D.C. Council Inappropriately Overrides EC Advisory Opinion

Last November, I wrote a long blog post examining an important general advisory opinion from the District of Columbia's ethics commission on the subject of constituent services. Through a list of general considerations, a look at relevant laws, and a number of illustrative scenarios, the opinion essentially defined the term "usual and customary constituent services," which is an exception to the prohibition on the use of office for someone's personal benefit in the council's code of conduct. The opinion was made in response to a matter that had arisen with respect to a particular council member's situation. The goal was to provide clarity and guidance, especially to council members. I gave the advisory opinion a high grade, but noted a few positions with which I disagreed.

Earlier this month, the council passed a resolution (attached; see below) amending its code of conduct in order to define this same term, but with far more limited language and with no guidance at all. There are two problems with the definition it provided. One is the definition itself. The other is the council's interference with the EC's authority to interpret the District's ethics provisions.

Here is the council's new definition:

(2) “Usual and customary constituent services” includes an employee’s representational activities, such as advocacy, communications, inquiry, oversight, and other actions, made on another person’s behalf; provided, that the employee does not, directly or indirectly,
    (A) Threaten reprisal or promise favoritism for the performance or nonperformance of another person’s duties; or
    (B) Request that another person abuse or exceed the discretion available to that person under law.

The Definition Itself
I could not disagree with this definition more. First of all, it is very broad, both in the broad list of "activities" and in the narrow exceptions it provides. Most notable is the language of the exceptions:  the verbs used solely refer to communication, not to the character or substance of the activities:  "threaten," "promise," and "request." This means that any activity whatsoever is acceptable as long as the official says nothing unacceptable. Since it is hard to provide undeniable evidence of what an official has said, unless it is in writing, physically or digitally, constituent services include any activity where an official is not stupid enough to put his threats, promises, or requests in writing.

Let's be frank. When a council member calls an employee on the phone or shows up at her office to ask for something to be done, nothing much else has to be said. The act itself is threatening. This is one reason why it is common, in many jurisdictions, to have rules that greatly limit contact between council members and employees. These rules are not based on verbal communications. They are based on contact itself and the substance of the contact in the exceptions provided, that is, whether the contact involves acceptable things such as asking for information or seeking legal or personnel advice. The council clearly wants no limits at all beyond words of coercion and requests to act illegally.

Interference with EC Authority
The EC is given the authority to interpret ethics provisions through ethics advice and enforcement. The council does have the authority to amend ethics provisions, but is it appropriate to use this authority solely to override the EC's interpretation of one provision that primarily affects council members and with which those members happen to disagree? Or is it more appropriate for the council, in such a situation, to publicly explain its difference of opinion and try to work out, as publicly as possible, a resolution of these differences?

I believe that the council's handling of its disagreement was inappropriate and, therefore, makes its amendment to the code of conduct of questionable legitimacy. I am not alone in that belief. One at-large council member is quoted in a Washington Post editorial as saying, “[The EC] is doing what they were asked to do . . . and now we cut their legs out from them.” Another council member called the council's handling of the matter a “bad precedent.”

The Post editorial mocked the council's way of handling the matter:

The D.C. Council has come up with an inventive way to handle nettlesome advice from ethics officials: Change the rules. That’s so much easier than changing behavior that people of lesser understanding might find inappropriate. ... [The Council] crafted language to give themselves wiggle room in their ability to throw their weight around and practice retail politics.

If officials disagree with an EC interpretation, they should explain in detail how they differ — the way I myself did — and try to see if they can find some common ground and whether it is necessary to change the ethics provision or instead to redo the advisory opinion. They should use their power to rewrite ethics provisions to override an EC advisory opinion only if they have made a public and good faith effort to show how the EC's interpretation is damaging to the community, that the EC won't budge, and that there is no other alternative, for example, by creating a councilwide constituent services office, as I recommended in my blog post.

Although the council did speak with the EC, it did not include the EC in drafting the new language and does not appear to have made any effort to explain to the public its differences with the EC or the necessity and benefits of its action. The council should immediately stike the provision, and start the process all over again, doing it right this time.

Robert Wechsler
Director of Research-Retired, City Ethics

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