A few months back, LL included in his column an item about how the federal Office of Special Counsel declared that the chair of the Board of Zoning Appeals was in fact subject to the Hatch Act—-the federal law prohibiting political activity by certain federal and city employees. That opinion [PDF] was sent in response to an inquiry by At-Large Councilmember Phil Mendelson, who had been investigating the case of former BZA head Geoffrey Griffis in the context of a 2007 confirmation hearing.

It was all boring stuff, no doubt. So LL is tickled to note that someone noticed.

Yesterday, Robert Kabel, chair of the D.C. Republican Committee, dispatched a letter to the OSC asking them about the special case of Paul Strauss. The alleged conflict lies in Strauss’ concurrent service for the past decade as an elected partisan “shadow senator” and as chair of the city’s Board of Real Property Assessment Appeals, aka BRPAA (pronounced “BURP-uh,” FYI).

That, in light of LL’s disclosure of the Griffis letter, raises this issue: “The positions of Chair of [BRPAA] and Chair of the Board of Zoning Appeals are analogous. The Mayor appoints members of both Boards with the advice and consent of the Council. Both officials are paid on a per diem basis by the D.C. Government. If OSC found that the Hatch Act applies to Mr. Griffis’ position, it would also seem logical that it applies to Mr. Strauss’ position.”

Strauss says that the OSC has already ruled on the matter. The issue, he says, first came up in 2006, amid his run for the Ward 3 council seat. At the time, the OSC rendered an opinion that his service in elective office and his service to BRPAA are not incompatible.

Kabel’s letter asks that the OSC release both the Griffis letter and the 2006 Strauss letter. It does not ask for an additional review of the matter.

OSC spokesperson Anthony Guglielmi says that his office will not release the letters, as they are “advisory opinions” narrowly focused, rather than decisions dealing with a broader scope of law. “They’re just FYIs to interested parties,” he says.

The 2006 Strauss decision still holds, he says, because there was a differing interpretation of the types of service each board position entails. In the OSC’s analysis, he says, the BZA head serves on a regular basis than the BRPAA head, who is forbidden from political activity only while discharging his board duties.

Why would the Republicans be pressing the issue? Strauss is running for re-election as a Democrat on Nov. 4; he has Republican competition, in Nelson Rimensnyder.

In any case, Strauss says, he’s nearing the end of his BRPAA service. His term expired in July and he has not requested reappointment by Mayor Adrian M. Fenty. Whenever Hizzoner gets around to naming a replacement, he says, he’s out.

The GOP letter is pasted after the jump.

September 29, 2008

Scott J. Bloch, Esq., Special Counsel U.S. Office of Special Counsel 1730 M Street, NW, Suite 218 Washington, D.C. 20036-4505

RE: REQUEST SPECIAL COUNSEL TO RELEASE HATCH ACT DECISIONS INVOLVING D.C. APPOINTEES AND POLITICAL CANDIDATES

Dear Mr. Bloch:

Paul Strauss, District of Columbia, Shadow Senator, is presently campaigning for reelection, having won the Democratic nomination for this position in the September 9 primary. He is also the Chairman of the Board of Real Property Assessments and Appeals. Occupancy of both positions may put him in violation of the Hatch Act. A recent decision, reported in the media, by the U.S. Office of Special Counsel (OSC) in the case of another District of Columbia appointee, former Board of Zoning Adjustment Chairman Geoffrey Griffis will most likely clarify the situation regarding Mr. Strauss. Further, Mr. Strauss has publicly claimed that OSC previously exonerated him of any Hatch Act violations. Presumably, your office rendered a written decision.

It is in the public interest for the Office of Special Counsel to make public now any decisions your office has made in regard to these two District of Columbia officials.

Mr. Strauss is completing his second six year term as Shadow Senator. He has also been a member of the Board of Real Property Assessments and Appeals for, at least 10 years, having been first appointed to the Board by former D.C. Mayor Marion S. Barry, Jr.

According to a recent article in the Washington City Paper, Loose Lips column, an attorney for the U.S. Office of Special Counsel, Hatch Act Unit, determined that in the case of a Geoffrey Griffis, former chair of the Board of Zoning Adjustment, “… ‘[M]embers of the BZA, including the Chairman, are covered by the Hatch Act,’…” The attorney was identified as Mariama Liverpool. This article was posted by Mike DeBonis on July 30, 2008. This article can be found online at the City Paper Website at www.washingtoncitypaper.com.

Further, at a recent political forum on September 5, at the David A. Clarke School of Law, Mr. Strauss, in response to a question from the audience regarding the issue of a possible Hatch Act violation, said that this issue was brought to the attention of OSC, some years ago, and he was cleared.

The positions of Chair of the Board of Real Property Assessments and Appeals and Chair of the Board of Zoning Appeals are analogous. The Mayor appoints members of both Boards with the advice and consent of the Council. Both officials are paid on a per diem basis by the D.C. Government. If OSC found that the Hatch Act applies to Mr. Griffis’ position, it would also seem logical that it applies to Mr. Strauss’ position.

Unfortunately, there has been no public disclosure by OSC of either purported decision.

However, it should be evident that it is in the public interest that any such decisions involving appointed and elected officials be made public. The Mayor needs the decisions to guide him in making appointments, and the Council needs them in exercising its “advice and consent” powers in approving mayoral appointees. Further, the public needs the decisions in evaluating the fitness of a candidate to be elected to a partisan political office.

It is my understanding, that it is a matter of policy for the Office of Special Counsel not to release the full text of its decisions to the public in order to protect the privacy of alleged violators. But, the Office of Special Counsel has also indicated that this is only the “default position” of the Office. OSC does make exceptions to the default position, as the following case illustrates:

In the matter of Kelvin J. Robinson, Chief of Staff of former D.C. Mayor Anthony A. Williams, who was publicly faulted for violating the Hatch Act, in 2002, the OSC issued a press release, dated July 12, 2004, saying it was filing a complaint for disciplinary action against him. The press release quotes you as saying,

“This Office will prosecute Hatch Act violations in an even handed and vigorous fashion. As we enter the 2004 national election cycle, it is important for all Hatch Act covered employees to be well aware of its provisions, which include prohibitions on partisan candidacy, coercion of partisan support and engaging in political activity while on duty.” (Emphasis added)

On March 21, 2005, OSC issued another press release stating that because Mr. Robinson announced his voluntary resignation as Chief of Staff on July 7, 2004 and agreed not to seek or accept employment with the District for a period of two years, in return, “…OSC moved to dismiss its complaint against Mr. Robinson.” Both these press releases are to be found on your Website, at www.osc.gov.

If it is as you stated in the above press release that “it is important for all Hatch Act employees to be aware of its provisions” is not it equally, if not more important, that the Mayor of the District of Columbia and the District of Columbia Council be aware of the Office of Special Counsel’s decisions regarding government appointees?. Further, does not the public have an equal right to know OSC’s decisions regarding partisan political candidates for office?

Certainly, the public’s right to good government trumps the right of privacy of public officials. Indeed, it should be evident that public officials, whether elected or appointed, have no right to privacy with regard to what they do in their public lives. The Office of Special Counsel should not be withholding its decisions regarding public officials and their public activities. OSC owes the public transparency and accountability in reporting its decisions. Principals of good government dictate that the decisions be released, immediately

In light of the foregoing, it is clear that there is nothing in law prohibiting OSC from making public its decisions. And as has been previously laid out, it is definitely in the public interest for OSC to release any decisions it has made regarding Mr. Griffis and Mr. Strauss, immediately. Further, Mr. Strauss has waived any possible, so called privacy rights by publicly stating that he was exonerated by OSC. In fact, his statement was recorded by the local radio station WPFW and was subsequently broadcast to the public in a program about the political forum.

Again, I request that you, as Special Counsel, release to the public, by posting on your Website, any decisions the U.S. Office of Special Counsel has rendered with regard to Hatch Act violations by Paul Strauss and Godffrey Griffis. If you have any questions, please don’t hesitate to call me. Thank you for your attention to this very important matter.

Respectfully yours,

Robert J. Kabel, Chairman District of Columbia Republican Committee