EC vs. IG: A Battle It's Better Not to Have

Once again, the failure to work out in advance the relationship between an ethics commission and an inspector general's office has led to the locking of horns in the midst of an ethics proceeding. This time the location of the turf war is the District of Columbia.

I've recommended that ethics commissions try to establish relationships with inspectors general and other law enforcement agencies in their area outside of ethics proceedings, so that things go as smoothly as possible when issues arise. But the D.C. ethics board's general counsel recently came over from the inspector general's office, so one would think their relations would be better than most.

A Solution via Procedure, Law, or Merger
This situation shows that you cannot make any assumptions. The best thing to do is establish procedures in writing. Have the discussions when nothing is on the line. If necessary, get a mediator involved. It might be the mayor or, even better, a neutral individual, such as a professional mediator or the head of the local League of Women Voters or other good government organization.

Even better is to have a provision in the ethics code that requires all agencies, including independent agencies, to fully cooperate with all ethics board requests for documents and other evidence. See City Ethics Model Code §213.6.

Best of all is to have the inspector general selected by the ethics commission. If the ethics commission is truly independent, this also ensures the inspector general's independence. It also allows the inspector general to handle the ethics commission's investigations along with its own. This both saves money and provides the ethics program with quality investigators when they are needed. For more on this subject, see a recent City Ethics blog post.

The Story in the District
Turf issues in D.C. are more complex than in most cities or counties. As I pointed out in my written testimony to the D.C. ethics board in January 2013, the ethics board shares its authority with agency heads, ethics counselors, the Inspector General, the Attorney General, and the U.S. Attorney. This overlap can lead to lots of turf wars.

What happened in D.C.? According to a Washington Post article last week, an IG investigation found that a D.C. official had improperly used a disabled-parking placard to park near his office. But the ethics board said that the IG refused to share key documents related to the case. The board's rules entitle a respondent to review a wide range of material related to his case. Without them, it appears that the ethics board would have to dismiss the case.

The IG provided some of the requested documents, but chose not to provide others. The IG takes the position that his office is treating the ethics board just like it treats the U.S. attorney’s office and the District’s attorney general. “We’ve never encountered this sort of reaction from other agencies,” he said.

But these offices are not similarly situated. The AG (actually the city attorney) is an independent elected office that represents the very officials that are being investigated by the IG. The U.S. Attorney is the District's criminal prosecutor, which deals almost exclusively with cases against citizens who are not District government officials or employees (or, if they are, have not acted in their government roles).

The ethics board deals with matters involving the conflicts of interest of District officials and employees. These are people with special fiduciary duties to the public. They deserve access to all evidence being used against them, in order for there to be due process, but such evidence should not only be available to them and to the ethics board, but also to the public. No question of turf or "independence" should interfere with this.

The IG is quoted as saying, “I’m entrusted with maintaining the independence and integrity of this organization.” By "organization," he means the IG's office, not the District government. But what is the office independent of? It should be independent of pressure from those under its jurisdiction, but it should not be independent of an agency that has exactly the same goals as it does. If the IG believes that its independence includes independence from the ethics board, then it would be wise for the District to put the IG's office under the ethics board's authority so that this will no longer be an issue. But if this occurs, it would also be wise to have ethics board members selected by community organizations rather than by officials under its jurisdiction.

The ethics director has said that, without access to the records, the ethics board would be unable to take action in numerous cases involving government wrongdoing. In other words, this is not a small turf battle regarding a minor proceeding. It is a war to determine access to IG investigation materials from here on in.

Settlement, Subpoena, or Law?
The result of the disagreement between the ethics board and the IG is that the ethics board voted to authorize a subpoena of the documents from the IG if an amicable settlement cannot be reached between the IG and the ethics board staff.

It's possible that the council will come to the rescue in the nick of time. According to the Post article, council member Kenyan R. McDuffie, who chairs the committee that oversees both agencies, said that he recently introduced a bill that would give the ethics board expanded rights to review records from city agencies, including the IG's office.

Robert Wechsler
Director of Research-Retired, City Ethics

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