jonetta rose barras: Is the DC Council having another knee-jerk moment?

That question seems a legitimate concern, considering the near-illogical demand Ward 1 Councilmember Brianne Nadeau makes in her proposed emergency legislation expected to be considered Tuesday during the DC Council’s next legislative meeting. In the bill she asks for a post-investigation of the investigation conducted by the Mayor’s Office of Legal Counsel (MOLC) into sexual harassment allegations against former Deputy Mayor for Planning and Economic Development John Falcicchio earlier this year. In my view, the move would partially misdirect the mission of the Office of the Inspector General (OIG) while establishing an unequal enforcement system.

The MOLC’s probe substantiated the most serious charges against Falcicchio, who resigned his post on March 17 — a few days before the investigation was publicly announced. He appears to have gone underground; no one — certainly not the press — seems to have seen or heard from him since then.

Even prior to the public release of MOLC’s investigative results in a summary report, councilmembers were dissatisfied that Mayor Muriel Bowser had not chosen to pursue an independent probe — although it appears she was following Mayor’s Order 2017-313. That document reveals in minute detail the executive’s sexual harassment policy and enforcement. Among other things it requires that each agency or office conduct an internal investigation. Under that order, the Office of Human Rights (OHR) is the agency designated to conduct discrimination complaints, including those related to sexual harassment.

“We believe the best practice is an independent investigation,” Council Chair Phil Mendelson told me during an interview earlier this week about his and his colleagues’ decision to introduce permanent legislation that would give the OIG the authority to handle some, though not all, sexual harassment complaints from city employees. 

“The goal is to make it as easy as possible to put forth allegations,” he added.

On Monday, Mendelson said he had not decided whether to support Nadeau’s emergency legislation — the Sexual Harassment Investigation Review Emergency Act of 2023. At the time of Thursday’s circulation of the bill, she was the only person who had signed the document. In it, she has asked the OIG to review the MOLC’s investigation and provide a report within 60 days of approval of the act. She has also requested that the independent counsel, expected to be hired by the OIG, make “recommendations on sexual harassment complaints and investigation procedures for the District government.” 

DC is overloaded with rules and laws for filing sexual harassment complaints and for conducting investigations. Nadeau seems determined to waste the public’s money.

Nadeau chose the OIG as the best entity for handling sexual harassment claims against top-level mayoral appointees because she seems to think the agency is the least political among those that had been considered, including the Office of the Attorney General. 

Interestingly, Bowser sent a letter on June 27 to Inspector General Daniel Lucas asking him to “consider whether a management review could help ascertain whether policies in place today work or need updating.” She specifically identified three unresolved allegations: “Rumored sexual or attraction-based hiring and promotion practices”; “Bullying of the Complainant by DMPED Senior Staff, not related to the DM/COS”; and “Retaliatory post-complaint treatment.” (DMPED refers to the Office of the Deputy Mayor for Planning and Economic Development; DM/COS refers to Falcicchio, who was serving as both deputy mayor and Bowser’s chief of staff.)

Nadeau has included those same items in her emergency bill, also asking for a review. In a public statement prior to the release of her emergency proposal, she said that she wasn’t necessarily interested in having an independent counsel repeat the MOLC’s investigation. She said her legislative proposals “are an opportunity to create transparency, protect workers, and to foster public trust.”

“We have a responsibility to victims, to workers, and to the public to hold people accountable, especially people in positions of authority,” Nadeau added.

Actually, the bills are expressions of the palpable distrust that exists between the legislative and executive branches of the DC government and that is played out weekly around myriad issues and functions.

As additional proof, consider Nadeau’s statement that she does not have “specific concerns about the investigations being conducted by the Mayor’s Office of Legal Counsel. I have no reason to believe they got it wrong — but also no reason to believe they got it right.”

Nadeau said that’s why she believes there is a need for an independent review of the investigation. Her logic escapes me.

By its own admission, the OIG has never conducted any kind of review of the city’s handling of sexual harassment policies and laws, to say nothing of overseeing an actual investigation of sexual harassment. A spokesperson for the agency told me via email that the OHR is “responsible for investigating and enforcing local and federal human rights laws, including claims of sexual harassment.”

“As a matter of practice, any complaints received through the OIG’s Fraud, Waste, Abuse, and Mismanagement Hotline alleging violations of federal or District human rights laws are referred to OHR,” the spokesperson added.

Perhaps more disturbing than the misdirection of the OIG, an agency that in my view is operating at half-speed, is that the council’s bills could result in a two-tier system of enforcement. Special attention would be given to individuals working in offices under top-level Bowser appointees. Other employees toiling in the bowels of the government would not have the benefit of a third-party, independent investigation.

There are more than 30,000 individuals working in DC government agencies and offices. Would complaints from those working for someone who is not a top-level employee languish without swift action? 

In her statement, Nadeau said that “No employee should feel unsafe in their workplace. No employee should be subjected to sexual harassment, especially by those in positions of authority and influence. No employee should fear retribution — or, just as bad, inaction — for coming forward.” 

Except her legislation, if approved, could make it easier for much of that to happen — particularly in terms of inaction.

One union leader told me privately that he and others had been trying to get the city to deal with a case of sexual harassment at one agency for more than a year. He also raised other concerns about working conditions, including public safety and post-pandemic issues. 

Despite the intense attention given the sexual harassment allegations against Falcicchio, the council has not held one public hearing or roundtable in recent months examining the conditions and working environment of DC employees.

Anita Bonds — who chairs the Committee on Executive Administration and Labor, which has oversight of the Executive Office of the Mayor, the MOLC and the OIG, among other agencies — could not be reached earlier this week for comment. She and Council Chair Pro Tempore Kenyan McDuffie, whose Committee on Business and Economic Development has oversight of DMPED, have promised to hold a public hearing on the DC government’s sexual harassment policies and enforcement. That seems destined to wait until after the council’s summer recess, however. 

I am not against investigations. Sexual harassment allegations are serious and deserve immediate attention — but the rules on how they are handled shouldn’t be based on who is the perpetrator or the accuser. Abuse and discrimination require equity in resolution.

If Nadeau and others aren’t satisfied with the information in the summary report, they should demand the executive share with their legal counsel the full 65-page report — and do likewise when the MOLC soon completes its separate investigation into the allegations of a second complainant against Falcicchio. Their review of the adequacy of the MOLC’s probe might start there, before spending the public’s money. 

Moreover, if the council is going to jump in, it shouldn’t simply offer a political, knee-jerk response that is not comprehensive and thorough, especially since the executive and the legislature have been chasing this issue for decades. It’s one reason Bowser issued her order.

It is a comprehensive document, defining sexual harassment in exacting specificity while making clear that it applies not only to her appointees but “all District of Columbia employees, officials, and all employees under the Mayor’s jurisdiction.” It also applies to “third parties doing business with, or carrying out the goals and objectives of the District government,” such as contractors and grantees. It further covers visitors to DC government offices or workplaces.

The section defining “hostile environment sexual harassment” captures the kinds of activities in which Falcicchio appears to have engaged: “display of sexual organs,” the use of “sexually oriented or sexually degrading language,” and “‘sexting’ or seeking or sending pictures of intimate body parts.”

The mayor’s order also indicates that some cases may be sent to the Board of Ethics and Government Accountability (BEGA). Some claims “may also involve ethical violations.” It cites as an example an employee who might give a gift in order to receive a sexual favor. “Credible violations of the Code of Conduct should be reported to BEGA.”

Oddly, BEGA seemed unaware that it is specifically mentioned in Mayor’s Order 2017-313. Responding to an email sent to agency director Ashley Cooks, the general counsel told me that “As far as I know, BEGA’s Sexual Harassment Officer only handles internal agency sexual harassment complaints. 

“We have [two] trained EEO counselors, but individuals making sexual harassment complaints are allowed to bypass the EEO counseling process and may file directly with the Office of Human Rights,” wrote Rashee Raj.

When I pushed back suggesting that sexual harassment surely would be considered  unethical behavior, Raj replied that “Sexual harassment is its own law” under the OHR. “While some aspects could be considered ‘unethical,’ there is an entire DC Government agency dedicated to enforcing local and federal human rights laws.”

Is the OHR really enforcing the law? Is the council providing adequate oversight of the OHR? (Jurisdiction over the agency has shifted over time from one committee to another, but as of January it rests with the Committee on Public Works and Operations, chaired by Nadeau.)

Last year, the council-approved Sexual Harassment Data Collection and Reporting Act became law. It established a “centralized tracking system for sexual harassment complaints” within the DC government and required “agencies to report the number of sexual allegations, offenses, and misconduct and outcomes from filed complaints” to the OHR. Then the OHR is to “submit an annual report to the Council and Office of the Attorney General.”

This Nov. 12 the first data transmission to the OHR is supposed to occur. By law the OHR is supposed to submit its report to the DC Council and the OAG by Dec. 3.

I sent an email to OHR’s interim director, Hnin Khaing, asking for specific information around sexual harassment complaints and also clarification on the fact that sexual harassment is not listed prominently on its website as a discriminatory category. Maya Vizvary, a program manager at the OHR, responded that sexual harassment is under “sex.”  

In the agency’s most recent report from 2021, there were 88 docketed cases where “sex” was the trait cited, which could include sexual harassment. Vizvary told me via email that the agency “does not currently track the number of sexual harassment complaints” it receives. While the law now requires such tracking, it appears the OHR hasn’t gotten busy with that task.

“If you are referring to the new requirements under the Sexual Harassment Data Collection Act (DC Code § 1–546.03), that report is not due until December 3, 2023,” Vizvary wrote.

The OAG did not provide information requested about any sexual harassment cases and settlements it may have handled over the past three years.

One thing seems clear to me: Sexual harassment reporting and enforcement is a mess. That can’t be blamed on the absence of laws, orders or enforcement mechanisms. There’s clearly a lack of coordinated implementation. The other key problem is the same one that comes up repeatedly: a lack of council oversight.

If Nadeau and her colleagues want to do something, they can do their jobs. They can conduct consistent and aggressive oversight of the executive branch, ensuring that laws and policies are implemented with fidelity and that the government is being properly managed, including the maintenance of a safe and nondiscriminatory environment for all workers.

This post has been updated to remove a reference to how the DC Council handles sexual harassment complaints. The council’s investigative process includes referring certain kinds of cases to an outside firm, but DC Council Chair Phil Mendelson has clarified that the legislature does not have an outside legal firm on retainer, correcting his earlier statement to the contrary. 

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jonetta rose barras is an author and freelance journalist, covering national and local issues including politics, childhood trauma, public education, economic development and urban public policies. She can be reached at thebarrasreport@gmail.com.