Allegations Based on Unenforceably Vague Standards

Mike DeBonis's article in the Washington Post last week describes an operatic ethics matter, with several twists and complications, with dramatic cries of innocence mixed with scathing accusations of guilt. The article is certainly more exciting than this blog post, which focuses on issues raised by the the Notice of Violation, dated February 6, (attached; see below). I hope the post will, at least, be enlightening.

Here are the basic facts, as stated in the Notice of Violation. In 2006, D.C.'s chief administrative law judge entered into a business relationship with a woman to purchase investment properties in the D.C. area. Both principals put money into the enterprise over a period of years. In 2010, the judge hired her business partner as the general counsel of her government office, "without posting/advertising the position or interviewing anyone else for the position."

When the judge's office moved to a new location, she insisted that her furniture be relocated by a company owned by the general counsel's boyfriend, and now husband.

In June 2012, 15 administrative law judges signed a letter to various offices complaining about the hiring of the judge's general counsel and of the furniture relocation company without following required procedures, as well as management concerns. The judge allegedly "engaged in a pattern of conduct to retaliate" against these judges.

One of the forms of retaliation was participation in meetings of the Commission on Selection and Tenure of Administrative Law Judges (COST), in which the judge was an ex officio, nonvoting member, when COST discussed the 15 judges' letter. COST ended up deciding to investigate the 15 judges.

This post will deal only with the conflict issues, not with the retaliation issues.

Benefiting a Business Associate
The D.C. ethics code has one of the broadest basic conflict of interest provisions, with respect to who may not benefit from an official's decision. Most basic conflict provisions prohibit only benefits to the official, family members, business associates, and other specified individuals and entities. D.C.'s provision applies to anyone "closely affiliated with the employee." In other words, it provides broader coverage, but less clear guidance, than an ordinary conflict provision.

The good thing about the D.C. code is that, unlike most ethics codes, it does effectively prohibit conduct that benefits an official's business associate. Many codes prohibit conduct that benefits an employer, but only elected officials generally have outside employers, so this has limited effect. Many officials, on the other hand, have business partners, particularly in investments, such as property ownership or a local business that the official does not manage or work for.

What the D.C. conflict provision does more effectively than most is limit cronyism, a form of ethical misconduct that is common and usually legal, but which citizens don't like, because it makes government look like an exclusive club that provides jobs only to those with connections. Because of the D.C. provision's vague "closely affiliated," however, it isn't clear whether it also covers the other popular bugaboo, political cronyism – jobs given to party associates, major campaign contributors, and campaign workers. We'll have to wait and see how broadly this term is defined.

Following Formal Procedures
Most ethics codes do not include a provision to deal with an important part of the first allegation ("count") in this case, the fact that the respondent judge apparently did not follow "standard hiring procedures such as posting or advertising the position and/or interviewing other candidates."

It could be argued that, if the judge had withdrawn from the matter and let another office or a committee make the hiring decision, the business partner could have been hired anyway. It might have looked bad, but at least the judge could assure the public that all standard procedures had been followed and the decision had been made without her involvement or attempt to influence. The only problem would be if the individuals who made the hiring decision were the judge's subordinates, who would appear to be doing the judge's bidding.

Although requiring that formal procedures be followed is important to preventing ethical misconduct, it is rarely included in ethics codes. Even the City Ethics Model Code does not include this requirement, although my book Local Government Ethics Programs, has two sections on this issue:  one in the conflicts chapter and the other in the administration chapter.

An Unenforceably Vague Provision
The D.C. code does have a formal procedures provision but, unfortunately, it is part of a provision that I do not believe should be enforceable because it is too vague and overinclusive. This provision is §1803, part of the city's personnel regulations (attached; see below). Here is the principal part of the provision:

(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.

(b) In all cases arising under section 1803 of this chapter, employees are encouraged to consult with their supervisors or the agency’s ethics counselor.

The first problem with this provision is that appearance is included. Appearance is extremely important to government ethics, as a principal purpose behind government ethics provisions. Such provisions are not supposed to simply require that appearances of impropriety do not occur. This does not provide sufficient guidance, and people are known to be poor judges of how their conduct appears to others. It is impossible for officials to be sure that their conduct might not result in an appearance of impropriety, especially of improprieties as vague as those listed. Preventing the appearance of impropriety is, therefore, a valuable aspirational goal, but not an enforceable ethics provision.

The one solid member of this six-part list is "making a government decision outside official channels." "Official channels" refers to formal, written procedures. These procedures are clear and enforceable. Departing from them in order to benefit someone with whom an official has a relationship, directly or indirectly, gives the appearance of impropriety to conduct, because it allows officials to act behind the scenes and without fairness. And officials know what procedures are required.

But since it is in this list and only in this list, this subprovision should not, I believe, be enforced.

It is good that this provision includes an encouragement to seek ethics advice. But as long as it's not required, you can't penalize an official for not seeking it. You can only penalize for the failure to follow a provision that requires conduct and provides a description of improper conduct that is sufficiently clear as to be enforceable. "Impeding government efficiency or economy" provides little guidance. Nor does "losing complete independence or impartiality," since no one is completely independent or impartial. I'm not. Are you?

I have been arguing for the last year that D.C.'s aspirational provisions should not be enforced (1  2). I've been arguing for longer with respect to the aspirational provisions in other local government ethics codes. Now I will look at some of the Counts in this case's Notice of Violation to show how wrong such enforcement is. The sad thing here is that these Counts and, therefore, the application of unenforceable provisions, were unnecessary. It is clear that the judge hired someone with a close affiliation to her. Wasn't that, plus her retaliation and misconduct in the investigation, enough?

Use of Office for Private Gain
Count 3 against the judge is based on §1803(a)(1), "using public office for private gain." Every contract, every grant, every permit that is approved by someone using her office provides private gain to someone. Therefore, this cannot be enforced without being defined down to something that has more meaning, that provides more guidance. Here is how D.C.'s ethics board interprets it in Count 3 (Walker is the judge, Oden her business partner, and MKM their company):

By hiring Respondent Oden, Respondent Walker ensured that Respondent Oden would have a reliable salary as a District government employee, which benefitted Respondent Oden financially, but also ensured that Respondent Oden would be better able to make capital contributions to MKM and contribute to the expenses necessary for the upkeep of the real property it managed .... This arrangement contributed to the private gain of Respondent Walker, MKM, and Respondent Oden.

Count 1 already alleged that the hiring benefited someone closely affiliated with the judge. This count unnecessarily takes it a step further by alleging that the hiring benefited the judge because it benefited their business. And it benefited the business by giving Oden a reliable government salary. But she appears to have been a partner at a law firm before this (and even for a while after being hired), so it's not clear how much she benefited in a way that might benefit the business.

A big problem here is that in government ethics, you don't usually need to show actual benefit. People who get contracts sometimes say they lost money on the deal and, therefore, didn't benefit. This is not an appropriate consideration. It is the possibility and perceived expectation of benefit that matters. If you bid for a contract, it is assumed that you expected to benefit from it. If you took a job, it is assumed that you expected to benefit from it. And others reasonably expect you to benefit from it, as well.

Tenuous Benefits
But when you take this one step, and then two steps further, as the relationship between a contract or job and its benefits becomes more tenuous, is it enough that benefit is possible or reasonably expected? Can one hold an official accountable for helping getting a business partner a job, because it may mean that the business partner will be more likely to keep up payments to the business, so the official will not have to make up the difference? There are cases where this may be an accurate description of the official's incentive for hiring the business partner, but possibility is not enough, at this remove, to prove it. I think there has to be evidence that the business partner was missing payments and that the additional or more regular income was expected to allow the payments to be made.

I understand that lawyers are trained to include every possible allegation. But in an ethics proceeding, where the direct benefit to a business partner is sufficient under a clearly enforceable provision, why bring in provisions that are vague and, therefore, not clearly enforceable, that have in fact been criticized as unenforceable, to either make the same allegation or to make more tenuous, harder to prove allegations? I think it is better not to make these further allegations.

Allowing an Improperly Hired Official to Keep Her Job
Count 4 against the judge makes an ethics allegation I've never seen. It alleges that the judge failed to avoid creating (the double negative is mine) the appearance of using her public office for the private gain of her business partner, their company, and herself not just by hiring the business partner, but also by allowing her to remain employed. In other words, the ethical misconduct did not end with the hiring, but effectively was renewed every day the business partner was on the payroll.

This count cites only §1803(a)(1), the use of public office for private gain. But both this and the basic conflict provision speak only of actions, not inaction. What the judge did, every day, was fail to act. I agree that each day the judge failed to act, she committed further ethical misconduct. Another way of looking at this is to note that, had the judge, two months after hiring her business partner, realized the wrong she had done, and acted on her new awareness, it would have been considered a mitigating circumstance, just as making misrepresentations in the investigation was an aggravating circumstance (as well as further misconduct). Failing to act and failing to seek advice make the misconduct a bit worse every day.

Ethics codes generally do not recognize this, except where disclosures have not been made, where the penalty may increase daily. It's good to recognize this in every situation, but it is better, and more fair, to recognize this through express language, rather than reading it into vague provisions.

In the same way, Count 6 against the judge extends the preferential treatment provision, (a)(2), to include the failure to fire the judge's business partner. The same thing is done, in Count 8, with (a)(5), the Outside Official Channels provision, but here it is surely inappropriate. It is not acting outside official channels to allow an employee to remain in a position. I see no argument in favor of Count 8.

Count 5 against the judge unnecessarily reads into §1803(a)(2), about preferential treatment, the failure to follow official procedures. Since this is expressly stated in (a)(5), and thereby included in Counts 7 and 8, the only purpose for including it here is to add another count. This is an unnecessary interpretation of (a)(2), a provision that is already very broad and frowned on by government ethics practitioners.

Other Unenforceable Provisions
With Count 9 against the judge, the ethics board goes one more step beyond what is enforceable by treating §1800.3 as enforceable. Section 1800 is entitled "Applicability." It is clearly aspirational. Section 1800.1, for instance, is undeniably unenforceable:

Employees of the District government shall at all times maintain a high level of ethical conduct in connection with the performance of official duties, and shall refrain from taking, ordering, or participating in any official action  which would adversely affect the confidence of the public in the integrity of the District government.

Section 1800.2 (below) clearly expresses that its first two sentences are simply concepts that the regulations accord with. In other words, they are aspirational standards on which enforceable standards are based. This is what these introductory provisions usually are, and why they should not themselves be enforced.

The maintenance of unusually high standards of honesty, integrity, impartiality, and conduct by employees is essential to assure the proper performance of government business and the maintenance of confidence by citizens in their government. The avoidance of misconduct and conflicts of interest on the part of employees is indispensable to the maintenance of these standards. To accord with these concepts, this chapter sets forth the regulations prescribing standards of conduct and the requirements for reporting outside employment and financial interests for District government employees.

The third paragraph has language that makes it seem more enforceable than its immediate predecessors. But it should not be enforceable (1) because it is part of a clearly aspirational provision, and (2) it depends on the following vague, aspirational language:  "fair, impartial, and objective performance." We want officials to act fairly and objectively as can be expected, and unelected officials to act impartially (while following the wishes of partial elected officials). But these are concepts that are to be considered in developing and following ethics rules, the ethics rules that ethics allegations should be based on. These concepts, which are both vague and very complex, are not enforceable themselves. Here is the entire §1800.3:

No employee of the District government shall engage in outside employment or private business activity or have any direct or indirect financial interest that conflicts or would appear to conflict with the fair, impartial, and objective performance of officially assigned duties and responsibilities.

Count 16 against the judge involves the judge's insistence that her office furniture be relocated by a company owned by the general counsel's boyfriend. This is shoehorned in via the §1803.1(a)(2) preferential treatment provision. Was this necessary? Her insistence was a way of bypassing the formal procedures involved in contracting with a furniture relocation company ((a)(5)), but it was also a violation of the basic conflict provision, because the judge was misusing her office to benefit someone closely affiliated with her subordinate (the word "indirect" in the basic conflict provision would make it easier to enforce this situation). The subordinate was misusing her office by seeking this benefit for her boyfriend, and the judge was also misusing her office by complicity with the subordinate in doing so (this is one reason complicity provisions are so important; see the City Ethics Model Code's provision).

In short, the ethics board only needed to cite the basic conflict provision in its allegation and, if it had a complicity provision, this would have made the board's job even easier, and have provided the judge with more guidance, as well.

Conclusion
I believe that the D.C. ethics board should reconsider enforcement of the aspirational provisions I discuss above, and consider recommending a complicity provision. I think it will make its enforcement more fair without seriously limiting its reach.

Robert Wechsler
Director of Research-Retired, City Ethics

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