A New D.C. Ethics Reform Bill
On April 17, the District of Columbia ethics board filed
recommendations for ethics reform with the council (see <a href="http://www.cityethics.org/content/dc-ethics-boards-flawed-recommendatio…; target="”_blank”">my
blog post on the recommendations</a>). Council member Kenyan R.
McDuffie has introduced a bill that includes some of these
recommendations (attached; see below). <a href="http://dccouncil.us/events/government-operations-hearing-on-b20-264-and…; target="”_blank”">On
October 7, a hearing on the bill will be held</a> by the council's
Committee on Government Operations.<br>
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For the most part, only the ethics board's miscellaneous
recommendations are included in this bill. These were among its best
recommendations. But the ethics program needs more than changes here
and changes there, especially changes focused on enforcement. It needs to put the essential elements of a
government ethics program into place. It's good to see that there is
a commitment to continuing improvement, but it's not clear that
there is a vision in the District of what the ethics program should be or of what
the priorities are.<br>
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Here are the most important changes in the bill, with my comments.<br>
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1. <b>Jurisdiction</b>: The ethics program will now have clear
jurisdiction over all officials and employees in the District's
instrumentalities, its subordinate and independent agencies, its
boards and commissions, including Advisory Neighborhood Commissions,
and the council. Only the courts are expressly excepted. It would
have been better to have extended jurisdiction to all those seeking
special benefits from the District government, including contractors, consultants, permittees, grantees, etc.<br>
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2. <b>A New Code</b>: I had understood that the ethics board had already
been required to pull all the disparate ethics provisions together,
but it doesn't hurt to reiterate this, as is done in the reform
bill. Fortunately, the bill did not accept the ethics board's
suggested deadline of the end of this year. This is a difficult job.<br>
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The ethics board is also required to draft proposed rules
implementing the new code. Both proposals will need to be approved
by the council. For some reason, if the council does not act on the
implementation rules within 45 days, the rules will be deemed
disapproved.<br>
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3. <b>Requirement to Report</b>: This requirement is doubly good. Not
only are officials and employees required to report possible ethics
violations, but they are required to report to only one
person: the ethics board director. One of the biggest problems
in the D.C. ethics program is that too many people are involved.<br>
<br>
In addition, a failure to report constitutes an ethics violation
itself. This is good, but one wonders if anyone will, when reporting
a violation, also report that many of his colleagues knew about it
and failed to report it themselves. Also, will the ethics board file a
complaint for failure to report against official it interviews who admit to knowledge of facts that would
constitute a violation? In short, how does this work in practice? I
can't say I had thought of this myself.<br>
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4. <b>Requirement to Cooperate</b>: All officials and employees are
required to cooperate with ethics board requests. Obstruction of the
ethics board's access to documents will be considered an ethics
violation. This appears to be a response to problems the ethics
board has had with the inspector general's office (see <a href="http://www.cityethics.org/content/ec-vs-ig-battle-its-better-not-have&q…; target="”_blank”">my
blog post</a>; the problems have recently been worked out).
Wouldn't it be nice if this rule were extended to apply to any
person that does business with the city?<br>
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This good new rule goes a bit too far, however. Any official or
employee (although not any contractor or grantee) who "knowingly and
willfully falsifies, conceals, or covers up by any trick, scheme, or
device a material fact, or makes any materially false, fictitious,
or fraudulent statement or representation" has violated the ethics
code. This could get the ethics board caught up in very complex
perjury cases, where it is difficult to prove falseness, knowledge,
and willfulness, but also difficult to ignore what appears to be a
misstatement. No one wants people telling lies to or holding back
information from ethics investigators, but it would seem that the
requirement to cooperate, without the
need to show knowledge or malice, would be sufficient to deal with
concealment, without bringing into the matter either the myriad gray
areas between truth and falsity, or the evidence necessary to show
knowledge or malice.<br>
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5. <b>Contempt</b>: To the ethics code's complex method for enforcing a
civil penalty, the reform bill adds that a failure to obey a court
order may be considered to constitute contempt. Collecting penalties
is a problem, but it's not clear to me that this complex method is
the most cost-effective way.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
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