'Removal of Appointees' Ordinance Introduced at Council on 3/7/2023

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Ordinance Draft as Introduced on 3/7/2023

AN ORDIANACE TO ADD A NEW CHAPTER (CHAPTER 30) TO THE COUNTY CODE TITLED “REMOVAL PROCEDURES FOR MEMBERS OF APPOINTED BOARDS, COMMISSIONS, AND ADVISORY COMMITTEES”.

§ 30-1. Statutory Authority.

This ordinance is adopted pursuant to the State’s general grant of power to Sussex County under 9 Del. C. § 7001 and the vesting of that power in Sussex County’s County Council under 9 Del. C. §§ 7002 The title of this chapter will be “Removal Procedures for Members of Appointed Boards, Commissions, Advisory Committees.”

§ 30-2. Purpose.

This ordinance is adopted for the purposes for establishing removal procedures for members of appointed boards, commissions and advisory committees as those individuals are presently exempted from the County’s personnel rules under Sussex County Code § 29-3(A)(1)(b).

§ 30-3. Service at the Pleasure of Council.

A. Notwithstanding any other provision of this Code, all members of appointed boards, commissions and advisory committees serve at the pleasure of County Council and may be removed prior to the expiration of their terms upon a hearing and an affirmative majority vote by County Council. The hearing may be private or, at the member’s request, open to the public.

B. If a board, commission, or advisory-committee member is removed pursuant to § 30-3(A), they will be ineligible for renomination to the same board, commission, or advisory committee for the duration of the then-existing term.

C. If a board, commission, or advisory-committee member is removed pursuant to § 30-3(A), a successor will be chosen to serve the remainder of the removed member’s term. The successor will be chosen according to the existing selection procedures for the relevant board, commission, or advisory committee. 

Public Comments Prepared

Subj: Ordinance to add a new chapter (Chapter 30) to the county code titled “Removal Procedures for Members of Appointed Boards, Commissions, and Advisory Committees

Dear Sussex Council:

We write in support of the subject proposed Ordinance introduced during a meeting of the County Council on March 7, 2023.

We are in complete agreement with the Council attorney’s statement introducing the Ordinance insomuch as the proposed Ordinance is intended to clarify the Council’s authority to remove appointed officials prior to the expiration of their term, if any, and provides the procedure therefor. Moreover, the proposed Ordinance is consistent with the general rule that the power to appoint officials of a municipal corporation carries with it the power of removal of such officials at the municipality’s pleasure unless the power of removal is restricted by statutory law (durante bene placito).

Government accountability is about maintaining trust between the government and its citizens and is one of the hallmarks of good government. This proposed Ordinance will assist the Council to fulfill its obligations to properly oversee the performance of the officials it appoints, ensure good customer service and act appropriately to remove an appointed official when the official acts unethically, breaches their fiduciary duty or otherwise fails to meet minimal performance or professional standards.

Other Related Matters

Public Participation in Recommending and Evaluating Candidates to Consider for Appointment to Boards, Commissions and Advisory Committees

Recruiting and selecting candidates for appointment to the County’s appointed boards, commissions, and advisory boards is probably one of the most important responsibilities of the County Council. Politics and the political party of the candidate, unless required to balance the body’s composition, should not be dispositive or even among the top criteria for an appointment. The public’s participation in an appropriate way (e.g., ad hoc committee) in this process can help ensure that the County Council will receive critical and candid information about a candidate’s qualifications, background,

education, and the presence of any conflicts of interest that it might not otherwise receive as part of its current and more insulated process. Ultimately, we hope you will agree that who the Council decides to appoint to these boards, commissions, and advisory boards is a matter of great public interest, and their selection would benefit from the public’s involvement.

Council Should Consider Developing and Introducing a “Resign to Run” Ordinance for Those Appointed or Elected Officials Running for Another Elected Office

The Resign to Run laws require an appointed or elected official to first resign from their current position before running for elected or another elected office. Such an Ordinance would help candidates for elective office better focus on the campaign issues presented without the distraction and the public perception of how their current elected or appointed position would impact or be impacted by the election. Moreover, those holding elected or appointed office should not be able to leverage their current position against other candidates while retaining their current position as a fallback in the event they lost the election.

Council Should Consider Developing and Introducing an Ordinance Setting Forth a Procedure for Removing an Elected Official from Office

When an elected official has been sworn into office, and subsequently becomes unfit to hold office or engages in misconduct that could rise to the level of “just cause” for removal from his or her elected position, there is currently no procedure in place (such as the subject Ordinance designed to address removal for appointed officials) by which the Council may seek removal of the elected official for misconduct or lack of fitness to hold office subsequent to the election.

Sussex County Code of Conduct

https://sussexcountyde.gov/code-conduct

DE's Failed Attempt to Enact Laws to Require Resignation of Elected Officers Seeking another Office

https://legis.delaware.gov/json/BillDetail/GenerateHtmlDocument?legislationId=47199&legislationTypeId=1&docTypeId=2&legislationName=HB85

Legislation Document

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE (Two-thirds of all members elected to each house thereof concurring therein):

Section 1. Amend Article XV of the Delaware Constitution by making deletions as shown by strike through and insertions as shown by underline as follows:

§ 5A. Resignation of elected officers seeking another office required.

Section 5A. (a) As used in this section:

(1) “Becoming a candidate” means either that an individual or the individual’s political party has taken an action necessary to qualify the individual for nomination or election under the laws of this State.

(2) “Elected officer” means an individual elected to an office of this State, or one of its political subdivisions, to exercise the sovereign power of this State, or one of its political subdivisions.

(b) An elected officer may not be a candidate for another office of this State, or one of its political subdivisions, if the terms of the offices, or any part of the terms of the offices, run concurrently with each other, until the elected officer resigns from the office the elected officer holds.

(1) An elected officer required to resign under this section must submit a written resignation at least 10 days before becoming a candidate for the office the elected officer intends to seek.

(2) The resignation required under this section is irrevocable.

(3) Except for a vacancy in the office of the Lieutenant Governor, the vacancy in an office created by an elected officer’s resignation under this section must be filled at the same general election as the office the elected officer is seeking.

https://canons.sog.unc.edu/2015/02/removing-elected-board-members-from-office/

Removing Elected Board Members From Office

Robert Joyce

The need to remove an elected member of a local governing board—the city council, the board of county commissioners, or the board of education—may arise when it is discovered that the board member is for some reason disqualified from holding the office.  The desire to remove an elected board member may arise in a wide variety of circumstances when it appears that the board member, though not disqualified, is incapable of performing or unwilling to perform the duties of the office at an acceptable level or in an acceptable way.

Let’s look at North Carolina law of removal when there’s a need and when there’s merely a serious desire.

The Need to Remove when a Member Becomes Disqualified

Under the North Carolina Constitution, you must be eligible to vote for an office in order to hold that office.  Article VI, Sec. 8 says, “The following persons shall be disqualified for office: . . . with respect to any office that is filled by election by the people, any person who is not qualified to vote in an election for that office.”

If a sitting board member becomes disqualified (most likely by moving outside the jurisdiction, but also by being convicted of a felony), he or she must leave office.  Votes cast as a sitting member after the disqualification is discovered are subject to challenge, and actions of the board can be thrown into question.  For a discussion of issues like this, see David Lawrence’s post here.

The member should resign.  The resignation would create a vacancy which could be filled in the normal course and the problem would be solved.

What if the member does not resign?  First, the board must verify that the disqualification does in fact exist.  If the issue is residency, then the board member can simply be asked whether he or she has in fact moved outside the jurisdiction.  If the member says yes, the disqualification is verified.  If there is no acknowledgement, then any voter of the county may challenge the member’s residency through a voter eligibility challenge before the county board of elections under GS 163-85.  The elections board will determine the member’s residency and thus qualification to vote and thus qualification for office.

Once the disqualification is verified, how is the member removed?

There is no direct statutory procedure set out for cities, counties, or boards of education.  For cities, there is a helpful statute, GS 160A-59 that provides this:  “When any elected city officer ceases to meet all of the qualifications for holding office . . ., the office is ipso facto vacant.”  This city statute provides no removal procedure and there is no corresponding statute at all for school boards or for boards of commissioners.

In the absence of a statute, my advice for 25 years has been this:  the board should simply vote to declare a vacancy and then proceed to fill the vacancy.  That advice has been born of necessity, but I think it works.  I recommend it because (1) it is simple to do, (2) it puts the burden on the ousted board member to institute a lawsuit if he or she wishes to challenge the action, and (3) the only applicable statutory alternative—quo warranto—is woefully inadequate.

Quo Warranto

Article 41 of Chapter 1 of the General Statutes, entitled “Quo Warranto,” sets out a procedure by which the attorney general of the state, or an individual with the permission of the attorney general, may bring an action to “try the title or right to any State, county or municipal office.”  GS 1-521.  The action may be brought “When a person usurps, intrudes into, or unlawfully holds or exercises any public office.”  GS 1-514.

The quo warranto proceeding is an alternative to the procedure suggested above of simply declaring the office of a disqualified board member vacant, but it has several disadvantages.  First, the quo warranto legal challenge will be time consuming and costly.  Simply declaring a vacancy is quick and cheap.  Second only the attorney general or a private citizen with the permission of the attorney general can bring a quo warranto action.  Third, if a private citizen brings the action, it must be brought within 90 days of the time the officeholder takes office.  And, fourth, simply declaring the vacancy and filling it shifts the burden of bringing the quo warranto action to the board member who is removed.

The Desire to Remove a Member Who is Not Disqualified

The board needs to remove a board member who is disqualified.  By contrast, the board may desire to remove a board member who, while not disqualified, is incapable of performing or unwilling to perform the duties of the office at an acceptable level or in an acceptable way.  Can that be done?  How?

For 25 years, I have taught that there is no removal option.  You are just stuck with the poor board member until the next election when the voters can vote him out.  As we will see in a moment, there may in fact be an option in the most outrageous of cases, when a member’s conduct, connected with his or her service on the board, is sufficiently extreme that it “challenges the integrity of the governmental process.”  In the great run of cases, however, where the member is simply a pain in the neck or argumentative or unproductive or lazy or profane or obnoxious, you are stuck.

Special removal statutes

For some elective offices special statutes provide a removal procedure.  Those offices are sheriffs (GS 128-16), district attorneys (GS 7A-66), judges (GS 7A-376 and GS 123-5), clerks of superior court (GS 7A-105), and members of the Council of State (GS 123-5).

There is no comparable removal statute for elected local government board members.

Recall

General law in North Carolina does not provide for recall elections for elected officials.  Twenty-five cities (including Raleigh, Greensboro, Durham, and Winston-Salem) and two school administrative units do have recall as a possibility by local act of the General Assembly:  But for elected board members in the 500 other cities, all 100 counties, and all other elected school boards, recall is not a possibility.

Removal through Legislative Action

Could the General Assembly pass a local act providing this:  “Fred Jones is removed as a member of the board of education of Taxfree County?”  That is, could the legislature, by local act, remove a member of local government governing board?

The answer to the question appears to be Yes, though such an action by the General Assembly would seem to be unlikely.

In 1925 the North Carolina Supreme Court upheld the authority of the General Assembly to abolish the Hyde County board of commissioners, terminate the terms of the sitting commissioners, and replace them with a new board.  It noted that counties “are subject practically to the unlimited control of the Legislature” and that elected officials have “no vested property or contract right to the office to which they [have] been elected of which they could not be deprived by the Legislature.”  State ex rel. O’Neal v. Jennette, 190 N.C. 96.

So legislative removal seems theoretically available, but unlikely.

Criminal Prosecution

There is a crime, in North Carolina, in GS 14-230, called “misbehavior in office.”  It is a misdemeanor and the statute provides that the punishment is removal from office by order of the court.

The statue provides that if an office holder “willfully and corruptly omitted, neglected, or refused to discharge any of the duties of his office, or willfully and corruptly violated his oath of office according to the true intent and meaning thereof,” he has committed the crime and can be removed from office by the order of the court.

This criminal statute is rarely used. The case can be prosecuted only by the district attorney (like criminal matters generally) and so the affected board cannot take any steps itself, other than to report the alleged misconduct to the district attorney.  My research has found no instance of removal of an elected official under this statute in the 1900s or 2000s.

Amotion

What if a member of an elected city council, board of commissioners, or board of education is unwilling or unable properly to perform the duties of the office and, in addition, is creating substantial problems of one sort or another—interfering with meetings, threatening staff members, sexually harassing staff members, engaging in hostile and abusing debate tactics, or in other substantive ways creating conditions adverse to good governance.  Is there some way to remove this member, short of waiting till the next election when the voters can remove him?

No removal statute, such as those outlined above for district attorneys and sheriffs and others apply.  Unless this is one of the 25 cities or the two school boards listed above, recall is not a possibility.  Quo warranto deals with title to office, not conduct in office.  These offices are not offices to which impeachment applies under the North Carolina Constitution.  The legislature is almost certainly not going to remove the board member by local act.  The district attorney is very unlikely to prosecute the board member in a way that could lead to removal.

And unlike the situation where there is a need to remove a disqualified member, the board cannot simply declare a vacancy and proceed to fill it.

Most likely, you are just stuck with the poor board member until the next election when the voters can vote him out.  Recent developments make it appear, however, that in the most extreme cases, where the member’s conduct connected with board service is so bad that it “challenges the integrity of the governmental process,” there may be an option for removal:  amotion.

Amotion is a common law procedure by which officers of a corporation can be removed.  In two North Carolina cases, from 1883 and 1908, our state supreme court endorsed the use of amotion to remove an elected official.

Is it still available for that purpose?

In 2013, it was used twice.  A town council member in the town of Hope Mills was removed, with no further legal action.  A county commissioner was removed in New Hanover County, and, after a hearing, a superior court judge decided that amotion continues as a vehicle for removal of an elected official.

Amotion is extraordinary.  In the New Hanover matter, the judge said that the court must find “the balance between the extraordinary concept of overturning the results of an election and a set of facts which can also be extraordinary in its presentation of how an elected official has acted or failed to act so as to hamper the functioning of the office to which he or she was elected or create safety, security, or liability concerns arising from his or her action or inaction in office.”

Until the legislature speaks to the matter or an appellate court rules in an appropriate case, the status of amotion remains a matter of speculation, though the 2013 cases certainly give it new currency.

Need vs. Desire

Where there is a need to remove a board member from the city council, the board of county commissioners, or the school board because the member has become ineligible, my advice is to confirm the ineligibility and then declare a vacancy.  Where there is a desire to remove a bad (but qualified) member, options are limited.  Amotion may work, but the best bet is to wait until the next election.

For a fuller discussion of amotion, see Frayda Bluestein’s post here.  For a discussion of disqualification from office, see my post here.  For a discussion of leaves of absence for board members temporarily unable to participate, see Frayda Bluestein’s discussion here.

DE Judicial Code of Ethics

While not applicable to quasi-judicial appointees (such as Board of Adjustment), real judges are subject to many appropriate rules and limits to their conduct.

https://depic.delaware.gov/wp-content/uploads/sites/48/2017/02/joc.pdf

https://billypenn.com/2022/06/20/philadelphia-resign-to-run-rule-city-council-2023/

Why do Philadelphia city officials have to resign to run for higher office?

Asha Prihar June 20, 2022

Councilmember Cherelle Parker in early March 2020

City Council could soon have several empty seats.

Philly’s 2023 mayoral race is expected to kick off any moment now, and at least six of the people rumored to be running are sitting city councilmembers. One is the city controller.

Those potential contenders face some pretty high stakes in considering whether to run: Once they decide to make their candidacy official, they’ll have to quit their current job. That’s thanks to a local provision known as a “resign-to-run” law.

The requirement has been on the books since the Philadelphia Home Rule Charter was adopted in 1951. It’s certainly not universally loved, but it has held for more than 70 years. Over the past decade and a half, Philadelphians have twice voted to keep it in place.

Why does it exist — and who wants to change it? Here’s a look at how the resign-to-run rule works, where it came from, and why some people think the city should get rid of it.

What exactly is the rule, and who does it apply to?

“No officer or employee of the city” can be a candidate for public office unless they’ve already resigned from their city office or job, per the Home Rule Charter. The only allowed exception is when officials run for re-election to their current office.

The rule applies to anyone employed by the city — no matter what position they hold or what office they’re seeking.

A city councilmember would need to give up their seat regardless of whether they’re running for mayor, state legislature, or president. And a Department of Public Health employee running for City Council would have to follow the same rule.

Something to note: this requirement applies only to city officials and workers. Federal- and state-level officeholders are free to launch campaigns while they’re still in office, even if they represent a Philadelphia constituency.

For example, U.S. Rep. Chaka Fattah ran for Philly mayor in 2007 while still holding his seat in Congress, and state Rep. Malcolm Kenyatta remained in his Pa. House seat while running in the Democratic primary for U.S. Senate this year.

Credit: Jared Piper / Philadelphia City Council Flickr

How soon after they announce do city officials have to resign?

Formal candidacy announcements aren’t supposed to happen until after a city official has resigned from their current office.

When Mayor Jim Kenney announced in 2015 he was resigning from Council to run for mayor, for instance, he refrained from making any official declarations until after the resignation took effect.

“I’m not going to be able to tell anybody what I’m going to do until after Thursday because I would then run afoul of our city charter,” he said after announcing his intent to resign, but before confirming his intent to run. “But clearly, resigning is a huge step. It shows that I have intention to move forward with what people have been speculating about.”

When a councilmember resigns to run for mayor or another office, what happens to their seat?

When a member of City Council resigns their position, the council president must call for a special election to fill the seat through the rest of the term, according to the city charter. (In special elections, political leaders pick who’ll represent each party on the ballot.)

As long as there’s at least 30 days’ notice, the council president can decide to put the race on the ballot in the next primary, in the next municipal election, in the next general election, or in a totally separate election. The charter doesn’t specify a time table for how long a seat can stay vacant.

Council President Darrell Clarke in January 2020 Credit: Jared Piper / Philadelphia City Council Flickr

Why does the rule exist?

For a few reasons.

The rule exists in part so city officeholders or employees can’t be “in a position to influence unduly and to intimidate employees under [their] supervision,” per the city charter.

Also, the document notes, if candidates were allowed to run while keeping their old city jobs, they might “neglect [their] official duties in the interest of [their] candidacy.”

In other words, it’s to prevent a situation where people employed by the city aren’t actually putting in the work their job calls for. Proponents of the rule argue that it would be unfair for taxpayers to continue funding officials’ salaries while they’re distracted from their current roles by the intense process of being a candidate.

The requirement also keeps more “pay-to-play” culture from spreading in city politics, The Inquirer Editorial Board argued in 2013. If they didn’t have to resign first, city officials running for state offices would be able to accept unlimited campaign donations from special interests. (There are limits to how much candidates can accept in campaigns for city offices.)

Has anyone tried to get rid of the resign-to-run requirement?

Yes, and more than once — though it wasn’t successful.

Proposals that would’ve modified the requirement were questions on the ballot in 2007 and 2014. But — unusually, because ballot questions overwhelmingly pass — voters rejected the measures both times.

Opponents of the resign-to-run rule have a few arguments for ditching it, including concerns over unequal representation and equity. Specifically, per a Committee of Seventy Q&A from 2013:

• It could temporarily leave some constituencies without representation on City Council, if it’s a district councilmember resigning.

• Some would-be candidates — those who aren’t flush with money — might be discouraged from running because they’d have to give up their income source.

• It simply makes races less competitive by raising the stakes involved with becoming a candidate.

Some also argue it’s unfair for the city’s elected officials to be held to different standards than those at the state and federal level (or who don’t work in government at all — like rumored candidate and grocery store magnate Jeff Brown, for example).

Councilmember David Oh, who’s led several charges to get rid of resign-to-run, said in 2013 that the requirement has created a “bottleneck of elected officials”: it incentivizes Philadelphia’s elected officials to hold onto safe seats for long periods of time, rather than giving them up to seek higher office. That dynamic lessens Philly’s political influence in Harrisburg and D.C, Oh has argued.

A Proposal Letter to the Council:

(It was proposed but was not submitted.)

September ___, 2022

President Vincent & Council

Re: Resignation of Keller Hopkins should be sought

Dear President Vincent /Council:

By any measure, the recent primary campaign for the District 5 Councilman seat was remarkable for its negativity, intentional mis and disinformation, apparent conspiracies involving Members of the Council itself and the improper pursuit of personal agendas contrary to the public interest. It is clear to us that the Sussex County Council needs to consider significant reforms of its processes, to include its selection and appointment of quality personnel to serve on its committees and commissions. Seeking the immediate resignation of Mr. Hopkins would be a good first step towards restoring the Council’s credibility and accountability in the eyes of the public.

As shown below in letters to the editor and editorials published in the Cape Gazette, serious allegations of misconduct and unethical behavior have been made about Mr. Hopkins. It is beyond cavil that Mr. Hopkins simply lacks the confidence of the public and cannot continue to serve in his appointed position. We, therefore, strongly urge the Council to immediately seek the resignation of Mr. Hopkins or alternatively his removal if he refuses to offer his resignation.

Cape Gazette Letters & Editorial

• Letter to the Editor submitted by Brian C. Derby and published on June 10, 2022: Mr. Derby notes the irony of the ignorance or intentional disregard of the County Ordinance regarding campaign signs (timing and location) by Mr. Hopkins while he maintains that he is dedicated, determined and trusted and ready to go on day one;

• Letter to the Editor submitted by Brian C. Derby and published on August 19, 2022: Mr. Derby claims that Mr. Hopkins is untruthful about his opponent’s position and his own motivations and points out that on the contrary Mr. Hopkins has shown a lack of commitment in achieving the worst attendance record on the Planning and Zoning Commission;

• Letter to the Editor submitted by Kathy Moon Derby and published on August 19, 2022: Ms. Derby calls into question Mr. Hopkins’ motives and commitment to serve the public interest noting his poor attendance record on the Planning and Zoning Commission and his financial ties to developers;

• Article by Ron MacArthur published on August 23, 2022, in which he reports on a debate between Councilman Rieley and Mr. Hopkins held during an August 18 the primary forum where Mr. Hopkins maintained that he has been preparing to serve on the County Council his entire life and has “insight on how to conduct business a County Councilman.”

• Letter to the Editor submitted by Dan Shortridge and published on August 26, 2022, where he notes that Mr. Hopkins refused to define the terms “overdevelopment” and “sprawl” notwithstanding that he was campaigning on a platform to address the pace and location of development in Sussex County. It was also opined that Mr. Hopkins has been a major supporter of what many citizens view as overdevelopment while a member of the Planning and Zoning Commission;

• Letter to the Editor submitted by Jim Rodgers and published on September 2, 2022, in which it was opined that Councilman Schaeffer had engaged in a well-coordinated and politically motivated attack on Councilman Rieley in support of Mr. Hopkins’ campaign – a campaign that is full of misrepresentations;

•  Letter to the Editor submitted by Megan Stern and published on September 8, 2022, in which it is opined that Mr. Hopkins’ voting record on the Planning and Zoning Commission and the resulting work awarded to his construction company following his support for approval of the development application demonstrates that he has no regard for proper conduct when obvious conflicts of interest are presented. One example cited is his vote to approve the Independence development followed by obtaining significant work related thereto;

•  An editorial published on September 9, 2022, discusses how unprecedented Mr. Hopkins’ negative political campaign has been noting that Mr. Hopkins stated that he would spend as much money as needed to win the councilman seat to make sure his agenda is carried out. The editorial also noted that Councilman Schaeffer broke with unwritten policy to cast aspirations about Mr. Hopkins’ opponent during a County Council meeting when such matters were not an item of business before the Council;

•  Letter to the Editor submitted by Patti Drago and published on September 9, 2022, opining that Mr. Hopkins does not do his homework citing an example where he suggested that reviewing the County budget was too burdensome and, if elected, would require him to retain the services of an expert of an expert to understand it. Another example cited was Mr. Hopkins’ apparent satisfaction with his performance as a sitting member of the Planning and Zoning Commission when he admitted reading only the first 20 pages of an 84-page report about the affordable rental ordinance before the Commission. Finally, it was suggested that Mr. Hopkins often adopted and repeated the developer’s comments during hearings before the Commission showing his alliance with Council Members Green and Schaeffer concerning favorable treatment of developers often at the expense of the public’s interest;

•  Letter to the Editor submitted by Jane Greuenebaum and submitted on September 9, 2022, wherein Ms. Greuenebaum argues that Mr. Hopkins’ campaign is fraught with misinformation about the positions he has taken as a member of the Planning and Zoning Commission and Mr. Hopkins’ apparent conspiratorial relationship with Councilman Schaeffer;

•  Letter to the Editor submitted by Eul Lee and published on September 9, 2022, wherein Ms. Lee noted that Mr. Hopkins failed to offer even a plausible explanation about the work he obtained in over ten subdivisions in which he had voted to approve the application while a member of the Planning and Zoning Commission during a September 1, 2022, recorded radio debate with Councilman Rieley; and,

•  Letter to the Editor submitted by Valerie Wood and published on September 9, 2022, wherein Ms. Wood notes Mr. Hopkins’ denial of any knowledge about the use of negative campaign adds sent to voters and opining that such denial calls into question his ethics, integrity and motives for seeking a position on the County Council. Ms. Wood also noted Mr. Hopkins’ heavy campaign spending (campaign finance report shows a $163,000 loan to himself for his campaign) calling into question his motive for seeking a seat on the Council that is six times the expenditure seen in previous campaigns.

Any reasonable and responsible person would resign when confronted with these serious allegations. It is our hope that Mr. Hopkins will see a request for his resignation as the best course of action for him, the Council and the citizens of Sussex County.

Sussex County Authority to Remove Appointees

All powers of the County shall be vested in the County Government, except as otherwise provided by Title 9 or laws of the State. 9 Del. C. § 7002(f).

When a vacancy occurs in the Commission, either by death, resignation, expiration of term of office, removal, or otherwise, of any person so appointed, the vacancy shall be filled for the unexpired term by the body or person which appointed the member to the office in which such vacancy occurred. 9 Del. C. § 6803(d).

Also, as a matter of general parliamentary law, the power to appoint includes the power to remove.

These statutes make it clear that the Council has the authority to seek Mr. Hopkins’ resignation or in the alternative his removal if he fails to agree to resign his position.

Applicable Code of Conduct

The State Code of Conduct shall apply to local governments that do not adopt their own code. 29 Del. C. § 5802(4).

This code restricts any official from accepting any compensation, gift, payment of expenses, or anything of value if it may result in: (1) impaired judgment; (2) preferential treatment, (3) decisions outside of official channels, or (4) improper appearance.

The allegations, if true, would appear to violate the applicable code of conduct. And, in any event, even unadjudicated allegations of the scope and severity articulated create an appearance of impropriety that would disqualify Mr. Hopkins unless he establishes that the allegations are completely false.

Conclusion

Thank you for your consideration of our request that the Council, the appointing authority, immediately seek Mr. Hopkins’ resignation or alternatively his removal fromhis position on the Planning and Zoning Commission. Absent his resignation or removal the affected public would undoubtedly seek his recusal in any matter before the Planning and Zoning Commission where he would be a participant in any decision to be made by the Commission. If he were not to recuse himself, such a failure would likely be grounds for an appeal to the Council where his alleged conduct would be front and center to any review and decision by the Council.

We would appreciate receiving a written response to this letter and our request that the Council seeks Mr. Hopkins’ resignation or removal from the Planning & Zoning Commission.