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D.C. Ethics Board's Opinion Needs a Rewrite
Friday, February 8th, 2013
Robert Wechsler
The first opinion of the District of Columbia's Board of Ethics and
Government Accountability (a searchable copy is attached; see below)
raises some interesting questions relating to enforcing
unenforceable ethics provisions, vagueness, and publishing evidence
and an opinion about a case that is being dismissed before an
investigation has been conducted. The opinion also shows that the
new ethics board has a long way to go up the learning curve of
government ethics.
The matter involves a council member, Jim Graham, who sat on the Washington Metropolitan Area Transit Authority (WMATA) as a representative of the council. He is alleged to have told a bidder on a WMATA project that he would support the bidder's efforts to secure a lottery contract before the D.C. council if the bidder withdrew from the WMATA project. I wrote a blog post about the situation in October and, therefore, won't go further into the facts here. The ethics board initiated a preliminary investigation based on an independent report commissioned by WMATA.
Enforcing Unenforceable Ethics Provisions
The first wrong thing the ethics board did was to consider as possible ethics violations, for the purpose of enforcement, the following provision in D.C.'s municipal regulations:
The fact that this provision was not set off as a declaration of policy or designated as unenforceable does not change the fact that it looks and walks just like a declaration of policy, but for the words "shall avoid action." But even these words are not the same as "shall not take action." Why use the unusual word "avoid" here? I did a search of the local ethics code directory in my computer, and found the use of the word "avoid" always tied to aspirational provisions, especially the phrase "avoid the appearance of impropriety." While officials should avoid the appearance of impropriety, this is not a standard that should be enforced.
Believing that aspirational language can be enforced is one of the biggest enforcement mistakes ethics commissions make. This mistake can lead to some very ugly ethics proceedings. See, for instance, my blog posts on this happening in Stamford, CT and in Marlboro, NJ.
In addition, most of the D.C. aspirational provisions are not even related to government ethics. The fact that they're included in an apparently enforceable ethics rule shows a level of ignorance of government ethics by the drafters of these rules that makes an overhaul of the D.C. ethics rules something that should not be put off for another minute (see my January recommendations for D.C. ethics reform).
Making government decisions outside official channels is not in itself a government ethics problem. There should be clear rules about communications with administrators, executive branch employees, and potential contractors, which should be enforced by WMATA and/or by the council or a council committee. This is what I recommended in my blog post.
Going outside official channels is not an issue that should be dealt with by an ethics board, especially not in the form of an opinion. If this is an ongoing problem that leads to multiple ethics complaints, it would be appropriate for an ethics board to encourage, or even hold, a discussion on the issue and to make recommendations about changes that would end damaging practices. But the actual passing of such rules, or the interpretation of ethics provisions to include this sort of misconduct, is outside an ethics board's jurisdiction.
It is not an ethics violation to impede government efficiency. If it was, encouraging public participation (democracy is the opposite of efficiency) would violate the ethics code. As it is, increasing public participation is an important secondary goal of government ethics.
No council member has "complete independence." He is restricted by such things as constituent concerns, partisan concerns, and the limits of his support staff. And council members are not expected to be completely impartial. They are not judges. They are, in fact, elected to be partial to the policies and projects they support in their campaign.
Preventing adverse effects on public trust is a goal of government ethics, but much conduct that adversely affects the public trust has nothing to do with government ethics. For example, breaking a campaign promise, making a misrepresentation, or shouting down a citizen at a meeting.
An ethics commission with authority to punish any conduct that could be said to adversely affect the public trust or impede government efficiency is a body that could control every aspect of local government, if it had a sufficient budget.
Vagueness
The second wrong thing the ethics board did was to dismiss Graham's argument that the provisions he is said to have violated are vague. Here is the ethics board's argument:
It is not unrealistic to expect ethics provisions to spell out what it means by, for example, preferential treatment or misuse of office, especially when it comes to enforcement. There needs to be some level of description of such things as benefits (financial or personal, direct indirect?) and beneficiaries covered (immediate family or aunts and uncles, too? nonprofits of which an official is a member? etc.). With respect to the case against Graham, the ethics board accuses him of having helped a campaign contributor. And yet no ethics provision is mentioned that prohibits helping a campaign contributor. It would have been very easy to have drafted such a provision. In fact, I have a name for just such a provision: the Westminster approach (see my blog post on it).
Graham was correct to say, in his response to the ethics board, that several of the cited rules are so vague that to enforce them in this proceeding would violate due process. The ethics board needs to rethink and restate its decision on vagueness immediately. To enforce vague, aspirational provisions, especially those that are ordinarily outside an ethics commission's jurisdiction, will undermine officials' support for the ethics program, among other problems.
What Dismissal Entails
The most interesting question the ethics board's opinion raises is, What does dismissal entail? Should an ethics commission do anything more than state the reason for dismissal?
The answer might depend on the reason for dismissal. Reasons for dismissal include:
If it was found that there was a de minimis violation not worthy of further investigation or enforcement, it is of value to other officials to state the facts in a letter or decision.
But when the dismissal is for any of the other reasons, I don't think that an ethics commission should do any more than state the reason for dismissal so that it is clear to the complainant, the respondent, and the public why the allegations were dismissed and not investigated.
This is especially true when, as here, the investigation is self-initiated and there is no complaint, and no allegations, to dismiss. In such an instance, the only reason to say anything is because the investigation has been made public, and it is best to let the public know why the ethics board is not filing a formal complaint and starting a formal investigation.
Sanctions and Amnesty
In this case, the ethics board dismissed for a different reason, one that applies specifically to the situation of a new ethics code and old conduct (the events occurred in 2008). The ethics board dismissed the ethics complaint because "when the relevant acts occurred, the Board of Elections was responsible for enforcing the provisions [and] was without the power to sanction a Councilmember; it did not have the power to levy fines or censure a member of the Council for violations of those provisions." Any punishment would be increased punishment and would therefore violate the Ex Post Facto Clause of the U.S. Constitution.
In effect (although not expressly), the ethics board treated the matter as a de minimis violation. It said that it would be unwise to invest significant time and resources in further investigation "where no sanction could be imposed." As with a de minimis violation, it felt it had enough evidence to make a preliminary finding that a formal investigation was justified, only doing so was not worth the bother.
The problem is that this conclusion is wrongheaded for two reasons. One, the dismissal should not have been for lack of sanctions. It should have been for lack of there being a possible ethics violation. The three ethics provisions the ethics board said may have been violated are all aspirational: abandonment of impartiality, preferential treatment, and adversely affecting the public trust. The ethics board should never have gotten to the consideration of whether its inability to impose sanctions makes further investigation wise.
Two, I don't believe that a lack of sanctions has anything to do with whether further investigation is wise. Ethics enforcement is more about education than it is about punishment. Many ethics commissions have no enforcement powers, and yet they investigate and report on possible ethical misconduct. In any event, a public finding of an ethics violation is itself punishment. Many officials resign before such a finding is made, and many are not re-elected, or are fired, after such a finding. If there were evidence of an ethics violation, I think the ethics board should have pursued it, even if it could impose no sanctions at all.
By choosing not to initiate an investigation due to its inability to impose sanctions means that no one will file a complaint relating to past misconduct, knowing the ethics board will dismiss the complaint. This means that the opinion effectively provides amnesty for all ethical misconduct that occurred before the ethics board was established, even though prohibitions were in place when the misconduct occurred.
The Opinion
I think it was seriously irresponsible to have written a 28-page opinion detailing Graham's supposed ethics violations when the matter should have been dismissed because the ethics board could not allege an enforceable ethics violation.
Even taking into account that the ethics board did not understand that aspirational provisions are not enforceable, if it felt it could not proceed with the matter due to its lack of sanctions, it should have said no more. It is not the role of an ethics commission to make detailed allegations if it does not intend to further investigate them. If an ethics commission is finding a lack of probable cause, then it's necessary to talk about the facts in explaining that there is insufficient evidence. But it is inappropriate to present evidence as sufficient to start a full investigation and then not either say the evidence is insufficient or give the respondent a way to formally respond (the WMATA investigation also did not give Graham a way to formally respond).
It is not too late for the ethics board to correct its errors. It is not unusual to make mistakes when you are new to government ethics. The responsible thing is to reconsider the opinion and publicly explain (and apologize for) what went wrong. Doing this will allow the ethics board to deal with past misconduct and ease the reasonable fear of officials that, with its new sanctions, the ethics board may become the gotcha! board every official fears.
I don't see how the necessary ethics reforms can proceed without the mistakes in this opinion being corrected. How many officials will want to create a truly independent ethics program with a sufficient budget if they fear being accused of violating vague laws?
Robert Wechsler
Director of Research-Retired, City Ethics
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The matter involves a council member, Jim Graham, who sat on the Washington Metropolitan Area Transit Authority (WMATA) as a representative of the council. He is alleged to have told a bidder on a WMATA project that he would support the bidder's efforts to secure a lottery contract before the D.C. council if the bidder withdrew from the WMATA project. I wrote a blog post about the situation in October and, therefore, won't go further into the facts here. The ethics board initiated a preliminary investigation based on an independent report commissioned by WMATA.
Enforcing Unenforceable Ethics Provisions
The first wrong thing the ethics board did was to consider as possible ethics violations, for the purpose of enforcement, the following provision in D.C.'s municipal regulations:
1803.1(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:I believe that §1803.1(a) either was intended to be, or should be, treated as an aspirational provision. An aspirational provision should not be enforced because it is too vague and/or uses essential terms that are impossible to clearly define (try defining "preferential treatment" or "complete independence"). Aspirational provisions should be set off from enforceable provisions, called something like "Declaration of Policy," and be clearly designated as unenforceable.
(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.
The fact that this provision was not set off as a declaration of policy or designated as unenforceable does not change the fact that it looks and walks just like a declaration of policy, but for the words "shall avoid action." But even these words are not the same as "shall not take action." Why use the unusual word "avoid" here? I did a search of the local ethics code directory in my computer, and found the use of the word "avoid" always tied to aspirational provisions, especially the phrase "avoid the appearance of impropriety." While officials should avoid the appearance of impropriety, this is not a standard that should be enforced.
Believing that aspirational language can be enforced is one of the biggest enforcement mistakes ethics commissions make. This mistake can lead to some very ugly ethics proceedings. See, for instance, my blog posts on this happening in Stamford, CT and in Marlboro, NJ.
In addition, most of the D.C. aspirational provisions are not even related to government ethics. The fact that they're included in an apparently enforceable ethics rule shows a level of ignorance of government ethics by the drafters of these rules that makes an overhaul of the D.C. ethics rules something that should not be put off for another minute (see my January recommendations for D.C. ethics reform).
Making government decisions outside official channels is not in itself a government ethics problem. There should be clear rules about communications with administrators, executive branch employees, and potential contractors, which should be enforced by WMATA and/or by the council or a council committee. This is what I recommended in my blog post.
Going outside official channels is not an issue that should be dealt with by an ethics board, especially not in the form of an opinion. If this is an ongoing problem that leads to multiple ethics complaints, it would be appropriate for an ethics board to encourage, or even hold, a discussion on the issue and to make recommendations about changes that would end damaging practices. But the actual passing of such rules, or the interpretation of ethics provisions to include this sort of misconduct, is outside an ethics board's jurisdiction.
It is not an ethics violation to impede government efficiency. If it was, encouraging public participation (democracy is the opposite of efficiency) would violate the ethics code. As it is, increasing public participation is an important secondary goal of government ethics.
No council member has "complete independence." He is restricted by such things as constituent concerns, partisan concerns, and the limits of his support staff. And council members are not expected to be completely impartial. They are not judges. They are, in fact, elected to be partial to the policies and projects they support in their campaign.
Preventing adverse effects on public trust is a goal of government ethics, but much conduct that adversely affects the public trust has nothing to do with government ethics. For example, breaking a campaign promise, making a misrepresentation, or shouting down a citizen at a meeting.
An ethics commission with authority to punish any conduct that could be said to adversely affect the public trust or impede government efficiency is a body that could control every aspect of local government, if it had a sufficient budget.
Vagueness
The second wrong thing the ethics board did was to dismiss Graham's argument that the provisions he is said to have violated are vague. Here is the ethics board's argument:
the District's Code of Conduct is written in plain language that makes it clear to average employees at all levels of District government that they cannot engage in conduct that creates the appearance of impropriety. The rules are based on common sense and are easily followed. We do not find them to be vague. They are written in a way to encompass a wide variety of behavior that is improper and prohibited. Given the numerous and various ways that government employees could use their office for private gain, to give preferential treatment, or adversely affect public confidence in the integrity of government, it is unrealistic to expect statutes and regulations to spell every method in detail.As I've shown above, these rules are both irrelevant in many ways to government ethics and are so overbroad as to prohibit conduct that is desirable and in the public interest. The rules are not based in common sense, nor are they easily followed. How can an official know what conduct may or may not adversely affect the confidence of the public in the integrity of the government? It is generally understood that any rule regarding appearance is too vague to enforce. Appearance of impropriety is a foundational standard for dealing responsibly with a conflict situation and for providing advice. But it is far too vague to be enforced.
It is not unrealistic to expect ethics provisions to spell out what it means by, for example, preferential treatment or misuse of office, especially when it comes to enforcement. There needs to be some level of description of such things as benefits (financial or personal, direct indirect?) and beneficiaries covered (immediate family or aunts and uncles, too? nonprofits of which an official is a member? etc.). With respect to the case against Graham, the ethics board accuses him of having helped a campaign contributor. And yet no ethics provision is mentioned that prohibits helping a campaign contributor. It would have been very easy to have drafted such a provision. In fact, I have a name for just such a provision: the Westminster approach (see my blog post on it).
Graham was correct to say, in his response to the ethics board, that several of the cited rules are so vague that to enforce them in this proceeding would violate due process. The ethics board needs to rethink and restate its decision on vagueness immediately. To enforce vague, aspirational provisions, especially those that are ordinarily outside an ethics commission's jurisdiction, will undermine officials' support for the ethics program, among other problems.
What Dismissal Entails
The most interesting question the ethics board's opinion raises is, What does dismissal entail? Should an ethics commission do anything more than state the reason for dismissal?
The answer might depend on the reason for dismissal. Reasons for dismissal include:
No ethics violation allegedIf it was found that the respondent had followed ethics advice or had a waiver, it might be important to consider the facts of the situation to make sure that they were essentially the same as the facts provided when seeking advice or a waiver.
Statute of limitations run
No jurisdiction over the individual
Respondent followed ethics advice or had a waiver
Allegations have already been dismissed
De minimis violation
If it was found that there was a de minimis violation not worthy of further investigation or enforcement, it is of value to other officials to state the facts in a letter or decision.
But when the dismissal is for any of the other reasons, I don't think that an ethics commission should do any more than state the reason for dismissal so that it is clear to the complainant, the respondent, and the public why the allegations were dismissed and not investigated.
This is especially true when, as here, the investigation is self-initiated and there is no complaint, and no allegations, to dismiss. In such an instance, the only reason to say anything is because the investigation has been made public, and it is best to let the public know why the ethics board is not filing a formal complaint and starting a formal investigation.
Sanctions and Amnesty
In this case, the ethics board dismissed for a different reason, one that applies specifically to the situation of a new ethics code and old conduct (the events occurred in 2008). The ethics board dismissed the ethics complaint because "when the relevant acts occurred, the Board of Elections was responsible for enforcing the provisions [and] was without the power to sanction a Councilmember; it did not have the power to levy fines or censure a member of the Council for violations of those provisions." Any punishment would be increased punishment and would therefore violate the Ex Post Facto Clause of the U.S. Constitution.
In effect (although not expressly), the ethics board treated the matter as a de minimis violation. It said that it would be unwise to invest significant time and resources in further investigation "where no sanction could be imposed." As with a de minimis violation, it felt it had enough evidence to make a preliminary finding that a formal investigation was justified, only doing so was not worth the bother.
The problem is that this conclusion is wrongheaded for two reasons. One, the dismissal should not have been for lack of sanctions. It should have been for lack of there being a possible ethics violation. The three ethics provisions the ethics board said may have been violated are all aspirational: abandonment of impartiality, preferential treatment, and adversely affecting the public trust. The ethics board should never have gotten to the consideration of whether its inability to impose sanctions makes further investigation wise.
Two, I don't believe that a lack of sanctions has anything to do with whether further investigation is wise. Ethics enforcement is more about education than it is about punishment. Many ethics commissions have no enforcement powers, and yet they investigate and report on possible ethical misconduct. In any event, a public finding of an ethics violation is itself punishment. Many officials resign before such a finding is made, and many are not re-elected, or are fired, after such a finding. If there were evidence of an ethics violation, I think the ethics board should have pursued it, even if it could impose no sanctions at all.
By choosing not to initiate an investigation due to its inability to impose sanctions means that no one will file a complaint relating to past misconduct, knowing the ethics board will dismiss the complaint. This means that the opinion effectively provides amnesty for all ethical misconduct that occurred before the ethics board was established, even though prohibitions were in place when the misconduct occurred.
The Opinion
I think it was seriously irresponsible to have written a 28-page opinion detailing Graham's supposed ethics violations when the matter should have been dismissed because the ethics board could not allege an enforceable ethics violation.
Even taking into account that the ethics board did not understand that aspirational provisions are not enforceable, if it felt it could not proceed with the matter due to its lack of sanctions, it should have said no more. It is not the role of an ethics commission to make detailed allegations if it does not intend to further investigate them. If an ethics commission is finding a lack of probable cause, then it's necessary to talk about the facts in explaining that there is insufficient evidence. But it is inappropriate to present evidence as sufficient to start a full investigation and then not either say the evidence is insufficient or give the respondent a way to formally respond (the WMATA investigation also did not give Graham a way to formally respond).
It is not too late for the ethics board to correct its errors. It is not unusual to make mistakes when you are new to government ethics. The responsible thing is to reconsider the opinion and publicly explain (and apologize for) what went wrong. Doing this will allow the ethics board to deal with past misconduct and ease the reasonable fear of officials that, with its new sanctions, the ethics board may become the gotcha! board every official fears.
I don't see how the necessary ethics reforms can proceed without the mistakes in this opinion being corrected. How many officials will want to create a truly independent ethics program with a sufficient budget if they fear being accused of violating vague laws?
Robert Wechsler
Director of Research-Retired, City Ethics
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