The Problems with Nominating a Top Government Lawyer to Sit on an Ethics Commission
What does it mean to be a "high-caliber" nominee for a position on a
local ethics commission? Does it mean someone who has been in law
enforcement, a prosecutor or judge whose presence sends the message
that the law will be enforced? Or does it mean someone who appears
to be independent of the local government officials who are under
the commission's jurisdiction?<br>
<br>
This issue is raised by <a href="http://www.washingtonpost.com/local/dc-politics/gray-nominates-former-d…; target="”_blank”">an
article on the Washington <i>Post</i> website this morning</a>, which
says that today the D.C. mayor will be making his first nominations
to the city's new ethics commission, including former city attorney
general <a href="http://www.schertlerlaw.com/attorneys/spagnoletti.php" target="”_blank”">Robert
J. Spagnoletti</a> as chair, "a choice expected to lend
considerable credibility to the newly created panel."<br>
<br>
Spagnoletti was the city's attorney general (that is, city attorney)
from 2004 to 2006, two mayors ago (when the current mayor was a
council member), and has been an assistant U.S. attorney
(prosecutor) and president of the D.C. bar association. Clearly a
first-rate attorney.<br>
<br>
He is currently a partner at <a href="http://www.schertlerlaw.com/" target="”_blank”">Schertler
& Onorato</a>, heading the firm's government practice which,
according to the firm's website, "handle[s] matters before the
Office of Administrative Hearings and the Department of Motor
Vehicles; negotiate[s] employment and service contracts with various
agencies; represent[s] client interests before the Council of the
District of Columbia; and interpret[s] complex District laws and
regulations for clients doing business with the District. We also
assist clients who have claims against the District of Columbia by
negotiating with, or litigating against, the city."<br>
<br>
In other words, there are potential conflict situations galore. Not
only has Spagnoletti advised and represented current officials, but
he and his firm seek benefits for their clients from current
officials, and they lobby current officials.<br>
<br>
If he were to be chosen as the executive director, and were to leave
his firm, there would still be issues. But as chair of the ethics
board, there are simply too many possible conflict situations for
his leadership to be perceived as fair. Every time a matter was
dismissed or settled, it could be argued that he was trying to
placate an official to help (or prevent from hurting) a client, or even that the official was a former client of his.<br>
<br>
One way to deal with this situation would be to withdraw from numerous ethics matters, but no official should withdraw more than very occasionally. Another way would be to create a firewall, so that the chair would not
know what his law firm was doing (and to give up his own local government work). But as I have explained in <a href="http://www.cityethics.org/content/firewalls-and-indirect-financial-inte…
blog post</a>, because firewalls are done on the honor system,
their trustworthiness can easily be questioned.<br>
<br>
We cannot know the prospective chair's character, any more than we
can know the character of any government official. Therefore, we can
only go by relationships and perception. This is a basic fact of
government ethics. Spagnoletti and his firm have many relationships and seek various benefits from various officials.
When ethics matters go in favor of government officials, there will be a
perception that the relationships and benefits were relevant. That is all that matters.<br>
<br>
What Spagnoletti told the mayor was exactly the wrong thing to
say: “I come in into this with my integrity, and I intend to
leave with my integrity, ... I value my integrity, and I will place
a high emphasis on the board, and whatever findings we make, we will
do it with integrity.”<br>
<br>
In government ethics terms, having integrity means owning up to
one's relationships and possible conflicts, and dealing with them
responsibly. This is what Spagnoletti should do. Acknowledging that
he has too many relationships and too many possible conflicts to
effectively sit on the ethics board, he should turn down the mayor's
offer, and explain to the public why it is important that he do
this.<br>
<br>
Why are prosecutors, or even attorneys, so often considered
"high-caliber" nominees? Any professional has at least as good an
understanding of conflicts of interest. Medical professionals,
clergy, psychotherapists, professors, architects, they are capable
of doing just as good a job. And they usually don't have
relationships with those who will be under their board's
jurisdiction.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
203-859-1959