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.<br>
<br>
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.<br>
<br>
<b>A Solution via Procedure, Law, or Merger</b><br>
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.<br>
<br>
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 <a href="http://www.cityethics.org/content/full-text-model-ethics-code#0.1_TOC81…; target="”_blank”">City Ethics Model Code §213.6.</a><br>
<br>
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 href="http://www.cityethics.org/content/advantages-having-ig-be-part-local-et…; target="”_blank”">a recent City Ethics blog post</a>.<br>
<br>
<b>The Story in the District</b><br>
Turf issues in D.C. are more complex than in most cities or
counties. As I pointed out in <a href="http://www.cityethics.org/sites/cityethics.org/files/City%20Ethics%20Re…; target="”_blank”">my
written testimony to the D.C. ethics board</a> 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.<br>
<br>
What happened in D.C.? According to <a href="http://www.washingtonpost.com/local/dc-politics/dc-ethics-board-presses…; target="”_blank”">a
Washington <i>Post</i> article last week</a>, 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.<br>
<br>
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.<br>
<br>
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).<br>
<br>
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.<br>
<br>
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.<br>
<br>
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.<br>
<br>
<b>Settlement, Subpoena, or Law?</b><br>
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.<br>
<br>
It's possible that the council will come to the rescue in the nick
of time. According to the <i>Post</i> 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.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
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