Dealing with the Potential Conflicts Involved in EC Board Member Selection

Anonymous

Fri, 06/29/2012 - 07:04

City Related

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 href="http://www.cityethics.org/content/problems-nominating-top-government-la…; target="”_blank”">a
blog post</a> 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 <a href="http://www.cityethics.org/files/lgep1-0%20-%20Robert%20Wechsler.htm#Eth…; target="”_blank”">the
appropriate section of my book</a> 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 <a href="http://www.washingtonpost.com/opinions/the-right-choice-to-monitor-dc-e…; target="”_blank”">an
editorial in today's paper</a>, “'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 <a href="http://www.cityethics.org/content/full-text-model-ethics-code" target="”_blank”">City Ethics Model Code</a> 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

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