Greene v. The City of Delaware City Ethics Board
N17A-01-001 AML
Del. Super. Ct.Oct 11, 2017Background
- Delaware City owned undeveloped Jefferson Street property; prior offers and discussions about leasing/sale occurred from 2012–2016.
- Preston Cardon (PSC) submitted an exclusive proposed lease in June–August 2016; at the August 15, 2016 council meeting the council voted to lease the property to PSC for $300/month.
- The council’s general practice had been to use an RFP/bidding process when multiple prospective tenants existed, although the City Code did not legally require an RFP.
- Titus filed complaints alleging Councilmembers Barrett, Greene, and Fitzwater granted special treatment to PSC by approving the exclusive reduced-rate lease; the Board of Ethics dismissed some claims but found violations of City Code art. IV, §1-27(a) (Fair and Equal Treatment).
- The Board found relationships between Cardon and the councilmembers raised questions about partiality and relied on the council’s departure from its usual RFP practice and the substantially reduced rent as evidence of special treatment.
- Greene and Fitzwater appealed the Board’s §1-27(a) finding, arguing (inter alia) that process was deficient, no partiality existed, the RFP was not required, and the Board lacked quorum/conflicted—issues some of which were raised for the first time on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether councilmembers violated §1-27(a) (Fair and Equal Treatment) by leasing exclusively to PSC at reduced rent | Titus: council departed from general RFP practice and approved an exclusive, below-market lease amount, granting PSC special treatment | Board: failure to use RFP and approval of a lease at half prior offers supports finding of special treatment | Court: Affirmed—substantial evidence supports the Board’s finding of a §1-27(a) violation |
| Whether petitioners received adequate notice/fair process because the Second Amended Complaint did not explicitly cite §1-27(a) | Greene/Fitzwater: Second Amended Complaint did not specifically cite §1-27(a), so process was inadequate | Board: initial complaint cited §1-27(a); factual allegations were sufficient and petitioners had counsel at hearing | Court: Held process was adequate—initial complaint + factual allegations + counsel satisfied procedural requirements |
| Whether the council’s failure to use an RFP amounted to deviation from general practice when RFPs are not legally required | Greene/Fitzwater: City Code doesn’t mandate RFPs; absent a legal requirement there was no improper departure from practice | Board/Titus: although not required, the city’s general practice was to use RFPs; departure without soliciting other bids supports special treatment finding | Court: Held that evidence of an established local practice to use RFPs, and the council’s departure here, supports the Board’s conclusion |
| Whether quorum defects or extreme conflicts of interest warrant reversal (issues raised first on appeal) | Greene/Fitzwater: Board lacked quorum and members had extreme conflicts, undermining the Board’s decision | Board: these claims were not raised below and are outside the appellate record | Court: Declined to consider these arguments—issues were forfeited by not being presented to the Board |
Key Cases Cited
- Tatten Partners, L.P. v. New Castle County Bd. of Assessment Review, 642 A.2d 1251 (Del. 1993) (appellate review limited to the record below; issues not raised below cannot be considered on appeal)
- Wilmington Trust Co. v. Conner, 415 A.2d 773 (Del. 1980) (same principle: appellate courts generally will not consider claims not preserved in the administrative or trial forum)