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There comes a time in every director of government ethics’ life when the sensible next step is to leave. And reader, that time may be near for D.C.’s current ethics chief, Brent Wolfingbarger.
LL has learned the axe may soon be falling on the man who has helmed D.C.’s ethics shop for the past two years. That should come as no surprise to any casual observer of D.C. government, especially those who caught Wolfingbarger’s performance during a committee oversight hearing called last month to address the fact that an untold number of complaints submitted to the Office of Government Ethics (OGE) went unaddressed for who knows how long.
One such complaint was the subject of an Office of the D.C. Auditor report laying out how Wolfingbarger’s office ignored a whistleblower’s complaint that accused a mayoral appointee of political favoritism.
By the end of the three-and-a-half hour hearing, LL was left feeling a bit despondent about the state of ethics enforcement in a government that’s seen its fair share of scandals.
In his testimony, Wolfingbarger revealed that under his watch the agency had neglected to acknowledge at least 31 complaints submitted via email for a two-month timeframe in 2018. He also could not say exactly how many complaints the agency had received prior to this fiscal year, and he described a tracking system that relied at least partially on his own memory and on a spreadsheet saved on his now-former general counsel’s laptop. The laptop, Wolfingbarger added, was password protected, so he had no way to access the spreadsheet.
Wolfingbarger also took the opportunity to attack the auditor’s investigatory tactics as “covert” and complained that the timing of the hearing was “a bit unusual,” given that the Board of Ethics and Government Accountability’s annual performance oversight hearing will take place early next year. BEGA oversees OGE and the Office of Open Government.
Ward 6 Councilmember Charles Allen, who chairs the committee with oversight of BEGA, didn’t like that one bit. Allen asked Wolfingbarger if he believed it was inappropriate for the committee to hold a hearing with the Metropolitan Police Department on gun trafficking a few weeks ago, or one on hate crimes earlier this year.
“I would say not,” Wolfingbarger said.
“No. This committee can hold hearings whenever it wants to talk through issues that are important and timely,” Allen scolded.
Allen expressed further frustration with Wolfingbarger’s decision to pause an ethics investigation into Ward 2 Councilmember Jack Evans in 2018, even when the Washington Metropolitan Area Transit Authority saw fit to move forward with an investigation of its own. When the mountain of evidence against Evans grew too high, the Council opted to shell out $250,000 for its own investigation into Evans’ shady business relationships, which turned up at least 11 violations of ethics rules.
“The result is you’re making the Council be BEGA,” Allen said during last month’s hearing. “We’re spending a lot of taxpayer dollars to go do these other investigations that would otherwise be exactly what we would assume and think that’s what BEGA’s for.”
Wolfingbarger explained, as he has before, that he paused his ethics investigation into Evans at the request of federal law enforcement, to avoid interfering with a criminal investigation. He suggested that WMATA’s investigation may have interfered with the U.S. Attorney’s investigation of Evans, but also admitted that he did not check with them to confirm. (BEGA’s investigation into Evans has been reopened and is ongoing. The agency also fined Evans $20,000 in a separate investigation in August.)
LL followed up with BEGA chair Norma Hutcheson in the weeks following the hearing. Asked whether she is satisfied with the job Wolfingbarger is doing and whether his job is in danger, Hutcheson told LL she could not comment.
“I’m not in a position to speak on that right now,” she said. “The board went into super executive session, and there’s a reason why we go into super executive session. I listed those reasons out before, and that’s as far as I can go.”
BEGA’s December meeting minutes show the board met secretly “to discuss personnel matters including the appointment, employment, assignment, promotion, performance evaluation, compensation, discipline, demotion, removal, or resignation of government appointees, employees, or officials.”
Wolfingbarger did not respond to multiple emails seeking comment on this story.
Set aside the cases BEGA knew about but wasn’t investigating. The agency apparently has a problem even responding to complaints and requests for ethics advice.
Allen said during the November hearing that multiple people submitted complaints to BEGA but received basically no response other than an initial acknowledgement, and then contacted his office wondering what the hell was going on with their complaints.
The auditor’s review also turned up several other instances where BEGA failed to respond to allegations of ethics rule breaking and requests for guidance on ethical rules.
“I feel like your tracking system right now,” Allen said. “And that’s not sustainable at all.”
“Not at all,” Wolfingbarger agreed.
Ward 4 advisory neighborhood commissioner Erin Palmer, who works as an ethics enforcement lawyer for the federal government, testified during the committee hearing about BEGA’s lack of response to a complaint she filed against Evans. Wolfingbarger opted to incorporate her complaint into the already-existing investigation, which was at the time on hold.
But every step of the way, Palmer said, she had to prod Wolfingbarger for an update. At one point, she waited three months without a response, emails show.
“BEGA has exhibited basic deficiencies,” she writes to LL this week. “Some of that may be a lack of resources or longstanding challenges from the previous leaders. But it’s hard to see it as something other than a lack of investment in and commitment to an agency dedicated to accountability.”
As for those 31 complaints left sitting, unaddressed, in the BEGA email inbox, Wolfingbarger testified last month that three were potential violations of the District’s Code of Conduct, one of which dealt with sexual harassment. Lucky for BEGA, though, none of the three complaints fell within its purview, so Wolfingbarger said he referred them to other agencies for investigation.
He sent the allegation of sexual harassment, for example, to the Office of Human Rights (OHR) and the D.C. Department of Human Resources (DCHR). An OHR spokesperson could not confirm or deny the existence of a referral for such a complaint from BEGA, citing confidentiality rules. Generally, when OHR receives a referral from another agency, they ask the complainant to file a separate complaint with their office before launching an investigation. DCHR’s general counsel told LL in a phone conversation last week that the office has no record of a referral from BEGA for sexual harassment.
Hutcheson, the BEGA chairperson, tells LL that the board doesn’t track the cases it refers to other agencies.
“We couldn’t possibly be doing that. They don’t have the resources to do that,” she says. “There’s not enough people there.”
During his part of the hearing, Wolfingbarger emphasized that his office’s neglect of the whistleblower’s complaint was “one isolated complaint,” even while faced with several other examples of neglect.
But he also outlined the steps he’s taken since the auditor pointed out his office’s shortcomings, including a new complaint intake process, a 12-page policy document outlining how complaints are to be handled, and a request to regularly audit those procedures.
LL has to wonder whether that’s too little too late.