Every spring, Delaware lawmakers, judges and other top public officials submit financial disclosure forms to the state Public Integrity Commission, listing sources of income and business affiliations to guard against conflicts of interest.
But those forms are never independently audited or checked for accuracy.
What’s more, the forms themselves are relatively uninformative. They include few details about officials’ income levels and are not required to list gifts received by family members.
Even if problems are flagged, the ethics office has just two employees — a lawyer and an administrative assistant — who lack any meaningful resources to investigate potential ethics law violations.
Deborah Moreau, the Public Integrity Commission’s lawyer, said that leaves Delaware with something of an honor system when it comes to public ethics laws.
“We’re assuming everything in the disclosure is true unless someone brings to our attention otherwise,” Moreau said. “It would be great to have the resources.”
Delaware’s shaky financial disclosure and ethics system is one big reason why the state earned a failing grade on the State Integrity Investigation, an assessment of state government accountability and transparency by the Center for Public Integrity and Global Integrity.
Delaware received a 56, or F, ranking 48th among the states. Open government advocates weren’t shocked by Delaware’s poor showing.
“We do not deserve a passing grade,” said state Rep. John Kowalko, who has publicly advocated that lawmakers remove the exemption in Delaware’s Freedom of Information Act that shields lawmakers’ email communications from public view.
Delaware earned a C- in a similar investigation published in 2012.
The two scores are not directly comparable, however, due to changes made to improve and update the project and its methodology, such as eliminating the category for redistricting, a process that generally occurs only once every 10 years.
Delaware saw scores dip across every category graded since the 2012 study — except for lobbying.
Law helps score
The improvement in the lobbying category was spurred partly by a 2012 law that requires lobbyists to publicly disclose when they attempt to influence lawmakers on specific pieces of legislation. Those reports are now available to the general public.
Gov. Jack Markell told reporters in 2012 he hoped the change would help Delaware “earn a better grade” from the Center for Public Integrity.
When asked to comment on the findings of the 2015 integrity investigation, the governor’s office defended Delaware’s record of transparency.
“We have a never-ending responsibility to look for ways to increase government transparency and strengthen the public’s confidence in our political process,” said Jonathon Dworkin, a Markell spokesman, in an emailed statement. “While we have more work to do, government and the people involved in politics are more accountable to the public than ever before.”
Yet overall, Delaware still struggles to maintain transparency and accountability in state government.
Mixed messages on records
The state open records law, for example, is riddled with loopholes. The state judiciary is exempt from the state’s Freedom of Information Act, and in several cases, state agencies initially failed to turn over information that the attorney general later found was covered by open-government laws.
The Delaware Department of Technology and Information denied access in October 2013 to assessments paid by AT&T Inc. and Sprint Corp. to the Delaware Broadband Fund, claiming the information was exempt under Delaware’s Freedom of Information Act because the companies said the information would reveal confidential and proprietary information protected by Delaware’s open records law.
On appeal, the Office of the Attorney General found the department did not cite a proper exemption and acted in violation by withholding the information.
In October 2013, the Delaware Department of Corrections refused an Associated Press open records request seeking information on the purchase, acquisition, storage and disposition of lethal injection drugs, despite an earlier finding by the attorney general’s office that the information was public.
Lax ethics oversight
It’s Delaware’s ethics regime, however, that stands out as a black mark on the state’s scorecard, dragging down scores across judicial, executive and legislative branch categories.
Legislative efforts to direct more resources to the ethics office have failed in Delaware’s state capital over the past two years – even after a report from special prosecutor E. Norman Veasey told lawmakers that the office lacks meaningful power.
“The enforcement and investigative powers of [Public Integrity Commission] Counsel are severely hamstrung by inadequate resources,” wrote Veasey, a former Delaware Chief Justice, in a December 2013 investigative report.
Lawmakers went further this year, cutting the office’s funding by 2.6 percent in June as they sought to balance Delaware’s $3.9 billion budget.
And members of the Delaware General Assembly consistently hold themselves to a low transparency standard. While hiding their communications from public view, lawmakers also hold ethics hearings privately and sanction members outside of public view, if at all.
Likewise, judges are allowed to set their own open records rules, and dole out punishment among judicial ranks in a system that operates almost completely behind closed doors.
John Flaherty, president of the Delaware Coalition for Open Government and a leading advocate, said Delaware’s government often does not meet the minimum standards for transparency.
“Emails are definitely public business. And all courts should be open,” Flaherty said. “Open government should mean all three branches. The public has a right to know.”