The State Auditor’s Office releases the first Dual Employment Audit since 2017 and finds several state employees could be double-dipping with tax-funded compensation.

Delaware made it illegal in 1986 for the state to pay employees or officials for coincident hours of the workday — known as the Dual Employment law — and requires employees who hold more than one job funded by state tax dollars to have their pay reduced on a prorated basis for any hours or days where the employee works both of their jobs.

The law requires the state to have “clear policies and procedure” in place to enforce this provision and places the burden on supervisors to keep track of time records for those who are dually employed.

But the Auditor’s Office just released the most comprehensive audit to date on if those rules are actually being followed. The short answer is — they aren’t.

The findings show the majority of state agencies do not keep complete records on dually employed individuals or time records and lack the policies and practices necessary to enforce the law.

The findings show the most overlap occurs between members of the Delaware legislature or the governor’s administration who also teach part-time at universities or colleges.

Of the 22 employees identified as dually employed by the state, 15 are identified as working for the University of Delaware (UD), and two were found to have potentially coincident time: Lt. Gov. Bethany Hall-long and former State Sen. 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,” the audit reads.

State Auditor Lydia York says while it’s commendable these officials are teaching part-time, the state needs to ensure they aren’t being paid for coincident time, and the university currently does not document coincident time or have a common practice for prorating salaries accordingly.

York says this is the first time ever that UD has given information to the Auditor’s Office for the audit, but the university holds firm that the law does not apply to them.

In a letter to Auditor York dated Sept. 6, 2024, UD’s Deputy General Counsel Daniela Ivancikova wrote: “To be clear: The University of Delaware is not subject to the Dual Employment Law, and the audit findings as to it are improper and misplaced. As provided in 29 Del. C. § 5822, the Dual Employment Law applies only to a State agency or its subdivisions. The Auditor’s Office has agreed in the past in writing, and again in a recent meeting, that the University is not a State agency.”

Ivancikova goes on to say UD declines to accept the recommendation for the university to work with the Auditor’s Office and the Public Integrity Commission to develop proper timekeeping and dual employment policies, arguing they are “based on a false legal premise.”

She also requested the findings to be removed from the report, saying they are based on “erroneous legal conclusions.”

But Auditor York disagrees, noting UD will continue to be audited in the future because the office is legally bound to “to follow state money wherever it goes.”

“Respectfully, UD has made their position clear, but I think that, ultimately, neither of us has the last word on exactly who’s included in this universe of folks that need to be reviewed and entities that we need to take a look at,” York said.

The auditor believes the only thing that can resolve this dispute once and for all would be clarification from the Delaware General Assembly.

Delaware House leadership released a statement saying they will be asking the Auditor’s Office to conduct a review encompassing the past decade but will work to review current procedures to find ways for better compliance.

“This broader review will allow us to thoroughly identify and address the full scope of any emerging issues within the General Assembly and across all covered Organizations,” the statement reads. “We are committed to reviewing our current procedures to identify opportunities for improving the tracking of hours in accordance with the Dual Employment Law. We are also prepared to work with the State Auditor and Public Integrity Commission to strengthen employer record-keeping practices and work toward full compliance with the Dual Employment law.”

The audit notes the General Assembly itself does not maintain detailed records documenting time spent by members at legislative sessions or committee meetings, preventing the auditor from confirming whether official’s pay from covered organizations was properly prorated or reduced for coincident hours of the day.

York says says the burden of timekeeping should be heavier on legislative members’ second occupation due to the nature of the job.

“It’s harder to collect that data from the [General Assembly] versus in the second set and the second situation, you’ve got one individual coming and going on a probably fairly standard schedule or something, and it’s just easier, frankly, to collect that information,” she said.

Although, she believes the General Assembly should still look into how they measure when people are present.

The audit also identified 33 instances where General Assembly records indicated that former State Rep. Andria Bennett, also the city clerk for Dover, 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 her workweek with the City of Dover.

The City of Dover did not maintain timekeeping records, documenting hours Bennett worked during the workday and workweek, meaning potentially coincident time could not be measured in her case.

But the City of Dover believes it did the best it could: “The City would like to clarify that it had attempted to address these concerns. In a letter to Auditor York, Council President David Anderson stated that the City possesses records of Ms. Bennett’s work hours and highlighted that she accepted a reduced salary in recognition of her dual roles. Ms. Bennett has also meticulously tracked her time to ensure compliance with applicable laws,” a statement from the city read.

“This was the first time the City hired an elected official who would be simultaneously serving in both roles, however the former Clerk encouraged individualized record keeping since this is not a typical 9 to 5 job due to reoccurring evening meetings. Ms. Bennett followed the directive from day one,” Dover’s Public Affairs Coordinator Kay Sass said. “Unfortunately the audit had already been completed. The chief of staff seemed satisfied with the letters content and regretted that it was too late.”

The audit found similar compliance issues withe Delaware State University, Eastside Charter School and Delaware Technical Community College.

York says this audit was done over a three-year cycle, but the office intends to get a regular two-year cycle up and running again next year.

“This audit is simply about ensuring that employers paying staff with taxpayer dollars have policies in place preventing officials from being paid for two jobs at one time,” York said. “The Dual Employment law has been in Delaware code since 1986. It is past time that those policies are created and strictly followed. I fully intend to uphold this office’s mandate and continue auditing Dual Employment compliance.”