Fiscal Years Ended June 30, 2020-2022

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Report Supplement

NOTE: This report supplement to the Dual Employment Performance Audit was prepared internally by employees of the Office of Auditor of Accounts.

Background

The Office of Auditor of Accounts (AOA) conducted a performance audit over compliance with the Dual Employment law by the State of Delaware’s State agencies and political subdivisions of the State and their agencies (covered Organizations). The purpose of this audit was to evaluate the design and operation of internal controls and compliance with the Dual Employment law with regard to the compensation of elected and appointed Officials dually employed by covered Organizations. The audit covered employees with the described dual employment during the period from July 1, 2019 through June 30, 2022. The Public Integrity Commission identified a total population of 22 persons that held elected or paid appointed offices with the State while concurrently being employed at seven covered Organizations.

The Dual Employment law 29 Del. C. Ch. 58, Subchapter III. Compensation Policy was enacted in July 1986. AOA is mandated to audit time records maintained by covered Organizations to determine whether dually employed individuals were paid from more than one State tax-funded source for working coincident hours of the day. The covered Organizations’ management is responsible for the design and operations of internal controls over policy and procedures, time records and compliance with the requirements of the Dual Employment law.

The Dual Employment law requires covered Organizations to limit compensation paid to persons employed with the covered Organizations who also serve in elected and paid appointed offices (Officials) in the State and political subdivisions (local governments) of the State to one tax-funded source, for duties performed during coincident hours of the workday. The law prohibits these Officials from being paid for any time missed during the workday or workweek, which is not covered by vacation, personal, or compensatory time, while serving in their elected or paid appointed office. To facilitate compliance with the law, covered Organizations are required to keep a record of hours worked by the Officials and to adjust the Officials’ pay for hours spent serving their elected or paid appointed offices once each pay period. The State’s Public Integrity Commission (PIC) administers the dual employment policy.

The audit was performed according to AOA’s authority as set forth in 29 Del. C. § 2906. The Dual Employment law mandates an annual audit.

History of the Dual Employment Audit

Historically, the AOA has encountered great difficulty in performing its mandated Dual Employment Engagement.

For a FY 2011 agreed-upon procedures engagement issued by State Auditor Wagner on September 18, 2012, auditors utilized data analysis techniques to identify a fraction of the population of dually employed individuals. However, the report noted that the State lacked the necessary policies and procedures to identify and monitor individuals as mandated by 29 Del. C., §5821(c). Consequently, auditors were unable to identify State employees who also held elected positions in city, county, or municipal governments, as required by 29 Del. C., §5822.

Three subsequently released dual employment audit examination reports covering auditing periods from July 1, 2011 to December 31, 2016 reported severe scope impairment. Once again, these reports noted that the State did not have policies or procedures to monitor or identify dually employed individuals as defined by 29 Del. C., §5822(a). As a result, State Auditors were unable to identify a population of dually employed individuals for testing. In addition, the State had not maintained time records for elected or appointed Officials; therefore, State Auditors were unable to test for the proper treatment of dual employment hours and were unable to conclude if the Officials were paid from more than one tax-funded source for working coincident hours of the day.

In 2020, an engagement auditing dual employment for calendar years 2017 and 2018 was discontinued. State Auditor McGuinness noted in a discontinuation notice that despite repeated findings in prior reports, advisory letters from the Office of the Attorney General, and advisory publications by the State Public Integrity Commission, the difficulties encountered in prior audits prevented the AOA from performing its function. This rendered AOA unable to identify a complete population of dually employed individuals for testing and unable to test for the proper treatment of dual employment hours.

Type of Engagement	Scope	Status
Agreed-Upon Procedures	FY Ended June 30, 2011	Completed
Examination	July 1, 2011 through December 31, 2013	Scope Impairment
Examination	Calendar Year 2014	Scope Impairment
Examination	Calendar Years 2015 and 2016	Scope Impairment
None	Calendar Years 2017 and 2018	Scope Impairment

Performance Audit

The performance audit for the period July 1, 2019 through June 30, 2022 marks a significant milestone as it represents the first audit since 2011 to include a population of dually employed individuals. This inclusion is crucial for providing a comprehensive assessment of covered Organizations’ employment practices.

Audit Timeline

This audit was hampered by significant constraints and excessive delays in auditors gaining access to necessary records. The engagement began in July 2022 when State Auditor McGuiness contracted CPA firm Belfint, Lyons & Shuman, PA to complete the work for this mandate. When contacted about participating in the audit, the then Vice President & General Counsel for the University of Delaware (UD) responded: “UD must decline to provide the requested information, taking the position that 29 Del. C., §5822 does not apply, both by its own terms and because of the University of Delaware’s Charter.” Shortly thereafter, legal issues involving Auditor McGuinness impacted this audit.

In April 2023, State Auditor York approved the continuation of this audit and re-engaged UD, who initially reaffirmed their refusal to cooperate. In late 2023, a finding was drafted documenting UD’s position as work continued with other covered Organizations.

In February 2024, UD agreed to cooperate with some requests from the State Auditor’s office and began to provide limited information. Requests were made for contracts, original documents, agreements, and salary information, however UD refused to provide that documentation to AOA. Instead, UD provided summaries of some of the information requested which allowed the audit to proceed. Auditors performed testing on the limited information available between March and August of 2024. In September 2024, Belfint, Lyons & Shuman completed their findings and presented their final report to the State Auditor’s office.

Audit Population

Auditors worked with the Public Integrity Commission and analyzed state payroll records to determine the population of employees working as State employees at agencies, departments, divisions, universities, and school districts that are dually employed, as defined by 29 Del. C., §5822(a).

The auditors’ procedures could not identify all dually employed Officials holding elected or paid appointed positions. The following table represents the population of dually employed Officials identified during the audit and notes where an Official was subject to a Finding.

State Employee	Positions	Finding
Andria L. Bennett	State Representative, City of Dover – City Clerk	Finding 5
Reneta L. Green-Streett	Judge, Superior Court Kent, Delaware Technical Community College	No Finding
Nnamdi O. Chukwuocha	State Representative, Delaware State University	No Finding
Melissa Minor-Brown*	State Representative, Delaware Technical Community College, University of Delaware	Finding 8
Sherae’a (Rae) Moore	State Representative, East Side Charter School	Finding 7
Sean Matthews	State Representative, Brandywine School District	No Finding
William Shannon Morris	State Representative, Kent County Levy Court	No Finding
John Lawrence Mitchell, Jr.	State Representative, Delaware Technical Community College	Finding 8
Francis E. Mieczkowski	Commissioner, Family Court, University of Delaware	No Finding
Eugene Young	Director Delaware State Housing Authority, University of Delaware	No Finding
Madinah Averee Wilson-Anton	State Representative, University of Delaware	No Finding
Michael Smith	State Representative, University of Delaware	No Finding
Sherry Dorsey Walker	State Representative, University of Delaware	No Finding
Ernesto Braulio Lopez	State Senator, University of Delaware	Finding 4
Sarah (Tizzy) Elizabeth Lockman	State Senator, University of Delaware	No Finding
Sheldon Rennie	Judge, Superior Court, University of Delaware	No Finding
Monica Horton	Judge, Court of Common Pleas, University of Delaware	No Finding
Jonathan Starkey	OGOV, Chief of Staff, University of Delaware	No Finding
Bethany Hall-Long	Lt. Governor, University of Delaware	Finding 4
A.J. Schall*	Director, DEMA, University of Delaware, Delaware State Fire School	No Finding
David S. Bentz	State Representative, University of Delaware	No Finding
Martin O’Connor	Commissioner Superior Court, University of Delaware	No Finding

Key Information & Findings

One of the basic risks posed by dual employment situations is the possibility of a person claiming to be in two places at the same time and being paid for the same hours by both employers. In past dual employment audits, AOA noted a lack of complete records of the population of dually employed individuals, a lack of time records, and payroll and employee policies that did not comply with the law. In the current engagement, because of continued weakness in policies and practices, the State and the PIC cannot always identify when individuals are involved in dual employment situations. Even when these arrangements are known and sanctioned, our audit shows that covered Organizations do not always take the necessary steps to verify work schedules, attendance, payroll records, or otherwise ensure individuals do not engage in payroll abuse. AOA noted the following findings in the audit:

State of Delaware and Public Integrity Commission (Finding 1)

• Lack of Dually Employed Individuals Complete Population: A record of dually employed Officials holding elected or paid appointed offices in political subdivisions of the State and their agencies concurrently while being employed by covered Organizations is not maintained by the State or the Commission. The State has not created a database of all dually employed Officials subject to the Dual Employment law and does not actively monitor or identify such persons. The information is contained in various records and databases.

Delaware General Assembly (Finding 2)

• The Delaware General Assembly Does Not Maintain and Publish Time Records for Officials’ Attendance at Legislative Sessions or Committee Meetings:  Auditors stated that the General Assembly does not maintain detailed records documenting time spent by Officials in attendance at legislative sessions or committee meetings.  Because detailed records were not available, auditors were unable to confirm whether the Official’s pay from covered Organizations was properly prorated or reduced for coincident hours of the day.

University of Delaware (Findings 3 & 4)

• UD Policies Do Not Comply with Dual Employment law:  UD does not have an internal control policy over its personnel that requires that coincident time be documented and verified and requires that the related salaries be prorated or reduced in accordance with the law.  UD’s Political Activity Policies do not comply with the law. It has been UD’s position that the requirements of the law do not apply to UD. This is the first time since the Dual Employment law was passed in 1986 that UD has submitted to the Office of the Auditor of Accounts’ Dual Employment audit.
• Dually Employed University Employees Identified with Potentially Coincident Time: Our testing of 16 University employees revealed two employees with potentially coincident time (between their positions with UD and with the State). These employees are Lieutenant Governor Bethany Hall-Long and former State Senator Ernesto Lopez.  UD did not provide sufficient official records to allow us to verify whether the employees incurred coincident time. We found that only one of the two employees, Ernesto Lopez, with potentially coincident time reduced their salary 10%, to account for time spent away on legislative business, as required by University Policy effective until December 1, 2020.  UD also did not follow its internal policies regarding political activities.  UD did not provide support to indicate an exception to its policies was approved.

City of Dover (Finding 5)

• City of Dover Policies Do Not Comply with Dual Employment law: The Personnel Policy Manual does not include provisions for dually employed persons subject to the requirements of the law. The City does not have a policy over dually employed payroll that requires coincident time to be documented, verified, and prorated or reduced.
• Recordkeeping and Potentially Coincident Time: We identified 33 instances where General Assembly records indicated that former State Representative Andria Bennett, a Dover Official, was present at voting roll calls held during legislative sessions or was present at roll calls at the commencement of committee meetings that occurred during the employee’s workweek. The City did not maintain timekeeping records, documenting hours the Official worked during the workday and workweek and, therefore, potentially coincident time could not be measured.

Delaware State University (Finding 6)

• DSU Policies Do Not Comply with Dual Employment law: The Employee Handbook does not include policy provisions for dually employed Officials subject to the requirements of the law.  DSU does not have a payroll policy that requires coincident time to be documented, verified, and prorated or reduced.

Eastside Charter School (Finding 7)

• Eastside Charter School Policies Do Not Comply with Dual Employment law: The Personnel Policy Manual does not include provisions for dually employed Officials subject to the requirements of the law. The internal controls over payroll do not include procedures that document coincident.
• Recordkeeping, Approvals, and Potentially Coincident Time: We found the timekeeping records for State Representative Sherae’a Moore, a dually employed Official at Eastside Charter School, do not include the total number of hours worked for each day when there is coincident time and that the records are not formally verified by the dually employed Official’s supervisor each pay period. Although the School reduced the Official’s payroll in some instances during the period from November 4, 2020 (assumption of office) through June 30, 2022, it did not accurately prorate or reduce their payroll in all the applicable instances, during the period.

Delaware Technical Community College (Finding 8)

• DTCC Payroll Was Not Properly Documented, Verified, or Reduced for Hours Officials Spent Serving in an Elected Position Coincident with their Workday: We found controls over the documentation, verification, and reduction of dually employed payroll are not operating in the manner consistent with the way the policies were designed and did not capture and properly prorate or reduce incidents of coincident time. We found that former State Representative John Mitchell, an Official employed, full-time, by the College received compensation for coincident time. We also found that State Representative Melissa Minor-Brown, an Official employed, part-time, by the College received compensation for coincident time.