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Office of Campaign Finance
Opinion in the Matter of Anthony A. Williams, Mayor
June 16, 2000

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Press release
Order: Statement of the Matter Order of the Director
Attachment A: Affidavit of DCAgenda Attachment E: Response of Mayor Williams

OFFICE OF CAMPAIGN FINANCE
DISTRICT OF COLUMBIA BOARD OF ELECTIONS AND ETHICS
FRANK D. REEVES MUNICIPAL BUILDING, SUITE 420, 2000-14TH STREET, N.W.
WASHINGTON, D.C. 20009
(202) 671-0550

FOR IMMEDIATE RELEASE

FROM: The Director of the Office of Campaign Finance
DATE: June 16, 2000

Cecily E. Collier-Montgomery, Director of the Office of Campaign Finance, issued an ORDER today directing Anthony A. Williams, Mayor of the District of Columbia, to immediately terminate all action involving the use of District of Columbia Government resources to influence the outcome of the June 27, 2000 Special Election on the proposed Charter Amendment Act, "The School Governance Charter Amendment Act of 2000". Section 1803.1(f) of The Standards of Conduct, as found in Chapter 18 of the District of Columbia Personnel Manual, and enforced by the District of Columbia Board of Elections and Ethics against public officials, requires an employee to avoid action, whether or not specifically prohibited by the regulations, which might result in, or create the appearance of "affecting adversely the confidence of the public in the integrity of government".

This Decision was based on Mayor Williams' use of government employees, supplies and facilities in preparation for and during the June 8, 2000 press conference to launch the "Yes on June 27th" Campaign at the J.O. Wilson Elementary School, in support of the Charter Amendment. The Office of Campaign Finance initiated and completed a swift and thorough investigation to resolve the issues raised by Dorothy A. Brizill in her complaint filed June 12, 2000, related to the Mayor's conduct with regard to the press conference.

Ms. Brizill also questioned the Report of Receipts and Expenditures filed on June 9, 2000, by the political committee organized in support of the Charter Amendment, the New School Leadership Committee. Any alleged reporting deficiencies or irregularities will be addressed by the Audit Branch of the Office of Campaign Finance in tandem with the Desk Review process.

Based upon the record in this matter, it was determined that Mayor Williams' efforts to urge the electorate to vote "yes" on the Charter Amendment at the June 27th Special Election, ran afoul of the Standards of Conduct because these efforts adversely affected the confidence of the public in the integrity of Government where Government was one-sided in its presentation of a ballot issue to be decided by the electorate. It should be emphasized that Mayor Williams and other public officials may properly express their views on the Charter Amendment, take steps to educate and inform the electorate of the purpose of the measure, and urge the electorate to vote.

For more information, contact Michael Simpson, Public Affairs Specialist, on (202) 671-0547.

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BEFORE THE DIRECTOR OF THE
OFFICE OF CAMPAIGN FINANCE
D. C. BOARD OF ELECTIONS AND ETHICS
2000 14TH STREET, N. W., SUITE 420
WASHINGTON, D. C. 20009
(202) 671-0550

IN THE MATTER OF
Anthony A. Williams Mayor

DATE: June 16, 2000
DOCKET NO.: MUR 00-01

ORDER

Statement of the Matter

This matter arises out of a complaint filed with the Office of Campaign Finance (OCF) on June 12, 20001, by Dorothy A. Brizill, Executive Director, D. C. Watch, 1327 Girard Street, N. W., Washington, D. C., 20009, against Anthony A. Williams, Mayor, District of Columbia, One Judiciary Square, 441 4"' Street, N. W., Washington, D. C., 20001, alleging violations of the District of Columbia personnel regulations at Chapter 18, "Employee Conduct," of the District Personnel Manual (DPM) (Standards of Conduct).

Upon evaluation by the Office of Campaign Finance (OCF) of Ms. Brizill's complaint, it was decided that the statutory and regulatory bases for the resolution of this matter, as it pertains to Mayor Anthony A. Williams, were solely within the Standards of Conduct. In other words, Ms. Brizill did not make a complaint, nor could OCF originate a complaint based upon the allegations herein, against Mayor Williams, the determination of which would be based in the District of Columbia Campaign Finance Reform and Conflict of Interest Act of 1974, as amended, D. C. Code §§1-1401 et seq. (the Act). Any alleged violation of the Act by Mayor Williams would be predicated upon the premise that Mayor Williams realized personal gain through official conduct. See D. C. Code §§1-1461 and 1-1462. Ms. Brizill's complaint did not present such an allegation herein.

Ms. Brizill alleges that Mayor Williams used and will continue to use District government employees during normal work hours and District government facilities and supplies to assist him in supporting Charter Amendment No. 3, "The School Governance Charter Amendment Act of 2000" (Amendment), which will be the subject of a special election on June 27, 2000. She also alleges that Mayor Williams will financially facilitate this endeavor with public money. Additionally, Ms. Brizill alleges that Mayor Williams announced his support for the Amendment at a press conference that he held on June 8, 2000.

Ms. Brizill further alleges that District of Columbia government employees could be found wearing campaign buttons and distributing campaign materials in support of the Amendment. She states that the alleged campaign buttons and campaign materials failed to include proper committee disclaimer information. Moreover, in her supplementary submission dated June 14, 2000, she alleges certain inaccuracies with regard to the June 9, 2000 Report of Receipts and Expenditures filed by the New School Leadership Committee.

In accordance with established OCF Standard Operating Procedures, all filings are initially referred to our Report Analysis and Audit Division (RAAD). The June 9, 2000 Report of Receipts and Expenditures filed by the New School Leadership Committee has been referred for desk review. If RAAD discovers any omission or inconsistency, the matter will be brought to the attention of the treasurer of the committee with a request to provide additional information thereto.

The items noted by Ms. Brizill, and any other items that may be noted by RAAD, will be quickly forwarded to William Lightfoot treasurer of the New School Leadership Committee, in view of the abbreviated filing schedule for the Committee. He will be given the opportunity to explain any omission or inconsistency. If Mr. Lightfoot is nonresponsive or if his response is inadequate, RAAD will immediately refer the New School Leadership Committee to the Office of the General Counsel (OGC) for an adjudicatory recommendation, which may ultimately result in the imposition of fines and penalties.

Finally, Ms. Brizill alleges in her June 14, 2000 supplementary filing that a second campaign committee in support of the Amendment, under the aegis of D. C. Agenda, has not filed with OCF. John H. McKoy, president of D. C. Agenda, and members of his staff, directly and through their legal counsel, have been in contact with OCF since the end of May with regard to how to file, or if to file, as a political committee, in connection with the Amendment. As of today, D. C. Agenda advised it will not organize as a political committee. Mr. McKoy submitted a sworn affidavit wherein he stated that D. C. Agenda has not made expenditures in connection with the Amendment and that any checks received by D. C. Agenda; in connection with the Amendment, will be immediately returned. See Attachment A.

Issue

Whether Mayor Anthony A. Williams violated §§1803.1, 1804.1 (b) and 1806.1 (in part) of the Standards of Conduct, when he allegedly used, and allegedly maintains that he will continue to use, District of Columbia government employees during normal work hours, facilities and supplies to assist him in his support of the Charter Amendment, which will be the subject of a special election on June 27, 2000.

Background

On June 12, 2000, Dorothy Brizill complained to OCF that Mayor Anthony Williams announced in a press conference that he intended to use District of Columbia government resources, i.e., employees, facilities and supplies, to campaign for the Charter Amendment, the subject of a June 27, 2000 election. Upon review of the complaint, OCF initiated an investigation into this matter, pursuant to the D. C. Office of Personnel Standards of Conduct (Standards). See Attachments B-C.

Also, on June 12, 2000, OCF sent letters to Ms. Brizill and Mayor Williams, through Robert Rigsby, Corporation Counsel, to advise that OCF had commenced an investigation.

Additionally, interrogatories were submitted to Mayor Williams. All information relevant to the matter was requested by June 14, 2000.2

On June 14, 2000, the parties submitted their responses. See Attachments D-E. Also, on June 14, 2000, the Corporation Counsel was issued a copy of Ms. Brizill's supplementary response. Time was extended until noon on June 15, 2000, for Corporation Counsel to respond to Ms. Brizill's supplementary response. No response was received.

The scope of the OCF investigation encompassed reviewing and evaluating all submitted information, in light of the OCF statute, and OCF and personnel regulations; research; and in-house meetings.

Relevant Statutory and Regulatory Provisions and Case Law3

At D. C. Code §1-361 (1992 Repl. Vol.), it reads, in part, "The Corporation Counsel shall be under the direction of the Mayor, and have charge and conduct of all law business of the said District, and all suits instituted by and against the government thereof.. He shall furnish opinions in writing to the Mayor, whenever requested to do so . . . . He shall perform such other professional duties as may be required of him by the Mayor."

At §1801.2 of the Standards of Conduct, it reads, in part, "When, after consideration of the explanation of the employee, the Board of Elections and Ethics. . .decides that remedial action is required regarding any matter covered under this chapter, appropriate action shall be immediately taken or ordered. Remedial action4 may include, but shall not be limited to, the following:

"(a) Changes in assigned duties;
"(b) Divestment by the employee of his or her conflicting interest;
"(c) Corrective or adverse action pursuant to D. C. Code §1-617.1(d) (1981); or
"(d) Disqualification for a particular assignment."

At §1802.1, it reads, in part, "In accordance with D. C. Code §1-619.3(e) (1981), enforcement of this chapter shall, consistent with the regulations set forth herein, be the responsibility of each agency head, except that enforcement for the following persons shall be the responsibility of the D. C. Board of Elections and Ethics:

"(a) The Mayor, the Chairman and each member of the Council, the President and each Member of the Board of Education, members of boards and commissions as provided in subsection (a) of Section 602 of the District of Columbia Campaign Finance Reform and Conflict of Interest Act. . .; and
"(b) Employees in the Executive Service, and persons appointed under the authority of D. C. Code §§1-610.1 through 1-610.3 (1981) (and paid at a rate of DS-13 or above in the District Schedule or comparable compensation), or designated in D. C. Code §1-610.8 (1981).

At §1803.1, it reads, "An employee shall avoid action, whether or not specifically prohibited by this chapter, which might result in, or create the appearance of. . .(f) [a]ffecting adversely the confidence of the public in the integrity of government."

At §1804.1, it reads, "An employee may not engage in any outside employment or other activity which is not compatible with the full and proper discharge of his or her duties and responsibilities as a government employee. Activities or actions which are not compatible with government employment include, but are not limited to, the following:

"(b) Using government time or resources for other than official business, or government approved or sponsored activities[.]"

At §1806.1, it reads, in part:. "A District employee shall not use or permit the use of government property, equipment, material of any kind, including that acquired through lease, for other than officially approved purposes."

District of Columbia Common Cause v. The District of Columbia and David Rivers, No. 853528 (D.D.C. October 21, 1986).

In the Matter of Robert L. Schulz, et al. v. State of New York, et al., 1248 Misc.2d 677, 561 N.Y. S.2d 377 (1990), judgment aff'd, 175 A.D.2d 356, 572 N.Y. S.2d 434 (3d Dept 1991), appeal denied, 78 N.Y.2d 862, 578 N.Y.S.2d 877, 586 N.E.2d 60 (1991) and appeal transferred, 79 N.Y.2d 955, 583 N.Y.S.2d 186, 592 N.E.2d 794 (1992).

Summary of Evidence

In support of her complaint, Ms. Brizill submits her June 12, 2000, verified affidavit, Attachment B, to which she has appended a May 25, 2000 memorandum to Dr. Abdusalam Omer, Chief of Staff, from Darryl G. Gorman, Senior Deputy Corporation Counsel for the Legal Counsel Division, entitled "Ethics Inquiry Concerning the Use of District Employees for Lobbying Activities Related to the School Governance Referendum," the Standards of Conduct, and OCF investigation regulations at 3 D.C.M.R. §§3700 et seq. (June 1998).

Ms. Brizill also relies upon her supplemental response dated June 14, 2000, Attachment D, to which she has appended a press release issued from the Office of Communications of the Executive Office of the Mayor dated June 8, 2000, entitled "City Leaders Join Parents, Teachers and PTA Members to Urge Voters to Say `Yes on June 27th'"; a list of D. C. Citizens for Accountability. Leadership and Change; a Neighborhood Action Alert! from the Office of Communications of the Executive Office of the Mayor, which states, inter alia, "Vote Yes on June 27th!"; a 1986 United States District Court for the District of Columbia case entitled District of Columbia Common Cause, et al. v. The District of Columbia and David E. Rivers; and photographs of various District government employees who allegedly attended the June 8, 2000 press conference at J. O. Wilson Elementary School.

Mayor Williams relies upon his notarized response, Attachment E, to which he has appended answers to OCF interrogatories; a press release issued from the Office of Communications of the Executive Office of the Mayor dated June 8, 2000, entitled "City Leaders Join Parents, Teachers and PTA Members to Urge Voters to Say 'Yes on June 27th'"; a Neighborhood Action Alert! from the Office of Communications of the Executive Office of the Mayor, which states, inter alia, "Vote Yes on June 27th!"; flyers entitled "Vote 'Yes" on Measure #3," "Vote 'Yes' for change, W(sic)e need a strong School Board and better schools for our children." and "Vote 'Yes' on Measure #3," all issued by Ward 7 Councilmember Kevin P. Chavous, 441 4"' Street, N. W., Washington, D. C., 20001, (202) 724-8068; a press release entitled "Statement of Congresswoman Eleanor Holmes Norton at Press Conference at J. O. Wilson Elementary School," issued by Congresswoman Norton on June 8, 2000; a list of D. C. Citizens for Accountability Leadership and Change; a copy of a "sticker" entitled "Vote Yes on June 27 [space] Accountability NOW!!"; and a May 25, 2000 memorandum to Dr. Abdusalam Omer, Chief of Staff, from Darryl G. Gorman, Senior Deputy Corporation Counsel for the Legal Counsel Division, entitled "Ethics Inquiry Concerning the Use of District Employees for Lobbying Activities Related to the School Governance Referendum."

OCF relied upon the Answers to the Interrogatories submitted by Mayor Williams, at Attachment E.

Findings of Fact

Having reviewed the allegations and respondent's answers, I find:

1. Mayor Anthony A. Williams is an employee of the District of Columbia. See Attachment E.

2. On May 25, 2000, Dr. Abdusalam Omer, Chief of Staff to Mayor Williams, queried Darryl G. Gorman, Senior Deputy Corporation Counsel for the Legal Counsel Division, as to ". . .the lawfulness of District government employees performing functions in support of the forthcoming school governance charter referendum scheduled for June 27, 2000." See Memorandum at Attachments D & E.

3. Mr. Gorman advised Dr. Omer in a May 25, 2000 memorandum thereto that "[a]s the school governance referendum is to amend the District Charter, the public can essentially be viewed as the legislative body and thus those employees who would normally lobby the Council could lobby the public"[; and, as a result thereof,] "District employees may lobby in general `get-out-the-vote' campaigns or more specific campaigns to encourage votes in favor of the proposed school governance referendum." Id.

4. Acting on the advice of Corporation Counsel, Mayor Williams, in his official capacity as Mayor of the District of Columbia, authorized his employees to arrange a press conference, where he would discuss, inter alia, ". . .the need for voter approval of the proposed school governance Charter amendment." See Answer to Interrogatory No. 1 at Attachment E.

5. Also acting on the advice of Corporation Counsel, Mayor Williams, in his official capacity as Mayor of the District of Columbia, authorized his employees to prepare press kits, which each included flyers and statements identifying support of the Charter Amendment by, inter alia, Mayor Williams, Ward 7 Councilmember Kevin Chavous and Delegate to the House of Representatives Eleanor Holmes Norton. See Answer to Interrogatory No. 2 at Attachment E.

6. Mayor Williams decided upon J. O. Wilson Elementary School as the site for the press conference and obtained authority for its use from the D. C. Public Schools. See Answer to Interrogatory No. 7 at Attachment E.

7. On June 8, 2000, at J. O. Wilson Elementary School, Mayor Williams spoke at the planned press conference, held between 1:45 p.m. and 2:45 p.m., and discussed the need for voter approval of the proposed school governance Charter amendment. See Answer to Interrogatory No. 1 at Attachment E.

Conclusions of Law

Based upon the record and evidence, I therefore conclude:

1. As an employee of the District of Columbia, Mayor Williams is subject to the enforcement provisions of the Standards of Conduct.

2. As Mayor of the District of Columbia, the responsibility for enforcing the provisions of the Standards of Conduct against Mayor Williams rests with the Board of Elections and Ethics.

3. Mayor Williams used government employees and supplies in preparation for and during his press conference urging support of the Charter Amendment on June 8, 2000 for official business because he sought and relied upon advice from the Corporation Counsel.

4. Mayor Williams properly used J. O. Wilson Elementary School on June 8, 2000 for his press conference urging support of the Charter Amendment because he received permission for its use from the D. C. Public Schools under the auspices of an officially approved purpose.

5. Whether or not the activities of Mayor Williams with regard to his support of the Charter Amendment at the June 8, 2000 press conference, may be characterized as "lobbying" is irrelevant inasmuch as Mayor Williams was using the resources of the District of Columbia government to influence the outcome of the June 27, 2000 election on the matter of the Charter Amendment.

6. By using the resources of the District of Columbia Government to influence the outcome of the June 27, 2000 election on the matter of a Charter Amendment, Mayor Wlliams, at the least, created the appearance of "affecting adversely the confidence of the public in the integrity of government"; and violated the Standards of Conduct.

7. As the agency entrusted with enforcement of the Standards of Conduct against Mayor Williams, OCF has the authority to advise Mayor Williams to immediately terminate all action aimed at influencing the outcome of the June 27, 2000 election on the matter of the Charter Amendment.

Recommendation

I hereby recommend that the Director advise Mayor Anthony A. Williams to immediately terminate all action involving the use of the resources of the District of Columbia Government to influence the outcome of the June 27, 2000 election on the matter of a Charter Amendment.

June 16, 2000, Date
Kathy S. Williams, General Counsel

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ORDER OF THE DIRECTOR

By virtue of the provisions of §1802 of the Standards of Conduct, the District of Columbia Board of Elections and Ethics is responsible for the enforcement thereof for the Mayor, the Chairman and each Member of the Council, the President and each member of the Board of Education, members of Boards and Commissions, employees in the Executive Service, and persons paid at the rate of a DS-13 and in the Excepted Service. Because public service is a public trust, Chapter 18 of the D.C. Personnel Regulations prescribes the standards of conduct which all District employees must adhere to in the execution of their official responsibilities.

Of significance to the instant proceeding, §1806.1 prohibits a District employee from "using or permitting the use of government property, equipment, or material of any kind, including that acquired through lease, for other than officially approved purposes." In pertinent part, at §1804.1(b), it prohibits a government employee from "using government time or resources for other than official business, or government approved or sponsored activities". Further, §1803.1(0 requires an employee to avoid action, whether or not specifically prohibited by Chapter 18, which might result in, or create the appearance of "affecting adversely the confidence of the public in the integrity of government".

Where a violation of the Standards of Conduct occurs, the Board of Elections and Ethics may take remedial action immediately to address the proscribed conduct, pursuant to §1801.

In this case, the complainant alleges that the use of government employees, facilities, and supplies to launch the "Yes on June 27"' Campaign on June 8, 2000 at the J.O. Wilson Elementary School, in support of the proposed Charter Amendment Act, "The School Governance Charter Amendment Act of 2000" (the "Charter Amendment"), was illegal. The respondent asserts to the extent District government employees in the Executive Office of the Mayor assisted in preparing for and holding the June 8t" press conference, they did so as part of their official functions; and that the same is true with respect to the use of District facilities, equipment, and supplies in conjunction with the press conference. Further, respondent states that the use of the resources of his office as Mayor to support the proposed Charter Amendment, would be consistent with the Opinion of the Office of the Corporation Counsel dated May 25, 2000, (AL-00-311). The Office reached the following conclusions concerning the use of government employees for "lobbying" activities related to the Charter Amendment:

1. The Hatch Act does not prohibit District employees from participating in activities concerning the school governance referendum given the nonpartisan nature of the referendum and definition of "political activity" as defined in the Hatch Act regulations.

2. Employees should ensure that they do not violate relevant sections of the District's Employee Conduct rules set forth in Chapter 18 of the DPM.

3. The Mayor may accept a poll or research concerning the school governance from an individual or group as long as the item does not violate the provisions of §1803.2 of the DPM.

4. Employees may participate in school governance referendum activities during their work hours if their authorized job functions involve lobbying for legislation, or, if they are detailed to an office whose authorized mandate involves lobbying and appropriated funds have already been authorized for those job functions or offices. If the authorized functions of the employee or the office do not involve lobbying, the employee or office may not be used for that purpose.

5. Other facilities and supplies may be used for lobbying to the same extent that the employee using the office or supplies is authorized to lobby.

6. Individuals not employed by the District government may not use District facilities or supplies to direct lobbying activities of District employees regarding the school governance referendum nor may they use District facilities or supplies for that purpose.

The Office of Campaign Finance agrees with the Corporation Counsel that the phrase "political activity", as defined by 5 CFR, §734.101, and used in the Hatch Act, does not appear to preclude District Government employees from participating in activities concerning the Charter Amendment. However, we acknowledge and defer to the exclusive jurisdiction of the Office of Special Counsel to render advisory opinions in this area. See 5 CFR, §734.102(a). We concur that the Mayor may accept the poll as long as it does not violate the provisions of §1803.2 of the DPM, but caution that the Conflict of Interest Statute, as codified in D.C. Code §1-1461 (1999 Repl. Vol.), prohibits the receipt of gifts under certain circumstances, and the Financial Disclosure Statute, as codified in D.C. Code §1-1462, requires the disclosure of gifts received from businesses doing business with the District, in excess of $100. We also recognize the responsibility of employees to be aware of the Standards of Conduct, and the restrictions imposed thereby on their activities.

We do not agree, however, that because the purpose of the school governance referendum is to amend the District Charter, the public can be viewed as the legislative body, and thus, those employees who would normally lobby the Council could lobby the public on this issue.

The term "lobbying" as defined by D.C. Code §1-1451(7)(A) means "communicating directly with any official in the legislative or executive branch of the District of Columbia government with the purpose of influencing any legislative action or an administrative decision". The term "official in the legislative branch" as defined by D.C. Code §1-1451(10) means any "candidate for Chairman or member of the Council in a primary, special, or general election, the Chairman or Chairman-elect or any member or member-elect of the Council, officers and employees of the Council. . ." "Legislative action" as defined by D.C. Code §1-1451(6), includes any activity conducted by an official in the legislative branch in the normal course of carrying out his or her duties as such an official, and relating to the introduction, passage, or defeat of any legislation in the Council".

To characterize activity, the purpose of which is to influence the outcome of an election, as "lobbying", is to distort the meaning of a "campaign". See Webster's Ninth New Collegiate Dictionary (Merriam-Webster Inc., 1985) 1999. Webster's defines the term "campaign" as a "connected series of operations designed to bring about a particular result". Otherwise, an uneven playing field would be created in the political arena under the guise of "lobbying". It is inherently unfair to the opponents of a ballot measure to allow government to open the floodgates and use its wealth of resources to urge the public to ratify the Charter Amendment. Moreover, there is no viable basis upon which to distinguish this matter from the initiative process because the act at issue is a charter amendment. In the final analysis, both processes require presentation of the proposed acts to the electorate at an election for their approval or disapproval, notwithstanding their origins may differ.

In District of Columbia Common Cause, et al., v. The District of Columbia, supra, the District of Columbia's expenditure of public funds and use of District of Columbia employees to promote the defeat of a ballot question initiated through the initiative process was held to violate the rights of District of Columbia voters under the First and Fifth Amendments to the United States Constitution. The Court found that the government aligned itself in the political fray as being opposed to the enactment of the measure, providing groups who shared their viewpoint with the use of government resources, thereby "unfairly tipping the scales of the electoral balance in favor of one side of the initiative election." The Court opined the "government has an obligation to remain neutral and not spend public funds advocating or opposing an initiative on the ballot".

Consistent therewith, although not binding on this jurisdiction, is In the Matter of Robert L. Schulz, et al. v. State of New York, supra, the Governor of the State of New York was enjoined from the expenditure of state funds to promote the passage of a Bond Act. The Court declared that government could only expend funds where it sought to educate, inform or urge the electorate to vote. Public funds could not be used to attempt to persuade the electorate either to approve or disapprove the bond issue. The Court would not enjoin the public officials from making public statements about the act, recognizing that public officials have the right of free speech, and in fact, have a responsibility to express their views on any issue, which affects the electorate, they serve.

Based on the foregoing, we submit public officials may properly express their views on the Charter Amendment, engage in activities, which encourage citizens to vote on this Charter Amendment, and take steps to educate and inform the electorate of the purpose of the measure. Public officials must refrain, however, from conveying specific messages, which encourage the registered qualified electors of the District of Columbia to vote in favor of the Charter Amendment. We find that the purpose of the June 8, 2000 government sponsored activity, was to promote voter ratification of the Charter Amendment. This activity ran afoul of §1803.1(f) of the D.C. Personnel Regulations because it affected adversely the confidence of the public in the integrity of government where government was one sided in its presentation of a ballot issue to be decided by the electorate.

As such, Mayor Williams is to immediately terminate all action involving the use of the resources of the District of Columbia Government to influence the outcome of the June 27, 2000 election on the matter of a Charter Amendment.

This Order may be appealed to the Board of Elections and Ethics within 15 days from issuance.

June 16, 2000, Date

Cecily E. Collier-Montgomery, Director

SERVICE OF ORDER

This is to certify that I have been served with a true copy of the foregoing Order.

The Honorable Anthony A. Williams
Mayor
District of Columbia
One Judiciary Square
441 4rh Street, N. W.
Washington, D. C. 20001

Dorothy A. Brizill
Executive Director
D. C. Watch
1327 Girard Street, N.W.
Washington, D. C. 20009

Pursuant to 3 D.C.M.R. §3711.5 (1999), any fine imposed by the Director shall become effective on the 16th day following the issuance of a decision and order, if the respondent does not request an appeal of this matter. If applicable, within 10 days of the effective date of this Order, please make check or money order payable to the D. C. Treasurer, c/o Office of Campaign Finance, Suite 420, 2000 14th Street, N. W., Washington, D. C., 20009.

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1. Ms. Brizill initially filed her complaint on June 8, 2000, but it was not notarized. See 3 D.C.M.R. §3701 (June 1998).

2. In light of the imminence of the June 27, 2000 election, OCF imposed an abbreviated schedule upon the parties. Also, Mayor Williams was offered the opportunity to present his response during an informal hearing. He declined.

3. Ms. Brizill also recommended numerous authorities for OCF consideration with regard to this matter. See Attachment D. Said authorities were reviewed and were found to be inapplicable.

4. "Remedial action," within the rubric of sanctions for violations of the Standards of Conduct, does not include the imposition of penalties and fines.

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Attachment A

DCAGENDA
COLLABORATING FOR WASHINGTON'S FUTURE

DC AGENDA AFFIDAVIT

NOTIFICATION OF NON-EXPENDITURE OF FUNDS, RETURN OF DONATIONS AND WITHDRAWAL OF REQUEST FOR WRITTEN OPINION

TO: Cecily E. Collier-Montgomery
Director
Office of Campaign & Finance
2000 14th Street, NW
Washington, DC 20009.

As a result of our review of relevant sections of DCMR regulations and the several telephone conversations with your staff since May 23rd, DC Agenda is concerned that we may be unable to comply fully with the requirements of the District of Columbia Campaign Finance Laws in the matter of our efforts to support passage of the Proposed Charter Amendment III.

We hereby notify you that we have not expended any funds and are returning all donations. In addition, we withdraw our June 8th request for a written opinion or confirmation of our reporting obligations.

John H. McKoy, President
6/16/00

I, Sidney W. Williams, a Notary Public, hereby certify that on the 16 day of June 200, personally appeared before me John H. McKoy, who signed the foregoing document President/Chief Executive Officer of DC Agenda and that the statements therein contained are true.

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Attachment E

ANTHONY A. WILLIAMS
MAYOR

June 14, 2000

Ms. Cecily E. Collier-Montgomery
Director
Office of Campaign Finance
District of Columbia Board of Elections and Ethics
Frank D. Reeves Municipal Building, Suite 420
2000 14th Street, N.W.
Washington, D.C. 20009

Re: MUR #00-01

Dear Ms. Collier-Montgomery:

This replies to your June 12, 2000 letter to me concerning the June 9, 2000 complaint that Dorothy A. Brizill, Executive Director of D.C. Watch, filed with your office. Ms. Brizill alleges that I violated the District's campaign laws and regulations by using District government employees, facilities, and supplies for planning and holding my press conference on June 8, 2000 and that I will continue to violate these laws by using government employees, facilities, and supplies to assist me in my public support of the proposed school governance Charter amendment, which will be voted on in a special election on June 27, 2000.

Your June 12th letter states that your Office has opened an investigation of Ms. Brizill's complaint. In particular, your letter states that you are looking into whether I have used and will continue to use District government employees during normal work hours, and District government facilities and supplies, in violation of §§ 1803.1, 1804.1(b), and 1806.1 (in part) of Chapter 18 (Employee Standards of Conduct) of the District of Columbia Personnel Regulations.1 Your letter requests that I provide notarized answers to 11 interrogatories by close of business today and that I advise whether I wish to present any evidence before your Office at an informal hearing that can be held for that purpose tomorrow.

Enclosed are my notarized answers to your interrogatories. As more fully discussed below, these answers show that Ms. Brizill's June 9th complaint misstates the relevant facts and that, to the extent District government employees in the Executive Office of the Mayor assisted me in my capacity as Mayor in preparing for and holding the June 8th press conference, they did so as part of their official functions, consistent with Chapter 18 of the D.C. Personnel Regulations. The same is true regarding District facilities, equipment, and supplies used in conjunction with the June 8th press conference. Furthermore, I will continue to insist on compliance with Chapter 18 if District government employees, facilities, equipment, and supplies are used between now and June 27th to assist me in advocating for passage of the proposed school governance Charter amendment. Therefore, I respectfully decline the opportunity to present any further evidence before your office tomorrow.

Ms. Brizill's complaint contains numerous unfounded assertions, including that: (1) the June 8th press conference was "attended primarily (about 75 percent) by employees of the District of Columbia during their regular work hours"; (2) these employees "were wearing campaign buttons and were distributing campaign materials"; (3) "[s]ome of the campaign materials themselves were admittedly prepared by government employees and were reproduced in government offices using government supplies"; (4) "[n]one of the campaign materials listed a campaign committee"; (S) "no campaign committee supporting the Charter Amendment has been registered with the Office of Campaign Finance"; and (6) I stated at the June 8th press conference that I would use any government employees working during their regularly scheduled working hours (including ancillary government equipment, facilities, and supplies) -- in effect, "the full weight of the government" -- to advocate for passage of the proposed Charter amendment.

Each of these assertions is spurious. As the attached answers show, the government employees who attended the June 8th press conference essentially consisted of only my immediate staff who routinely assist me with press conferences, and these staff were a relatively small part of the entire group of people -- mostly non-governmental -- who attended the press conference. A private organization, the New School Leadership Committee (Committee), passed out donated lapel stickers -- not "buttons" -- which some people in attendance, including some government employees, voluntarily chose to wear. No government employees were engaged in distributing campaign materials, and no campaign materials concerning the proposed school governance referendum have been prepared in Executive Branch offices using government equipment or supplies. The lapel stickers expressly state that they are "Labor Donated," and posters that the Committee brought to the press conference expressly stated that they were "Paid for by New School Leadership Committee, William Lightfoot, Treasurer." The Committee is, in fact, registered, with your office.

Additionally, contrary to Ms. Brizill's allegation, I stated at the June 8th press conference that I would use the resources of my office as Mayor to support the proposed Charter amendment, consistent with the May 25, 2000 legal memorandum by the Office of the Corporation Counsel. That memorandum, as you know, states that District government employees whose existing duties -- as established by program and budget -- involve assisting in communicating my views as Mayor to the public may assist me in advocating the passage of the proposed Charter amendment. Authority to use these employees for this purpose entails authority to use office space, equipment, and supplies normally accessible to them. At the same time, the legal memorandum makes it clear that other District government employees whose normal official duties do not involve policy advocacy to the public -- either directly, or indirectly by assisting me -- generally may not spend working hours to advocate to the public for the passage of the proposed Charter Amendment.

This position is in keeping with sections 1803.1, 1804.1(b), and 1806.1 of the D.C. Personnel Regulations, as cited in your June 12th letter and as footnoted above. Insofar as pertinent here, these sections prohibit a District government employee from using government time or resources for other than "official business" or from using, or permitting the use of, government property, equipment, or material for other than officially approved purposes." Here, there is no doubt that the relatively small number of government employees who assisted me in planning and holding the June 8th press conference were engaged in "official business" when they engaged in these activities. Similarly, their use of government facilities, equipment, and supplies to prepare a "press kit" and to photograph the press conference related to "officially approved purposes." Consequently, there has been no violation of sections 1803.1, 1804.1(b), or 1806.1 with regard to the June 8th press conference; nor will such a violation occur if they engage in similar activities in the future.

The Office of the Corporation Counsel advises that this conclusion is consistent with the interpretation of comparable federal regulations in 5 CFR Part 2635 (Standards of Ethical Conduct for Employees in the Executive Branch), in particular section 2635.705 (Use of Official Time) and Subpart H (Outside Activities). For example, in an opinion construing the federal Anti-Lobbying Act (Act), 18 U.S.C 1913 -- which is construed in harmony with 5 CFR Part 2635 -- the Office of Legal Counsel, U.S. Department of Justice, concluded that the Act does not prohibit employees of the federal government from assisting the President, or from communicating directly with the public, to advocate policy positions of the Executive Branch. See 1989 OLC Lexis 102 (Sept. 28, 1989). As this opinion recognizes, "the President must be permitted to employ the services of his political appointees and aides necessary to effectuate his constitutionally protected ability to communicate with his constituency concerning the decisions for which the President, as the politically accountable head of the executive branch, is alone responsible." Id. at 13. The same reasoning applies under Chapter 18 of the D.C. Personnel Regulations with respect to my ability to communicate with the public as Mayor, using District government employees who are authorized, by program and budget, to assist me in advocating important policy positions such as school governance reform.

I look forward to receiving your derision on this matter in the near future.

Sincerely,
Anthony A. Williams
Mayor

cc: Abdusalam H. Omer, Chief of Staff
Robert R. Rigsby, Corporation Counsel

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MAYOR'S RESPONSE TO INTERROGATORIES OF THE D.C. OFFICE OF CAMPAIGN FINANCE
In the Matter of Investigation (MUR) #00-01; June 12. 2000

Interrogatory #1. Did you attend the press conference held on June 8, 2000 at J. O. Wilson Elementary School? If so, what was the extent of your involvement?

ANSWER:
Yes. I was the main speaker at the press conference - which was held between approximately 1:45 p.m. and 2:45 p.m. - in my official capacity as Mayor, and gave my vision of school reform in the District of Columbia. One aspect of the vision that I discussed was the need for voter approval of the proposed school governance Charter amendment. The Council passed and I signed this proposal earlier this year as Act 13295, in accordance with procedure for amending the Charter in section 303 of the District of Columbia Home Rule Act, D.C. Code 1-205 (1999).

Interrogatory #2. Who authorized and planned the press conference?

ANSWER:
Consistent with normal practice, this press conference was authorized by me in my official capacity as Mayor.

As with any press conference that I give as Mayor, my Office of Communications was very involved in its planning and logistics because such preparation is one of the normal functions of the Office. On information and belief, staff of the Office of Communications held planning meetings for this purpose on three days - i.e., June 5, 6, and 7, 2000, starting in the evening at approximately 6 p.m. on each day. This late start time - outside normal working hours - accommodated the schedules of other attendees, including staff of D.C. Delegate Eleanor Holmes Norton, staff of Council Chairman Linda Cropp, and staff of Councilmember Kevin Chavous - all of whom support the proposed Charter amendment.

In addition, on information and belief, during the week of June 5th, staff of the Office of Communications prepared a "press kit", which included: (1) a press release from my office, identifying the members of the Council who support the proposed Charter amendment; (2) the weekly "Neighborhood Action Alert!" issued by my office, the June 8th edition of which described my support of the proposed Charter amendment; (3) a three-page handout prepared by Councilmember Chavous, describing his support for the proposed amendment; (4) a press statement by Delegate Norton in support of the proposed amendment; and (5) a list of other persons in the community who support the proposed amendment. A copy of this "press kit" is attached as Exhibit # 1. Staff of the Office of Communications prepares a kit of this type for all my press conferences as part of their required duties, and usually - as here - is expected to use District government supplies and equipment, for which funds are budgeted, to do so.

Interrogatory #3. To your knowledge, were District government employees present at the press conference of June 8, 2000?

ANSWER:
Yes. Out of what I understand has been estimated as a crowd of between 75 and 100 persons, there were a relatively small number of government employees at the June 8th press conference. On information and belief, my Office of Communications (OC) was represented by the Director, Lydia Sermons, as well as Germanique Jones, Dan Leistikow, and Latef Mengum. The Office of the Public Advocate (OPA), which routinely notifies the community of my press conferences and assists me in meeting with people who attend, was represented by the Director, Charly Carter, as well as Wanda Alston, Carlene Cheatham, and the Rev. Donald Robinson. Because several members of the Council attended - including Chairman Cropp and Councilmembers Ambrose, Chavis, Mendelson, and Patterson - Eric Foster from the Office of Intergovernmental Relations (OIR) was present. Also, Peggy Armstrong, my Press Secretary, and Mark Jones, my Deputy Chief of Staff - who oversees OC, OPA, and OIR - were there. These 11 Executive Branch employees attended as part of their normal official duties. They routinely attend my press conferences.

Ms. Sermons advises that, beside these 11 Executive Branch employees, four others - whom she usually observes at my press conferences - were present: Lafayette Barnes (Office of the Chief of Staff); Sally Craig (Office of Personnel); Jacqueline Flowers (Office of Local Business Development); and Ronald King (Office of Boards and Commissions). I understand that these four employees were taking a late lunch break when they attended my June 6th press conference. On information and belief, several Council staff members also attended. To the best of my information, the other persons in attendance - the great majority, including Delegate Eleanor Holmes Norton and members of her staff - were not District government employees.

Interrogatory #4. Were the [District government] employees there under their own volition? If not, who directed their presence?

ANSWER:
The 9 Executive Branch employees from OC, OPA, and OIR, as well as my Press Secretary and Deputy Chief of Staff, attended as part of their normal official duties in assisting me with press conferences. To that extent, their attendance was job-related and required, not voluntary - although, on information and belief, they were not specifically directed by anyone to attend this particular press conference. Nor do I know whether they would have attended anyway if attendance were not job-related. Neither I nor my staff directed any other District government employee to attend the press conference. Thus, while under the expedited timetable for these responses I have been unable to reach the other four known Executive Branch attendees to determine why they attended, it is reasonable to infer that they came voluntarily. I have not spoken with the several Council staff members who were there and who, in any event, are outside my control. I do not know if they attended voluntarily.

Interrogatory #5. What was the purpose of the press conference held on June 8, 2000 at J.O. Wilson Elementary School?

ANSWER:
Councilmember Chavous and I have specifically made budget and program proposals for schools a major focus of our government reform efforts. This press conference was an opportunity to describe our efforts to reform school policy and to reiterate our support for the proposed school governance Charter amendment as part of these efforts. The press conference was also an opportunity for Delegate Norton and other members of the council who share these views to express their support.

Interrogatory #6. Was permission requested to use J. O. [Wilson] Elementary School? If so, who made the request?

ANSWER:
Yes. On information and belief, Eric Foster, an employee of the Office of Intergovernmental Relations, made the request, consistent with his normal official duties concerning outreach to the community.

Interrogatory #7. Did you receive authorization to use the school, J. O. Wilson Elementary, for your June 8, 2000 press conference? If so, from whom did the authorization emanate?

ANSWER:
Yes. Erma Fields, Principal of J. O. Wilson, gave preliminary oral permission to use the school for the June 8th press conference. This permission was then orally confirmed by Denise Tann, in the Office of Communications, D.C. Public Schools. I understand that 5 DCMR §3501.1 authorizes the D.C. Board of Education to grant the use of its buildings to any person or organization if the use is compatible with the normal use of the property. On advice of the Office of the Corporation Counsel, I understand that, in keeping with decisions of the U. S. Supreme Court, the Board of Education - having previously opened its facilities to a wide variety of organizations for social, civic, and recreational purposes under 5 DCMR §3501 - could not lawfully deny access to the J. O. Wilson Elementary School for my press conference on June 8th solely on account of the views to be espoused at the press conference.

Interrogatory #8. According to the complaint, it is alleged that [District government] employees present at this press conference were wearing campaign buttons and distributing campaign literature in support of the Amendment. Is this true? Is so, who provided these items and at whose expense? Were the employees required to wear buttons and distribute literature? Is so, at whose direction?

ANSWER:
On information and belief, the allegation that District government employees at the press conference on June 8th were distributing campaign literature in support of the proposed school governance Charter amendment is false. I did not observe anyone at the press conference distributing campaign literature; nor do Lydia Sermons or Mark Jones of my staff recall anyone doing so. As is the custom of my Office of Communications, its staff only placed copies of the "press kit" described in Answer #2 above on a table so that members of the press who attended could pick it up. This "press kit" was not "campaign literature," nor was it distributed person-to-person by government employees. As noted earlier, this "press kit" - as is always true of a "press kit" - was prepared by government employees using government equipment and supplies. I understand that this use of equipment and supplies is authorized by congressional appropriations.

I understand that the New School Leadership Committee (Committee), a private organization having no funding or programmatic connection with the District government, purchased lapel stickers printed with the message, "Vote Yes on June 27 Accountability Now!!," and passed them out at the June 6th press conference. (Neither nor my staff observed any "buttons" being worn, as alleged.) These stickers also contained the statement that they were "Labor Donated." I also understand that the Committee, which has filed a statement of organization with the Director of Campaign Finance, brought and held up posters with the same message and containing the statement, "Paid for by the New School Leadership Committee." On information and belief, no government employee at the June 6th press conference participated in passing out these stickers or posters. In accordance with normal practice, the Office of Communications and the Office of the Public Advocate invited individuals and organizations in the community - including the Committee - to attend the June 6th press conference. However, the Office of Communications and the Office of the Public Advocate did not ask or solicit the Committee to pass out these stickers or posters. In addition, on information and belief, no government employee present at the June 6th press conference was directed or required by me or any other employee or official of the District government to wear one of these stickers or hold one of these posters. Rather, I understand that to the extent that government employees in attendance wore these stickers - I believe that some wore them and some did not - the decision to wear one of the stickers was wholly voluntary. Finally, on information and belief, none of the government employees in attendance held one of the posters.

Interrogatory #9. What appeared on the campaign buttons and campaign literature? Please enclose samples of any buttons or other campaign items distributed at that press conference.

ANSWER:
There were no campaign buttons or campaign literature at the June 6th press conference. A copy of the lapel sticker passed out by the private New School Leadership Committee attached as Exhibit #2. Neither I nor my office has a copy of the posters brought by the Committee. The message on the lapel sticker and poster was: "Vote Yes on June 27 Accountability Now!!" The lapel sticker contained the additional statement, "Labor Donated," and I understand the posters contained the additional statement, "Paid for by New School Leadership Committee, William Lightfoot, Treasurer."

Interrogatory #10. Were there any District government supplies or facilities used in support of the press conference? If so, please identify the supplies and/or facilities, and at whose direction the supplies and/or facilities were made available.

ANSWER:
Yes. As for all my other press conferences, the attached "press kit" was prepared at the request of Lydia Sermons, Director of the Office of Communications. This "press kit" was prepared using District government supplies and equipment located at the Office's space at One Judiciary Square. In addition, as is the usual practice, photographic equipment belonging to the Office was used to tape the press conference, at Ms. Sermons' direction. Also, a mufti-purpose room at the J. O. Wilson Elementary School housed the press conference. This facility was used by permission that Eric Foster, of the Office of Intergovernmental Relations, obtained from the D. C. Board of Education. Mr. Foster requested this permission in response to the group consensus reached at the evening planning meetings described in Answer #2 above that the J. O. Wilson School should be used for the press conference.

Interrogatory #11. The complaint alleged you stated that District Government employees, facilities, and supplies would be used to support Charter Amendment #3. If you made this statement, please explain the purpose for which you plan to use employees in the future.

ANSWER:
I did not make the statement alleged by the complainant. Rather, I stated at the June 6th press conference that I would use the resources of my office as Mayor to support the proposed school governance Charter amendment, and coupled this statement with reference to a May 25, 2000 legal memorandum prepared at my request by the Office of the Corporation Counsel. I provided the press with a copy of the legal memorandum from the Office of the Corporation Counsel, which describes what District government employees can and cannot do in this regard. (A copy of this memorandum is attached as Exhibit #3.) Among other things, the memorandum states that District government employees whose existing duties - as established by program and budget - involve assisting in communicating my views as Mayor to the public may assist me in advocating the passage of the proposed Charter amendment. As the legal memorandum points out, employees who who may assist me with these communications are in such units as the Office Communications and the Office of Intergovernmental Relations, and authority to use them for this purpose entails authority to use office space, equipment, and supplies normally accessible to them as well. At the same time, the legal memorandum makes it shat other District government employees whose normal official duties do not involve policy advocacy to the public - either directly, or indirectly by assisting me -- generally may not spend working hours to advocate to the public the passage of the proposed Charter amendment.

As stated at the June 6th press conference,. I intend to abide by the advice set out in the May 25, 2000 legal memorandum by the Office of the Corporation Counsel. Currently, I have no specific plans regarding the use of District government employees to support enactment of the proposed Charter amendment. I note, however, that between now and June 27th it is likely I will hold additional press conferences and/or schedule other speaking engagements as to school reform, including the proposed Charter amendment. If I do so, I expect to seek the assistance of the same government offices - i. e., the Office of the Chief of Staff, the Office of Communications, the Office of Intergovernmental Relations, and the Office of the Public Advocate - that assisted me with the June 6th press conference.

Anthony A. Williams
Mayor

Subscribed and sworn to before me on this t 14th day of June, 2000.

Gladys W. Herring, Notary Public, D.C.
My commission expires: June 30, 2004


1. Section 1803.1 states:

An employee shall avoid action, whether or not specifically prohibited by this chapter, which might result in, or create the appearance of the following: (a) using public office for private gain; (b) giving preferential treatment to any person; (c) impeding government efficiency or economy; (d) losing complete independence or impartiality; (e) making a government decision outside official channels; or (f) affecting adversely the confidence of the public in the integrity of government.

Section 1804.1 (b) provides:

An employee may not engage in any outside employment or other activity which is not compatible with the full and proper discharge of his or her duties and responsibilities as a government employee. Activities or actions which are not compatible with government employment include, but are not limited to, the following:

(b) Using government time or resources for other than official business, or government approved or sponsored activities, except that a District employee may spend a reasonable amount of government time and resources on such projects, reports, and studies as may be considered in aid of other government jurisdictions (local, state, or federal), provided the work so performed is within the scope of the individual's regular assignments as a District employee . . ..

Section 1806.1 states in part:

A District employee shall not use or permit the use of government property, equipment, or material of any kind, including that acquired through lease, for other than officially approved purposes. An employee has a positive duty to protect and conserve government property, including such equipment, supplies, materials, and other items as may be issued or entrusted to him or her.

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