Proposal will require disclosure of dual public employment for leaders

Why Should Delaware Care?
The recent dual employment audit is the first complete audit ever done on the policy, which has been in place for over 30 years. The audit revealed the potential misuse of taxpayer funds by elected officials, but ew legislation could help mitigate the issues found, safeguarding the fair use of state funds. 

New state laws will be proposed requiring elected officials to disclose any second state-funded job to the Delaware Public Integrity Commission (PIC), and will also push for taxpayer-funded education institutions to comply with the dual employment law, which has been widely ignored for years.

The Dual Employment Audit Report, released by the State Auditor Lydia York last month, reviewed the financial records of elected state officials who also held second jobs at  state-funded organizations, institutions and schools — essentially investigating whether taxpayers were paying them to work two jobs at the same time.

The audit showed that some officials were being paid from multiple taxpayer-funded sources for working the same hours, which is against the dual employment policy, a law enacted for elected officials who hold second jobs at state institutions and/or other jurisdictions of government in the state. 

The findings have raised concerns about the legal and ethical consequences for those involved, prompting Rep. Kimberly Williams (D-Stanton) to look into legislation to mitigate these issues. 

House Bill 73 was originally introduced in 2017 by former Rep. Ruth Briggs King, aiming to require elected officials to disclose any dual employment status to the PIC — an appointed commission tasked with enforcing the state’s public ethics laws — but was shot down about a year later, never being called for a vote on the House floor. 

Rep. Kim Williams (D-Stanton) believes the legislature needs to give more power to the Public Integrity Commission to enforce current laws. | SPOTLIGHT DELAWARE PHOTO BY JACOB OWENS

But as a result of the latest audit, Williams has decided to reintroduce the bill, which she previously co-sponsored, in addition to another piece of legislation that will hold institutions of higher education accountable for providing the necessary documents to PIC, ensuring compliance with the dual employment policy. 

Williams said the first bill is currently being reviewed by an attorney, while the second one is still in the process of being drafted. She hopes to have both pieces of legislation ready to present in the House this January.

“I believe that we just need some clarifying language in our code to make sure that the auditor has the necessary tools to be able to do her job,” she told Spotlight Delaware.

A rare Dual Employment Audit

The dual employment audit was done in collaboration with the PIC, which is in charge of administering the dual employment policy. 

The policy obligates state institutions to keep proper time records and enforce proper pay reduction for dual employees when officials must tend to their elected positions during work hours. 

The PIC collects financial disclosures from executive branch employees, judges and General Assembly members to identify those with dual government employment.

The audit examined financial disclosures for state employees who were dually employed between Fiscal Years 2020 and 2022. 

This report is the first comprehensive audit ever completed on the dual employment policy.

These audits were supposed to be done annually since 2011, but each attempt was met with different constraints, including a lack of proper policy, procedure and recordkeeping from the state. 

This report, which was initiated in 2022, was also met with significant resistance from the University of Delaware, which initially declined to provide the requested information, and didn’t do so until early this year.

UD argued that because it exists as a corporation and not as a state agency, per its charter, it is separate from the state and therefore not covered by the policy. However, according to Attorney General Kathy Jennings, the university is a state-assisted institution which must legally adhere to the audit’s requirements.

In addition, the legal troubles of former Auditor Kathleen McGuiness, who was indicted on multiple corruption charges for improper office spending and abusing of her position, caused a halt in the audit. And the report wasn’t picked up by her successor, York, until April 2023. 

The PIC was able to identify 22 elected officials that were dually employed during the audit’s scope. 

Out of those 22 officials, six were found to have been overpaid or “potentially” overpaid for their work hours from five different state agencies and institutions. 

Audit finds wide-ranging issues

The audit noted that UD lacked policies requiring employees to notify their supervisor of when they missed work for their appointed position as well as a system to verify time records in accordance with the law.  

This is the first time UD has ever submitted information for the audit, but they still refused to submit the requested documents, offering only summaries of what was asked for.

UD employed 15 of the 22 audited employees, but only two — former State Sen. Ernie Lopez (R-Lewes) and Lt. Gov. Bethany Hall-Long — were found to have “potentially” been paid for overlapping work hours. 

UD said that Lopez’s compensation was appropriately reduced and Hall-Long’s responsibilities were adjusted throughout the year to accommodate her elected position, but due to the lack of documentation received by the auditors, they were not able to verify those claims. 

Despite the audit’s findings, UD upholds its stance on being independent from the state and said its institution does in fact comply with the applicable policies and legal requirements as it relates to employee compensation and practices. 

A recent report from the Delaware auditor has rekindled a longstanding question of whether the state’s flagship university is a quasi-private entity, or a government agency subject to transparency laws. I SPOTLIGHT DELAWARE PHOTO BY JACOB OWENS

“The University’s structure ensures that it can attract diverse sources of funding and maintain academic freedom, while still meeting its obligations under state law for state appropriations,” UD officials said. 

According to UD’s financial overview, the school has spent almost $90 million in state funds for salaries and wages in Fiscal Year 2023. 

Delaware State University was also found to be non-compliant, following the audits review of documentation pertaining to their employee, Rep. Nnamdi O. Chukwuocha (D-Wilmington).  

Carlos Holmes, director of news services at DSU, told Spotlight Delaware that they have since created a policy that informs employees of their responsibilities in such cases. 

Similarly, Eastside Charter School failed to properly document, verify, and reduce payroll for Rep. Sherae’a Moore (D-Middletown), although the school had reduced Moore’s pay for some hours during the period. 

Delaware Technical Community College was the only flagged institution with proper policy in place. However the college still overpaid two of its three former employees, former Rep. Larry Mitchell Jr. and Kent County Superior Court Judge Reneta L. Green-Streett, lacking proper supervision over submitted timecards and pay reduction. 

DTCC operates four different campuses, each with its own HR department and the oversight occurred specifically at their Wilmington campus, according to Mike Jackson, vice president of finance at DTCC. 

The last state-occupied agency to show non-compliance was the city of Dover. 

Although the administration has a policy on outside employment, the audit found issues with timekeeping records, which led to the discovery of 33 instances in which Rep.

Andria Bennett (D-Dover) was present for roll call at the General Assembly while on the clock for her position as the Dover city clerk, resulting in possible overpayment. 

Mayor Robin Christiansen said creating a policy has been in discussion since Bennett came on board and is currently in the process of being implemented. 

Financial disclosures from officials who were employed by the Brandywine School District, Kent County, and the Delaware State fire school were also examined, but the audit saw no findings. 

Each entity, aside from UD, that was found at fault submitted a management action plan to the Auditor’s office, stating how they would improve their policy.  

Despite the conclusions, the auditor’s office has not been in contact with the attorney general’s office and the PIC is unsure whether any action will be taken to recover any overpayments.

The attorney general’s office and the state Office of Management and Budget have not responded to questions over whether such restitution may be pursued. 

York said her office will follow up with all of the entities that were audited during the new calendar year to assess whether they have put the proper policies in place.

She believes that the completion of the audit will bring more awareness to the policy for some who were unaware of it in the first place.  

“After starting with us actually doing what we’re supposed to do, I anticipate that the other contemplated entities will do what they’re supposed to do,” she said.

Policy enforcer lacks tools

Although this was the first comprehensive report, the auditor’s office and PIC were not able to obtain all the information needed to produce a complete list of dually employed officials. 

It is the duty of the PIC to manage the financial disclosures of elected officials and provide guidance and recommendations based on the dual employment policy, however, there is a gap in what the commission’s responsibilities are and what it actually has authority over, said Deborah Moreau, commission council for PIC.

Moreau explained the PIC does not have a proper database in place to identify all dually employed officials, which is an initiative they hope to put in place with the help of legislation to back it.

The commission also does not have the authority to force employees to keep separate time records at their job, which is a duty of a dually employed official.

In addition, the PIC does not have the authority to obtain information from any county, city or municipal jurisdictions. So, if an elected official was employed by the state and a county, the commission can only retrieve information from the state institution but not another jurisdiction.

“There’s a little bit more work to do in terms of identifying people who have two jobs, and also in collecting information from them,” Moreau said.

She attributes the failure to produce a full list of dually employed officials to this lack of authority, noting that the City of Dover’s information came from the auditor’s office, not the commission.

Training will be expanded

The Division of Research for the General Assembly briefs new legislators on their ethical and compliance obligations during their new legislator orientation program, although that program is not mandatory. 

Following the auditor’s report, this year’s program will be expanded to include more information pertaining to the dual employment policy, said Mark Cutrona, director of the division.

Although York believes the burden is on the institutions to keep proper records, Moreau feels that the individuals should also be held responsible for keeping time records to provide to the auditor’s office when needed. 

Moreau believes that training on the policy should be incorporated into the code of conduct training that officials already receive. 

“It’s not part of the code of conduct, but it puts people in a situation where they would want to know if they have additional responsibilities,” she said.

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