Dealing with the Potential Conflicts Involved in EC Board Member Selection

There is a great deal to be learned from the selection process for the new District of Columbia Board of Ethics and Government Accountability, which is effectively complete. Three weeks ago, I wrote a blog post about the nomination of Robert Spagnoletti to be chair of the new ethics board. I questioned this nomination of a former D.C. Attorney General (that is, city attorney), who had represented many high-level officials, and a present attorney who regularly represents clients seeking benefits from the District government. I also questioned the view of so many officials, as well as the press and good government organizations, that a former prosecutor makes an ideal ethics commission member.

When asked by the chair of a council committee to give testimony at a public hearing on Monday of this week, I thought further about this nomination and worked with Kathleen Clark, former special counsel to the current D.C. Attorney General, on what turned out to be an op-ed piece for the Washington Post, which appeared on Sunday (attached; see below).

This post will put what I learned from this process into a guide to the ethics commission selection process.

1. No one under an EC's jurisdiction (in the D.C. case, the mayor) should be involved in selecting EC members. It politicizes the process and the ethics program. Everything that is said and done can be seen as having political motivations, that is, as being done to please officials from whom an EC member may benefit in the future. In addition, it places a conflict situation (jurisdiction over one's nominator and his appointees and supporters) at the center of a conflict of interest program. For more on this issue, and alternative ways to handle nominations, see the appropriate section of my book Local Government Ethics Programs.

Another way to approach this issue is to consider the appearance problems created when someone under an EC's jurisdiction nominates its members. Think how it would look if a nominee was later to be involved in a matter involving his nominator. And this appearance problem does not end there. The problem remains when an ethics matter involves an aide of their nominator, a running mate of their nominator, or even an important appointee of their nominator.

If the legislative body as a whole nominates, this would not be as serious a problem. However, often it is one council member who sponsors the nomination and is seen as the nominator, even if the nomination is formally the council's.

It is worth noting that Spagnoletti promised to withdraw from matters involving the mayor who nominated him, but this was due to his past private representation of the mayor, not to the fact that he was nominated by the mayor. And the promise was made only for the "short term," which implies that, at some point in Spagnoletti's six-year term, he would be willing to participate in a matter involving the mayor, even if the appearance of impropriety was no different at that point than it is now. And even though any sign of favoritism toward a mayor, not to mention a mayor who nominates EC members, can destroy an ethics program's credibility.

2. Nominees should have no personal or professional relationship with the nominator. This creates the appearance that the nominee is the nominator's representative on the EC. In D.C., the nominee had represented the mayor as Attorney General, and had also represented him as his private attorney. This will lead people to see him as the mayor's man, which could be problematic to the pont that he would have to resign rather than simply withdraw from a matter.

3. Nominees should not be current or recent officials in the government. They should certainly not have had a special relationship with any high-level officials, which could be seen as creating bias toward them (or against their opponents). An EC member's relationship with someone who comes before the EC should never become an issue.

4. Nominees should not seek benefits, directly or indirectly, from the government during their term on the EC. Nor should they have a business or practice that would place them in a situation where they would be concerned, or be seen as being concerned, about the effect being hard on an official would have on their business or clients when their term on the EC ended.

Too often, people think in terms of particular matters and particular officials. For example, in his testimony before the council committee considering his nomination, Spagnoletti said, "I would recuse myself from Board consideration of any matter involving the specific government employee or official with whom the firm is negotiating or requesting relief."

This is not sufficient. The world does not consist of matters and isolated government officials. Talk of specific officials and specific negotiations fails to recognize that conflicts of interest are the result of relationships (e.g., family relationships, business relationships, agent relationships (such as lawyer-client)), and that relationships are ongoing series of contacts and mutual favors. Negotiations with an assistant agency director will affect one's relationship with the director and with others in the agency. An ethics proceeding, and even an advisory opinion, will affect one's relationship with the official who is the respondent, or who requests the advice, as well as others in the agency. A matter handled by one's partner or associate also affects one's relationship with the officials involved in the matter. Every individual sits in the midst of a web of relationships, where direct and indirect, past, present, ahd future, all matter equally. And this is the way people view the world and how they determine whether government officials are using their offices to help themselves and those with whom they have special relationships. Separating pieces out of the web is not a responsible or realistic way to deal with conflict situations.

A lawyer seeking benefits in the future from officials for his clients will be thinking of the beneficial and harmful effects on future clients (and, therefore, on himself) of his interactions with officials. And the lawyer will be seen as thinking this way whenever he acts in his role as EC member in a way that could be considered favoritism to an official (in the EC member's questions, in his support for or opposition to an investigation, in his vote on probable cause, in his participation or lack of participation at a public hearing, in his final vote).

Anyone who understands how relationships work would have every right to believe that an attorney sitting on an EC would act in such a way as to protect his clients by not undermining his relationship with any official before whom he might represent someone in the future. One owes this to one's clients and, indirectly, to oneself. This does not make the individual bad; it merely recognizes the underlying obligations of his relationships.

One cannot ignore the client's view of an attorney's position on an EC. A clever business person might reasonably believe that, since the attorney has special power over government officials through his EC office, officials are more likely to do what the attorney asks and, therefore, what benefits the client. Relationships are two-way streets, and officials have reason to believe that, if they are helpful to an ethics commission member's clients, the EC member will be helpful to him. This will help the EC member's practice, if the practice is allowed to continue.

In the end, Spagnoletti came to accept this, partly because, as it turns out, the council accepted this when it drafted the ethics code. Kathleen Clark, in her testimony before the council committee, noted an overlooked provision that prohibits ethics board members from lobbying, a term defined not as acting as a registered lobbyist, but rather as "communicating directly with any official in the legislative or executive branch of the District of Columbia government with the purpose of influencing any legislative action or an administrative decision."

In other words, lawyers who represent clients' interests before District agencies cannot serve on the ethics board. This is an excellent idea, which I will add to the City Ethics Model Code. Too often, as in the Model Code, lobbyists are excluded without thinking why. The reason is that they are seeking benefits for their clients, and people seeking benefits for their clients from people over whom they have jurisdiction should not sit on an ethics board. It doesn't matter whether such people must register or not. It is their seeking of benefits for their clients, and what this does to both the reality and appearance of their relationships with officials, that makes their participation in an ethics program problematic.

Unfortunately, it is not clear whether Spagnoletti has not fully embraced this definition. He told the Washington Post, according to an editorial in today's paper, “'I would not take on any representation that would allow use of my name or my legal opinions to be used to sway the D.C. government.” ... Included here are taking on clients that would pose a conflict, issuing legal opinions that could be shopped around or making the rounds to council members or other officials to urge certain action or policy."

Since ethics provisions are minimum requirements, a nominee's promises should go beyond the definition, not fall short of it. This is why, even if there is no such requirement in an ethics code, an EC member should not be seeking benefits from the government in any way, nor should his business or professional associates.

Before moving on, it is important to look at the other side of this conflict situation. So far, I have only considered the situation of the EC member being easy on an official in order to help a client. But what if he was hard on an official from whom a client might seek a benefit? This could harm the client’s cause, which is something a lawyer should not do. It is a breach of legal ethics, even if it may not be clearly spelled out in a legal ethics provision.

Once you have acknowledged the other side of the conflict situation, you recognize how serious a conflict situation involving an attorney-official can be. Whatever he does, there is harm to an individual or entity to whom he has special obligations. It is a lose-lose situation, involving both government and legal ethics, that can be solved by withdrawal, but not just when there is a clear and current conflict. Withdrawal is required whenever an EC member's conduct might have an effect on a client (present or future) or on the ethics program. This could require too many withdrawals, especially in important cases, for the attorney to responsibly fill his position.

5. Maybe attorneys are not the best people to put on ECs. Some ethics codes actually require that one or more attorneys sit on the EC. But this is based on the false view that attorneys have some special professional knowledge that others lack. This view seems to be strong in D.C. It is especially strong when former prosecutors are involved. The assumption behind the common view is that ethics programs are intended to prosecute wrongdoing, and that this should be done by attorneys who have proven that they are tough. But government ethics is neither about law, nor about prosecution. It is about prevention through training, advice, disclosure, and discussion. An effective ethics program will prevent prosecution, not require it to be tough. And most serious offenses are crimes that are handled outside an ethics program.

Considering the relationships most attorneys who are nominated to serve on an EC have with local officials (and prosecutors are often very politically connected individuals), it is probably best that nominators look to other professionals who lack these relationships. All professionals have ethics codes and, therefore, a basic understanding of conflicts. There is no reason to focus on attorneys.

6. In considering the nomination process, it is also important to consider how EC members are to deal with their conflicts. When an ethics program is new, who should a nominee turn to for advice? The default is usually to ask the city or county attorney. But they are (1) political appointees or elected officials, often with a bias, real or perceived (that is, they are seen as trying to do what the mayor, the nominator, wants, which is not necessarily best for the ethics program), and (2) not particularly knowledgeable about government ethics. In such a case, the nominee should seek, and the government should offer to pay for, professional ethics advice from an expert outside the government. If there is an ethics staff professional, the nominee can ask her.

But what about after the nominee takes his position on the EC and establishes a relationship with the staff professional? A chair especially develops a close relationship with the ethics officer or executive director, which is similar to an attorney-client relationship. Can that person be neutral enough (and be seen as neutral enough) to provide advice regarding an EC member's possible conflict? An alternative is to allow the other members on the EC to decide, but this is uncomfortable. The alternative of making the decision oneself ignores the many blind spots we all have that prevent us from seeing our conflict situations as clearly as we see others'. With tough situations, it's best for the EC member to seek advice an outside ethics professional for advice. And to make complete disclosure of every possible conflict situation, no matter how the EC member handles it.

The problem of handling a conflict situation becomes more clear when one considers what happens if someone files a complaint against an EC member based on a conflict situation, that is, if it is perceived that he handled the situation irresponsibly. Since the EC should not self-regulate any more than a legislative body, the case needs to be handled by another individual or entity. The ethics code should expressly provide a process for such a complaint, and many do. The D.C. code provides a limited process relating to a violation of the code's own requirements, which includes acting as a lobbyist and using one's office to influence officials. The mayor may file a complaint and remove such an EC member, but the EC member may ask for a hearing by the council.

The City Ethics Model Code provides for possible removal by the legislative body, with a 3/4 majority vote required. It expressly states, "If the Ethics Commission receives a complaint alleging that the Commission or any of its members or staff has violated any provision of this code, or any other law, the Commission must promptly transmit to the legislative body a copy of the complaint." It is important to do this.

But these solutions put the situation in the hands of the very people who nominated and approved the EC member, and it politicizes the handling of the situation. Even if they were not involved in the selection process, a mayor and legislative body, and their colleagues, are most likely the very people with whom the EC member has a relationship leading to the conflict situation that is the basis for the complaint. In other words, everything possible should be done to prevent there being conflict situations involving EC members, and the best way to do this is to select individuals who do not have relationships with more than a few random officials they know from their neighborhood or civic activities.

Robert Wechsler
Director of Research-Retired, City Ethics

203-859-1959