Allegations Based on Unenforceably Vague Standards

Anonymous

Mon, 02/10/2014 - 12:05

City Related

<a href="http://www.washingtonpost.com/local/dc-politics/top-city-judge-allegedl…; target="”_blank”">Mike
DeBonis's article in the Washington Post</a> last week describes an operatic
ethics matter, with several twists and complications, with dramatic
cries of innocence mixed with scathing accusations of guilt. The
article is certainly more exciting than this blog post, which focuses
on issues raised by the the Notice of Violation, dated February 6,
(attached; see below). I hope the post will, at least, be
enlightening. 
 
Here are the basic facts, as stated in the Notice of Violation. In
2006, D.C.'s chief administrative law judge entered into a business
relationship with a woman to purchase investment properties in the
D.C. area. Both principals put money into the enterprise over a
period of years. In 2010, the judge hired her business partner as
the general counsel of her government office, "without
posting/advertising the position or interviewing anyone else for the
position."

When the judge's office moved to a new location, she insisted that
her furniture be relocated by a company owned by the general
counsel's boyfriend, and now husband. 
 
In June 2012, 15 administrative law judges signed a letter to
various offices complaining about the hiring of the judge's general
counsel and of the furniture relocation company without following
required procedures, as well as management concerns. The judge
allegedly "engaged in a pattern of conduct to retaliate" against
these judges. 
 
One of the forms of retaliation was participation in meetings of the
Commission on Selection and Tenure of
Administrative Law Judges (COST), in which the judge was an ex
officio, nonvoting member, when COST discussed the 15 judges'
letter. COST ended up deciding to investigate the 15 judges. 
 
This post will deal only with the conflict issues, not with the
retaliation issues. 
 
Benefiting a Business Associate 
The D.C. ethics code has one of the broadest basic conflict of
interest provisions, with respect to who may not benefit from an
official's decision. Most basic conflict provisions prohibit only
benefits to the official, family members, business associates, and
other specified individuals and entities. D.C.'s provision applies
to anyone "closely affiliated with the employee." In other words, it
provides broader coverage, but less clear guidance, than an ordinary
conflict provision. 
 
The good thing about the D.C. code is that, unlike most ethics
codes, it does effectively prohibit conduct that benefits an
official's business associate. Many codes prohibit conduct that
benefits an employer, but only elected officials generally have
outside employers, so this has limited effect. Many officials, on
the other hand, have business partners, particularly in investments,
such as property ownership or a local business that the official
does not manage or work for. 
 
What the D.C. conflict provision does more effectively than most is
limit cronyism, a form of ethical misconduct that is common and
usually legal, but which citizens don't like, because it makes
government look like an exclusive club that provides jobs only to
those with connections. Because of the D.C. provision's vague
"closely affiliated," however, it isn't clear whether it also covers
the other popular bugaboo, political cronyism – jobs given to party
associates, major campaign contributors, and campaign workers. We'll have to
wait and see how broadly this term is defined. 
 
Following Formal Procedures 
Most ethics codes do not include a provision to deal with an
important part of the first allegation ("count") in this case, the
fact that the respondent judge apparently did not follow "standard
hiring procedures such as posting or advertising the position and/or
interviewing other candidates." 
 
It could be argued that, if the judge had withdrawn from the matter
and let another office or a committee make the hiring decision, the
business partner could have been hired anyway. It might have looked bad,
but at least the judge could assure the public that all standard
procedures had been followed and the decision had been made without
her involvement or attempt to influence. The only problem would be
if the individuals who made the hiring decision were the judge's
subordinates, who would appear to be doing the judge's bidding. 
 
Although requiring that formal procedures be followed is important
to preventing ethical misconduct, it is rarely included in ethics
codes. Even the City Ethics Model Code does not include this
requirement, although my book Local Government Ethics Programs, has
two sections on this issue: <a href="http://www.cityethics.org/files/lgep1-0%20-%20Robert%20Wechsler.htm#Fol…; target="”_blank”">one
in the conflicts chapter</a> and <a href="http://www.cityethics.org/files/lgep1-0%20-%20Robert%20Wechsler.htm#Fai…; target="”_blank”">the
other in the administration chapter</a>. 
 
An Unenforceably Vague Provision 
The D.C. code does have a formal procedures provision but,
unfortunately, it is part of a provision that I do not believe
should be enforceable because it is too vague and overinclusive.
This provision is §1803, part of the city's personnel regulations
(attached; see below). Here is the principal part of the provision:<blockquote>

(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: 
 
(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. 
 
(b) In all cases arising under section 1803 of this chapter,
employees are encouraged to consult with their supervisors or the
agency’s ethics counselor.</blockquote>

The first problem with this provision is that appearance is
included. Appearance is extremely important to government ethics, as
a principal purpose behind government ethics
provisions. Such provisions are not supposed to simply require that
appearances of impropriety do not occur. This does not provide sufficient guidance, and people are known to be poor judges of how their conduct appears to others. It is impossible
for officials to be sure that their conduct might not result in an
appearance of impropriety, especially of improprieties as vague as
those listed. Preventing the appearance of impropriety is, therefore, a valuable aspirational goal,
but not an enforceable ethics provision. 
 
The one solid member of this six-part list is "making a government
decision outside official channels." "Official channels" refers to
formal, written procedures. These procedures are clear and
enforceable. Departing from them in order to benefit someone with
whom an official has a relationship, directly or indirectly, gives
the appearance of impropriety to conduct, because it allows
officials to act behind the scenes and without fairness. And officials know what procedures are required. 
 
But since it is in this list and only in this list, this
subprovision should not, I believe, be enforced. 
 
It is good that this provision includes an encouragement to seek
ethics advice. But as long as it's not required, you can't penalize
an official for not seeking it. You can only penalize for the
failure to follow a provision that requires conduct and provides a
description of improper conduct that is sufficiently clear as to be
enforceable. "Impeding government efficiency or economy" provides
little guidance. Nor does "losing complete independence or
impartiality," since no one is completely independent or impartial.
I'm not. Are you? 
 
I have been arguing for the last year that D.C.'s aspirational
provisions should not be enforced (<a href="http://www.cityethics.org/content/dc-ethics-boards-opinion-needs-rewrit…; target="”_blank”">1</a>
<a href="http://www.cityethics.org/content/constituent-services-and-preferential…; target="”_blank”">2</a>).
I've been arguing for longer with respect to the aspirational provisions in other local government ethics codes. Now I will look at some of the Counts in this case's Notice of
Violation to show how wrong such enforcement is. The sad thing here
is that these Counts and, therefore, the application of
unenforceable provisions, were unnecessary. It is clear that the
judge hired someone with a close affiliation to her. Wasn't that,
plus her retaliation and misconduct in the investigation, enough? 
 
Use of Office for Private Gain 
Count 3 against the judge is based on §1803(a)(1), "using public
office for private gain." Every contract, every grant, every permit
that is approved by someone using her office provides private gain
to someone. Therefore, this cannot be enforced without being defined
down to something that has more meaning, that provides more
guidance. Here is how D.C.'s ethics board interprets it in Count 3
(Walker is the judge, Oden her business partner, and MKM their
company):<blockquote>

By hiring Respondent Oden, Respondent Walker ensured that Respondent
Oden would have a reliable salary as a District government
employee, which benefitted Respondent Oden financially, but also
ensured that Respondent Oden would be better able to make capital
contributions to MKM and contribute to the expenses necessary for
the upkeep of the real property it managed .... This arrangement
contributed to the private gain of Respondent
Walker, MKM, and Respondent Oden.</blockquote>

Count 1 already alleged that the hiring benefited someone closely
affiliated with the judge. This count unnecessarily takes it a step
further by alleging that the hiring benefited the judge because it
benefited their business. And it benefited the business by giving
Oden a reliable government salary. But she appears to have been a
partner at a law firm before this (and even for a while after being
hired), so it's not clear how much she benefited in a way that might
benefit the business. 
 
A big problem here is that in government ethics, you don't usually
need to show actual benefit. People who get contracts sometimes say
they lost money on the deal and, therefore, didn't benefit. This is
not an appropriate consideration. It is the possibility and
perceived expectation of benefit that matters. If you bid for a
contract, it is assumed that you expected to benefit from it. If you
took a job, it is assumed that you expected to benefit from it. And
others reasonably expect you to benefit from it, as well. 
 
Tenuous Benefits 
But when you take this one step, and then two steps further, as the
relationship between a contract or job and its benefits becomes more
tenuous, is it enough that benefit is possible or reasonably
expected? Can one hold an official accountable for helping getting a
business partner a job, because it may mean that the business
partner will be more likely to keep up payments to the business, so
the official will not have to make up the difference? There are
cases where this may be an accurate description of the official's
incentive for hiring the business partner, but possibility is not
enough, at this remove, to prove it. I think there has to be
evidence that the business partner was missing payments and that the
additional or more regular income was expected to allow the payments
to be made. 
 
I understand that lawyers are trained to include every possible
allegation. But in an ethics proceeding, where the direct benefit to
a business partner is sufficient under a clearly enforceable
provision, why bring in provisions that are vague and, therefore,
not clearly enforceable, that have in fact been criticized as
unenforceable, to either make the same allegation or to make more
tenuous, harder to prove allegations? I think it is better not to
make these further allegations. 
 
Allowing an Improperly Hired Official to Keep Her Job 
Count 4 against the judge makes an ethics allegation I've never
seen. It alleges that the judge failed to avoid creating (the double
negative is mine) the appearance of using her public office for the
private gain of her business partner, their company, and herself not
just by hiring the business partner, but also by allowing her to
remain employed. In other words, the ethical misconduct did not end
with the hiring, but effectively was renewed every day the business
partner was on the payroll. 
 
This count cites only §1803(a)(1), the use of public office for
private gain. But both this and the basic conflict provision speak
only of actions, not inaction. What the judge did, every day, was
fail to act. I agree that each day the judge failed to act, she
committed further ethical misconduct. Another way of looking at this
is to note that, had the judge, two months after hiring her business
partner, realized the wrong she had done, and acted on her new
awareness, it would have been considered a mitigating circumstance,
just as making misrepresentations in the investigation was an
aggravating circumstance (as well as further misconduct). Failing to
act and failing to seek advice make the misconduct a bit worse
every day. 
 
Ethics codes generally do not recognize this, except where
disclosures have not been made, where the penalty may increase
daily. It's good to recognize this in every situation, but it is
better, and more fair, to recognize this through express language,
rather than reading it into vague provisions. 
 
In the same way, Count 6 against the judge extends the preferential
treatment provision, (a)(2), to include the failure to fire the
judge's business partner. The same thing is done, in Count 8, with
(a)(5), the Outside Official Channels provision, but here it is
surely inappropriate. It is not acting outside official channels to
allow an employee to remain in a position. I see no argument in
favor of Count 8. 
 
Count 5 against the judge unnecessarily reads into §1803(a)(2),
about preferential treatment, the failure to follow official
procedures. Since this is expressly stated in (a)(5), and thereby
included in Counts 7 and 8, the only purpose for including it here
is to add another count. This is an unnecessary interpretation of
(a)(2), a provision that is already very broad and frowned on by
government ethics practitioners. 
 
Other Unenforceable Provisions 
With Count 9 against the judge, the ethics board goes one more step
beyond what is enforceable by treating §1800.3 as enforceable.
Section 1800 is entitled "Applicability." It is clearly
aspirational. Section 1800.1, for instance, is undeniably
unenforceable:<blockquote>

Employees of the District government shall at all times maintain a
high level of ethical conduct in connection with the performance of
official duties, and 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.</blockquote>

Section 1800.2 (below) clearly expresses that its first two
sentences are simply concepts that the regulations accord with. In
other words, they are aspirational standards on which enforceable
standards are based. This is what these introductory provisions
usually are, and why they should not themselves be enforced.<blockquote>

The maintenance of unusually high standards of honesty, integrity,
impartiality, and conduct by employees is essential to assure the
proper performance of government business and the maintenance of
confidence by citizens in their government. The avoidance of
misconduct and conflicts of interest on the part of employees is
indispensable to the maintenance of these standards. To accord with
these concepts, this chapter sets forth the regulations prescribing
standards of conduct and the requirements for reporting outside
employment and financial interests for District government
employees.</blockquote>

The third paragraph has language that makes it seem more enforceable
than its immediate predecessors. But it should not be enforceable
(1) because it is part of a clearly aspirational provision, and (2)
it depends on the following vague, aspirational language:
"fair, impartial, and objective performance." We want officials to
act fairly and objectively as can be expected, and unelected
officials to act impartially (while following the wishes of partial
elected officials). But these are concepts that are to be considered
in developing and following ethics rules, the ethics rules that
ethics allegations should be based on. These concepts, which are
both vague and very complex, are not enforceable themselves. Here is
the entire §1800.3:<blockquote>

No employee of the District government shall engage in outside
employment or private business activity or have any direct or
indirect financial interest that conflicts or would appear to
conflict with the fair, impartial, and objective performance of
officially assigned duties and responsibilities.</blockquote>

Count 16 against the judge involves the judge's insistence that her
office furniture be relocated by a company owned by the general
counsel's boyfriend. This is shoehorned in via the §1803.1(a)(2)
preferential treatment provision. Was this necessary? Her insistence
was a way of bypassing the formal procedures involved in contracting
with a furniture relocation company ((a)(5)), but it was also a
violation of the basic conflict provision, because the judge was
misusing her office to benefit someone closely affiliated with her
subordinate (the word "indirect" in the basic conflict provision would make it easier to enforce this situation). The subordinate was misusing her office by seeking this
benefit for her boyfriend, and the judge was also misusing her
office by complicity with the subordinate in doing so (this is one
reason complicity provisions are so important; see the <a href="http://www.cityethics.org/content/full-text-model-ethics-code#0.1_TOC49…; target="”_blank”">City
Ethics Model Code's provision</a>). 
 
In short, the ethics board only needed to cite the basic conflict
provision in its allegation and, if it had a complicity provision,
this would have made the board's job even easier, and have provided
the judge with more guidance, as well. 
 
Conclusion 
I believe that the D.C. ethics board should reconsider enforcement of the
aspirational provisions I discuss above, and consider recommending a
complicity provision. I think it will make its enforcement more fair
without seriously limiting its reach. 
 
Robert Wechsler 
Director of Research-Retired, City Ethics 
 
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