D.C. Ethics Board's Flawed Recommendations for Reform
In January, I wrote <a href="http://www.cityethics.org/content/ethics-reform-testimony-dc-and-tallah…; target="”_blank”">a
blog post</a> about the District of Columbia ethics board's first
public forum seeking recommendations for ethics reform. On April 17,
the ethics board published a report that makes recommendations for
improvements to the city's ethics program (attached; see below).<br>
<br>
Of the five recommendations I made in my testimony to the D.C.
board, only one of them appears in the recommendations. Our
principal difference is that the board does not appear to agree with
my argument that changes to ethics provisions should be left
until all the essential elements of a government ethics program are
in place. The ethics board's response to this is that, with respect
to "structural and compositional changes to its makeup," it will
"reserve any such comment and potential recommendations for future
reports." That is, it will take the opposite approach to what I
recommend.<br>
<br>
The Ethics Act requires that the board address eight specific
questions, none of them involving structural or compositional issues. Like me, those who presented written testimony did not respond to
the eight questions (except the last, open-ended one). But the
ethics board felt obliged to respond to them.<br>
<br>
<b>Federal Laws</b><br>
Therefore, its first recommendation is to give it the authority to
enforce the federal ethics laws that apply to D.C. officials and
employees. This is good, but the federal laws are written in such
complex language and with such complex sentence structures that
officials cannot understand them. Another ethics board
recommendation is to consolidate the ethics laws into one code, so
one could hope that this language would be simplified and improved.
However, the ethics board wants to preserve the federal language in
order to have federal interpretations and case law apply. It's good
to have precedents, but not if it means one is stuck with the
unreadable laws they interpret. I recommended consolidation of
ethics laws, but not with preference given to the horribly written
federal laws.<br>
<br>
Another problem with the federal laws is that, I believe, they apply
only to employees. Therefore, they most likely do not anticipate
conflict situations that elected officials commonly face, and the
advisory opinions and decisions based on these laws may very well
not apply very well to elected officials.<br>
<br>
<b>Enforcement Über Alles</b><br>
I also have a serious problem with the ethics board's emphasis on
enforcement, here and throughout the report. It speaks primarily of
enforcing laws, rarely of training or advising about laws. This
gives the impression that government ethics is mostly about
enforcement, which is not the case. Prevention through training and
advice is more important. In fact, enforcement is itself important
more for its educational value than for anything else. The lawyerly
approach that emphasizes enforcement of ethics laws is not only
inappropriate, but also damaging to an ethics program, because it
calls for judging it by its enforcement record, when enforcement
should be a last resort. This can lead to pressure to look tough, and <a href="http://www.cityethics.org/content/dc-ethics-boards-opinion-needs-rewrit…; target="”_blank”">decisions like the one in the Graham case</a>.<br>
<br>
<b>Procurement</b><br>
The ethics board appears inclined to seek jurisdiction over at least
part of the procurement process, noting that the agencies that
provide procurement oversight focus on compliance, fraud, waste,
abuse, and qualifications, rather than conflicts of interest.
The ethics board wants to do more research in this area before
making recommendations. This is a good area to seek ethics reform.<br>
<br>
<b>Nepotism</b><br>
With respect to nepotism, the ethics board makes a poor
recommendation that a provision be added prohibiting the appearance
of<br>
a nepotism-related conflict of interest, following this New York
language: "An officer or employee of a state agency ... should not
by his conduct give reasonable basis for the impression..." An
appearance standard is good for providing advice, but it does not
provide sufficient guidance to be fairly enforced.<br>
<br>
The ethics board opposes a waiver process relating to nepotism. This
is okay. But I am quoted in support of this position, when in fact
the language taken from my book <a href="http://www.cityethics.org/ethics%20book" target="”_blank”"><i>Local Government Ethics Programs</i></a>
actually supports an independent, public waiver process. Here is the
context in which the quote appeared (the italicized portion is where the report's quoting from
my book begins)<blockquote>
It is important to grant waivers only with public notice and input,
and a clear explanation of the grounds for granting the waiver,
because <i>allowing waivers opens the door to the wholesale gutting of
an ethics code...</i></blockquote>
The ethics board wants to expand the definition of family to
include two unusual groups: foster children and "consensual
romantic relationships." It's interesting that foster children are
almost never included in an ethics-oriented definition of family
(Oakland appears to be the exception). I suppose that this is
because foster care is usually short-term. But there are instances where officials could be
seen to act so as to benefit a former foster child.<br>
<br>
As for romantic relationships, these are simply too difficult
to define. You have to go back and decide exactly what their
relationship was at the time of the events, and when the events
occurred over time, were they friends, dating, lovers, or what?<br>
<br>
<b>Criminalizing Ethics Enforcement</b><br>
The worst of the ethics board's recommendations is to allow it to
criminally prosecute ethics violations. The board's decision to
recommend this is based solely on a look at other ethics codes, not
on weighing the pros and cons of criminalizing ethics enforcement.
This is irresponsible.<br>
<br>
As part of the criminalizing section of the report, the ethics board
recommends an interesting ethics provision (unfortunately
recommending that it have criminal penalties): a prohibition
against knowingly and willfully (1) falsifying, concealing, or
covering up by any trick, scheme, or device a material fact; or (2)
making any materially false, fictitious, or fraudulent statement or
representation by any person in their dealings with BEGA in
connection with an investigation, negotiated disposition,
enforcement proceeding, and/or advice giving, regardless of the
person's relationship to the matter at issue.<br>
<br>
A cover-up provision
is very tempting. However, such a provision could just as easily be
used against complainants, witnesses, and those seeking ethics
advice, thereby chilling the filing of complaints and requests for
ethics advice.<br>
<br>
I agree with the ethics board's decision not to ask that it be
permitted to "expel" council members.<br>
<br>
<b>Other Recommendations</b><br>
The best ethics board recommendations are in the catch-all eighth
section of the report. The first is to draft a Universal Code of
Conduct no later than December 31, 2013, thereby consolidating and
clarifying the application of the city's myriad ethics laws. This is
necessary. However, I don't see how it can be done well while
preserving the exact language of the federal ethics laws applicable
to District employees.<br>
<br>
The ethics board wants to be able to seek a finding of civil
contempt against those who do not pay penalties or otherwise comply
with ethics board decisions.<br>
<br>
The ethics board wants to ensure the cooperation of District agencies via a provision that
gives it access to all government records and facilities, and a
provision that requires all employees to cooperate with the ethics
board, subject to possible penalties for failure to do so.<br>
<br>
The ethics board takes this requirement to cooperate a step further
by seeking a requirement that every District employee or official
report "directly and without undue delay, any and all information
concerning conduct which they know or reasonably should know
involves a violation of the ethics laws." This is a good recommendation.<br>
<br>
Although the ethics board does not recommend that it be given a
monopoly on ethics advice (one of my recommendations), it does
recommend that an official or employee can be protected from
enforcement by ethics advice only if the advice came from the ethics
director, not from any of the several other people who may provide such
advice.<br>
<br>
The ethics board recommends that the conflict provisions be expanded
to include personal gain that does not involve financial gain to
anyone. This is good, but I doubt the council will do this unless the ethics
board gives some concrete examples of what it means by non-financial
gain.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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