Applause (and Some Criticism) for the New D.C. Ethics Bill

An ethics bill in the District of Columbia, sponsored by council member Muriel Bowser, went quickly through committee and was passed by the council, with only one dissenting vote, on December 20 (the final committee bill can be found here). What's amazing about it is that, despite the speed with which it moved, Bowser's staff made many improvements to the bill in response to critiques from me and others. It is not a perfect bill, of course, but it's a pretty special gift for the holiday season.

The Ethics Board
The bill creates a partially independent ethics board that is able to pick its own director and appears to be able to name its budget (§108 prevents the mayor or council from revising the director's budget "estimates," although I assume the board would experience any across-the-board cuts; I'll ask about this).

The board has two principal problems. One, it is too small. Three members are too few for an ethics board, because (1) it prevents the creation of committees; (2) it requires too much work from each member; (3) there is little room for error; for example, if one seat is empty or one member is ill or away a lot, every vote must be unanimous and one member’s sudden problem means there is no quorum; and (4) any substantive communication between two members must be at a public meeting, preventing the chair from consulting with another member, unless they could call it a party caucus, which would be inappropriate for an ethics board and would put the minority member out of the loop. Five members is the minimum necessary.

Even more serious, the ethics board's members are to be selected by the mayor with the advice and consent of the council (and, oddly, the chair is selected not by the board, but by the mayor). In other words, all members of the appointing authorities are under the board's jurisdiction, and most people who come before the board will either be these individuals, their appointees, their colleagues, or their political enemies. This places a number of potential conflicts at the center of what is a conflict of interest board.

Whenever the board dismisses a complaint against the mayor or a council member, a mayoral or council appointee or staff member, people will assume that they are protecting the people who chose them. The same is true of advice. This undermines trust in the ethics program, and means that the mayor and council members are placed in a lose-lose position in an ethics proceeding. Better that the members be selected by community organizations and appointed by the mayor or council. It’s a best practice that is gaining recognition. The cities and counties that do this include Atlanta, Milwaukee, Miami-Dade County, and Houston.

The ethics board is given a lot of authority, almost too much. It will carry the burden of consolidating the mess of ethics laws in the District. And the bill gives it only 240 days to do this, while also hiring staff, setting up procedures, training, etc. This is a heavy burden.

Ethics Advice
The advisory opinion provision, Section 113, limits advice to formal, written advisory opinions from the ethics board or its director. Advice is further limited to whether a transaction or activity would constitute a violation, as if advice was simply part of enforcement. Whether or not conduct is in violation of the law is the only consideration in enforcement, but not in advice.

Second, most officials need advice very quickly. There may not be time for the ethics director to write a formal opinion, especially if there is a backlog of opinions. Provision should be made for informal advice. This is the norm in cities and states.

Applicant Disclosure
The D.C. bill does not bring into the ethics program those doing and seeking business with the city government. It is best to have both sides to transactions involved, both because it is more fair and because it makes ethical misconduct more unlikely to occur due to the check each sides makes on the other's conduct, and because both sides are equally responsible and have something to lose from not dealing responsibly with a conflict.

Criminalization of Government Ethics
The ethics board can decide not to hold a hearing on a complaint itself and instead send it either to the D.C. Attorney General (the city attorney) or the local U.S. Attorney for criminal prosecution. This is problematic for three reasons. One is that it removes the ethics board's monopoly over ethics enforcement, and brings into the ethics program political officials with their own agendas. If the D.C. A.G., soon to be an elected position, considers a matter politically sensitive, he could pressure the ethics board to allow him to take over enforcement. Ditto for the U.S. Attorney. The public and the press will likely support criminal prosecution, because that seems more serious. An ethics board should not be put in this position.

The only limiting factor is that the alleged violation has to "substantially threaten the public trust," a vague consideration that will, in the future, be made more concrete by the D.C. council by designating certain violations as substantially threatening. My feeling is that if a violation is serious enough to merit criminal enforcement, it shouldn't be in an ethics code. It should be in a criminal code.

Criminalizing ethics enforcement also makes ethics advice problematic, because ethics advice is generally not respected by criminal courts.

The second problem is that criminalization of government ethics raises the standard of proof, making enforcement far more difficult, expensive, and extended, and making it much less likely that a violation will actually be enforced for other than political reasons, due to the low priority typically given to ethics matters by prosecutors. The criminal alternative would be a great way for an ethics board that does not want to deal with an ethics complaint to get rid of it while looking like it was being very serious about it.

The third problem is that enforcing ethics as a criminal offense gets rid of the important difference between government ethics and criminal enforcement. Government ethics is about training, advice, and disclosure, with enforcement a distant fourth in terms of priority. Criminal enforcement is about enforcement, enforcement, enforcement. In government ethics, a gift from someone doing business with the city is an ethics violation, plain and simple; in criminal enforcement, you have to prove intent and show a quid pro quo. Government ethics and criminal enforcement are two entirely different things, and the twain really shouldn't meet.

Conclusion
Of course, there are many other things missing from this, as from most, ethics codes, such as a complicity and knowledge provision. And there is language that could be improved, and this will hopefully happen as part of the consolidation process.

There are many important improvements to be made, but the new D.C. bill should, with these changes, create an effective ethics program in the District. Other people's major criticisms of the bill so far have focused on campaign finance issues and what the bill did not do about constituent service funds.

Robert Wechsler
Director of Research-Retired, City Ethics

203-859-1959