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A Discrimination Complaint Against the Montgomery County (MD) Ethics Commission
Thursday, November 19th, 2009
Robert Wechsler
I think it's safe to say that a local government ethics "first" has
occurred in Montgomery County, Maryland. A transgendered council aide
has filed a complaint against the county
ethics commission on the grounds that the EC investigated her
because of her gender identity, according to an
article in yesterday's Gazette. The aide drafted the 2007 law
prohibiting discrimination based on gender identity.
The matter before the ethics commission, which has found reasonable cause, is itself unusual. Opponents of the discrimination ordinance filed the complaint, contending that the aide had threatened or tried to intimidate them during heated disputes over the transgender law, according to an article in yesterday's Washington Post. It appears that the aide was acting in her personal capacity and on her own time, and it does not appear that her intimidation was that of a government official, but rather of a citizen with strong views.
Is it an ethics violation when an official gets into a heated political argument over an issue she takes very personally? It's certainly bad behavior, and the council member for whom she works should not be defending her. But it doesn't appear to me to be a government ethics issue.
Here's the relevant ethics code provision, which is also unusual:
Interfering with the freedom to engage in political activity could cover a wide range of conduct. Does this mean that any council member who stops a member of the public who has spoken too long or acted out of order has violated the ethics code? What threats from what level of official in what context are enough to constitute "interference"? And does the "interference" have to be successful? Is it enough for an official to say "Shut up!" even though the citizen goes right on talking?
And with respect to the complaint against the aide, does participating in a hateful two-way argument with people trying to get signatures on a petition (to take the discrimination law to referendum) "interference"?
I don't know how out-of-line the aide was. But let's assume it was a heated argument and that both sides said things they shouldn't have. It appears that the petition drive continued, with no one truly concerned that any threats would be carried out. If nothing came of bad behavior, if no one was hurt, isn't this a personnel issue? It would seem to be an issue for the aide's council member to deal with.
But having such a provision in an ethics code makes it impossible for an ethics commission to simply dismiss the complaint for lack of a stated violation. There appears to be reasonable cause.
But did the ethics commission, or county counsel investigating for the ethics commission, have to go through the aide's computer without authorization from the council chair, as is said to be the requirement? This seems to be the act that led to the aide's complaint. What signs of threats and intimidation did they expect to find on the computer? Did they expect to find e-mails to others saying what happened? Apparently, they found nothing that was relevant.
Even though there is an ethics provision relevant to the conduct, it is so much on the edge of government ethics that the ethics commission should simply have called the parties together, gotten their stories, and made a decision. There was no reason to do a full-fledged investigation, and especially to search the aide's computer.
But the most serious government ethics problem here involves the aide. Unless the aide is absolutely certain that the principal cause for the ethics commission's investigation was the aide's gender identity, she should not have filed the complaint. There are two reasons. One, it provides ammunition for her opponents, who predict just such abuses of the law. And two, the complaint sends a message to county residents that its officials write laws for their own benefit and then waste tax dollars by pursuing their crusade through complaints against the county itself. In other words, the complaint makes it look like the aide put her personal interest ahead of the public interest.
The ethics code doesn't apply to this particular conflict, but it would be more appropriate than having the code apply to heated political arguments.
Robert Wechsler
Director of Research-Retired, City Ethics
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The matter before the ethics commission, which has found reasonable cause, is itself unusual. Opponents of the discrimination ordinance filed the complaint, contending that the aide had threatened or tried to intimidate them during heated disputes over the transgender law, according to an article in yesterday's Washington Post. It appears that the aide was acting in her personal capacity and on her own time, and it does not appear that her intimidation was that of a government official, but rather of a citizen with strong views.
Is it an ethics violation when an official gets into a heated political argument over an issue she takes very personally? It's certainly bad behavior, and the council member for whom she works should not be defending her. But it doesn't appear to me to be a government ethics issue.
Here's the relevant ethics code provision, which is also unusual:
- Sec. 19A-14. Misuse of prestige of
office; harassment; improper influence. ...
(e) A public employee must not intimidate, threaten, coerce or discriminate against any person for the purpose of interfering with that person's freedom to engage in political activity.
Interfering with the freedom to engage in political activity could cover a wide range of conduct. Does this mean that any council member who stops a member of the public who has spoken too long or acted out of order has violated the ethics code? What threats from what level of official in what context are enough to constitute "interference"? And does the "interference" have to be successful? Is it enough for an official to say "Shut up!" even though the citizen goes right on talking?
And with respect to the complaint against the aide, does participating in a hateful two-way argument with people trying to get signatures on a petition (to take the discrimination law to referendum) "interference"?
I don't know how out-of-line the aide was. But let's assume it was a heated argument and that both sides said things they shouldn't have. It appears that the petition drive continued, with no one truly concerned that any threats would be carried out. If nothing came of bad behavior, if no one was hurt, isn't this a personnel issue? It would seem to be an issue for the aide's council member to deal with.
But having such a provision in an ethics code makes it impossible for an ethics commission to simply dismiss the complaint for lack of a stated violation. There appears to be reasonable cause.
But did the ethics commission, or county counsel investigating for the ethics commission, have to go through the aide's computer without authorization from the council chair, as is said to be the requirement? This seems to be the act that led to the aide's complaint. What signs of threats and intimidation did they expect to find on the computer? Did they expect to find e-mails to others saying what happened? Apparently, they found nothing that was relevant.
Even though there is an ethics provision relevant to the conduct, it is so much on the edge of government ethics that the ethics commission should simply have called the parties together, gotten their stories, and made a decision. There was no reason to do a full-fledged investigation, and especially to search the aide's computer.
But the most serious government ethics problem here involves the aide. Unless the aide is absolutely certain that the principal cause for the ethics commission's investigation was the aide's gender identity, she should not have filed the complaint. There are two reasons. One, it provides ammunition for her opponents, who predict just such abuses of the law. And two, the complaint sends a message to county residents that its officials write laws for their own benefit and then waste tax dollars by pursuing their crusade through complaints against the county itself. In other words, the complaint makes it look like the aide put her personal interest ahead of the public interest.
The ethics code doesn't apply to this particular conflict, but it would be more appropriate than having the code apply to heated political arguments.
Robert Wechsler
Director of Research-Retired, City Ethics
---
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