GOVERNMENT OF THE DISTRICT OF COLUMBIA BOARD OF ETHICS AND GOVERNMENT ACCOUNTABILITY ***

Transcription

1 Office of Government Ethics GOVERNMENT OF THE DISTRICT OF COLUMBIA BOARD OF ETHICS AND GOVERNMENT ACCOUNTABILITY *** - February 20, 2013 Hon. Kenyan McDuffie Chairman Committee on Government Operations Council of the District of Columbia 1350 Pennsylvania Avenue, N.W., Suite 506 Washington, D.C Dear Council member McDuffie: Thank you for this opportunity to provide responses to the performance oversight questions contained in the Committee on Government Operations Memorandum (Director Ronan Gulstone's) dated February 13,2013. The members ofthe Board and I look forward to providing testimony and answering these and any other questions you might have, at the Board of Ethics and Government Accountability ("BEGA") Performance Oversight hearing, scheduled for Thursday, February 21, The questions and our answers are set forth below: 1. Please provide a list of tile Board's current members. For eacll member, please provide tile following: Tile member's name Tile member's Ward Wilen tile member's term expires Attendance record The Board members are as follows: (a) Robert Spagnoletti, Chairman Ward: 4 Term Expires: July 2018 Attendance Record: Present for 11 of 11 Board Meetings (b) Laura Richards, Board Member Ward: 7 Term Expires: July 2014 Attendance Record: Present for 11 of 11 Board Meetings 4414" Street, N.W., Suite 830 South, Washington, D.C

2 (c) Deborah Lathen, Board Member Ward: 4 Term Expires: July 2016 Attendance Record: Present for 10 of II Board Meetings 2, Please provide a complete, up-to-date position listing for your agency, which includes the following information: Title of position Name of employee or statement that the position is vacant, unfunded, or proposed Date employee began in position Salary and fringe benefits, including the specific grade, series, and step of position Job status (continuing/termitemporary/contract) BEGA's current position listing is as follows: Position Title: Director Employee: Darrin Sobin Date of Hire: November 5, 2012 Salary/Fringe Benefits: $150,000 + $30,750 = $180,750 Series/Grade: XS-905/1 0 Job Status: Continuing Position Title: Sandra Peterson Employee: Staff Assistant Date of Hire: December 17, 2012 Salary/Fringe Benefits: $68,000 + $13,940 = $81,940 Grade/Series: XS-301 /5 Job Status: Continuing Position Title: Stacie Pittell Employee: General Counsel Date of Hire: December 31, 2012 Salary/Fringe Benefits: $132,000 + $27,060 = $159,060 Grade/Series: XS-905/9 Job Status: Continuing Position Title: Investigator Employee: Clara Olawunmi Date of Hire: January 28, 2013 Salary/Fringe Benefits: $53,758 + $11, = $64, Grade/Step/Series: 11 /3/CS Job Status: Continuing Position Title: Investigator Employee: Ronald Cook, Sr. Date of Hire: February 11, 2013 Salary/Fringe Benefits: $48,623 + $9, = $58,

3 Grade/Step/Series: 9/6/CS-1810 Job Status: Continuing Position Title: Attorney Advisor Employee: Samantha Riley Date of Hire: February 11, 2013 Salary/Fringe Benefits: $68,000 + $13,940 = $81,940 Grade/Series: XS-905/6 Job Status: Continuing Position Title: Attorney Advisor Employee: Yancey Burns Date of Hire: February 11,2013 Salary/Fringe Benefits: $68,000 + $13,940 = $81,940 Grade/Series: XS-905/6 Job Status: Continuing Position Title: Program Support Assistant Employee: Vacant Date of Hire: 3/2013 Salary/Fringe Benefits: $40,000 (approx.) Grade/Step/Series: 7/ /CS Job Status: Position Title: Senior Attorney (Hatch Act) Employee: Vacant Date of Hire: Salary/Fringe Benefits: $143,000 Grade/Series: XS-905/ Position Title: Director of Open Government Employee: Vacant Date of Hire: Salary/Fringe Benefits: $106,000 Grade/Series: XS-905/ Job Status: 3. Please provide a list of the Board's meeting dates, times, and locations for FY 12 and FY J3 to date. The following is a list ofthe Board's meeting dates, times, and locations for FY 12 and FY 13 to date. July 25, 2012, at 3:00 p.m., 441 4th St., N.W., #1116 August 21, 2012, at 1:00 p.m., 441 4th St., N.W., #280N September4, 2012, at9:00a.m., 4414 th Street,N.W. Suite 1107 September 13,2012, at 3:00 p.m., Schertler & Onorato, LLP, 575 7th St., N.W. #300S (public invited to attend by conference line) October 16, 2012, at 1:00 p.m., 441 4th St., N.W., #830S 3

4 November 19,2012, at 1:00 p.m., 441 4th St., N.W., #830S December 6, 2012 at 1:00 p.m., 441 4th St., N.W., #830S December 20, 2012 at 1:00 p.m., 441 4th St., N.W., #830S January 10, 2013 at 1:00 p.m., 441 4th St.,.W., #830S January 18, 2013 at 2:30 p.m., 441 4th St., N.W., #830S February 7, 2013 at 1 :00 p.m., 441 4th St., N.W., #830S 4. Please provide a chart showing your agency's approved budget and actual spending. by division, for FY 12 and FY 13, to date. In addition, please describe any variance between fiscal year appropriations and actual expenditures. See attached chart. 5. Please list any reprogramming, in or out, which occurred in FY 12 or FY 13, to date. For each reprogramming, please list the total amount of the reprogramming, the original purposes for which the funds were dedicated, and the reprogrammed use offunds. In FY 12, BEGA reprogrammed $200,000 from personal services to non-personal services funds. In FY 13, BEGA again reprogrammed $200,000 from personal services to non-personal services funds. This total of $400,000 was reprogrammed (1) to account for the fact that BEGA had no staff until more than one month into FY 13; and (2) to cover the many expenses needed to open an office, including purchasing computers, telephones, office supplies, and entering into contracts for information technology services. 6. Please provide a complete accounting for all intra-district transfers received by or transferredfrom the agency during FY 12 or FY 13, to date. To date, there are has been no intra-district transfers during FY 12 and FY Please identify any legislative requirements that the agency lacks sufficient resources to properly implement. At this time, there are no legislative requirements that BEGA lacks sufficient resources to properl y implement. 8. Please list each contract, procurement, lease, and grant ("contract'~ awarded, entered into, extended and option years exercised, by your agency during FY 12 and FY 13, to date. For each contract, please provide thefollowing illformation, where applicable: a. The name of the contracting party b. The nature of the contract, including the end product or service c. The dollar amount of the contract, including budgeted amount and actually spent d. The term of the contract e. Whether the contract was competitively bid or not 4

5 f The name ojtlle agency's cofltract monitor and the results oj any monitoring activity g. Funding source The following is a list of BEG A's FY 13 contracts. BEGA held no contracts in FY 12. a) Contractor: Reed Sevier Inc. (P ) Nature of Contract: Online Legal Services (LexisNexis) Amount: $9,300 Term: 12 months Competitively Bid: No (procured in accordance w/d.c Standard Contract) Agency Contract Monitor: Sandra Peterson Funding Source: Local b) Contractor: Thiha, Inc. (P ) Nature of Contract: Interior Improvements (window leak abatement, carpet, paint) Amount: $28,760, payment processing for full obligated amount Term: Work Completed Competitively Bid: Procured through DC Department of General Services Agency Contract Monitor: Sandra Peterson Funding Source: Local c) Contractor: Orion Systems Group, LLC (P ) Nature of Contract: Security door Intercom and Mount Amount: $1,650/obligated amount paid in full Term: Work Completed Competitively Bid: Yes Agency Contract Monitor: Sandra Peterson Funding Source: Local d) Contractor: DataNet Systems Corp. (P ) Nature of Contract: E-Filing Database (Lobbyist Activity and Financial Disclosure Statements) Amount: $42, Term: Installation date - tentatively March 2013 Competitively Bid: No (specialized service) Agency Contract Monitor: Sandra Peterson Funding Source: Local e) Contractor: Hi-Tech Solution, Inc. (P ) Nature of Contrac t: Copier Purchase and Maintenance Amount: $5,795 ($4,940 for copier and $855 maintenance) Term: Purchased Competitively Bid: Yes Agency Contract Monitor: Sandra Peterson Funding Source: Local 5

6 t) Contractor: West Publishing Corp. (P ) Nature of Contract: ProLaw Database (Case Filing/Tracking System) Amount: $33,978 Term: Installation date - tentatively April 2013 Competitively Bid: No (specialized service) Agency Contract Monitor: Sandra Peterson Funding Source: Local g) Contractor: Dell Computers Corp. (P ) Nature of Contract: Office Computers Amount: $20, Term: Purchased for full obligated amount Competitively Bid: No (procured in accordance wldc Standard Contract) Agency Contract Monitor: Sandra Peterson Funding Source: Local 9. Please describe the Board's activities in FY 12 and FY 13, to date. The first Order of business for the Board following Council confirmation in July, 2012 was to prepare to formally commence operations on October 1, the date by which enforcement of the Code of Conduct was to transfer to BEGA under the Ethics Act 1 During FY 12, the Board secured office space for BEGA at 441 4th Street, NW, Suite 830 South, encumbered the FY 12 budget, advertised for the Director of Government Ethics and General Counsel positions, acquired furniture, and purchased computers and other electronic equipment, including a telephone system. The Board selected a Director of Government Ethics, who accepted the position with a start date in early FY 13. The Board drafted, with help from the Office of the Attorney General, five chapters of rules governing the operation of the Board, investigations, hearings, advice, recusals, and other critical matters. The Board adopted the rules on an emergency basis so that they were in effect as of the October 1 st start date, and have now been adopted and published as final. The Board also established a BEGA website, which was operating by the end of FY 12, and contained information about BEGA and the Board members, job postings, and information regarding public Board meetings. The BEGA website is accessible through the District government's general website On November 5, 2012, the Director of Government Ethics, Darrin Sobin, joined BEGA and, working jointly with the Board, hired a General Counsel, an Office Manager, two investigators, and two attorneys, all of whom have since started in the Office. It is important to note that this staff has only been in place for several weeks. During the nearly two-month period between the time the Director started and additional staff were hired, the Director personally undertook the many day-to-day duties of the Office, including providing ethics advice to government employees, initiating investigations and, importantly, overseeing the Lobbyist registration and activity I Board of Ethics and Government Accountability Establishment and Comprehensive Ethics Refonn Amendment Act of20 II ("Ethics Act"), effective April 27, 2012, D.C. Law , D.C. Official Code ef seq. 6

7 reporting duties of the Office. In that regard, the Director and the Board issued an emergency rulemaking (now adopted as final) to guide Lobbyists who were required to register and file activity reports in the first half of January Although the electronic filing system was not yet in place, all Lobbyist reports were received and posted manually on the BEG A website in a timely fashion (430 total). Registration fees were recorded and deposited in the appropriate account ($40,900.00). The Board and the Director also accomplished another statutory duty during this period - to issue and post a plain-english Government Ethics Manual for employees. That manual, with full citation to authority, was adopted by the Board and posted on the BEGA website in December. It will be updated shortly to reflect changes to the federal Hatch Act and laws governing the political activity of District employees. Infrastructure is continuing to improve, though space is becoming an issue. The BEGA offices have been painted and carpeted and water damage from a leaky window has been abated. The offices are set up with furniture (surplus), computer equipment, and telephones. BEGA now has an operating telephone hotline staffed by investigators and is taking complaints that come in through a variety of means, including letters, s, telephone calls, walk-ins, in-person meetings, media reports, and sworn complaints. On January 10,2013 BEGA held a public symposium to receive comments and suggestions for its Best Practices Report from Government employees and members of academia and the ethics community. The testimony of these witnesses has been posted on the BEGA website and their views are under consideration for inclusion in the forthcoming report. As of February 15,2013, BEGA had initiated 21 investigations. The list of investigations opened during the first quarter offy 13, has been posted, as required by our statute. BEGA also has been issuing formal Advisory Opinions, which are posted on the BEGA website in redacted form unless the person seeking the Advisory Opinion consents to publication with identifying information. As of February 15, 2013, BEGA had issued and posted seven formal Advisory opinions and given out informal advice to scores of people who have called with questions. BEGA also conducts ethics training for District employees. To date, BEGA has conducted two training sessions. The attendees were the ethics counselors in nearly all District government executive branch agencies and the Council. The Board also has recommended changes to its enabling statute, through emergency legislation, to allow it to enter into negotiated dispositions with those who have been found, after investigation, to have violated the Code of Conduct and are willing to accept responsibility for their actions and an appropriate sanction, without an open and adversarial hearing. BEGA recommended that the Council amend the Ethics Act, to allow BEGA to negotiate settlements and to conclude investigations with alternate dispositions, including non-public dispositions. The emergency legislation was passed by voice vote of the Council on Tuesday, February 19, Finally, during FY 13, BEGA procured ProLaw, a case management system, to manage and maintain our investigative files electronically. BEGA also is continuing efforts to migrate the E-Filing database previously used by the Office of Campaign 7

8 Finance to manage the lobbyist registration and activity reports and Financial Disclosure filing. 10. Please describe the Board's three biggest accomplishments in FY 12 and FY13, to date. The Board's three biggest accomplishments in FY 12 and FY 13, to date, have been: (l) getting the BEGA offices, website, and telephone hotline set up and functional; (2) hiring a Director of Government Ethics and other staff members; and (3) beginning the work for which BEGA was created, including conducting investigations, issuing Advisory Opinions, and conducting ethics training. 11. Please describe the Board's goals in FY 13 and the planltimelinefor completion? The Board has several goals for FY 13. In terms of practical matters, the Board intends to secure for the office the services of ProLaw, an electronic case management system, and the E-Filing Database for lobbyists and District employee financial disclosure reporting, by the end of the second quarter offy 13. The Board also intends to hire a Program Support Assistant to handle the lobbyist registration and activity reports, as well as financial disclosure reports. The Board also anticipates hiring a Director of Open Government and a senior attorney to assist with Hatch Act duties and other business of the Board. These three positions should be filled by the end of the second quarter offy 13. In addition, the Board notes that it is quickly outgrowing its office space and already is working with various District agencies to secure additional and/or larger office space to accommodate its growing staff and needs. In terms of substantive work, the Board is in the process of drafting a Best Practices Report, which it intends to issue in the second quarter of FY 13, and a memorandum to the Mayor, all Agency heads, Councilmembers, and Advisory Neighborhood Commissioners regarding requirements for Financial Disclosure reporting. The Board intends to di stribute that memorandum no later than the end of the second quarter offy 13. The Board also intends to create a comprehensive annual ethics training plan for District government employees. This may include both in-person training as well as some form of electronic training. The Board hopes to have this training plan completed no later than the end of the third quarter of FY 13. On February 19,2012, the Council also approved legislation authorizing BEGA to enforce violations of prohibitions on employee political activity, or the Local Hatch Act. With the passage of the local Hatch Act, the Board must begin enforcement measures immediately, update the Ethics Manual to reflect the changes in the law, and provide trai ning to employees. The Board intends to continue conducting investigations of potential ethics violations throughout the District and issuing both informal and formal Advisory Opinions. Such matters will be handled on an on-going basis as efficiently as possible. Finally, BEGA intends to draft a Universal Code of Conduct, applicable to all District employees, elected officials, including Council members and Advisory Neighborhood Commissioners, members of District Boards and Commissions, Council 8

9 staff, and staff members of independent agencies. BEGA intends to complete a draft of a universal code of conduct no later than September 30, 2013, and submit it to both the Executive and the Council for review, approval, and ultimately adoption by both the Executive and the Council. 12. What challenges does the Board face? The Board faces a number of challenges regarding: (a) its authority over independent District agencies and Advisory Neighborhood Commission ("ANC") Commissioners; (b) its ability to require cooperation from District government employees and officials; (c) referrals for criminal prosecution; (d) its designation of behavior that substantially threatens the public trust as criminal conduct that should be prosecuted by the Office of the Attorney General for the District of Columbia ("OAG"); and (e) constitutional prohibitions to imposing sanctions for conduct that occurred prior to the effective date of the Ethics Act. (a) With respect to the independent District agencies and ANC Commissioners, BEGA notes that section 101 (18) of the Ethics Act defines employee as "a person who performs a function of the District government and who receives compensation for the performance of such services, or a member of a District government board or commission, whether or not for compensation." It would appear from this definition that independent agencies and ANC Commissioners are under the jurisdiction of BEG A. No corresponding changes, however, were made to the enabling legislation of the independent agencies and the ANC. To date, BEGA is involved in discussions with one independent District government agency that has asserted that neither it nor its subordinate agencies are subject to BEGA 's jurisdiction. BEGA is anticipating that additional such agencies and possibly the ANC Commissioners will raise similar objections. (b) With respect to BEGA' s authority over all District agencies and employees, Section 21 1 of the Ethics Act provides, in pertinent part, that the Director of Government Ethics can require any person to submit written reports and answers to questions, require the attendance and testimony of witnesses and evidence by subpoena, and order testimony taken by deposition. The Ethics Act, however, does not require District government employees to cooperate with investigations, negotiated dispositions, enforcement proceedings, and/or advice giving, and does not give BEGA access to District government records and facilities, except by subpoena. It is anticipated that the absence of such provisions in the Ethics Act will severely hamper BEGA' s ability to do its work efficiently and effectively. Accordingly, BEGA intends to make specific recommendations in the Best Practices Report to resolve these issues. ( c) With respect to criminal referrals, Section 215 ofthe Ethics Act states that following presentation of evidence to the Board in an open and adversarial hearing, the Board may levy a penalty or refer the matter for prosecution. This means that before the Ethics Board refers a matter to the OAG for prosecution, BEGA will have conducted an investigation and presented evidence to the Ethics Board in an open and adversarial hearing, and the Ethics Board will have decided that referral to the OAG for enforcement or prosecution is appropriate. The use of the word "or" suggests that if the Ethics Board decides that referral to the OAG for enforcement or prosecution is appropriate, it must do so without levying a penalty, even though evidence has been presented to it in an open 9

10 and adversarial hearing and it has decided that there is at least substantial evidence of a violation. This could have two unfortunate and unintended consequences. First, as a matter of prosecutorial discretion, the United States Attorney for the District of Columbia ("USAO") or OAG may simply decline prosecution. In the second, if the matter is criminally prosecuted, there is a greater risk of acquittal due to the higher burden of proof in a criminal case ("beyond a reasonable doubt"). In both instances, the wrongdoer receives no sanction at all- not even the lesser civil penalties that BEGA could have imposed in the absence of the referral. Therefore, in the Best Practices Report, BEGA intends to recommend that Section 215 of the Ethics Act be amended so that the Ethics Board, after presentation of evidence in an open and adversarial hearing, may both levy a penalty in accordance with section 221 and refer the matter to the OAG or the USAO for enforcement or prosecution. (d) The Board notes that District courts have limited the District's ability to locally prosecute some crimes. In In Re Crawley, 978 A.2d 608 (DC 2009), the District of Columbia Court of Appeals held that "only Congress can alter the prosecutorial authority described in Section (c), be it for felonies, misdemeanors, or other crimes that fall within that subsection." Id. at 620. The court explained that D.C. Official Code I (200 I) provides, in pertinent part, that "[p Jrosecutions for violations of all police or municipal ordinances or regulations and for all violations of all penal statutes in the nature of police or municipal regulations, where the maximum punishment is a fine only, or imprisonment not exceeding one year, shall be conducted in the name ofthe District of Columbia by the Corporation Counsel [now the Office of the Attorney General for the District of Columbia 1 or his assistants, except as otherwise provided in such ordinance, regulation, or statute, or in this section... " Therefore, when the Council looks to criminalize certain violations of the Code of Conduct, it must be sure not to violate the precepts set forth in Crawley. This means that the Council will not be able to take D.C. Code violations that are now within the prosecutorial authority of the USAO and change the way prosecutions are handled. This would include any attempt to provide either the Board or OAG with more authority over enforcement of existing D.C. Code provisions. The Board intends to make specific recommendations in this area in the Best Practices Report. (e) The Ethics Act gives the Board power to sanction government employees for misconduct, including certain enhanced powers that were not available to any District government agency prior to the effective date of the Ethics Act. The Board has researched the constitutional provisions of the ex post facto Clause of the U.S. Constitution (ex post facto means "after-the-fact") and determined that the imposition of such sanctions, which clearly are intended to be punitive in nature, on conduct that occurred before the effective date of the Ethics Act, would violate the constitutional prohibition on ex post facto legislation. The Board also has decided that in situations where it would have no available sanction without violating the ex post facto Clause, it will decline to begin an enforcement action because doing so would not be a judicious use of our staff and resources. There is no fix for this problem, but with the passage of time, its impact will diminish until it no longer presents an issue because more and more conduct designated by BEGA as appropriate for investigation will have occurred after the effective date of the Ethics Act. 10

11 13. HolV does the Board solicit feedback from residents? Please describe: What has the Board learnedfrom thisfeedback? HolV has the Board changed its practices as a result of sudlfeedback? The Board solicits feedback from members of the public by inviting comments and/or testimony at its monthly public Board meetings and by holding a Public Symposium in connection with its Best Practices Report. The symposium is likely to become an annual event. The Board also welcomes feedback from members ofthe public through its website. With respect to the Public Symposium, the Board acknowledges a number of excellent suggestions made by members of the public and is incorporating them into the Best Practices Report. The Director of Government Ethics also takes advantage of opportunities to address community groups to introduce BEGA to members of the public and solicit feedback. In December 2012, the Director of Government Ethics addressed the Federation of Citizens Association of the District of Columbia. In March 2013, he will address the West End Citizen' s Association. Although it is premature to state that the Board has changed its practices based on feedback from members of the public, given that the Board has only been in operation since October 1, 2012, the Board recognizes the need for an open ethics agency in District government that is responsive to comments from members of the public. Accordingly, the Board makes every effort to listen to the comments received to determine whether changes to its practices are needed and the Board will continue to do so. The Board also intends to initiate an open government plan, with feedback from members of the public as a core component, once it hires a Director of Open Government. Please let me know if you have any questions or require any additional information. J can be reached at (202) Thank you. P SOBfN Director of Government Ethics Board of Ethics and Government Accountability II

12 -- Comp DISTRICT OF COLUMBIA BOARD OF ETHICS AND GOVERNMENT ACCOUNTABILITY (AGO) COMPARISON FY12- FY14 I I I I I I I Values Program Program Source Comp Source Group Comp FY12 Revised FY12 FY13 Revised FY13 Code 3 Code 3 Title Group Title Object Comp Object Title Budget Expenditure Budget Expenditure OFFICE OF OPEN GOVERNM REGULAR PAY ENT 0011 CONT FULL TIME 0111 CONTINUING FULL TIME $ 52, $ - $ 432, $ - FRINGE BENEFITS CURR PERSONNEL 0147 MISC FRINGE BENEFITS $ 45, $ 123, $ - SUPPLIES AND 0020 MATERIALS 0201 OFFICE SUPPLIES $ 30, $ 2, $ 2, $ 2, RENTALS - LAND 0032 AND STRUCTURES 0309 RENTALS - LAND AND STRUCTURES $ - $ - $ 22, $ - - OTHER SERVICES 0040 AND CHARGES 0410 OFFICE SUPPORT $ 46, $ 98, $ 171, $ 145, romceof OPEN GOVERNME EQUIPMENT & 0427 COMP BD MEMBERS AND COMMISSION $ - $ - $ - $ - --! 0070 EQUIPMENT RENTAL 0701 PURCHASES - FURNITURE AND FIXTURES $ 25, $ 20, $ 83, $ - 31 Telephone 308 Telephone $ - $ - $ - $ 6, NT Total $ 200, $ 121, $ 835, $ 153, i1100 Total $ 200, $ 121, $ 835, $ 153, BOARD OF REGULAR PAY ETHICS 0011 CONT FULL TIME 0111 CONTINUING FULL TIME $ - $ - $ 120, $ 29, FRINGE BENEFITS CURR PERSONNEL MISC FRINGE BENEFITS $ - $ - $ 24, $ 6, i

13 BOARD OF OTHER SERVICES 2010 ETHICS 0040 AND CHARGES 0408 PROF SERVICE FEES AND CONTR $ - $ - $ 60, $ - BOARD OF ETHICS Total $ - $ - $ 204, $ 36, Total $ - $ - $ 204, $ 36, Grand Total $ 200, $ 121, $ 1,039, $ 189,742.5~

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