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Knowledge, Fear of Retaliation, and Ethics Commission Selection Issues in D.C.
Thursday, July 12th, 2012
Robert Wechsler
According to an
article in yesterday's Washington Post, new allegations have
been made of a "shadow campaign" by which the District of Columbia's
largest contractor (in contract dollars) supported the current mayor's 2010 campaign to
the tune of about 650,000 unreported dollars. The money was allegedly spent on
all the usual campaign expenses, from yard signs to consultants to
staff salaries, but most of it was focused on the last two weeks of
the election period and on certain districts.
There are three issues here that I would like to focus on. One issue arises from a defense made by the public relations consultant who made the allegations about the secret campaign, regarding the contractor's secret expenditures: the contractor did not want to anger the incumbent mayor, because it would harm his business. The second issue involves the mayor's knowledge of the secret campaign. The third involves the mayor's recent selection of members for the new ethics board.
Transparency and the Fear of Retaliation
Transparency with respect to campaign contributions, or any gifts to officials or prospective officials, has one serious unintended consequence: it makes it difficult for an individual to support a candidate or official when this might cause another candidate or official to retaliate against him.
What the individual risks losing does not have to be as serious and direct as a city contract or job. An individual may worry about losing business from those supporting other candidates (usually the incumbent) or, where the local government has a very poor ethics environment, from losing business altogether, especially when the individual is a lawyer, realtor, or other local service provider. And the individual doesn't have to own the business that may be harmed. An employee will have the same concerns.
This unintended consequence only exists where there is fear of retaliation, and this fear exists only in a poor ethics environment. A contractor should not believe that he has to give thousands, not to mention hundreds of thousands, of dollars to ensure he keeps or increases the amount of his contracts. Whenever the fear of retaliation is expressed (privately; such fears are almost never expressed publicly) by more than a few people (not including the overly wary or people looking for an excuse to hold on to their money), there is probably a poor ethics environment. The problem is not the transparency, but the ethics environment and those who created it or who allow it to continue.
It is no surprise that the campaign chair for the former mayor (the one defeated by the current mayor) is now saying that the allegations bring into question the legitimacy of the current mayor's administration. Of course, the contractor may not really have been afraid of retaliation, but just using this as an excuse to hide his decision to cover all the angles. But there are few that seem to feel that the D.C. government's ethics environment has been very healthy.
Instead of talking about the problem of transparency with respect to campaign contributions and other gifts, we should focus our discussion on ethics environments and the problem of fear of retaliation. This is a legitimate topic for discussion and public hearings by an ethics commission. A big scandal should not be required to have this discussion.
Knowledge
The biggest issue in this matter is whether the mayor knew about the secret campaign. In a Post article the day before, it was said that prosecutors did not allege he knew anything about it. Then the headline of yesterday's article is, "Mayor Vincent C. Gray knew of campaign finance violations in January, sources say."
One council member is quoted in a Post editorial yesterday as having said, “Does any reasonable person believe that [the contractor] invested $653,000 in a shadow campaign and didn’t tell the beneficiary? That makes no sense. None.”
The question is, How much does it matter whether there is evidence that the mayor knew of the gift? It is unlikely that a mayor would know about a $100 illegal contribution, but he would still be liable for it under campaign finance laws. Why? Because it very difficult, and very expensive, to prove knowledge. A candidate takes responsibility for his campaign, just as a mayor takes responsibility for city expenditures. If he accepts an illegal contribution and does not return it within a reasonable amount of time, he is fined. If he signs off on a contract to a business associate, he is fined even if his aides put the whole deal together.
Criminal enforcement is based on knowledge and intent, or at least reasonable belief. Government ethics enforcement, at least where there are no jail sentences or huge fines, should not be based on knowledge or intent. An argument that the campaign screwed up or that the mayor had no idea his law partner was involved might be considered in lessening a penalty, but not in finding an ethics violation. An ethics program cannot allow a law partner to protect an official, nor can it spend many thousands of dollars trying to distinguish between negligence, gross negligence, and intentional conduct.
Ethics Board Selection
I strongly oppose participation in the selection of ethics board members by anyone who will be under the ethics board's jurisdiction, which usually means the participation of a mayor or legislative body. The District's mayor and council had the opportunity on three occasions to turn the selection process over to civic organizations or other neutral parties: when it created the new program; when the mayor failed to select members during the time designated by the ethics code; and when the mayor actually selected members rather than asking civic organizations to do the selecting for him.
Now, with the mayor more than under a cloud, how can the citizens of the District be expected to trust the new ethics board? And how can the new ethics board deal with any complaint against the mayor? If officials do not turn the selection process over to neutral parties, won't those selected be required to turn the ethics process over to a neutral party in order to preserve the integrity of the ethics process?
It's better to anticipate such a situation than it is to wait until it occurs. This is especially true because there will be a question when any of the mayor's appointees or close associates seek advice from or are the subject of complaints before the ethics board. It's not too late to do it right.
Robert Wechsler
Director of Research-Retired, City Ethics
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There are three issues here that I would like to focus on. One issue arises from a defense made by the public relations consultant who made the allegations about the secret campaign, regarding the contractor's secret expenditures: the contractor did not want to anger the incumbent mayor, because it would harm his business. The second issue involves the mayor's knowledge of the secret campaign. The third involves the mayor's recent selection of members for the new ethics board.
Transparency and the Fear of Retaliation
Transparency with respect to campaign contributions, or any gifts to officials or prospective officials, has one serious unintended consequence: it makes it difficult for an individual to support a candidate or official when this might cause another candidate or official to retaliate against him.
What the individual risks losing does not have to be as serious and direct as a city contract or job. An individual may worry about losing business from those supporting other candidates (usually the incumbent) or, where the local government has a very poor ethics environment, from losing business altogether, especially when the individual is a lawyer, realtor, or other local service provider. And the individual doesn't have to own the business that may be harmed. An employee will have the same concerns.
This unintended consequence only exists where there is fear of retaliation, and this fear exists only in a poor ethics environment. A contractor should not believe that he has to give thousands, not to mention hundreds of thousands, of dollars to ensure he keeps or increases the amount of his contracts. Whenever the fear of retaliation is expressed (privately; such fears are almost never expressed publicly) by more than a few people (not including the overly wary or people looking for an excuse to hold on to their money), there is probably a poor ethics environment. The problem is not the transparency, but the ethics environment and those who created it or who allow it to continue.
It is no surprise that the campaign chair for the former mayor (the one defeated by the current mayor) is now saying that the allegations bring into question the legitimacy of the current mayor's administration. Of course, the contractor may not really have been afraid of retaliation, but just using this as an excuse to hide his decision to cover all the angles. But there are few that seem to feel that the D.C. government's ethics environment has been very healthy.
Instead of talking about the problem of transparency with respect to campaign contributions and other gifts, we should focus our discussion on ethics environments and the problem of fear of retaliation. This is a legitimate topic for discussion and public hearings by an ethics commission. A big scandal should not be required to have this discussion.
Knowledge
The biggest issue in this matter is whether the mayor knew about the secret campaign. In a Post article the day before, it was said that prosecutors did not allege he knew anything about it. Then the headline of yesterday's article is, "Mayor Vincent C. Gray knew of campaign finance violations in January, sources say."
One council member is quoted in a Post editorial yesterday as having said, “Does any reasonable person believe that [the contractor] invested $653,000 in a shadow campaign and didn’t tell the beneficiary? That makes no sense. None.”
The question is, How much does it matter whether there is evidence that the mayor knew of the gift? It is unlikely that a mayor would know about a $100 illegal contribution, but he would still be liable for it under campaign finance laws. Why? Because it very difficult, and very expensive, to prove knowledge. A candidate takes responsibility for his campaign, just as a mayor takes responsibility for city expenditures. If he accepts an illegal contribution and does not return it within a reasonable amount of time, he is fined. If he signs off on a contract to a business associate, he is fined even if his aides put the whole deal together.
Criminal enforcement is based on knowledge and intent, or at least reasonable belief. Government ethics enforcement, at least where there are no jail sentences or huge fines, should not be based on knowledge or intent. An argument that the campaign screwed up or that the mayor had no idea his law partner was involved might be considered in lessening a penalty, but not in finding an ethics violation. An ethics program cannot allow a law partner to protect an official, nor can it spend many thousands of dollars trying to distinguish between negligence, gross negligence, and intentional conduct.
Ethics Board Selection
I strongly oppose participation in the selection of ethics board members by anyone who will be under the ethics board's jurisdiction, which usually means the participation of a mayor or legislative body. The District's mayor and council had the opportunity on three occasions to turn the selection process over to civic organizations or other neutral parties: when it created the new program; when the mayor failed to select members during the time designated by the ethics code; and when the mayor actually selected members rather than asking civic organizations to do the selecting for him.
Now, with the mayor more than under a cloud, how can the citizens of the District be expected to trust the new ethics board? And how can the new ethics board deal with any complaint against the mayor? If officials do not turn the selection process over to neutral parties, won't those selected be required to turn the ethics process over to a neutral party in order to preserve the integrity of the ethics process?
It's better to anticipate such a situation than it is to wait until it occurs. This is especially true because there will be a question when any of the mayor's appointees or close associates seek advice from or are the subject of complaints before the ethics board. It's not too late to do it right.
Robert Wechsler
Director of Research-Retired, City Ethics
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