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A New D.C. Ethics Reform Bill
Saturday, September 7th, 2013
Robert Wechsler
On April 17, the District of Columbia ethics board filed
recommendations for ethics reform with the council (see my
blog post on the recommendations). Council member Kenyan R.
McDuffie has introduced a bill that includes some of these
recommendations (attached; see below). On
October 7, a hearing on the bill will be held by the council's
Committee on Government Operations.
For the most part, only the ethics board's miscellaneous recommendations are included in this bill. These were among its best recommendations. But the ethics program needs more than changes here and changes there, especially changes focused on enforcement. It needs to put the essential elements of a government ethics program into place. It's good to see that there is a commitment to continuing improvement, but it's not clear that there is a vision in the District of what the ethics program should be or of what the priorities are.
Here are the most important changes in the bill, with my comments.
1. Jurisdiction: The ethics program will now have clear jurisdiction over all officials and employees in the District's instrumentalities, its subordinate and independent agencies, its boards and commissions, including Advisory Neighborhood Commissions, and the council. Only the courts are expressly excepted. It would have been better to have extended jurisdiction to all those seeking special benefits from the District government, including contractors, consultants, permittees, grantees, etc.
2. A New Code: I had understood that the ethics board had already been required to pull all the disparate ethics provisions together, but it doesn't hurt to reiterate this, as is done in the reform bill. Fortunately, the bill did not accept the ethics board's suggested deadline of the end of this year. This is a difficult job.
The ethics board is also required to draft proposed rules implementing the new code. Both proposals will need to be approved by the council. For some reason, if the council does not act on the implementation rules within 45 days, the rules will be deemed disapproved.
3. Requirement to Report: This requirement is doubly good. Not only are officials and employees required to report possible ethics violations, but they are required to report to only one person: the ethics board director. One of the biggest problems in the D.C. ethics program is that too many people are involved.
In addition, a failure to report constitutes an ethics violation itself. This is good, but one wonders if anyone will, when reporting a violation, also report that many of his colleagues knew about it and failed to report it themselves. Also, will the ethics board file a complaint for failure to report against official it interviews who admit to knowledge of facts that would constitute a violation? In short, how does this work in practice? I can't say I had thought of this myself.
4. Requirement to Cooperate: All officials and employees are required to cooperate with ethics board requests. Obstruction of the ethics board's access to documents will be considered an ethics violation. This appears to be a response to problems the ethics board has had with the inspector general's office (see my blog post; the problems have recently been worked out). Wouldn't it be nice if this rule were extended to apply to any person that does business with the city?
This good new rule goes a bit too far, however. Any official or employee (although not any contractor or grantee) who "knowingly and willfully falsifies, conceals, or covers up by any trick, scheme, or device a material fact, or makes any materially false, fictitious, or fraudulent statement or representation" has violated the ethics code. This could get the ethics board caught up in very complex perjury cases, where it is difficult to prove falseness, knowledge, and willfulness, but also difficult to ignore what appears to be a misstatement. No one wants people telling lies to or holding back information from ethics investigators, but it would seem that the requirement to cooperate, without the need to show knowledge or malice, would be sufficient to deal with concealment, without bringing into the matter either the myriad gray areas between truth and falsity, or the evidence necessary to show knowledge or malice.
5. Contempt: To the ethics code's complex method for enforcing a civil penalty, the reform bill adds that a failure to obey a court order may be considered to constitute contempt. Collecting penalties is a problem, but it's not clear to me that this complex method is the most cost-effective way.
Robert Wechsler
Director of Research-Retired, City Ethics
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For the most part, only the ethics board's miscellaneous recommendations are included in this bill. These were among its best recommendations. But the ethics program needs more than changes here and changes there, especially changes focused on enforcement. It needs to put the essential elements of a government ethics program into place. It's good to see that there is a commitment to continuing improvement, but it's not clear that there is a vision in the District of what the ethics program should be or of what the priorities are.
Here are the most important changes in the bill, with my comments.
1. Jurisdiction: The ethics program will now have clear jurisdiction over all officials and employees in the District's instrumentalities, its subordinate and independent agencies, its boards and commissions, including Advisory Neighborhood Commissions, and the council. Only the courts are expressly excepted. It would have been better to have extended jurisdiction to all those seeking special benefits from the District government, including contractors, consultants, permittees, grantees, etc.
2. A New Code: I had understood that the ethics board had already been required to pull all the disparate ethics provisions together, but it doesn't hurt to reiterate this, as is done in the reform bill. Fortunately, the bill did not accept the ethics board's suggested deadline of the end of this year. This is a difficult job.
The ethics board is also required to draft proposed rules implementing the new code. Both proposals will need to be approved by the council. For some reason, if the council does not act on the implementation rules within 45 days, the rules will be deemed disapproved.
3. Requirement to Report: This requirement is doubly good. Not only are officials and employees required to report possible ethics violations, but they are required to report to only one person: the ethics board director. One of the biggest problems in the D.C. ethics program is that too many people are involved.
In addition, a failure to report constitutes an ethics violation itself. This is good, but one wonders if anyone will, when reporting a violation, also report that many of his colleagues knew about it and failed to report it themselves. Also, will the ethics board file a complaint for failure to report against official it interviews who admit to knowledge of facts that would constitute a violation? In short, how does this work in practice? I can't say I had thought of this myself.
4. Requirement to Cooperate: All officials and employees are required to cooperate with ethics board requests. Obstruction of the ethics board's access to documents will be considered an ethics violation. This appears to be a response to problems the ethics board has had with the inspector general's office (see my blog post; the problems have recently been worked out). Wouldn't it be nice if this rule were extended to apply to any person that does business with the city?
This good new rule goes a bit too far, however. Any official or employee (although not any contractor or grantee) who "knowingly and willfully falsifies, conceals, or covers up by any trick, scheme, or device a material fact, or makes any materially false, fictitious, or fraudulent statement or representation" has violated the ethics code. This could get the ethics board caught up in very complex perjury cases, where it is difficult to prove falseness, knowledge, and willfulness, but also difficult to ignore what appears to be a misstatement. No one wants people telling lies to or holding back information from ethics investigators, but it would seem that the requirement to cooperate, without the need to show knowledge or malice, would be sufficient to deal with concealment, without bringing into the matter either the myriad gray areas between truth and falsity, or the evidence necessary to show knowledge or malice.
5. Contempt: To the ethics code's complex method for enforcing a civil penalty, the reform bill adds that a failure to obey a court order may be considered to constitute contempt. Collecting penalties is a problem, but it's not clear to me that this complex method is the most cost-effective way.
Robert Wechsler
Director of Research-Retired, City Ethics
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