making local government more ethical

How a Mayor's Special Obligations Affect His Right to Remain Silent

Washington Post columnist Robert McCartney raised an issue in a column this weekend that I feel should be taken seriously. The background story is that two of the current D.C. mayor's campaign aides confessed to having paid a mayoral candidate, and offered him a job in the coming administration, for him to relentlessly criticize the then mayor, who was running for re-election. There is also evidence of a "shadow campaign," which took secret contributions for a late get-out-the-vote effort.

McCartney wrote, "If Mayor Vincent C. Gray continues to refuse to explain to District voters what went wrong in his 2010 campaign, then he needs to resign. Otherwise, he has no right to be mayor."

In addition, he wrote, "even if we believe that you didn’t know anything yourself, where are the public denunciations of those who betrayed you? Where’s the apology to the public for hiring these people and failing to supervise them? Where’s the mea culpa for running a dirty campaign? But Gray is saying nothing. He’s gone mum on the strict orders of his high-powered attorney, Robert S. Bennett. ... That might be a good legal strategy, but it’s no basis for governing a city."

During the 2010 campaign, Gray was a council president who had hired Bennett to advise the council on government ethics issues (Disclosure: he hired City Ethics, as well, for advice on other government ethics issues).

During the campaign, he was two people:  council president and mayoral candidate. He is also two people now:  mayor and potential criminal. The potential criminal was apparently told not to say anything about what happened (after the mayor had previously denied he knew anything or that it was possible for his aides to have done such a thing).

A potential criminal has the right to remain silent. But does a mayor, or a former council president? Does a mayor have the right to allow a huge cloud to hang over his administration, and over the city, when he could get rid of the cloud by telling everything he knows, apologizing for everything he did and failed to do (whether illegal or not (see below)), and setting out what he believes is a just penalty for his conduct (which may or may not include resignation)?

A government official has special obligations to the public. Do these obligations include the obligation not to remain silent when allegations have been made, and especially after they have been shown to be true? I think they do.

I'm not suggesting that a government official has no constitutional rights. What I'm suggesting is that he has an obligation not to use them to defend himself at the expense of the public when he has done something that has harmed the public. Constitutional rights are the rights of citizens with respect to the government, not the rights of government officials with respect to citizens. Gray is, of course, a citizen, and that citizen has rights, but he is also the mayor, and that mayor has obligations that are stronger than any rights.

An ordinary government employee has lesser obligations. Allegations against an ordinary employee will not create a cloud over a city or county. The rights-obligations balance is different. But even an ordinary government employee has an obligation to settle an ethics matter as quickly as possible when he has engaged in misconduct.

The Effect and Illegality of Ethical Misconduct
I'd like to raise two more issues here. One involves the effects of ethical misconduct, in this case whether the misconduct had any effect on the election, an issue that has often been raised. I don't think this matters in the least. It doesn't even matter whether the campaign believed its schemes would have an effect on the election. If the campaign acted simply out of spite, would it make the misconduct any better? If it had promised the candidate a job, and then not come through, it would have been better for the city, but it would have only shown that the people involved were even less trustworthy.

The effects of ethical misconduct are a minor issue. Yes, it is worse when misconduct leads to a contract that costs taxpayers millions of extra dollars than when misconduct fails to make a difference, and the contract amount is reasonable. But ethical misconduct should not be measured in dollars, even when restitution is. Ethical misconduct should be measured in the loss of public trust. And in this case, the loss is huge, even if Gray would have easily won the election (although we will never know).

It's true that the public also thinks partially in terms of results. If it were clear that Gray would have had no chance without the attacks on his opponent, people would be angrier. But misconduct that is unnecessary doesn't make people feel better about their political leaders. They feel that elections are games in which they are relatively minor participants, and where they are there to be fooled rather than informed. Misconduct like this undermines the most essential form of citizen participation:  voting.

The second issue is whether misconduct is illegal or not. I don't think this matters in a situation like the current one. After all, who can anticipate games like this and make sure they're clearly prohibited? Only someone who is extremely cynical about politics could defend such behavior (e.g., from a comment to the column:  "Anybody has the right to run for Mayor and bait their opponents. And who cares whether Gray's campaign gave them a few dollars to buy groceries. More power to them. Call it charity, but don't call it a crime."). It takes more than grocery money to turn people into cynics like this.

Robert Wechsler
Director of Research, City Ethics