NCC Ethics Commission denies denying conflict of interest

By Angela Connolly and Frank Warnock, former Advocates for saving the Orphanage Property

At the behest of the NCC Ethics Commission, and in the spirit of cooperation, we changed our recent meme (see our previous post) of them to a generic logo, in place of their official badge/emblem. They have written several emails to us, upset that we used it with a "false statement", and claim that the meme is flat out misleading. Here are a few excerpts from our email conversation:

NCCEC: "[We] respectfully ask that you immediately remove the Ethics Commission’s emblem from your blog. That emblem was used without the permission of the Ethics Commission. Will you be able to remove it today?"

STOP: "We just spent the better half of our morning reading on "fair use" of copyrighted logos, and can't find anything conclusive on-line forbidding their use in a meme, especially if the meme is factual. If you can point us to something to the contrary, in written or established law, let us know and we will gladly replace the EC logo with the simple words "NCC Ethics Commission" or similar".

NCCEC: "Please remove the Commission’s emblem. You do not have permission to use it in your blog. Thank you"

STOP: "Fair Use Exemption -- U.S. copyright laws offer a "fair use" exemption for educational and research purposes as well as for satire. You may be able to use a slightly altered version of the logo if its purpose is clearly satirical. For example, putting an altered version of a presidential campaign logo on a T-shirt might be permissible. Educational uses include scholarly and research purposes, and the law provides no specifics on when an item may be used or how frequently. Instead, courts look to the effects and nature of the use and intent of the user. If you're selling T-shirts to make a profit, fair use for educational or research purposes won't typically apply".

"Again, we'll be happy to remove it and discontinue its publicizing if there's something in law to the contrary, or that we are unaware of".

NCCEC: "With all due respect, your blog is not an educational blog nor is it associated with an institute of education. The emblem is not a meme. Nor does your use of the emblem qualify as satire. Your use of the emblem is nothing more than an incorrect and misleading statement along with the Ethics Commission’s emblem. The emblem adds nothing to your untrue statement which surrounds it, and nothing about it is satirical. Satire ridicules fact, and you have not stated anything factual with you use of the emblem, without permission. The Commission never said what you have stated alongside of the Commission’s emblem. It is not satire; it is nothing more that a false statement which is misleading the public. As such, the fair use exemption is not available to you in this instance, and I am sure that a Delaware court would agree with me"

STOP: "We're not disagreeing with the job the EC did interpreting the code; we disagree with the outcome regardless of how it came through. No one looks at this situation and doesn't immediately call "conflict of interest!" when we show it to them. A 1st grade educated child would even point out there's a problem, or the serious potential for one. That is our point, it has nothing to do with your job or the interpretation of the code and the guidelines you must follow".

"First of all, context; we never said our meme was satirical; we simply stated that was but one use of memes. What the EC did in dismissing such a blatant conflict of interest is anything but funny. Second, our blog is indeed educational, in the sense that people learn from it, from fact based reporting, on an advocacy campaign. 3rd, as said previously, meme etiquette calls for the use of quotes to actually quote what someone, or an org, etc actually said or wrote. We did NOT quote the EC. Finally, the EC did indeed send that exact message, without actually "saying" it, because they dismissed a formal complaint regarding a conflict of interest that WAS a conflict of interest. Supposedly, the ethics code "prohibits conflicts of interest and *appearance* of impropriety in the conduct of New Castle County public officials and employees", according to its mission. By dismissing our complaint, the EC did NOT see putting the developer and the seller's land use attorney in Chair positions on the Parks Transition Team as inappropriate either way.

Conclusion
We have come to the absolute, undeniable conclusion that from Day 1, the fix was in. The evidence is overwhelming. The region's Legislators (County & State) were already in the pockets of developer interests as far back as 2011, when it was first apparent that the Sister's wanted to sell. They knew that by July 2015, when hundreds showed up at Holy Family Church in protest, it was too late for any citizen advocacy effort to stop it.

What they failed to grasp was that the community wasn't stupid, and wasn't going to roll over and just go away. Once they realized the strength of the STOP movement, and the in-depth knowledge that folks now had about their filthy land-use laundry, they moved quickly to shore up everyone and everything that could be used against them and the Chestnut Hill "Preserve". As we're seeing now, this also included the NCC Ethics Commission, members of which were appointed by Exec Meyer himself (conflict of interest #2).

We remain hopeful that none of you will be taken by the region's 3 elected Legislators and Meyer himself -- the 4 of whom caused this to happen. Each is highly skilled at defense of the indefensible, and turning an argument completely around until it implicates the innocent or what's justifiable. Nothing about throwing away the Orphanage Property -- forever -- is justified, nor is 8 years of inaction on the part of the Legislators and keeping it from the public (and then Exec Gordon for a chance to save it). The evidence is clear that these "leaders" never once had the community and their constituents in mind and at heart; It would appear that the bottom line is much more important. Hopefully, opposing candidates will run and the electorate will toss them out come November this year.

Townsend's "Ogletown Park" vs Meyer's County Efforts

The NCC Ethics Committee (NCCEC) already quashed STOP's complaint against Exec Meyer, based on subjective information and hearsay from interviews of those accused in STOP's complaint. This also included Rich Hall of Meyer's Land Use Dept for the failed traffic impact study (TIS) debacle. This is a gross injustice, because even to a layman, putting the developer and the seller's land use attorney in Chairmanship positions on any Parks Team -- the equivalent of putting foxes in charge of the hen house -- is criminal, disgusting, and inappropriate. Even if their intentions were pure, it doesn't remove the potential for bias and favoritism. The two had a vested interest in developing the Orphanage Property. That in itself is a Conflict of Interest (COI), and that the NCCEC denied this suggests collusion between them and Exec Meyer. After all, it was Meyer that appointed them, another COI!

Out of consideration, our representing attorney with the NCCEC suggested that organizations like STOP usually spend the money to execute Freedom of Information Act (FOIA) requests. By doing so, we would make every last attempt to retrieve all documents, emails, texts, etc between Exec Meyer and the Felician Sisters from the time that the supposed buyout negotiations took place. However, this can be very expensive and STOP Advocates have already spent enough of their own money on this failed campaign. Not only that, but a FOIA is not a subpoena; Meyer and his minions would have full discretion over what was divulged, much of which took place in private and likely has no documentation.

According to Executive Meyer in his "County Efforts to Preserve Felician Sisters Ogletown Property" timeline:

Over the course of negotiations, New Castle County made the property owners four written offers to acquire the land. Each offer expressed the County’s support for the owner’s desire to retain a portion of the parcel and develop 60 affordable rental apartments. To date, the four County offers stand as the only written offers to purchase and preserve this land.

Despite their rhetoric, the property owners never proposed an offer for sale they would accept.  The owners never responded to any of the offer letters with a specific counter-offer, sale conditions or a sale price they would accept to complete the sale.

Funding commitments for purchase:
County: County Executive Matt Meyer offered up to $2.5 million in New Castle County funds to acquire this land at appraised value, subject to approval by County Council and contingent on the commitment of matching funds from the State of Delaware.

STATE: In June, 2017 State Senator Bryan Townsend initially tried to secure “$2 million for the first year of a five-year, $6 million commitment,” to purchase the property according to draft bond bill language he submitted to the General Assembly.  Unfortunately, Senator Townsend’s efforts to secure that allocation were unsuccessful and the approved Fiscal Year 2018 bond bill only included a soft one-time commitment of $1.25 million in state funds.  The failure to secure adequate funds from the State complicated efforts to secure a successful purchase.

PRIVATE SOURCES: New Castle County committed to taking all possible steps to help secure funding from private, not-for-profit funding sources for the balance of the purchase price.

Meanwhile, the owners continued to advance the pending development plan through the land use process.  In July, 2017, the owner and developer sought and received final development plan approval.

In Senator Townsend's public timeline "Ogletown Park", and in person and in emails, he and Rep Osienski tell the opposite story. They describe how Exec Meyer was anything but sincere and genuine in wanting a regional park. There were not 4 buyout offers; only 2 were viable. They claim that Meyer's 2 lame attempts at a buyout agreement failed to include several key conditions that he promised the Sisters.

In July 2017, Towsend and Osienski detail the difficulties they had in encouraging Meyer to present a reasonable offer to the Sisters, and how invaluable time was squandered and deadlines expired. Additionally, on Aug 1st, 2017, they claim that Meyer refused to participate in a joint teleconference with Sen Townsend, even though that was the Sister's own request. The Sisters felt that Townsend understood their needs and had communicated them effectively. "Ogletown Park" and its timeline is a publicly released document and an official statement from Townsend/Osienski, and should have been used as admissible evidence to support STOP's complaint to the Ethics Committee, but apparently, it wasn't enough.

So, in a game of "Name that Liar", we have two attorney politicians representing the County and State, with two very conflicting stories. To make matters worse, neither will challenge each other out of Democratic party loyalty, and will jump at the chance to support each other's re-election bid!

In our next post: More on the NCC Ethics Committee, including a scanned copy of their letter dismissing the Setting/Hoffman/Parks Transition Team conflict of interest, and how useless they really are.

STOP to Delaware's Environmental Organizations: Epic Fail

By Angela Connolly and Frank Warnock,  formerly of Save The Orphanage Property (STOP)

There is plenty of blame to go around for the public loss of the 180 acre Orphanage Property, watershed, wetlands and critical habitat area in Ogletown-S. Newark. It was the last significant open space, and the last opportunity for a regional park and trail system; residents are now committed to either Pike Creek, Glasgow, or others well out of the region -- and certainly not "local" to anyone here.

It is a very sad day when an organization such as UAW's CAP Council -- a non-environmental org no doubt -- can endorse a campaign like STOP without hesitation, but DE Audubon, Sierra Club, Wildlands, etc would not. They either found it too little of a PR grab, or they just couldn't be bothered wading through their own red tape and bureaucracy to take a position one way or the other.

There has been a lot of discussion, and controversy surrounding our courting of environmental organizations for support of Save the Orphanage Property (STOP). As one of our latest Facebook posts on the topic is fast approaching 1,000 "reached", we are considering paying them a few dollars (something we only do for action alerts) down and "boosting" it further. It is a discussion we need to have, or expect little from said orgs and certainly no united front.

STOP articulated a very simple, yet concise email and sent it to dozens of organizations contained on a list used by Advocates in opposition of HB-190, a bill to gut environmental protections for DE's coastal zone. The architects of that bill were -- you guessed it -- Senator Townsend and Rep. Osienski (as though they haven't presided over enough environmental damage already). Their environmental record shows rather clearly that these two, like their NCC colleagues Executive Meyer and Councilwoman Diller, are among the most anti-environmental legislators in Dover, but that's fodder for a future article.

Moving on, these were STOP's three simple asks, contained in the email to said org's representatives, sent multiple times:

" . . . Your support of us need extend no further than a statement from you, saying that -

1. You share STOP's support of the Felician Sisters Mission to build affordable housing for the underserved in Ogletown.

2. You agree with STOP that the development, if it goes through as fully planned, will have a negative impact, both on the environment, and the existing infrastructure including roads, schools, and drainage, on Ogletown and the surrounding neighborhoods. The Wetlands area and Vernal Pools will be harmed, as well as the wildlife there.

3. You support and share STOP's desire that the land apart from that which is needed to build the affordable housing, should be used to create a Regional park instead of approximately 200 additional housing units, and that you encourage the County and the Sisters to negotiate an outcome to that end."

Is it us? A noted Advocate from Newark recently accused us of having "no idea what it takes to build a coalition". Really? We were guided and advised by Mr. Donald Sharp, who is a noted, 40+ year Advocate who was instrumental, along with Dorothy Miller and others, in saving large tracts of what is now known as the White Clay Creek State Park and Preserve. He continues in that role today, with the Coalition For Natural Stream Valleys, more recently working with Richard DuPont to save even more. We were also advised by other noted and senior Advocates, including Civic League of NCC members with abundant land use campaign experience. We carefully followed their advice. We also signed on, without hesitation, to support the opposition to HB190 - because the bill was a product of the same Legislators - Townsend and Osienski - that had 6 years (first two keeping it a secret) and multiple chances at saving the Orphanage Property. We are very proud of our efforts, although evil won in the end. In a nutshell, the support just wasn't there.

We really don't think it could have been much easier. We had no choice but to rely on people caring. They had to have a willingness to follow STOP on-line (3 venues -- two web w/ email updates, and one social media). Or in this case, for endorsements, answer a few simple questions. Were we supposed to break from what became a full time commitment (including our normal FT jobs and other advocacy pursuits and goals), stake out these orgs in person or at their functions and spoon feed it to them? No one was asking anyone to endorse "STOP" as an org; they were asked to join in opposition to the destruction of the Orphanage Property. That, in turn, would provide cover in the advent that STOP advocates engaged in questionable activities.

We want everyone to remember this come "Endangered Species Day" this weekend, when these same orgs/chapters will be out there strutting their stuff, giving handouts, appealing for memberships and contributions, etc. Remember it when you see them at events such as UD's Ag Day, Earth Day events, etc. We urge our followers to instead consider joining the Delaware Nature Society, whose actions -- such as the swift endorsement of STOP -- speak louder than words. On a more local level, the Coalition for Natural Stream Valleys also needs your help, as does the White Clay Creek Watershed folks. As said earlier, "Charity begins at home" -- think globally, ACT locally.

Ethics Commission to formally "dismiss" STOP allegations

According to the New Castle County Ethics Commission (NCCEC) via email, they carefully considered the complaints by Save the Orphanage Property (STOP) against both NCC Exec Matt Meyer and Rich Hall (Land Use), including a "comprehensive review" of related documents and information from the many individuals involved. The NCCEC voted to dismiss both as charged with respect to the NCC Ethics Code, which sadly, is their only jurisdiction. They say that the facts do not support STOP's claims that the code was violated as alleged in their formal complaint, chief among them, the conflict of interest that occurred when Meyer placed Joe Setting (Orphanage Property Developer) and Mike Hoffman (attorney from the firm representing the Orphanage Property seller) in Chairmanship positions on his Parks Transition Team. The "Team" went on to put Ogletown-S. Newark as 3rd priority for a regional park, knowing full well that, unlike #1 & #2, the Orphanage Property would be this region's last suitable open space and final hope for one.

STOP Advocates now await the NCCEC's formal response, a letter outlining their investigation and how they arrived at this conclusion. In the interim, Advocates wrote back with the following advice:

As for the conflict of interest, we hope that the letter of response clearly outlines, and provides proof of just what Mr Setting's position is. If it doesn't, that is not going to look at all good for the NCCEC or anyone else involved in NCC govt. The News Journal plainly stated that Mr Setting is indeed the developer of the Orphanage Property. We suppose it could be an error, or Setting may have relegated himself, given that now Bob Sipple is known as the developer. But until Setting's non-vested position is demonstrated with clear evidence, everyone will go on seeing this as a blatant conflict of interest no matter what NCCEC says. It is something only the NCCEC can do; as citizens, we have no way to determine his position and the composition of his two "Felician" LLCs. We hope the response addresses that, or we will continue to hold Exec Meyer/NCC accountable and fault the EC for failing to cite the obvious.

According to an email of  March 27, 2018, the NCCEC learned through a preliminary inquiry that Setting was in a position where he would profit equally regardless of who purchased the property -- Government or Private. The question STOP is asking is this; is a "preliminary inquiry" sufficient to learn all the facts in this matter, especially in consideration of the Press and the title of "Developer" given to Joe Setting? What is the role of Joe's two LLCs, and who resides on them? If the NCCEC did investigate to this level, and can prove to us that Setting was indeed NOT vested in the outcome of the Orphanage Property, we will have to accept their dismissal. Until then . . .