DEPARTMENT OF JUSTICE com pro) 787081 102 WEST WATER STREET CRIMINAL DIVISION (902) 709-4211 Maroney cenERaL Sat cetanac se Paxraun rors March 30, 2016 Via Electronic Delivery Representative Kimberly Williams, 19" District House of Representatives 411 Legislative Avenue Dover, Delaware 19901 Re: Letter to the Department of Justice regarding Delaware Charter Schools Network and Lobbying Efforts in Dover Dear Representative Williams: The Attorney General referred your complaint regarding the activities of the Delaware Charter Schools Network to the Office of Civil Rights and Public Trust (OCRPT) for an investigation into your allegations. ur investigator has interviewed the involved parties and reviewed the available evidence. Attorneys with the OCRPT have reviewed the material. Your complaint raises two separate issues: first, whether Charles Taylor or Kendall Massett are acting as lobbyists without registering as required; and second, whether their participation on the Charter Schools Accountability Committee constitutes @ conflict of interest. With respect to the first issue, we have not found evidence that would establish that either Mr. Taylor or Ms, Masset knowingly falled to register as a lobbyist (the standard required for our office to take action), because we have not found evidence that would establish that they believed that they were required to register as lobbyists. With respect to the second issue, we have referred your question to the Public Integrity Commission (PIC), as it is the agency with primary responsibility for investigating alleged violations of the conflict of interest statute. If the PIC finds substantial evidence of a criminal violation, it may refer the matter to the Department of Justice, REGISTRATION OF LOBBYISTS ‘As you noted in your February 4, 2016 letter, the registration of lobbyists is governed by 29 Del. C. § 5831-§ 5837. A person who meets the statutory definition of a “lobbyist” (Lobbyist)* and who does *29 Del. C. § $831(a)(5).not meet any of the exceptions to the requirements,” is required to register with PIC prior to performing any acts as a Lobbyist or within 5 days of qualifying.’ There are numerous reporting requirements placed on individuals who are registered as Lobbyists, including financial reports outlining the amount ‘and nature of expenditures they make,‘ and activity reports outlining the bills supported or opposed by the Lobbyist Itis clear that, as of February 4, 2016, neither Kendal Massett nor Charles Taylor had registered with the PIC. The question to resolve then is whether their contacts with the General Assembly cause them to {all within the definition of “Lobbyist.” The relevant definition is as follows: (5) “Lobbyist” means any individual who acts to promote, advocate, influence or oppose any matter pending before the General Assembly by direct communication with the General Assembly or any matter pending before a state agency by direct communication with that state agency and who in connection therewith either: a. Has received or is to receive compensation in whole or in part from any person; or b. Is authorized to act as a representative of any person who has as a substantial purpose the influencing of legislative or administrative action; or c. Expends any funds during the calendar year for the type of expenditures listed in § 5835(b) of this title. There are, however, exceptions to this definition for individuals who meet certain criteria. Those exceptions are found in 29 Del, C. § 5831(b). The two exceptions important to our analysis are subsections (3) and (5) which state {3) Persons who, in relation to the duties or interests of their employment or at the request or suggestion of their employer, communicate with the General Assembly or a state agency concerning any legislation, regulation or other matter before the General ‘Assembly or such state agency, if such communication is an isolated, exceptional or infrequent activity in relation to the usual duties of their employment; (5) Persons testifying at public hearings conducted by the General Assembly or a state agency who do not otherwise act as lobbyists; The specific factual allegations contained in your letter are that Mr. Taylor, president of the Delaware Charter Schools Network (DCSN), and Ms. Massett, the Executive Director of the DCSN, are regularly seen in Dover lobbying legislators, that they speak at House and Senate Education Committees and that the DCSN sends out mass e-mails to their administration, staff and families encouraging them to contact their legislators about pending or proposed legislation. * 29 Del. C.§ 5831(b). "29 Del. C. § 5832) *29.Del. C. § 5835. * 29 Del. C. §§ 5832(b)(5); 5835(a).Any effort made by either Mr. Taylor or Ms. Massett to encourage others to contact a member of the General Assembly is not lobbying activity. It is only when an individual engages in direct communication with a member of the General Assembly that he or she can meet the definition of a “Lobbyist.” Encouraging others to contact their legislator does not make an individual a Lobbyist. The OCRPT, therefore, has not investigated how frequently Mr. Taylor, Ms. Massett or the DCSN has engaged in this type of activity Both Mr. Taylor and Ms. Massett were asked how frequently they were in attendance at Legislative Hall to speak to members of the General Assembly. Mr. Taylor estimated he went to Legislative Hall twice in 2016 and four to five times in 2015. In an effort to independently verify this information OCRPT investigators reviewed the Legislative Hall sign-in logs maintained by Capitol Police. Our investigator found only one instance where Mr. Taylor signed the log in 2015. Ms, Massett was also asked about her attendance at Legislative Hall, She stated she is occasionally asked to speak to members of the General ‘Assembly on charter school matters. Ms. Masset accounts for the time she spends lobbying and estimated she spends 3% of her time as Executive Director on direct lobbying. Again, the records from Capitol Police were reviewed. They reflected that Ms. Massett signed in at Legislative Hall 17 times in 2015 and three times in 2016. Assuming for the sake of rough calculation she spent half of a work day ~ or 4 hours - at Legislative Hall each time she signed in, that would account for approximately 3% of Ms. Massett’s work hours for all of 2015. In order to convict anyone of a violation the State has to prove beyond a reasonable doubt that the individual “knowingly failled} to register as a lobbyist as required by this subchapter.”” The Criminal Code states “knowingly” A person acts knowingly with respect to an element of an offence when: (1) If the element involves the nature of the person’s conduct .. the person is aware that the conduct is of that nature... Thus, in order to successfully prosecute either Mr. Taylor or Ms. Massett for violating this statute, the State would have to show not only that they engaged in lobbying without the necessary registration, but that they knew they were required to register and did not. This we cannot do. First, in light of the relatively Infrequent attendance by Mr. Taylor and Ms. Massett at Legislative Hall, the State cannot prove that they are not protected by the exception created by 29 Del. C. § 5831(b)(3).? Thus, it does not appear that either was required to register. Even if that exception did not apply, however, the investigation by OCRPT did not uncover any evidence of a knowing violation of this statute by Mr. Taylor § 29 Del. C.§ $833(a(5). 729 Del. C.§ 5837. *11Del. C.§ 231(0). * The DCSN also employs a Lobbyist who is registered with the PIC, It should be noted that any activity conducted by the registered Lobbyist employed by the DCSN does not contribute to the evidence regarding Mr. Taylor or Ms. ‘Massett, While the registered lobbyist for the DCSN may spend a significant amount of time and money on lobbying activities, itis only the individual actions taken by either Mr. Taylor or Ms. Massett that would be relevant to whether they need to register. 29 Del. C. § 5832(a)or Ms, Massett. Moreover, Ms. Massett voluntarily registered as a Lobbyist with the PIC after she was interviewed. We believe this also tends to show that she did not know or suspect that her degree of contact with the General Assembly required registration as a Lobbyist. Based on the available evidence, the OCRPT has determined that there is insufficient evidence to prove beyond a reasonable doubt that either Mr. Taylor or Ms. Masset knowingly failed to register as a Lobbyist. As a result we will not be taking any action on this matter. CONFLICTS OF INTEREST You have also asked whether the participation of Mr. Taylor and Ms. Massett in both the DCSN and the Charter Schools Accountability Committee (CSAC) creates a conflict of interest. The CSAC is a public committee convened by the Department of Education to review information and issue recommendations for all major accountability processes relating to the charters for which it is the approving authority. These processes include, but are not limited to, applications for new charter schools, major modifications, renewals, and formal review. The committee is appointed by the authority that initially approved the Charter.” There are no laws or regulations related to the composition of the committee; rather, membership is left to the discretion of the approving authority, in most cases the Department of Education. ‘There are restrictions applicable to all state employees, officers and officials regarding participation in matters in which they have a personal or private interest."* Although Mr. Taylor and Ms. Massett have an interest in charter schools in general by virtue of their respective positions with the DCSN, this general interest is insufficient to violate the applicable statutes. The personal or private interest has to be one “which tends to impair a person’s independence of judgment in the performance of the person's duties with respect to that matter.’ That particular phrase is further defined as follows: ‘a. Any action or inaction with respect to the matter would result in a financial benefit, or detriment to accrue to the person or a close relative to a greater extent than such benefit or detriment would accrue to others who are members of the same class or group of persons; or b. The person or a close relative has a financial interest in a private enterprise which enterprise or interest would be affected by any action or inaction on a matter to a lesser or greater extent than like enterprises or other interests in the same enterprise.”? * 14 Del. C.§ 515(c). * 29 Del. C. § 5805(a)(1). © 29 Del. C. § 5805(a)(1). * 29 Del. C. § 5805(2).Whether Mr. Taylor or Ms. Massett has an interest of this nature should be investigated by the PIC in the first instance, The PIC is the agency with primary responsibilty for investigating alleged violations of the conflict of interest statute,"* Ifthe PIC finds substantial evidence of a criminal violation, it may refer ‘the matter to the Department of Justice for resolution. > NON-MEMBER VOTING Ina recent message to OCRPT you expressed a concern that Mr. Taylor was voting on matters before the CSAC but was not in fact a voting member. When the issue was first raised, the Department of Education website did not list Mr. Taylor as a member of the CSAC. We consulted with counsel for the CSAC and determined that the website was out of date and, more importantly, that Mr. Taylor did not vote on any matter before being appointed to the committee. The website has since been updated to reflect that Mr. Taylor is a voting member of the CSAC. CONCLUSION Thank you for referring this matter to the OCRPT. As previously stated, the OCRPT did not find evidence sufficient to prove beyond a reasonable doubt that either Mr. Taylor or Ms. Massett knowingly violated any of the prohibitions on lobbying without registering with the PIC. Regarding the perceived conflict of interest, the central concern is whether Mr. Taylor or Ms. Masset has a personal interest of the sort articulated in the Delaware Code in the outcome of matters before the CSAC. | have copied counsel to the PIC on this response, as the PIC is the agency with the primary responsibility for investigating alleged violations of the applicable laws. If warranted, the PIC may refer the matter back to the Department of Justice after completing its investigation. Finally, we are satisfied that Mr. Taylor voted on matters before the CSAC only after becoming a member. Sincerely, Domwis [leche face Dennis Kelleher Deputy Attorney General cc: Representative Helene Keeley, 3° District Representative Sean M. Lynn, 31° District Representative John Kowalko, 25" District Representative Andria L. Bennett, 32” District Representative Sean Matthews, 10" District “9 Del. C. § $809(3). * 29 Del.c. § 5809/4).Representative Gerald L. Brady, 4" District Representative Charles Potter, 1” District Matt P, Denn, Attorney General Allison E. Reardon, Deputy Attorney General, Director, OCRPT Deborah J. Moreau, Esquire, Counsel to the PIC File