D.C. Council Inappropriately Overrides EC Advisory Opinion
Last November, I wrote <a href="http://www.cityethics.org/content/advisory-opinion-concerning-constitue…; target="”_blank”">a
long blog post</a> examining <a href="http://www.cityethics.org/sites/cityethics.org/files/DC%20Constituent%2…; target="”_blank”">an important general advisory opinion</a>
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.<br>
<br>
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.<br>
<br>
Here is the council's new definition:<blockquote>
(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,<br>
(A) Threaten reprisal or promise favoritism for
the performance or nonperformance of another person’s duties; or
<br>
(B) Request that another person abuse or exceed
the discretion available to that person under law.</blockquote>
<br>
<b>The Definition Itself</b><br>
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.<br>
<br>
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.<br>
<br>
<b>Interference with EC Authority</b><br>
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?<br>
<br>
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 href="http://www.washingtonpost.com/opinions/the-dc-council-unwisely-revises-…; target="”_blank”">a
Washington <i>Post</i> editorial</a> as saying, “[The EC] is doing what
they were asked to do <span>. . .</span> and now we cut their legs
out from them.” Another council member called the council's handling
of the matter a “bad precedent.”<br>
<br>
The <i>Post</i> editorial mocked the council's way of handling the matter:<blockquote>
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.</blockquote>
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.<br>
<br>
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.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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