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DISTRICT OF COLUMBIA 441 4th St., NW, Suite 250 - Washington, D.C. 20001-2745 - Telephone: (202) 727-2525 - FAX: (202) 347-2648 May 28, 2003 Charles C. MaddoxOffice of the Inspector General 717 14th Street NW 5th Floor Washington, DC 20005 RE: Response of the District of Columbia Board of Elections and Ethics to the "Report of Investigation Concerning Inadequate Oversight and Misconduct at the District of Columbia Board of Elections and Ethics and the Office of Campaign Finance, Investigation 2002-0252" Dear Mr. Maddox: On behalf of the District of Columbia Board of Elections and Ethics (the "Board"), we submit this response to your May 22, 2003 Report regarding the above-referenced matter. We note that you have given the Board until July 7, 2003 to respond to your agency's sixteen month investigation. Given the gravity of the allegations, we feel compelled to respond immediately. It has always been our understanding that pursuant to longstanding audit and investigative customs and practices, which both our agencies are expected to follow, the subject of an audit is always given the opportunity to review and comment on an audit determination prior to the public release of the report. It is also my understanding that under the standards established by the President's Council on Integrity and Ethics, which the Office of the Inspector General (OIG) is subject to, pursuant to D.C. Official Code §2-302.08 (2001 Edition), investigations and the preparation of related reports, must be done in an unbiased and independent manner. All investigations must be conducted in a fair and equitable manner; and, the ultimate report, given the evidence gathered, should be fair and balanced. (Exhibit 1). However, your report is bereft of the numerous written submissions we have provided to your office. Based on the one-sided presentation of your report and the obvious conflict of interest regarding your status as Inspector General, pursuant to legislation adopted by the District of Columbia City Council, we hereby request that you provide balance to your report. First, we would like to comment on the specific findings of your investigation and address the exculpatory evidence which was omitted from your report. It is our assumption that this evidence was considered by the Office of the United States Attorney in making its determination not to prosecute any of the Board's employees. Scheme to Obtain Unlawful Pay Raises and Back Pay.Conspicuously missing from the evidence list in your report concerning this specific issue are the following exhibits, which were provided to your office during the course of this investigation:
As is apparent, even from a cursory reading of the above documents, the Board has long recognized that procedural and clerical errors occurred in the processing of the salary adjustments for Ms. Alice P. Miller and Ms. Cecily E. Collier-Montgomery in August 2001. Similarly, the Board has always believed, since August 2001, when it originally sought to adjust the Directors' salaries to a level comparable to the General Counsel, that it was legally authorized to do so. Moreover, the purported "declination of prosecution" which has yet to be received by counsel for the Executive Director of the Board or the Director of the Office of Campaign Finance ("'OCF"), is not an exhibit to your report. Under these circumstances, your continuous citation to "excerpts" from this correspondence appears to be an on-going effort to tarnish the otherwise unblemished reputations of Alice F. Miller and Cecily E. Collier-Montgomery. Without exception, the Board has stated, as evidenced by these documents, its basis for the salary adjustments. Although not required to do so, we even sought and obtained the written opinion of the General Counsel to the District of Columbia City Council, who concluded that the Board had the legal authority to grant the raises in question to Ms. Miller and Ms. Collier-Montgomery. Accordingly, it is our considered judgment that there is no need to again reiterate what has been stated previously on several occasions in our correspondence to the United States Attorney and your office. Rather, we request that the justification and confirming documents be included in your report. Failure to Disclose Findings in Audits of Campaign Funds of Council Members.Your office alleges that the Office of Campaign Finance ("OCF") officials suppressed or minimized findings of significant violations of campaign finance laws in the audits of at least three current District of Columbia Council Members. As we have previously informed your office, each of these audits is still ongoing. The OCF has yet to make any findings as to any final conclusions of any alleged violations of the District's Campaign Finance laws. Therefore, no findings have been suppressed or minimized by any OCF officials. Unlike the Office of the Inspector General, the OCF affords audited officials, campaigns and agencies to review and comment on the OCF' s audit results prior to releasing to the public an interim or final report which includes its ultimate findings and recommendations. As we first indicated to you in our Response to your Management Alert Report 2003-3 and later in response to your subpoena for ongoing audit documents (which are also not included in your Exhibit List, but are attached to this response as Exhibits 11 and 21), the Board, in a public meeting, directed the OCF to conclude all outstanding audits by June 30, 2003. Until such time as the OCF has fully investigated the matter and made findings, we would respectfully argue that it is premature on your part to allege that the OCF has ignored campaign violations by District of Columbia Council Members. Failure to Reveal and Refer Violations of Federal Law.Your report alleges that the OCF failed to reveal or refer violations of the Hatch Act and the United States Internal Revenue Code by elected officials to the appropriate federal authorities. You base this assertion on the fact that the Director of OCF deleted certain statements from the OCF Discussion Draft Report prepared by the auditor which mentioned possible violations of federal law. As you are aware, the Office of Campaign Finance is charged solely with the responsibility of administering and enforcing the District's Campaign Finance laws. In fact, the District of Columbia Court of Appeals has repeatedly deferred to the interpretation of the OCF in determining whether District of Columbia Campaign Finance law has been violated. Conversely, this same deference is conferred on the Office of Special Counsel with respect to Hatch Act violations and the Internal Revenue Service with respect to income tax violations. The fact that the OCF would limit its official findings in its final campaign finance report to only violations of law within its jurisdiction does not mean that it will not take appropriate action to ensure that other governmental agencies are notified of possible violations within their purview. Clearly, no one would expect an IRS audit to include possible District of Columbia campaign finance violations in its report and the same logic applies for an OCF audit report. We submit that the OCF Director simply removed items from the Supervisory Auditor's draft report over which OCF had no jurisdiction. This can be easily verified by reviewing the OCF Director's handwritten comments of the Supervisory Auditor's draft reports for Council Members Evans and Schwartz. (Exhibits 7 and 8: these exhibits were also omitted from your report). These comments were given to the Supervisory Auditor in October of 2002 and are conspicuously absent from your discussion of these issues. Further, it should be noted that the Supervisory Auditor is an OCF employee and, therefore, reports to the Director. The statutory and regulatory authority of the Director is limited to the scope and jurisdiction of the Campaign Finance Act at D.C. Official Code §§1-1101.01-et sea. (2001 Edition), and the Employee Conduct regulations at Chapter 18 of the District Personnel Manual. Consequently, the Supervisory Auditor, or any other OCF employee, clearly has no greater authority than the Director. As previously noted, these matters are still under review. Nonetheless, as you are undoubtedly aware, the OCF and the Office of Special Counsel have a long history of working together and sharing information. We have no reason to believe that if possible violations of federal laws exist, the OCF will not take appropriate action at the time it issues its final reports, which are due on or before June 30, 2003. Appearance of a Quid Pro Quo.Your report alleges the appearance of a quid pro quo because shortly after assisting with the pay raise for the OCF Director, the computer security technician was hired by the Board as its Information Technology Manager; and, ultimately appointed Chief Technology Officer for the Board of Elections and Ethics and the Office of Campaign Finance. The Board's previous statements, with respect to the appropriateness of each Director's salary adjustment, set out in Exhibits 2 and 6 in this response, constitute our reply to this issue. With respect to your further assertion that the Chief Technology Officer falsely and intentionally misrepresented her credentials and the Board did virtually nothing, I would request, in the interest of fairness, that you include the November 18, 2002 letter from Benjamin F. Wilson to Charles C. Maddox Re: Management Alert Report on Vialetta Graham (Exhibit 9) and the Board's November 18, 2002 Decision on Adverse Action (Exhibit 10). Both documents clearly explain the Board's decision not to terminate the employee, and the basis of the Board's decision to suspend the employee for 60 consecutive calendar days without pay. Contrary to the impression given by your report, the Board imposed a severe punishment against the Chief Technology Officer for her inappropriate conduct. Procurement Violations.We request that the Board's entire March 13, 2003 response to Management Alert Report 2003-3 (Exhibit 11), which addressed the issues of alleged contract splitting, conflict of interest, and contract steering, be made a part of the final report. In one instance, we found that OCF, at the advice of its procurement officer at the District of Columbia Office of the Chief Technology Office, negotiated with a proposed vendor for a price less than $10,000.00. Nonetheless, we instructed OCF that, in the future, any such contract that is close to the $10,0'00.00 level should meet the requirements for competitive bids. Once again, your report unfairly implies that the Board ignored the allegations raised by your Management Alert Report and took no action whatsoever. This is yet another instance of how your office has prepared a slanted/biased report. After a thorough review, we concluded there was no evidence of contract splitting, conflict of interest and contract steering. Lastly, your inclusion as an exhibit and reliance upon the handwritten notes of the OCF General Counsel, which you assert were "found [by a whistle blower] on a copy machine in OCF", to support your allegations of procurement violations, ignores our repeated assertions, and the OCF General Counsel's testimony under oath before the District of Columbia City Council and your office, that these handwritten notes were unlawfully obtained. Your actions are contrary to your statement that the matter would be referred to your investigative unit and the statement from your General Counsel that this matter was referred to the Metropolitan Police Department. (Exhibit 12). Concealment of Embezzlement.Again, the Board's March 13, 2003 response to Management Alert Report 2003-3 (Exhibit 11) adequately addresses this issue. However, two additional points bear mentioning. Contrary to the OIG's assertion that the OCF Director attempted to conceal the incident of embezzlement, the attachments which are included in Exhibit 11 demonstrate that the District of Columbia Auditor, Deborah K. Nichols, Esq., was informed of the embezzlement situation and the intention of the OCF Director to terminate the suspected employee. Exhibit 11 also provides evidence that an attorney within the Board's Office of the General Counsel conducted a thorough investigation at the time it occurred in 2000. The report of the attorney, its exhibits and her notes, were all made available to your office. With respect to your claim that OCF should have referred the matter to the OIG at the time of the embezzlement, it should be noted that the alleged violation occurred during the period of November 18, 1998, through March 6, 2000. During this period, the OIG had no jurisdiction over independent agencies. The Mayor only notified agency heads that the Inspector General statute had been amended by the Office of the Inspector General Powers and Duties Amendment Act of 1999, D.C. Law 13-71 to include jurisdiction over independent agencies on July 6, 2000, months after the time period at issue. (Exhibit 13). Improper Leave.Your attention is again directed to our response to MAR 2003-3 (Exhibit 11) and the January 17, 2003 and April 8, 2003 letters r from Patricia Davidson, MD, FRCP, to Whom it May Concern Re: Cecily Montgomery. (Exhibits 14 and 15: unfortunately, your report selectively omits these documents). Your characterization of the submission of Ms. Collier-Montgomery's application for sick leave as an attempt by the Director to approve her own advanced leave is again yet another instance of your flagrant misrepresentation of the facts. The only place Ms. Collier-Montgomery's signature appears on the application for advanced sick leave is on the signature line reserved for the "requesting employee". Please be advised that Cecily E. Collier-Montgomery was not ultimately given administrative leave; she was given advanced sick leave. As you are aware, the necessity for providing Ms. Collier-Montgomery advanced sick leave arose out of a life-threatening medical emergency, but, as a matter of privacy, we will not detail her illness in this response. Retaliation.Contrary to your assertion that the Board's whistle blowers have been threatened with termination or adverse action, please note that your report fails to provide any documentation in support of this allegation because no such documents exist. Unlike the OIG which has threatened to criminally prosecute Ms. Sandy White, a whistle blower of the OIG's failed activities, the Board has not attempted to retaliate against any known or perceived whistle blowers within our agency. The record should also reflect that both whistle blowers, whom you referred to in your report, have over the years registered their displeasure and disagreement with management at OCF. Both of these individuals initially alleged that they were being subjected to adverse action because of their gender (respectively, one is a male and the other is a female) and separately filed EEOC discrimination complaints against the Acting Director. The complaints were dismissed by EEOC. Recently, we understand both parties have each given statutory Notice to the Mayor of the District of Columbia of their intent to pursue a claim under the whistle blower statute. Failure to Cooperate with the OIG Investigation.Finally, we wish to address the last and arguably the most egregious of your allegations. Your suggestion that a conspiracy existed among the Board Members of BOEE, the Director of BOEE, the Director of OCF, the General Counsel for BOEE, the General Counsel for OCF, the Chair of the District of Columbia City Council, the Chair of the Committee of Government Operations and the entire District of Columbia City Council with the exception of one member (who presumably voted against the legislation affecting ,your office), for the purpose of discrediting the Inspector General and preventing you from uncovering "corruption at the highest level" of District of Columbia Government, is baseless. Equally groundless is your contention that because one elects to exercise his or her legal rights to counsel, challenges an inappropriate subpoena or asserts a legal privilege, then one is illegally interfering with a lawful investigation. Every instance and statement which you allege as evidence that the Board obstructed or interfered with your investigation was either totally misrepresented or taken out of context. (Participation of BOEE General Counsel with interviews.) First, you stated that the Board's General Counsel insisted on being present when Board employees were interviewed. However, in every situation that counsel was present, you failed to indicate that his presence was at the request of the employee who felt intimidated by the OIG. Prior to the conclusion of any interview in which the General Counsel was present, he reminded each of his or her responsibility to cooperate with the OIG and that the employee was free to contact the OIG if they so desired. This fact can be verified by the OCF employees themselves. Also, you stated that the General Counsel indicated that "he was sitting in the interviews to make sure that the investigators did not ask anything inappropriate". You neglected, however, to state that the General Counsel prefaced that statement by indicating he was assuring that no information was being sought on matters on which the Board was asserting a legal privilege. Specifically, we would request that you include the April 11, 2003 letter of the Board's General Counsel, Kenneth McGhie, to your General Counsel, Karen Branson, regarding a request to interview Nadine Journiette, a BOEE employee detailed to OCF. (Exhibit 16). Mr. McGhie stated "Ms. Journiette, as an employee of the Board of Elections and Ethics, requested that I, as the Board's General Counsel, accompany her to the interview. However, unlike other occasions when OIG agents [did] not [object] to the General Counsel being present during the interview of agency employees. . .OIG agents, for the first time, objected to Ms. Journiette's request for counsel. Absent any evidence that an attorney is interfering with or disrupting an investigation, I know of no authority, under the circumstances, barring an attorney's presence when requested by a client." Mr. McGhie's letter went unanswered and there was no attempt by your office, to contact Ms. Journiette. Ms. Journiette was instructed, like all other BOEE/OCF employees, to tell the truth; and, that she was free to contact the OIG either with or without the presence, knowledge or consent of any Board official. Moreover, several Board employees, including Vialetta Graham, William O. SanFord, and Kathy S. Williams; and, all three Board Members were interviewed by OIG agents without the Board's legal counsel. (Exhibits 17 and 18). (Statement of BOEE Chair Concerning Whistle Blowers.) Second, you also expressed concern about the statements of Benjamin F. Wilson, Chairman of the Board of Elections and Ethics, before the District of Columbia City Council oversight hearing on May 12, 2003, in which you state that Mr. Wilson said, "BOEE/OCF employees could not 'hide behind' whistle blower protection when they provide the OIG with documentation deemed confidential by the agency. Once again, you neglected to place that statement in the proper context. The discussion prior to that statement was that any information provided to the OIG must be lawfully obtained and that employees should not break into OCF offices to obtain confidential information. (Failure of BOEE Chairman to Make Witnesses Available.) Third, with respect to your assertion that the Chairman of the Board obstructed your investigative process by "failing" to make Alice Miller and Cecily Collier-Montgomery available as witnesses, you, by letter dated April 23, 2003, requested that, as part of your "continuing investigation into allegations of improper salary enhancements at the Board of Elections and Ethics and at the Office of Campaign Finance," that the Chairman make Alice P. Miller and Cecily E. Collier-Montgomery available to testify. (Exhibit 23). You are again referred to my letters of April 24 and 30, 2003. (Exhibits 20 and 22). You were told, due to the unclear nature of their status with regard to a possible criminal prosecution, and the fact that their counsel had yet to be informed of any change of circumstances, on advice of their counsel, they were unwilling to appear as witnesses at that time. Moreover, you were advised that any request to speak with them informally or to have them testify should be directed to their counsel. Simply stated, I had no authority to order either Director to waive rights that may have been available to them. In response to the Board's Chairperson's letter of April 24, 2003, you stated, by correspondence dated April 28, 2003, that in an effort to secure their testimonies in your purported "administrative investigation", that your "request for interview with Miller and Collier-Montgomery postdates the declination by the U.S. Attorney's Office in the criminal investigation concerning their improper salary enhancements and back pay." This was the first notice that the status of the criminal investigation may have changed. In your report, you state that the "decision was made on April 22, 2003, and communicated to the OIG on April 23, 2003." You then cite excerpts from the letter memorializing that decision. In fact, the letter of declination addressed to you was dated April 29, 2003. (Exhibit 24). Clearly, at the time of your request for the testimonies of these witnesses, no letter of declination existed. (The Board's Assertion of Privileges.) Fourth, out of the thousands of pages of documents produced by the Board to your office, in response to your numerous requests for information from the Board and OCF, you were informed by correspondence dated April 4, 2003, that approximately 22 referrals made by the Supervisory Auditor to the OCF General Counsel, would be examined by the BOEE General Counsel to determine whether the attorney-client privilege was applicable. (Exhibit 21). At this point, the Board was not asserting any privilege with respect to any specific document. Further, the BOEE General Counsel stated that any documents determined not to be protected by any privilege would be turned over immediately to your agency. If privileged, the documents would be segregated and a privilege log created. Pertinent information then would be provided to you so that if you disagreed with the BOEE General Counsel's conclusion, the matter could be later resolved in court. To now misrepresent the nature of our understanding is disingenuous. In addition, the Board's General Counsel offered to meet with representatives of your office to discuss the possible applicability of a privilege with regard to any specific document. At no point did your office seek to meet with the Board's General Counsel to discuss privileged documents. In fact, it is now clear from your report that all of the requested documents were in your possession prior to the issuance of the subpoena. As for the Board's cooperation with respect to subpoenas, the Board, on numerous occasions, both orally and in writing, has expressed its desire to fully cooperate with the OIG's investigation and requests for production of documents. Specifically, the Board, at the beginning of the investigation, advised the OIG to contact the Board's General Counsel if they needed any documents or needed to speak with any members of the Board's staff. The Board's Director also indicated, in writina to your to your lead investigator, Special Agent Jason Grimes, our willingness to cooperate. (Exhibit 19). The Board attempted to comply expeditiously with your requests for documents while simultaneously overseeing the historic challenge to the Mayor's candidacy, reviewing several initiatives, and conducting two city-wide elections. During the course of this investigation, the Board of Elections and Ethics received over 15 Grand Jury Subpoenas to testify and produce documents, two dozen OIG subpoenas for equipment and documents, and two court-issued search warrants, which resulted in the OIG knowingly and unlawfully seizing the District of Columbia Voter Roll. Further, each member of the Board appeared before the Grand Jury. Benjamin F. Wilson, the Chairperson, appeared on five separate occasions. On three of these occasions, he appeared voluntarily without the necessity of any subpoena. At all times, Benjamin F. Wilson agreed to make himself available to the Grand Jury, without a subpoena. Stephen Callas, Jonda McFarlane, and Mr. Wilson have always indicated their willingness to appear, without any reservation, hesitation, and in full cooperation. Despite the OIG's numerous requests for personnel files, payroll files, procurement contracts, e-mail, computer hard drives, media diskettes, daily planners, calendars, typewriters, typewriter ribbons, and even the personnel files of the Board's high school summer help, the Board only challenged one subpoena which requested the production of thousands of OCF audit documents covering a five and one-half year period. This subpoena was served at 5:00 p.m. on March 27, 2003 and requested that all documents for thousands of separate audits should be produced by 11:00 a.m. the following day. (Exhibit 21). Ultimately, we challenged the OIG on the reasonableness of this request. Your office backed down and modified the subpoena to "include only all documents, as that term is defined in the subpoena, which relate to audits and/or field investigations of campaign finance reports conducted and/or referred for action by Richard Mathis." (Exhibit 25). Conclusion.In closing, we urge you, once again, that in the interest of fairness, and pursuant to your obligations under the law to present an objective, accurate and unbiased report, to amend your final report to correct the inaccurate statements attributable to the Board. We also urge you to include all relevant documents to insure the public is made aware of the consistent actions of the Board, independent of your report. Your immediate and fair consideration of the views expressed in this response is requested. The citizens of the District of Columbia are entitled to the truth and are entitled to a full and fair report. Sincerely,
Benjamin F. Wilson Stephen Callas Jonda McFarlane cc w/attachments:
The Honorable Anthony Williams, Mayor, District of Columbia (D.C.) cc w/o attachments: The Honorable Members,
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