An investigation by Mayor Muriel Bowser’s own lawyers found evidence that her former right-hand man, John Falcicchio, sexually harassed one of his employees. So what happens next?
It’s unprecedented to see such a senior official within the D.C. government face such accusations, and the response so far has been appropriately uneven. Just about every councilmember can agree there needs to be a deeper investigation, both of what Falcicchio actually did and how the rest of the administration allowed it to happen. But no one is particularly clear on who should run one, how to start one, or what all it should include.
This much is clear: Bowser’s choice to release this initial report into Falcicchio’s behavior around midnight on a holiday weekend, coupled with her dubious decision to bury news of his resignation back in March deep in a Friday afternoon press release, has thoroughly shredded trust that she’s taking the matter seriously. Ten of the 13 councilmembers have already criticized Bowser’s handling of the report, called for an independent investigation, or both—a unique bit of solidarity for a group of lawmakers who rarely march in such lockstep.
The unanimity ends, however, when it comes to what to do about Bowser’s actions. On the tamer end of the spectrum, there’s Council Chair Phil Mendelson, who tells City Paper that he would prefer to see this addressed via oversight hearings and doesn’t see a need for additional investigations. Then there are more strident lawmakers, like Ward 5 Councilmember Zachary Parker, who called the report’s release “a pedestrian attempt at a news dump,” and Ward 4 Councilmember Janeese Lewis George, who noted “workplace harassment rarely festers on its own” and “it depends on systems and cultures that enable and reinforce it.” Others still wonder whether a criminal investigation of Falcicchio is most appropriate, considering the report found Falcicchio made “physical sexual advances” and sent “unwanted, sexually explicit messages, including a graphic video.”
Bowser said Wednesday that she was “completely devastated” to read the report’s conclusions. But she also waved away calls for additional investigations beyond the those conducted by the Mayor’s Office of Legal Counsel, which answers directly to her.
“I don’t know what you can’t trust about a report that substantiated sexual harassment against a deputy mayor,” Vanessa Natale, the MOLC’s deputy director, told reporters. Bowser said she’d be willing to consider a “management review” conducted by the city’s Office of the Inspector General to examine whether there are cultural issues within the government to be addressed, but a Council-led investigation, in her view, is a step too far.
“I believe … in the process that took place,” Bowser said during her first public appearance since the report’s release, just a few minutes after launching some model rockets with D.C. Public Schools students. “I don’t know what else an investigation would look into.”
Accordingly, Bowser said she has not pursued any criminal investigation of Falcicchio, who served as both her chief of staff and deputy mayor for planning and economic development. Spokespeople for the Metropolitan Police Department didn’t respond to a request for comment, and a spokesperson for the U.S. Attorney’s Office for D.C. said they “neither confirm nor deny the existence of investigations.” Natale added that “no one’s called me” from the USAO, and she believes that “they’re satisfied.” (An attorney representing Falcicchio also did not respond to City Paper’s efforts to reach them.)
“At a bare minimum, the U.S. attorney should conduct some kind of inquiry,” says Chuck Thies, speaking in his capacity as a political operator with lots of experience tangling with past prosecutors and not for his boss, Ward 7 Councilmember Vince Gray. “In my opinion, it’s incumbent on them to call the lawyer representing the complainant and ask to speak to them.”
Mendelson, however, says he saw no “suggestion of criminality” in the report summary. “It’s wrong for a superior to have sexual contact with his subordinate,” he says. “But that’s not criminal: That’s fireable.” It’s also notable that neither of Falcicchio’s accusers have chosen to go to the police thus far, which could be a deliberate choice (their attorneys didn’t respond to City Paper’s questions).
“Debra Katz knows what the various avenues are: They chose to go through MOLC,” says At-Large Councilmember Christina Henderson, referring to Katz’s extensive experience with all manner of high-profile #MeToo cases. “I think, for me, there is some sensitivity that the complainants can maintain a level of confidentiality through all this.”
Ward 1 Councilmember Brianne Nadeau says she’s gauging her colleagues’ interest in backing a bill that would require a third-party investigation any time there’s a complaint of sexual harassment against a political appointee in the mayor’s office. And there is some precedent for the idea—former Ward 3 Councilmember Mary Cheh managed several such independent investigations of mayoral administrations during her tenure, sometimes outsourcing the work to an outside law firm and sometimes simply calling witnesses on her own.
The MOLC’s investigation didn’t encompass some of the more systemic allegations from Falcicchio’s accuser, such as her claims that employees who entertained Falcicchio’s advances were promoted within the administration. In theory, the Council’s probe could address that.
The mayor’s attorneys similarly did not address the crucial question of whether Bowser and her top aides knew about Falcicchio’s behavior before he resigned—a crucial question considering there have been reports that Falcicchio’s conduct was essentially an open secret within the administration. Natale even told one reporter Wednesday that it was “inappropriate” at this time to ask what the mayor knew and when.
“You need somebody independent to be investigating these things to ensure people will report them and feel confident there will not be retaliation and there will be a good result for them,” Nadeau says. “He’s gone, but who’s left behind that needs to be investigated?”
Mendelson doesn’t share the same enthusiasm for a Council-backed inquiry, since he believes the allegations have already been “substantiated.” He says he’s already had conversations with at-large councilmembers Anita Bonds and Kenyan McDuffie, who have oversight over the mayor’s office and the Office of the Deputy Mayor for Planning and Economic Development, respectively, about holding hearings to dig into sexual harassment policies and reporting procedures within each agency. (Bowser said Wednesday that she had briefed the chairs of the “relevant committees,” presumably alluding to Bonds and McDuffie, but she declined to discuss specifics. She added she was hesitant to brief the full Council, even confidentially, because doing so might risk leaks to the public.)
Bonds didn’t respond to City Paper’s requests for comment, and McDuffie wrote in a statement that he would “review” the matters, though he did not commit to holding a hearing. (Both are supporters of Bowser to various degrees: Bonds historically has treated her administration with kid gloves during oversight hearings, and McDuffie aligned himself closely with Bowser’s Green Team in his win over former At-Large Councilmember Elissa Silverman last year.)
“I think there was the concern that doing the investigation in-house was going to lead to a whitewash, but that didn’t happen,” Mendelson says. “Now, people may not like the way the mayor has tried to spin this with her midnight release. But, you know, that’s a complaint about the spin and it doesn’t alter the fundamental fact that rather than whitewash it, the allegations were substantiated.”
Through hearings, closed-door sessions with witnesses, or a law firm-led probe, the Council has one significant tool at its disposal: subpoena power. The body sparingly exercises the authority (the last time was in the investigation into ex-Ward 2 Councilmember Jack Evans) that allows it to require witnesses to testify under oath. Although the Council doesn’t have the resources to match a federal prosecutor’s office, lawmakers could extend their subpoena power to an outside law firm, and compel Falcicchio (and possibly the mayor) to participate.
“I don’t know how you get to what the mayor actually knew or didn’t know, without a criminal subpoena,” Mendelson says. “And there was nothing in the summary, to me, that suggested criminality.”
The city’s OIG has a bit more power in this regard (and it can make referrals for prosecution over to federal prosecutors). But that office, too, is resource constrained and generally works very slowly.
The whole matter is further complicated by the fact that a civil lawsuit against the city looks more likely by the day. Attorneys for Falcicchio’s accusers have said they’re waiting on the mayor’s office to release its investigations before taking further action, and Bowser has promised a second report on his second accuser’s claims in the near future.
But a lawsuit may not deliver the sort of reckoning within the D.C. government that some are hoping for, considering Bowser’s interest is in settling the case quickly rather than risking a lengthy trial delving into the alleged misdeeds of her top political adviser and friend. But it may well be the only real relief available for the women making these claims against Falcicchio, considering the difficulties with other attempts at accountability.
“There’s a lot of people left in that office who are probably wondering what happens to all the people who aided and abetted this behavior, and [thinking] ‘how can I feel protected in this environment?” Nadeau says.