D.C. Ethics Board's Opinion Needs a Rewrite

Anonymous

Fri, 02/08/2013 - 09:22

City Related

The first opinion of the District of Columbia's Board of Ethics and
Government Accountability (a searchable copy is attached; see below)
raises some interesting questions relating to enforcing
unenforceable ethics provisions, vagueness, and publishing evidence
and an opinion about a case that is being dismissed before an
investigation has been conducted. The opinion also shows that the
new ethics board has a long way to go up the learning curve of
government ethics.

The matter involves a council member, Jim Graham, who sat on the
Washington Metropolitan Area Transit Authority (WMATA) as a
representative of the council. He is alleged to have told a bidder
on a WMATA project that he would support the bidder's efforts to
secure a lottery contract before the D.C. council if the bidder
withdrew from the WMATA project. I wrote <a href="http://www.cityethics.org/content/misuse-local-office-regional-board&qu…; target="”_blank”">a
blog post</a> about the situation in October and, therefore, won't
go further into the facts here. The ethics board initiated a
preliminary investigation based on an independent report
commissioned by WMATA. 
 
Enforcing Unenforceable Ethics Provisions 
The first wrong thing the ethics board did was to consider as
possible ethics violations, for the purpose of enforcement, <a href="http://www.dcregs.dc.gov/Notice/Download.aspx?VersionID=872726" target="”_blank”">the
following provision in D.C.'s municipal regulations</a>:<blockquote>

1803.1(a). An
employee
shall avoid action, whether or not specifically prohibited by this
chapter,
which might result in or create the appearance of the following: 
 
(1) Using public office for private gain;

(2) Giving preferential treatment to any person;

(3) Impeding government efficiency or economy;

(4) Losing complete independence or impartiality;

(5) Making a government decision outside official channels; or

(6) Affecting adversely the confidence of the public in the integrity of government.</blockquote>

I believe that §1803.1(a) either was intended to be, or should
be, treated as an aspirational provision. An aspirational provision
should not be enforced because it is too vague and/or uses essential
terms that are impossible to clearly define (try defining
"preferential treatment" or "complete independence"). Aspirational
provisions should be set off from enforceable provisions, called
something like "Declaration
of Policy," and be clearly designated as unenforceable. 
 
The fact that this provision was not set off as a declaration of
policy or designated as unenforceable does not change the fact that
it looks and walks just like a declaration of policy, but for the
words "shall avoid action." But even these words are not the same as
"shall not take action." Why use the unusual word "avoid" here? I
did a search of the local ethics code directory in my computer, and
found the use of the word "avoid" always tied to aspirational
provisions, especially the phrase "avoid the appearance of
impropriety." While officials should avoid the appearance of
impropriety, this is not a standard that should be enforced. 
 
Believing that aspirational language can be enforced is one of the
biggest enforcement mistakes ethics commissions make. This mistake
can lead to some very ugly ethics proceedings. See, for instance, my
blog posts on this happening <a href="http://www.cityethics.org/content/stamford-ethics-controversy-involving…; target="”_blank”">in
Stamford, CT</a> and <a href="http://www.cityethics.org/content/basing-ethics-decisions-unenforceable…; target="”_blank”"> in
Marlboro, NJ</a>. 
 
In addition, most of the D.C. aspirational provisions are not even
related to government ethics. The fact that they're included in an
apparently enforceable ethics rule shows a level of ignorance of
government ethics by the drafters of these rules that makes an
overhaul of the D.C. ethics rules something that should not be put
off for another minute (see <a href="http://www.cityethics.org/sites/cityethics.org/files/City%20Ethics%20Re…; target="”_blank”">my
January recommendations for D.C. ethics reform</a>). 
 
Making government decisions outside official channels is not in
itself a government ethics problem. There should be clear rules
about communications with administrators, executive branch
employees, and potential contractors, which should be enforced by
WMATA and/or by the council or a council committee. This is what I
recommended in <a href="http://www.cityethics.org/content/misuse-local-office-regional-board&qu…; target="”_blank”">my
blog post</a>. 
 
Going outside official channels is not an issue that should be dealt
with by an ethics board, especially not in the form of an opinion.
If this is an ongoing problem that leads to multiple ethics
complaints, it would be appropriate for an ethics board to
encourage, or even hold, a discussion on the issue and to make
recommendations about changes that would end damaging practices. But
the actual passing of such rules, or the interpretation of ethics
provisions to include this sort of misconduct, is outside an ethics
board's jurisdiction. 
 
It is not an ethics violation to impede government efficiency. If it
was, encouraging public participation (democracy is the opposite of
efficiency) would violate the ethics code. As it is, increasing
public participation is an important secondary goal of government
ethics. 
 
No council member has "complete independence." He is restricted by
such things as constituent concerns, partisan concerns, and the
limits of his support staff. And council members are not expected to
be completely impartial. They are not judges. They are, in fact,
elected to be partial to the policies and projects they support in
their campaign. 
 
Preventing adverse effects on public trust is a goal of government
ethics, but much conduct that adversely affects the public trust has
nothing to do with government ethics. For example, breaking a
campaign promise, making a misrepresentation, or shouting down a
citizen at a meeting. 
 
An ethics commission with authority to punish any conduct that could
be said to adversely affect the public trust or impede government
efficiency is a body that could control every aspect of local
government, if it had a sufficient budget. 
 
Vagueness 
The second wrong thing the ethics board did was to dismiss Graham's
argument that the provisions he is said to have violated are vague.
Here is the ethics board's argument:<blockquote>

the District's Code of Conduct is written in plain language that
makes it clear to average employees at all levels of District
government that they cannot engage in conduct that creates the
appearance of impropriety. The rules are based on common sense and
are easily followed. We do not find them to be vague. They are
written in a way to encompass a wide variety of behavior that is
improper and prohibited. Given the numerous and various ways that
government employees could use their office for private gain, to
give preferential treatment, or adversely affect public confidence
in the integrity of government, it is unrealistic to expect statutes
and regulations to spell every method in detail.</blockquote>

As I've shown above, these rules are both irrelevant in many ways to
government ethics and are so overbroad as to prohibit conduct that
is desirable and in the public interest. The rules are not based in
common sense, nor are they easily followed. How can an official know
what conduct may or may not adversely affect the confidence of the
public in the integrity of the government? It is generally
understood that any rule regarding appearance is too vague to
enforce. Appearance of impropriety is a foundational standard for
dealing responsibly with a conflict situation and for providing
advice. But it is far too vague to be enforced. 
 
It is not unrealistic to expect ethics provisions to spell out what
it means by, for example, preferential treatment or misuse of
office, especially when it comes to enforcement. There needs to be
some level of description of such things as benefits (financial or
personal, direct
indirect?) and beneficiaries covered (immediate family or aunts and
uncles, too? nonprofits of which an official is a member? etc.).
With respect to the case against Graham, the ethics board accuses
him of having helped a campaign contributor. And yet no ethics
provision is mentioned that prohibits helping a campaign
contributor. It would have been very easy to have drafted such a
provision. In fact, I have a name for just such a provision: the
Westminster approach (<a href="http://www.cityethics.org/node/471">see
my blog post on it</a>). 
 
Graham was correct to say, in his response to the ethics board, that
several of the cited rules are so vague that to enforce them in this
proceeding would violate due process. The ethics board needs to
rethink and restate its decision on vagueness immediately. To
enforce vague, aspirational provisions, especially those that are
ordinarily outside an ethics commission's jurisdiction, will
undermine officials' support for the ethics program, among other
problems. 
 
What Dismissal Entails 
The most interesting question the ethics board's opinion raises is,
What does dismissal entail? Should an ethics commission do anything
more than state the reason for dismissal? 
 
The answer might depend on the reason for dismissal. Reasons for
dismissal include:<blockquote>

No ethics violation alleged 
Statute of limitations run 
No jurisdiction over the individual 
Respondent followed ethics advice or had a waiver 
Allegations have already been dismissed 
De minimis violation</blockquote>

If it was found that the respondent had followed ethics advice or
had a waiver, it might be important to consider the facts of the
situation to make sure that they were essentially the same as the
facts provided when seeking advice or a waiver. 
 
If it was found that there was a de minimis violation not worthy of
further investigation or enforcement, it is of value to other
officials to state the facts in a letter or decision. 
 
But when the dismissal is for any of the other reasons, I don't
think that an ethics commission should do any more than state the
reason for dismissal so that it is clear to the complainant, the
respondent, and the public why the allegations were dismissed and
not investigated. 
 
This is especially true when, as here, the investigation is
self-initiated and there is no complaint, and no allegations, to
dismiss. In such an instance, the only reason to say anything is
because the investigation has been made public, and it is best to
let the public know why the ethics board is not filing a formal
complaint and starting a formal investigation. 
 
Sanctions and Amnesty 
In this case, the ethics board dismissed for a different reason, one
that applies specifically to the situation of a new ethics code and
old conduct (the events occurred in 2008). The ethics board
dismissed the ethics complaint because "when the relevant acts
occurred, the Board of Elections was responsible for enforcing the
provisions [and] was without the power to sanction a Councilmember;
it did not have the power to levy fines or censure a member of the
Council for violations of those provisions." Any punishment would be
increased punishment and would therefore violate the Ex Post Facto
Clause of the U.S. Constitution. 
 
In effect (although not expressly), the ethics board treated the
matter as a de minimis violation. It said that it would be unwise to
invest significant time and resources in further investigation
"where no sanction could be imposed." As with a de minimis
violation, it felt it had enough evidence to make a preliminary
finding that a formal investigation was justified, only doing so was
not worth the bother. 
 
The problem is that this conclusion is wrongheaded for two reasons.
One, the dismissal should not have been for lack of sanctions. It
should have been for lack of there being a possible ethics
violation. The three ethics provisions the ethics board said may
have been violated are all aspirational: abandonment of
impartiality, preferential treatment, and adversely affecting the
public trust. The ethics board should never have gotten to the
consideration of whether its inability to impose sanctions makes
further investigation wise. 
 
Two, I don't believe that a lack of sanctions has anything to do
with whether further investigation is wise. Ethics enforcement is
more about education than it is about punishment. Many ethics
commissions have no enforcement powers, and yet they investigate and
report on possible ethical misconduct. In any event, a public
finding of an ethics violation is itself punishment. Many officials
resign before such a finding is made, and many are not re-elected,
or are fired, after such a finding. If there were evidence of an
ethics violation, I think the ethics board should have pursued it,
even if it could impose no sanctions at all. 
 
By choosing not to initiate an investigation due to its inability to
impose sanctions means that no one will file a complaint relating to
past misconduct, knowing the ethics board will dismiss the
complaint. This means that the opinion effectively provides amnesty
for all ethical misconduct that occurred before the ethics board was
established, even though prohibitions were in place when the
misconduct occurred. 
 
The Opinion 
I think it was seriously irresponsible to have written a 28-page
opinion detailing Graham's supposed ethics violations when the
matter should have been dismissed because the ethics board could not
allege an enforceable ethics violation. 
 
Even taking into account that the ethics board did not understand
that aspirational provisions are not enforceable, if it felt it
could not proceed with the matter due to its lack of sanctions, it
should have said no more. It is not the role of an ethics commission
to make detailed allegations if it does not intend to further
investigate them. If an ethics commission is finding a lack of
probable cause, then it's necessary to talk about the facts in
explaining that there is insufficient evidence. But it is
inappropriate to present evidence as sufficient to start a full
investigation and then not either say the evidence is insufficient
or give the respondent a way to formally respond (the WMATA
investigation also did not give Graham a way to formally respond). 
 
It is not too late for the ethics board to correct its errors. It is
not unusual to make mistakes when you are new to government ethics.
The responsible thing is to reconsider the opinion and publicly
explain (and apologize for) what went wrong. Doing this will allow
the ethics board to deal with past misconduct and ease the
reasonable fear of officials that, with its new sanctions, the
ethics board may become the gotcha! board every official fears. 
 
I don't see how the necessary ethics reforms can proceed without the
mistakes in this opinion being corrected. How many officials will
want to create a truly independent ethics program with a sufficient
budget if they fear being accused of violating vague laws? 
 
Robert Wechsler 
Director of Research-Retired, City Ethics 
 
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D.C. Ethics Board's Opinion Needs a Rewrite

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