jonetta rose barras: Danger ahead for the DC Council and ethics reform, Part 2

While the expulsion of Jack Evans from the DC Council moved a step closer this week with the approval and submission of the ad hoc committee’s final report and recommendation, the ethics saga is not yet in the rearview mirror. The formal vote of the legislature may not be held until Jan. 21. Equally important are the yet-unstated plans the council must implement to restore public trust in the institution, not the least of which is reform of its ethics regime.

Chairman Phil Mendelson rightly expressed “great concern” last week about the long-term implication of the legislature’s first-ever expulsion of one of its members. “I think we have to be very careful in how we distinguish why we want to expel here from other situations that we don’t know about, where there would be allegations of a conflict of interest,” he told the press. “How do we make that distinction? And I’m not prepared to answer that right now, but that’s of great concern to me.” 

How indeed?

Unquestionably, Evans’ ethics violations were serious. The council’s independent investigators from the law firm of O’Melveny & Myers noted Evans violated the legislature’s codes of conduct and rules on at least 11 occasions between 2015 and the summer of 2019. Evans and his lawyers have disputed those findings, arguing that none of the violations were intentional. Given Evans’ stature as the District’s longest continuously serving council member, however, it has been hard for many people to embrace the argument that Evans was totally confused about whether he had, in fact, crossed the council’s ethical line. 

Nevertheless, like Mendelson, I worry about the fallout from the council’s action, particularly since there was no public recognition by its members of the flaws or conflicting aspects of its ethics requirements. There also wasn’t any acknowledgement that along the way the council violated critical aspects of its own rules. 

Legislators gave short shrift to the fact that thousands of Ward 2 voters will be disenfranchised for months, particularly as decisions about the 2021 budget are being made. It’s the same logistical, legal and representative quagmire that besets the District when a ward council member wins election to a citywide office — a la Adrian Fenty, Vincent Gray and Muriel Bowser.

But Evans’ role as a countervailing force on a generally liberal council makes it particularly significant here. In the past, too many council members have morphed into political and fiscal vultures, circling the wallets of the city’s upper-income and wealthy residents, many of whom live in Ward 2. Without a legitimate representative, their interests may be trampled by the majority. 

Mendelson told me during an interview last week that the Home Rule Charter doesn’t allow the temporary appointment of someone to fill a vacant ward seat until a special election can be held. That could come as late as July — after the June primary — by his calculation.

Rachel Coll, the spokesperson for the Board of Elections, said the agency cannot begin the process until after the council takes its final vote. Once that happens, the elections board would have five days to formally announce the vacancy and develop the timeline, which would have to include an opportunity for candidates to collect and file qualifying petitions. By law, the actual election must be held between 70 and 174 days after the vacancy is announced. 

In other words, the person who wins the June primary would not necessarily be selected to fill Evans’ unexpired term. What a mess. 

Perhaps legislators should have allowed the public to determine the punishment Evans deserved. 

Despite the complicated timing of the special election, the expulsion vote likely won’t change. That shouldn’t stop the council from reviewing its own behavior over the past year, however. 

In the rush to find relief from public pressure, the council made serious missteps, including violating requirements for the composition of the ad hoc committee. The rules indicate that such a committee shall consist of only five members — not 12, as established by Mendelson. 

Legislators also introduced a factor that potentially could chill future ethics compliance. More specifically, the ad hoc committee voted on Nov. 19 to waive attorney-client privilege on several documents, making them available to the public. That was a precedent-setting move. Yet it drew little or no attention from the press. 

Chairman Pro Tempore Kenyan McDuffie cautioned his colleagues against taking such action. He argued that it could dissuade lawmakers from seeking advice from the Office of the General Counsel (OGC); they might rightly worry that their conversations and correspondence could ultimately become public.

When I asked Nicole Streeter, general counsel to the DC Council, last week about what the council had done, she said: “Shoot me an email with your questions so I can answer each of them specifically.” I did just that. 

“I am declining to answer your questions on the basis that you are asking about OGC’s advice to its client,” Streeter told me in an email sent on Monday.

That was rich. She persuaded her clients to waive attorney-client privilege but used attorney-client privilege to withhold information about why she encouraged them to take such action.

Unquestionably, that vote by the ad hoc committee was illegal. A council committee, without the full, formal vote of the legislature, cannot waive such important rights that accrue to the institution as a whole. “Technically you’re right,” Mendelson told me days before I received Streeter’s email.

He said the move was taken to provide for the public release of correspondence between Evans and the general counsel. Residents and others already had access to hundreds of thousands of pages of documents related to that investigation. So, why the need to violate rules? That’s just one of the looming questions.

Mendelson admitted that “there should be some reforms” of the council’s codes of conduct and rules. However, he offered that “nothing is urgent” and said that the necessary changes can wait until the next council period. That doesn’t begin until January 2021 — and providing more clarity now might prevent other members from unwittingly violating the rules.

For example, Mendelson boasted that he was the person who introduced legislation requiring council members to submit financial disclosures twice a year. However, he continued, “We need to strengthen compliance.” He noted the significant amount of disclosure being required but added that, “We’ve gotten away from what makes sense.” He said there may be some confusion about “what actually constitutes a violation.”

“There is something like five codes of conduct,” continued Mendelson. “The inconsistency between them should not be so complicated that one has to expend effort to understand them. They need to be simplified.” 

That could have happened in 2011, if the council had heeded advice from Kathy Patterson, a former council member who is now the DC auditor. Back then, the Committee on Government Operations, chaired by then-Council member Muriel Bowser, was reviewing 10 legislative proposals in an attempt to create an ethics regime.

Patterson recommended two changes that could have saved legislators a lot of headache. She restated those ideas during this past summer on WAMU and in a conversation last week with me.

“The council needs its own ethics operation,” Patterson told me, adding that most state legislatures have permanent ethics or management committees. That was the same recommendation the National Conference of State Legislatures (NCSL) made 10 years prior to Patterson’s 2011 council appearance. 

The council chose instead to create the Board of Ethics and Government Accountability (BEGA). While that board may have worked well initially, there have been significant complaints more recently about its operations. 

Patterson told the council that establishing a Committee on Management and Public Affairs, as recommended by NCSL, “would essentially be an executive committee to oversee the internal affairs of the council including ethics” and “oversight of council officers and confirmation of executive branch appointments.”

Patterson also said legislators should automatically lose the “privilege of committee chairmanship and any other special position” when they are under investigation — except the typical audit by the Office of Campaign Finance. The leadership position would not be restored until the probe was completed and the council member was cleared.

“Not having bright lines and rules allows [elected officials] to fudge them here and fudge them there,” Patterson added.

Unfortunately, the council doesn’t seem to have learned its lesson. When I asked Mendelson whether he supported Patterson’s suggestion, he asked, “What five members would I appoint to an ethics committee?”

That’s the same question he asked about appointments to the ad hoc committee, which led to the council violating its own rules even as it accused Evans of breaking the rules.

Help us!

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jonetta rose barras is an author, a freelance journalist and host of The Barras Report television show. She can be reached at thebarrasreport@gmail.com.