Council Chairman Phil Mendelson
Council Chairman Phil Mendelson Credit: Darrow Montgomery/file

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When the District’s Board of Ethics and Government Accountability released an opinion on how the D.C. Council provides constituent service last August, At-Large Councilmember David Grosso was pleased. He even sent them a thank-you note. (Get this guy some hobbies, LL says.)

But when Grosso went to a Council breakfast the next month where the new opinion was discussed, he found that his colleagues weren’t as thrilled as he was.

“I got to thinking that I had to think a little bit harder about what the heck was going on there,” Grosso says.

The opinion, inspired by a 2012 incident where At-Large Councilmember Vincent Orange had allegedly tried to prevent health inspectors from closing a wholesale grocer, came with a host of advice for councilmembers looking to do a favor for constituents. Councilmembers should avoid making any requests to anyone with less power than they have, the board said, and if there was any doubt, they should ask the board’s advice.

Ward 2 Councilmember Jack Evans worried that the opinion was littering the average honest legislator’s path with trip wires.

“I said we should reject it, and tell them they need to start over again,” Evans warned. Ward 3 Councilmember Mary Cheh said that if BEGA thought she’d ask the board for permission to help out constituents, they had better think again.

Ward 1’s Jim Graham, whose own vaunted constituent services program has played into his four election wins, compared the opinion alternately to a law student’s summer project, an ex cathedra opinion from the pope, and a pronouncement from a burning bush.

“Here are the Ten Commandments,” Graham said.

What a difference two years makes. In December 2011, with Harry Thomas Jr. promising to pay back $300,000 he’d diverted from District children and two more councilmembers soon to plead guilty to other crimes, the Council voted nearly unanimously to create the board. Councilmembers backed the new agency so much that the only vote against it came from Tommy Wells, who thought the plan didn’t go far enough.

Since then, though, BEGA’s relationship with the Council has turned into a Wilson Building version of The Sorcerer’s Apprentice, with the board churning out opinions the Council isn’t always so sure that it wants. The problem with an independent ethics board, it turns out, is that it’s independent.

In fairness to our elected leaders, there’s apparently no activity that BEGA isn’t interested in offering its advice on. Board opinions include best practices on whether city funds can be used to buy food for District workers (not usually) and how employees should behave at holiday parties (with “good judgment and office professionalism”). Reading BEGA’s responses to city employees asking for ethics guidance, LL gets the sense that sometimes it really is better to ask for forgiveness than ask for permission.

The Council isn’t taking the ethics board’s opinions quietly. Consider the fate of the constituent service opinion, which came out only after Orange signed an agreement with BEGA admitting that helping out a store where rat feces sat right near open vegetables wasn’t something he’d do again.

With councilmembers outraged over the opinion after a meeting with BEGA last November, though, Council Chairman Phil Mendelson took the unusual step of introducing a new change to the Council’s code of conduct during the term. The change would define legitimate constituent services as just about anything where a councilmember didn’t threaten, promise favors, or ask for a city employee to break the law. The Council passed the change last week; the idea is that now the Council knows what members think is acceptable, regardless of what BEGA says.

“It became very cumbersome, to say the least,” says Evans.

Mendelson’s no ethics slouch. Under legislation he proposed last month, anyone who donates to a political campaign would be barred from city contracts worth more than $100,000 for 18 months after the contribution. With the code of conduct change, though, he says councilmembers won’t be scared of inadvertently crossing BEGA.

“All we did was to write a definition,” Mendelson says. “We didn’t even change a definition.”

Mayoral hopeful Wells, who joined only Grosso in voting against the change, sees it differently. Mendelson’s code of conduct change, according to Wells, is the latest in a series of Council attempts to claw back ethics legislation passed when the threat of U.S. Attorney Ron Machen lurked over the body.

“Every time there will be a move to weaken the ethics law as it applies to the city council, the city council will vote for it,” Wells says. Also on the list of BEGA snubs, according to Wells: opposition from Orange, Graham, and Evans to censuring Ward 8 Councilmember Marion Barry after he admitted to the board that he’d taken $6,800 in gifts from city contractors.

Grosso echoes Wells, saying the code of conduct change was about pushing back on BEGA.

Which isn’t to say Wells isn’t capitalizing on it for his mayoral bid, centered around ethics reform. After LL talked to Wells, Wells campaign manager Chebon Marshall emailed LL a picture of a campaign mailer from mayoral rival and Ward 4 Councilmember Muriel Bowser that promoted her role in passing the 2011 BEGA legislation. After Bowser’s vote for the code of conduct change, didn’t LL think this was hypocritical?

Also not on the same page as Mendelson: Orange himself (who, like a near-quorum of his colleagues, is also running for mayor). In January, Orange announced at a mayoral debate that he’d do everything that prompted the BEGA investigation again if he could. Then, in anticipation of the Council’s code of conduct change, Orange told LL that his persecution had inspired the Council to change the rules.

While the Council tinkers with its code of conduct, though, an effort to increase BEGA’s power is facing its own fight in the chamber. After the District’s Office of the Inspector General refused to share documents related to investigations into city employees abusing handicap parking placards (not exactly a matter of utmost secrecy, LL imagines), Ward 5 Councilmember Kenyan McDuffie, who chairs the government operations committee and is the rare local legislator not seeking to be elected mayor (this year, at least), introduced a bill requiring city agencies to hand over documents to BEGA.

And that’s about as far as it’s got. BEGA’s government ethics director Darrin Sobin complains at board meetings that the legislation is languishing thanks to opposition from committee members besides McDuffie. (McDuffie didn’t respond to a request for comment.)

Not that the councilmembers have anything to worry about. Sobin, who also wrote the hotly debated constituent service opinion, insists that he’s not laying the trip wires that Evans worries about in advisory opinions.
“It was never meant to catch anybody,” Sobin says.

The best evidence of that should set worried councilmembers at ease. Since the opinion was released, Sobin points out, no councilmembers have been publicly disciplined for breaking constituent service rules. If they were looking to nab councilmembers, wouldn’t they have done it already?

Photo by Darrow Montgomery