute malfeasance in office.

(Ord. No. 92-073(sub 1), § 1(20-106), 11-5-92)

State law reference— Similar provisions, 29 Del. C. § 5806.

Sec. 2-342. - Waivers of restrictions and advisory opinions.

(a)

Notwithstanding the provisions of sections 2-340 and 2-341 of this division, upon the written request of any city agency or of any individual who is or was a city employee, city officer or honorary city official, the ethics commission may grant a waiver to the specific prohibitions contained therein if the ethics commission determines that the literal application of such prohibition in a particular case is not necessary to achieve the public purposes of this division or would result in an 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 specifically, but not limited to, article IX, chapter 2 of the charter. Any such waiver may be granted only by written decision of the ethics commission. Any person who acts in good faith reliance upon any such waiver decision shall not be subject to discipline or other sanction hereunder with respect to the matters covered by the waiver decision provided there was a full disclosure to the ethics commission of all material facts necessary for the waiver decision.

(b)

Any application for a waiver, any proceedings and any decision with respect thereto shall be maintained confidential by the commission provided that:

(1)

Public disclosure shall be made by the commission upon the written request of the applicant;

(2)

The commission may make such public disclosure as it determines is required in connection with the prosecution of any violation of this section;

(3)

The commission shall report to appropriate federal and state authorities substantial evidence of any criminal violation which may come to its attention; and

(4)

In the event that a waiver is granted, the waiver decision and the record of all proceedings relating thereto shall be open to public inspection.

(c)

Upon the written request of any city employee, city officer, honorary city official or city agency, the commission may issue an advisory opinion as to the applicability of this division to any particular fact situation. Any person who acts in good faith reliance upon any such advisory opinion shall not be subject to discipline or other sanction hereunder with respect to the matters covered by the advisory opinion provided there was a full disclosure to the ethics commission of all material facts necessary for the advisory opinion.

(d)

Any application for an advisory opinion, any proceedings and any decision with respect thereto shall be maintained confidential by the commission provided that:

(1)

Public disclosure shall be made by the commission upon the written request of the applicant;

(2)

The commission may make such public disclosure as it determines is required in connection with the prosecution of any violation of this division; and

(3)

The commission shall report to appropriate federal, state and city authorities substantial evidence of any criminal violation which may come to its attention.

(Ord. No. 92-073(sub 1), § 1(20-107), 11-5-92)

State law reference— Similar provisions, 29 Del. C. § 5807.

Sec. 2-343. - Wilmington Ethics Commission—Establishment, membership, offices.

(a)

There is hereby established the Wilmington Ethics Commission (commission) to administer and implement this division. The commission shall consist of seven members appointed by the mayor with the concurrence by resolution of a majority of all members of council. Not more than four members shall be registered with the same political party. No member shall hold any elected or appointed office under the government of the United States or the state, county, or city, or be a candidate for any such office. No member shall hold any political party office or an office in any political campaign. Members of the commission may be removed by the mayor, with the concurrence of a majority of all members of the council, for substantial neglect of duty, gross misconduct in office or violation of this division.

(b)

Each member of the commission shall be appointed for a term of office of four years beginning on the second anniversary of mayoral term and until the member's successor has been appointed and has qualified. No member shall serve for more than two full four-year terms. When a vacancy occurs in the membership of the commission, it shall be filled by appointment for the unexpired portion of the term in the same manner as original appointments.

(c)

The commission shall elect a chairman from among its membership. Four 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 members. Otherwise, the commission may delegate authority to the chairman to act for the commission between meetings.

(d)

Each member of the commission shall receive no compensation.

(e)

The city solicitor shall provide legal counsel to the commission and shall be the legal representative of the commission in connection with its duties hereunder, on a case by case basis, or determine that outside counsel is needed and obtain such outside counsel for a particular matter.

(f)

The city solicitor shall investigate complaints referred by the commission and shall prosecute all complaints before the commission, except he shall not investigate, nor shall he prosecute, any complaint about the mayor; any and all investigations of complaints about the mayor and any prosecution thereof shall be conducted only by outside counsel selected for such purposes and approved by resolution of council with the concurrence of two-thirds of all of the members of council. The investigatory and prosecutorial functions of the city solicitor shall otherwise be performed by personnel who are not serving as legal counsel to the commission.

(g)

The principal office of the commission shall be in the city/county building, but it may meet, and exercise its power, at any other place in the city.

(Ord. No. 92-073(sub 1), § 1(20-108), 11-5-92; Ord. No. 03-061(sub 1), § 1, 4-22-03)

Cross reference— Boards, commissions and similar entities, § 2-56 et seq.

State ethics commission generally, 29 Del. C. § 5808.

Sec. 2-344. - Same—Powers and duties.

The powers and duties of the ethics commission shall be to:

(1)

Recommend to the mayor and council from time to time such rules of conduct for public employees and officials as it shall deem appropriate.

(2)

Issue written advisory opinions upon the request of any city employee, city officer, honorary city official or city agency as to the applicability of this division to any particular fact or situation.

(3)

Refer to the city solicitor to investigate any alleged violation of this division and, after notice and hearing, to recommend by resolution such disciplinary action as it may deem appropriate, to the city agency employing the city employee or city officer, the city agency with which the honorary city official is associated, the agency or official who appointed such officer or official, or other appropriate official or agency as the commission shall determine. The commission may also dismiss, without reference to the city solicitor, any complaint which the commission determines is frivolous or fails to state a violation.

(4)

Report to the appropriate federal, state or city authorities any substantial evidence of a violation of any criminal law which may come to its attention in connection with any proceeding whether advisory or disciplinary.

(5)

Maintain a file of its proceedings, waiver decisions and advisory opinions with a view toward achieving consistency of opinions and recommendations subject to the confidentiality requirements of sections 2-342(b) and 2-345(h).

(6)

Follow the procedural rules specified in section 2-345 and establish such other procedural rules as shall not be inconsistent with the rules prescribed therein.

(7)

Subpoena witnesses, compel their attendance and testimony, administer oaths and affirmations, take evidence and require by subpoena the production of books, papers, records or other evidence needed for the performance of the commission's duties or exercise of its powers.

(8)

Prescribe forms for reports, statements, notices and other documents required by law.

(9)

Prepare and publish manuals and guides explaining the duties of individuals covered by this division, and giving instructions and public information materials to facilitate compliance with, and enforcement hereof.

(10)

Provide assistance to city agencies, employees and officials in administering the provisions of this law.

(11)

Prepare reports and studies to advance the purposes of this division.

(12)

Contract for any services which cannot satisfactorily be performed by the office of the city solicitor.

(13)

Request appropriate city agencies to provide such professional assistance as it may require in the discharge of its duties.

(Ord. No. 92-073(sub 1), § 1(20-109), 11-5-92)

State law reference— Powers and duties of state ethics commission, 29 Del. C. § 5809.

Sec. 2-345. - Same—Complaints; hearings; dispositions.

(a)

Upon the sworn complaint of any person or on its own initiative, the commission may refer to the city solicitor for investigation any alleged violations of the conflict of interest provisions and of the code of conduct provisions in sections 2-340 and 2-341, respectively. Except as provided in section 2-343(f) regarding investigations of complaints about the mayor, the city solicitor shall be the prosecuting attorney in all disciplinary proceedings before the commission. In any such investigation or proceeding, a defendant shall be given an opportunity to be heard after notice, to be advised and assisted by legal counsel, to produce witnesses and offer evidence, and to cross-examine witnesses. A transcript of any such proceeding shall be made and retained, subject to the confidentiality requirements of this division. The commission shall adopt rules of procedure and guidelines deemed necessary, subject to the approval of the administrative board.

(b)

A member of the commission shall be ineligible to participate, as a member of the commission, in any commission proceeding relating to his or her conduct. A member of the commission who has been found by the commission to have violated this subsection shall be ineligible to serve again as a member of the commission.

(c)

A member of the commission may disqualify himself from participating in any investigation of the conduct of any person upon submission in writing and under oath of an affidavit of disqualification stating that he cannot render an impartial and unbiased decision in the case in which he seeks to disqualify himself.

(d)

With respect to any violation with which a person has been charged and which the commission has determined as proved, the commission may take any one or more of the following actions:

(1)

Issue a written reprimand or censure of that person's conduct.

(2)

With respect to a city employee or city officer, other than an elected official, recommend by resolution that the city agency employing the city employee or city officer, the agency or official who appointed such officer or official, or other appropriate official or agency as the commission shall determine, remove, suspend, demote or take other appropriate disciplinary action with respect to that person, without regard to any limits imposed by this division but within the limits of the Constitution and other laws of the city and state. With respect to an elected city official, not recommend that such official be removed, demoted or suspended, but that such official be fined in an amount recommended by the commission.

(3)

With respect to an honorary city official, recommend that appropriate action be taken to remove the official from office.

(e)

In any proceeding before the commission, upon the request of any person charged with a violation of this division, such person shall be permitted to inspect, copy or photograph books, papers, documents, photographs or other tangible objects which will be used as evidence against that person in a disciplinary hearing and which are material to the preparation of his defense.

(f)

In any proceeding before the commission, if the city solicitor or the commission at any time receives any exculpatory information respecting an alleged violation against any person, it shall forthwith make such information available to such person.

(g)

Any person charged with a violation of this division may apply to the commission for the issuance of subpoenas for the appearance of witnesses and for the production of documents on his behalf. The application shall be granted upon a concise showing by such person that the proposed testimony or 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.

(h)

The requirements for confidentiality or public disclosure are as provided in this subsection as follows:

(1)

All proceedings before the commission relating to a violation of this division by a city employee, including the disposition thereof, shall be maintained confidential by the commission unless public disclosure is requested in writing by the city employee.

(2)

All proceedings before the commission relating to a violation of this division by a city officer shall be maintained confidential by the commission unless public disclosure is requested in writing by the city officer or unless the commission, based on a preliminary inquiry, determines that there is reason to believe that a violation has occurred, and serves upon the alleged violator a statement of the alleged facts of such violation. After the service of such a statement on such person, all proceedings relating thereto shall be open to the public and the statement and any other paper filed thereafter respecting such violation shall be made available for public inspection at reasonable hours.

(3)

All proceedings relating to a violation of this division by an honorary city official shall be maintained confidential by the commission unless public disclosure is requested in writing by the honorary city official or unless the commission determines that a violation has occurred and so informs the official. At and after the time of so informing the official, the commission shall make the record of all proceedings relating thereto available for public inspection at reasonable hours and all subsequent proceedings relating thereto, if any, shall be open to the public.

(4)

Notwithstanding the confidentiality requirements of subsections (h)(1)—(3) of this section, the commission shall make available for public inspection the record of all proceedings relating to any decision of the commission which is appealed to superior court and the commission shall report to appropriate federal or state authorities any substantial evidence of a violation of any criminal law which comes to its attention in connection with any proceeding under this division.

(5)

The chairman of the commission shall, with the approval of the commission, establish such procedures as in the chairman's judgment may be necessary to prevent the disclosure of any record of any proceedings or other information received by the commission or its staff except as permitted by this division.

(Ord. No. 92-073(sub 1), § 1(20-110), 11-5-92)

State law reference— Similar provisions, 29 Del. C. § 5810.

Sec. 2-345.1. - Financial disclosure requirements of elected officials and certain appointed officers.

(a)

Findings. The purpose of this section is to require annual financial disclosure by elected officials and certain appointed officials of city government.

(b)

Applicability. The requirements of this section shall be applicable to "city officials" defined as all elected officials of the city government, and the officials who are in the appointed positions enumerated below, specifically:

The mayor;

The city treasurer;

The president of city council;

All members of city council; and

The officials in the following appointed positions of city government:

Administrative assistant to the mayor;

Special assistant to the mayor;

Executive assistant to the mayor;

Mayor's director of communications;

Mayor's office manager;

Secretary to the administrative assistant;

Mayor's scheduling secretary;

Mayor's office receptionist;

Director of cultural affairs;

Cultural affairs program manager;

Community affairs advisors (2);

Constituent services officer;

Director of economic development;

Director of enterprise communities;

Director of public safety;

Public safety administrative assistant;

City auditor;

Auditing administrative assistant;

City solicitor;

First assistant city solicitor;

All assistant city solicitors;

Executive legal secretary;

Director of finance and deputy director;

Chief of police and two inspectors;

Chief of fire and two deputy chiefs of fire;

Commissioner of licenses and inspections and deputy commissioner;

Director of parks and recreation;

Director of personnel and deputy director;

Director of planning;

Commissioner of public works;

Director of real estate and housing;

Director of youth and families;

Education specialist;

Marketing and special projects coordinator;

Family support partnership coordinator;

Economic development manager/Brownfields assessment coordination;

Economic development program manager;

Deputy city treasurer;

Administrative assistant to the city treasurer;

All appointed staff of city council, including the city clerk;

Executive secretary/deputy clerk; and

All executive secretaries.

(c)

Financial disclosure report; alternative of affidavit of no conflict of interest.

(1)

Reporting requirements. The financial disclosure requirements are as follows:

Every city official as defined in subsection (b), above, shall file a financial disclosure report ("financial disclosure report" or "report") disclosing financial interests, as hereinafter provided. Each report shall be on a form prescribed by the ethics commission, shall be signed by the city official, shall be notarized and shall include at least the following information:

(1)

The name and position of the city official; and

(2)

The name, instrument and nature of ownership, and any position of management held by, or constructively controlled by, the city official in any business enterprise in which legal or equitable ownership is in excess of $5,000.00 fair market value or from which income of more than $5,000.00 was derived during the preceding calendar year. Time or demand deposits in a financial institution, or any debt instrument having a fixed yield shall not be listed unless convertible to an equity instrument; and

(3)

The name, address and type of practice, without reference to the identity of any individual clients served, of any professional organization in which the city official is the sole practitioner, officer, director or partner, or serves in any advisory capacity, or which is constructively controlled by the city official, from which income of more than $5,000.00 was derived during the preceding year; provided, however, that any such organization construed as a business enterprise and reported pursuant to paragraph (2) of this subsection need not be reported under this subsection; and

(4)

The source of each of the following items received during the preceding calendar year:

(a)

Any income derived for services rendered exceeding $1,000.00 from a single source, unless such income is otherwise identified pursuant to paragraph (2) or (3) of this subsection; or

(b)

Any capital gain exceeding $1,000.00 from a single source other than from the sale of a residence occupied by the city official; or

(c)

Any reimbursement for expenditures exceeding $1,000.00 from a single source; or

(d)

Any honoraria; or

(e)

Any gift with a value in excess of $250.00 received from any person other than a gift from a close relative or family member, identifying also in each case the amount of each such gift. For purposes of compliance with this gift reporting obligation, the recipient may rely in good faith upon the representation of the source of the gift as to the gift's value; and

(5)

The name of each creditor to whom the city official was indebted for a period of 90 consecutive days or more during the preceding calendar year in an aggregate amount in excess of $1,000.00.

(6)

Disclosure of whether the city official has co-signed a loan with anyone who has done business with the city or is an employee of the city government. (Yes or No?)

The affidavit of no conflict of interest, authorized by the provisions that are set forth in section 2-345.2 of this chapter, may be filed instead of the financial disclosure report, otherwise required by this section, by any city official to whom the financial disclosure requirement as are applicable as provided in subparagraph (b) "applicability" of this section, in any instance in which the name of the specific parties would otherwise have to be disclosed under the requirements of this financial disclosure section.

(2)

Definitions. For purposes of this section the following words and phrases shall be defined as such words and phrases are defined in 29 Del. C. Ch. 58, Subch. II, the State financial disclosure law and any amendments thereto:

"Constructively controlled";

"Instrument of ownership";

"Position of management";

"Fair market value";

"Equity instrument";

"Time or demand deposits";

"Debt instrument";

"Professional organization";

"Income for services rendered";

"Capital gain";

"Reimbursement for expenditures";

"Honoraria";

"Business enterprise"; and

"Gift"

All of such words and phrases shall be read for purposes of this section in terms of their applicability to "city officials" and not to State of Delaware "public officers."

(d)

Sworn certification. Each report required by this section shall contain a sworn certification by the city official that the city official has read the report, and that to the best of the city official's knowledge and belief it is true, correct and complete, and that the city official has not and will not transfer any assets, interests or property for the purpose of concealing it from disclosure while retaining an equitable interest therein.

(e)

Time of filing. Not later than 14 days after becoming a city official, as defined in this section, the report required by this section shall be filed. Thereafter, the report shall be filed on March 1 of each year.

(f)

Place of filing. Each report required by this section shall be filed with the ethics commission.

(g)

Retention of reports.

(1)

The ethics commission shall keep the reports required by this section on file for so long as the person submitting such report is a city official of the city and for at least five years thereafter.

(2)

The reports filed pursuant to this section shall be made available at reasonable hours for public inspection and copying pursuant to Chapter 100 of Title 29 of the Delaware Code.

(i)

Violations and penalties.

(1)

No city elected official or appointee subject to the provisions of this section shall be allowed to take the oath of office or enter into or continue upon his or her duties, nor shall he or she receive any compensation from city funds, unless he or she has filed a financial disclosure report as required by this section.

(2)

Filing a false financial disclosure report shall constitute the misdemeanor of "filing a false written statement" and upon conviction thereof shall be punishable as provided in Title 11, the Delaware Criminal Code. (See 11 Del. C. § 1233). Knowingly filing a financial disclosure report that is false in any material respect shall be punishable upon conviction thereof by a fine in an amount up to $2,300.00.

(3)

Willfully failing to file a financial disclosure report shall be punishable upon conviction thereof by a fine in an amount up to $1,150.00.

(Ord. No. 98-012(sub 1), § 1, 3-5-98; Ord. No. 98-033, § 1, 4-2-98; Ord. No. 98-093(sub 1), § 1, 8-13-98; Ord. No. 99-023, § 1, 3-25-99; Ord. No. 02-023, § 1, 3-21-02)

Charter reference— Ordinance No. 98-033 became effective without the signature of the mayor, in accordance with the provisions of Section 2-202 of the City Charter.

Sec. 2-345.2. - Affidavit of absence of conflict of interest.

(a)

Affidavit requirements. All elected city officials and those city employees and appointed officials as enumerated herein, shall file an annual affidavit on March 1, regarding disclosure of any conflicts of interest regarding their duties and responsibilities as city officials, in connection with any vendors or other companies that do business with the city. For purposes of this section, the phrase "conflict(s) of interest" shall mean and be construed in accordance with the applicable provisions of the City's Code of Conduct, particularly the provisions f section 2-340 thereof. Each affidavit shall include the following:

(1)

A declaration that to the city official's knowledge, he or she is not involved in any possible conflict of interest regarding another city official, or any contractor, consultant, partnership, corporation, or any other individuals who might have an arrangement, contract, or employment with the city.

(2)

A certification that the city official does not have a loan, granted personally by or from another city official or any individual doing business with the city. The city official shall state his or her agreement to notify the city solicitor's office of any change in circumstances regarding any real or apparent conflict of interest on the part of the city official or employee.

(3)

The city official shall verify that no conflict of interest, or appearance of a conflict of interest exists which might affect his or her ability to perform his or her duties in an honest, fair and ethical manner.

(4)

If the city official believes that there is a possible conflict of interest, the official shall state the nature of such conflict of interest in detail.

(5)

All affidavits required under this section shall be filed with the city solicitor and with the Chair of the Wilmington Ethics Commission.

(6)

Any city official required to file an affidavit pursuant to this section, may at any time, request in writing an advisory opinion from the ethics commission in accordance with the provisions of section 2-342(c) of this section.

(7)

In lieu of the above affidavit requirements, the elected officials, officers and employees enumerated in this section may elect to comply with the financial disclosure requirements as set forth in Sub. 1 to Ordinance 98-012 incorporated herein by reference.

(b)

Applicability. The requirements of this section regarding filing of an affidavit shall be applicable to all elected and the appointed officials and employees as follows (as used throughout this section, "city officials"):

(1)

All city elected officials, specifically, the mayor, the city treasurer, the president and all members of the city council;

(2)

All appointed staff of the city council; and

(3)

All mayoral appointed staff members; and

(4)

All heads of city departments, deputy department heads, and heads of any divisions of departments of city government.

(5)

The first assistant city solicitor and all assistant city solicitors.

(c)

Violations and penalties. The filing of a false statement under this section, in addition to any other violations and penalties that may be provided by law, shall constitute the misdemeanor of "making a false written statement," as provided in Title 11 of the Delaware Code and be punishable upon conviction thereof, as provided therein.

(Ord. No. 98-018(sub 1), § 1, 3-5-98; Ord. No. 98-093(sub 1), § 1, 8-13-98)

DIVISION 6. - CITY EMPLOYEES' AND ELECTED AND APPOINTED OFFICIALS'CODE OF CONDUCT [42]

DIVISION 6. - CITY EMPLOYEES' AND ELECTED AND APPOINTED OFFICIALS'
CODE OF CONDUCT ^[42]