D.C. Ethics Board's Flawed Recommendations for Reform

In January, I wrote a blog post about the District of Columbia ethics board's first public forum seeking recommendations for ethics reform. On April 17, the ethics board published a report that makes recommendations for improvements to the city's ethics program (attached; see below).

Of the five recommendations I made in my testimony to the D.C. board, only one of them appears in the recommendations. Our principal difference is that the board does not appear to agree with my argument that changes to ethics provisions should be left until all the essential elements of a government ethics program are in place. The ethics board's response to this is that, with respect to "structural and compositional changes to its makeup," it will "reserve any such comment and potential recommendations for future reports." That is, it will take the opposite approach to what I recommend.

The Ethics Act requires that the board address eight specific questions, none of them involving structural or compositional issues. Like me, those who presented written testimony did not respond to the eight questions (except the last, open-ended one). But the ethics board felt obliged to respond to them.

Federal Laws
Therefore, its first recommendation is to give it the authority to enforce the federal ethics laws that apply to D.C. officials and employees. This is good, but the federal laws are written in such complex language and with such complex sentence structures that officials cannot understand them. Another ethics board recommendation is to consolidate the ethics laws into one code, so one could hope that this language would be simplified and improved. However, the ethics board wants to preserve the federal language in order to have federal interpretations and case law apply. It's good to have precedents, but not if it means one is stuck with the unreadable laws they interpret. I recommended consolidation of ethics laws, but not with preference given to the horribly written federal laws.

Another problem with the federal laws is that, I believe, they apply only to employees. Therefore, they most likely do not anticipate conflict situations that elected officials commonly face, and the advisory opinions and decisions based on these laws may very well not apply very well to elected officials.

Enforcement Über Alles
I also have a serious problem with the ethics board's emphasis on enforcement, here and throughout the report. It speaks primarily of enforcing laws, rarely of training or advising about laws. This gives the impression that government ethics is mostly about enforcement, which is not the case. Prevention through training and advice is more important. In fact, enforcement is itself important more for its educational value than for anything else. The lawyerly approach that emphasizes enforcement of ethics laws is not only inappropriate, but also damaging to an ethics program, because it calls for judging it by its enforcement record, when enforcement should be a last resort. This can lead to pressure to look tough, and decisions like the one in the Graham case.

Procurement
The ethics board appears inclined to seek jurisdiction over at least part of the procurement process, noting that the agencies that provide procurement oversight focus on compliance, fraud, waste, abuse, and qualifications, rather than conflicts of interest. The ethics board wants to do more research in this area before making recommendations. This is a good area to seek ethics reform.

Nepotism
With respect to nepotism, the ethics board makes a poor recommendation that a provision be added prohibiting the appearance of
a nepotism-related conflict of interest, following this New York language: "An officer or employee of a state agency ... should not by his conduct give reasonable basis for the impression..." An appearance standard is good for providing advice, but it does not provide sufficient guidance to be fairly enforced.

The ethics board opposes a waiver process relating to nepotism. This is okay. But I am quoted in support of this position, when in fact the language taken from my book Local Government Ethics Programs actually supports an independent, public waiver process. Here is the context in which the quote appeared (the italicized portion is where the report's quoting from my book begins)

It is important to grant waivers only with public notice and input, and a clear explanation of the grounds for granting the waiver, because allowing waivers opens the door to the wholesale gutting of an ethics code...

The ethics board wants to expand the definition of family to include two unusual groups:  foster children and "consensual romantic relationships." It's interesting that foster children are almost never included in an ethics-oriented definition of family (Oakland appears to be the exception). I suppose that this is because foster care is usually short-term. But there are instances where officials could be seen to act so as to benefit a former foster child.

As for romantic relationships, these are simply too difficult to define. You have to go back and decide exactly what their relationship was at the time of the events, and when the events occurred over time, were they friends, dating, lovers, or what?

Criminalizing Ethics Enforcement
The worst of the ethics board's recommendations is to allow it to criminally prosecute ethics violations. The board's decision to recommend this is based solely on a look at other ethics codes, not on weighing the pros and cons of criminalizing ethics enforcement. This is irresponsible.

As part of the criminalizing section of the report, the ethics board recommends an interesting ethics provision (unfortunately recommending that it have criminal penalties):  a prohibition against knowingly and willfully (1) falsifying, concealing, or covering up by any trick, scheme, or device a material fact; or (2) making any materially false, fictitious, or fraudulent statement or representation by any person in their dealings with BEGA in connection with an investigation, negotiated disposition, enforcement proceeding, and/or advice giving, regardless of the person's relationship to the matter at issue.

A cover-up provision is very tempting. However, such a provision could just as easily be used against complainants, witnesses, and those seeking ethics advice, thereby chilling the filing of complaints and requests for ethics advice.

I agree with the ethics board's decision not to ask that it be permitted to "expel" council members.

Other Recommendations
The best ethics board recommendations are in the catch-all eighth section of the report. The first is to draft a Universal Code of Conduct no later than December 31, 2013, thereby consolidating and clarifying the application of the city's myriad ethics laws. This is necessary. However, I don't see how it can be done well while preserving the exact language of the federal ethics laws applicable to District employees.

The ethics board wants to be able to seek a finding of civil contempt against those who do not pay penalties or otherwise comply with ethics board decisions.

The ethics board wants to ensure the cooperation of District agencies via a provision that gives it access to all government records and facilities, and a provision that requires all employees to cooperate with the ethics board, subject to possible penalties for failure to do so.

The ethics board takes this requirement to cooperate a step further by seeking a requirement that every District employee or official report "directly and without undue delay, any and all information concerning conduct which they know or reasonably should know involves a violation of the ethics laws." This is a good recommendation.

Although the ethics board does not recommend that it be given a monopoly on ethics advice (one of my recommendations), it does recommend that an official or employee can be protected from enforcement by ethics advice only if the advice came from the ethics director, not from any of the several other people who may provide such advice.

The ethics board recommends that the conflict provisions be expanded to include personal gain that does not involve financial gain to anyone. This is good, but I doubt the council will do this unless the ethics board gives some concrete examples of what it means by non-financial gain.

Robert Wechsler
Director of Research-Retired, City Ethics

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