Should Jack Evans have voted on his own discipline? DC’s ethics board is investigating.

The District’s Board of Ethics and Government Accountability (BEGA) has opened a new investigation into Ward 2 DC Council member Jack Evans, three months after fining him $20,000 for using his public office for personal gain.

The focus of the new probe is one that has vexed some political observers for months: Why is Evans allowed to vote on whether the council should discipline him?

A complaint to BEGA filed by a retired civil servant argues that Evans’ failures to recuse himself from multiple council proceedings were ethical breaches that broke DC law governing standards of conduct. It alleges that Evans’ decision to take part in discussions and votes on launching a council investigation into wrongdoing — and on removing him from various committees — violated the code of conduct that applies to all public officials in the DC government.

The director of BEGA, Brent Wolfingbarger, disclosed at a board meeting last Thursday that the complaint, initially filed Oct. 28, had been “converted to a formal investigation on Monday, Nov. 4.”

Wolfingbarger said the complaint “does raise some very interesting issues of first impression,” signaling that its outcome might set a precedent on whether DC lawmakers can vote on their own discipline. 

Council Chairman Phil Mendelson has previously said Evans is not required to recuse himself from votes involving his investigation and discipline. The council’s ethics code requires only that members recuse themselves from votes that benefit their financial interests or those of someone they are closely affiliated with.

But the new complaint alleges violations of the District’s code of conduct — which exists apart from the council’s ethics code and requires all public officials to “maintain a high level of ethical conduct in connection with the performance of official duties.” The code of conduct law also notes that officials “shall refrain from taking, ordering, or participating in any official action which would adversely affect the confidence of the public in the integrity of the District government.” 

In his complaint to BEGA, Alan Roth — a former advisory neighborhood commissioner in Adams Morgan and congressional staffer — writes that several of Evans’ actions broke the law because they violated its ethical standards and hurt the public’s trust in government integrity. The complaint cites Evans’ July 9 vote against the council launching an investigation into his alleged violations of the council’s ethics rules. The law firm O’Melveny & Myers concluded this month that Evans committed 11 violations over the five-year scope of its investigation.

The complaint also argues Evans broke DC’s code of conduct by not recusing himself from multiple other council matters, including his pivotal vote against a motion to remove him from all committee assignments. With one council member absent, the measure failed 6-6 without a majority.

Roth argues Evans also violated the law when he voted against the council’s removal of him as chair of the Finance and Revenue Committee. And on Sept. 17, Evans was the only lawmaker to vote against enforcing subpoenas issued by O’Melveny & Myers, which had trouble compelling witnesses to testify. The vote was another example of Evans not meeting the “high level of ethical conduct” required by the code of conduct, Roth argues.

Evans is under federal investigation but has not been charged with a crime. A 2018 BEGA investigation into actions Evans took to benefit a digital sign company seeking business in DC has been stayed in deference to federal authorities, The Washington Post reported in August.

That same month, BEGA fined Evans $20,000 in a settlement over findings that Evans directed council staff to send business proposals using government email. 

Ten council members have said in public that Evans should resign. Mendelson has privately urged Evans to resign, according to two sources close to the council chairman. Ward 7 Council member Vincent Gray said last Thursday, however, that his colleagues have been too quick to call for resignation amid an ongoing investigation by an ad hoc council committee. He said Evans deserved due process. 

Evans did not respond to requests for comment on the new BEGA investigation.

Roth says residents see it as “outrageous” that Evans has voted on measures involving himself.

“They raise eyebrows and say ‘How is this possible?’ And people inside the Wilson Building just shrug their shoulders and say, ‘He’s a council member; of course he gets to vote,’” said Roth, a Ward 1 resident.

“It’s no wonder that people don’t have faith in the integrity of the council in these circumstances,” he added. 

At last Thursday’s BEGA meeting, Roth inquired about the status of his complaint against Evans, leading the board to vote to authorize Wolfingbarger to discuss the matter. BEGA does not typically disclose the identity of an individual under investigation unless certain criteria are met. In this instance, Wolfingbarger told The DC Line that because Roth had already publicly discussed his complaint, “no real purpose would’ve been served by not commenting on it.”

Roth said he was motivated to file the complaint in part because of his own experience serving on the DC Water and Sewer Authority’s board of directors for nine years. Prior to leaving the board in 2016, Roth said, he recused himself from discussions and votes involving Verizon because he was a member of the United States Telecom Association, an industry trade group. He said he was mindful of adhering to the District’s code of conduct.

The code of conduct for District employees was written into a 1979 law that aimed to modernize the city’s bureaucracy six years after leaders achieved Home Rule. 

A 2011 act establishing BEGA as a check on DC government explicitly expanded applicability of the code to include any “employee, member of a board or commission, or a public official.”

In 2013, BEGA issued an opinion in a case involving former Ward 1 Council member Jim Graham that said the lawmaker’s actions intervening in a lottery contract violated provisions of the DC government’s code of conduct.

In another incident, the council in 2010 applied the code of conduct in a censure resolution against former Ward 8 Council member Marion Barry. He was accused of taking funds from a city contract awarded to a girlfriend. Despite his pleas to colleagues, 12 of the 13 members — including Evans — voted to censure Barry and strip him of his chairmanship of a committee. 

Barry recused himself from the vote.