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Appeal of Office of Campaign Finance Order
Robert Rigsby, Corporation Counsel
June 30, 2000

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Preliminary motion to dismiss this appeal

Complaint to DC Bar Office of Bar Counsel

441 Fourth Street, N.W., Tenth Floor North, Washington, D.C. 20001 (202) 724-1520 FAX (202) 347-8922

June 30, 2000

GOVERNMENT OF THE DISTRICT OF COLUMBIA
Office of the Corporation Counsel
Corporation Counsel

Mr. Benjamin F. Wilson
Chairman
District of Columbia Board of Elections and Ethics
441 Fourth Street, N.W., Suite 250
Washington, D.C. 20001

Re: Notice of appeal of Office of Campaign Finance order in MUR #00-01

Dear Chairman Wilson:

On behalf of the Mayor of the District of Columbia, this is to appeal the June 16, 2000 order of the Director of the Office of Campaign Finance, Cecily E. Collier-Montgomery, in MUR #00-01 and to request, pursuant to 3 DCMR §§3504.1 and 3504.2, a hearing de novo concerning the issues decided in that order. A copy of the Director Collier-Montgomery's June 16, 2000 order is attached.

A full airing of the relevant issues must await the briefing schedule that the Board of Elections and Ethics will establish for this appeal. However, I initially note that the central premise of the June 16, 2000 order of the Director of the Office of Campaign Finance is that the Mayor cannot rely on immediate staff whose assistance is imperative to carry out his Charter-based authority to hold a press conference in which he communicates his views to the public on important issues such as the proposed school governance Charter amendment - without violating the mandate in section 1803.1 of the District of Columbia Personnel Regulations against action that "might result in, or create the appearance of... [a]ffecting adversely the confidence of the public in the integrity of government." This premise is absurd and, if accepted, would straitjacket the current and later Mayors in fulfilling their official responsibility to take positions on issues that, as here, they believe have major significance for the long-term well-being of the District's citizens. Nothing in the quoted language or the purpose of section 1803.1 supports the construction that Director Collier-Montgomery's June 16, 2000 order gives it; nor does her order cite any decisional precedent from this or other jurisdictions that so construes similar statutory or regulatory provisions.

Indeed, at the end of her June 16, 2000 order, Director Collier-Montgomery implicitly recognizes the incongruity of the order's central premise that the Mayor cannot lawfully use resources normally programmed and budgeted for communications to assist him in advocating for adoption of the proposed Charter amendment. She does so when — inconsistent with her central premise but nevertheless consistent with the applicable law — she concludes that "public officials [including the Mayor] may properly express their views on the Charter Amendment," citing in support of this important proposition the decision of the Supreme Court of New York, Albany County, in In the Matter of Robert L. Schulz, et al. v. State of New York, et al., 148 Misc.2d 677, 561 N.Y.S.2d 377 (1990), 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), appeal transferred, 79 N.Y.2d 955, 583 N.Y.S.2d 186, 592 N.E.2d 794 (1992). Among other things, this decision refused to enjoin public officials from making public statements about the passage of a particular bill on the ground that "[p]ublic 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." Id. at 679. It is significant for present purposes that, in so ruling, the Supreme Court of New York, Albany County, made no distinction between the right of public officials to freedom of speech while on duty - when they presumably would be drawing a salary from the public treasury - and the right of public officials to freedom of speech while off duty - when, of course, no public funds would be involved. Ibid.1

In his official capacity, Mayor Williams certainly had the duty - and did, in fact, carry out the duty - to express his views on the proposed Charter amendment at the June 8, 2000 press conference that was the subject of the complaint filed with the Office of Campaign Finance on June 12, 2000 by Dorothy A. Brizill of D. C. Watch in MUR #00-01. At the same time, to carry out this duty, Mayor Williams necessarily needed assistance from the people on his immediate staff who normally assist him to prepare for and to hold press conferences and similar speaking engagements. This assistance included the involvement of approximately a dozen government employees and the preparation of a standard press kit, copies of which were located on a table at the press conference and, as is customary, were available to be picked up by members of the press who attended the press conference. In addition, to give full leeway to the right of free speech by government officials that Director Collier-Montgomery's June 16, 2000 order expressly recognizes, these dozen or so Mayoral aides themselves possessed a right to freedom of speech — a right that, within the scope of their official duties, as here, could take the form of: (1) assisting the Mayor to prepare for a press conference where the Mayor exercised his own right to freedom of speech; and (2) attending the Mayor's press conference to show their support for his advocacy on a particular issue, such as the proposed Charter amendment.

Contrary to the allegations of the complaint in MUR #00-01, no credible evidence was presented that the Mayor directed government employees outside the small circle of his immediate staff to participate in the June 8, 2000 press conference or otherwise to advocate for the passage of the proposed Charter amendment. (In fact, the Mayor's sworn answers to the interrogatories that the Office of Campaign Finance propounded to him make clear that he never gave such a direction even to his immediate staff, although their attendance was a normal part of their budgeted and programmed functions.) Thus, the statement in Director Collier-Montgomery's June 16, 2000 order that "[i]t 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" is a non sequitur and applies to no activity that actually occurred in this case.

Besides Schulz, the only other court decision cited in Director Collier-Montgomery's June 16, 2000 order is District of Columbia Common Cause, et al. v. The District of Columbia, et al., C.A. No. 85-3528, 1986 U.S. Dist. LEXIS 18841 (D.D.C., October 21, 1986), aff d, 858 F. 2d 1 (D.C. Cir. 1988). In Common Cause, plaintiffs challenged the District government's discrete expenditure of approximately $7,000 to procure pamphlets, flyers, and posters urging District voters to vote against Initiative No. 17, which - after its adoption - required the government to guarantee overnight shelter for homeless people. Plaintiffs' challenge was based on federal appropriations law, which applies to the District government, and the First Amendment. Without addressing the District of Columbia personnel regulation on which Director Collier-Montgomery's June 16, 2000 order relies, the trial court in Common Cause enjoined further government expenditures for the procurement of these election materials, holding that: (1) the plaintiffs had standing to raise the challenges under appropriations law and the First Amendment; (2) the government had failed to show the existence of any appropriation authorizing the procurement of the election materials; and (3) the government's distribution of the election materials burdened the First Amendment rights of the proponents of Initiative No. 17 by "unfairly tipping the scales of the electoral balance in favor of one side of the initiative election. The government has an obligation to remain neutral and not spend public funds advocating or opposing an initiative on the ballot." Id. at 6-7.

Director Collier-Montgomery's June 16, 2000 order cites Common Cause for the above-quoted proposition, without mentioning that the legal underpinning of the trial court's decision had nothing at all to do with section 1803.1 of the District of Columbia Personnel Regulations. Furthermore, her order fails to discuss the critical factual distinction between that case and this one. This distinction is that Common Cause involved a discrete and significant expenditure to procure election materials for distribution directly to individual voters, with the potential - as in Schulz - to monopolize the marketplace of ideas, whereas this case involves no such expenditure or distribution, but rather the exercise of the Mayor's First Amendment right and duty under the Charter to advocate to the public in general on behalf of a policy change that he believes is in the best interest of District citizens.

Nor does Director Collier-Montgomery's June 12, 2000 order cite, let alone address, the decision of the United States Court of Appeals for the District of Columbia Circuit, reported at 858 F.2d 1, which affirmed the trial court's decision. The Court of Appeals' decision, which takes precedence over that of the trial court, follows a much different conceptual framework. First, the Court of Appeals refused to affirm the trial court's decision concerning the First Amendment claim (which is the only part of the trial court's decision on which the June 12, 2000 order relies), finding merely that, for purposes of federal pendent jurisdiction of the claim under local appropriations law, the First Amendment issue was not "so attenuated and unsubstantial as to be absolutely devoid of merit." Id. at 10 (internal quotation marks omitted). Indeed, the Court of Appeals found it to be significant that the plaintiffs in Common Cause "did not seek to restrict the speech of individual government officials, which would have raised standing questions similar to those posed in Doremus [v. Board of Education, 342 U.S. 429 (1952)(where the Supreme Court held that taxpayer standing must be based on a measurable expenditure of public funds and that the taxpayer plaintiffs there lacked standing because the public school teachers would be paid their salaries whether or not they read from the Bible in violation of the First Amendment)]." Id. at 8.

Second, the Court of Appeals affirmed the trial court's decision only on the ground that the challenged activity — i. e., the expenditure of approximately $7,000 to procure election materials — entailed a measurable expenditure of public funds and that it violated section 117 of the District government's fiscal year 1985 appropriations act, which prohibited the use of the fiscal year 1985 appropriations for "publicity or propaganda purposes or implementation of any policy including boycott designed to support or defeat legislation pending before Congress or any State legislature."2 Here, there is no allegation that the use of the Mayor's immediate staff to assist with and attend the June 8, 2000 press conference violated the District government's fiscal year 2000 appropriations act. Rather, the point that the government's fiscal year 2000 appropriations act was not violated apparently has been conceded because Director Collier-Montgomery's June 16, 2000 order fails to note the issue, despite the fact that the Mayor's sworn responses to the Office of Campaign Finance's interrogatories to him and his four-page cover letter forwarding the responses to Ms. Collier-Montgomery show that budget and programmatic authority exists for the activities in which his immediate staff engaged concerning the June 8, 2000 press conference. Moreover, unlike the situation that, in the view of the Court of Appeals, afforded standing to the plaintiffs in Common Cause, in this case there was no measurable expenditure of public funds associated with the preparation and holding of the June 8, 2000 press conference. In other words, based on the Court of Appeals' rationale and its discussion of Doremus v. Board of Education, supra, if the Mayor's immediate aides had not engaged in this activity, their salaries would have been paid anyway, so that no taxpayer would have standing to challenge the activity as causing a "but for" financial injury.

Finally, the conclusion that the preparation and holding of the June 8, 2000 press conference did not violate section 1803.1 of the District of Columbia Personnel Regulations 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 the Mayor's ability to communicate with the public as Mayor, using District government employees who are authorized, by program and budget, to assist him in advocating important policy positions such as school governance reform.3

Under these circumstances, and given the Mayor's Charter-based power to advocate for policy causes and to use the limited but necessary budgeted and programmed human resources of his immediate staff to assist him in this respect, section 1803.1 of the District of Columbia Personnel Regulations cannot reasonably be interpreted to prohibit the Mayor for using these resources to advocate for the proposed Charter amendment - or for any other legislative measure, whether before the Congress, the Council of the District of Columbia, or the District's voters acting on a proposed initiative or referendum. To hold, in effect, that the Mayor's exercise of these normal executive powers is unethical — as Director Collier-Montgomery's June 16, 2000 order inexplicably does - is nonsensical. Therefore, I strongly urge the Board of Elections and Ethics to overturn the June 16, 2000 order after review in this appeal. In light of the critical importance of this issue to the proper functioning of the Office of the Mayor, I also strongly urge the Board of Elections and Ethics — notwithstanding that the special election on the proposed Charter amendment already has been held - to set this matter for the filing of briefs and a formal hearing at the earliest possible opportunity.

Thank you very much for your prompt consideration of this appeal. If you have any questions, please feel free to call me at 724-1520 or Wayne Witkowski of my staff at 724-5524.

Sincerely,
Robert R. Rigsby
Corporation Counsel

RRR/wcw

Attachment

cc: Anthony A. Williams Mayor (w/ attachment)
Abdusalam H. Omer Chief of Staff (w/ attachment)
Kenneth J. McGhie General Counsel District of Columbia Board of Elections and Ethics (w/ attachment)
Cecily E. Collier-Montgomery Director Office of Campaign Finance (w/ attachment)
Kathy S. Williams General Counsel Office of Campaign Finance (w/ attachment)


1. While denying the petitioners' request for an injunction against public statements in support of the proposed Environmental Quality Bond Act by the Governor of the State of New York and other state officials under his direction or control, the Supreme Court of New York nevertheless granted the petitioners' request for an injunction against the expenditure of identifiable and substantial state funds — according to the report of the Appellate Division's opinion, 175 A.D. 356, 358, 561 N.Y.S.2d 434, 436, approximately $350,000 — for the preparation and distribution directly to individual voters of a pamphlet entitled "Proposal One* * * To Protect New York's Environment For Future Generations" and any other material containing the slogan, "Keep New York Clean and Green." Although the Supreme Court of New York cited no statutory or other legal provision to support its conclusion, the unbridled use of public resources involved in the dissemination of such material was the reason for its concern: "The government view would most always prevail if its overwhelming financial resources could be used to support issues that are in the domain of the electorate. To hold otherwise would allow State government to monopolize the marketplace of ideas and to smother opposing opinions." Id., 148 Misc.2d at 679, 561 N.Y.S.2d at 378. By contrast, here the amount of the expenditure of public funds on salaries and supplies to hold the press conference on June 8, 2000 and to provide press kits to members of the press was neither identifiable nor substantial and involved no direct pamphleteering to individual voters. Consequently, the Schulz court's concern that the government was using its overwhelming financial resources to monopolize the marketplace of ideas has no legitimate application to the June 8, 2000 press conference.

2. The Court of Appeals' conclusion that this provision of the District's fiscal year 1985 appropriations act prohibited the use of government funds to procure the approximately $7,000 worth of election materials, despite the absence of any targeted "legislation pending before Congress or any State legislature," is the minority view and contradicts the weight of other authority that has dealt with the same or similar appropriations act language. See, e.g., Office of the General Counsel, U.S. General Accounting Office, Principles of Federal Appropriations Law (2nd ed.), Vol. I (1991), pp. 4-161 through 4179 (summarizing and discussing the relevant authorities). The proper interpretation of section 117 of the District's fiscal year 1985 appropriations act is that it only barred the use of public funds to engage in publicity, propaganda, or other policy (such as boycott) to support or defeat legislation pending before Congress or any state legislature. Ibid.

3. The Office of Legal Counsel opinion recognizes that, notwithstanding the President's right to use his aides to communicate his views to the public, the federal Anti-Lobbying Act may prohibit the President from using public funds to engage in substantial "grass roots" lobbying campaigns of telegrams, letters, and other private forms of communication directed to individual members of the public and designed to encourage them to pressure members of Congress to support particular Executive Branch proposals. Id. at 8-9. This approach is consistent with that taken in Schulz, supra, and Common Cause, supra, where: (a) the courts enjoined the use of measurable and significant public funds to engage in direct advocacy with individual members of the public through pamphlets, flyers, and other written materials; and (b) the courts - whether based on substantive principles as in Schulz or on standing grounds as in Common Cause — refused to enjoin public officials from exercising their right to freedom of speech on official time where no measurable public funds were being used and the public officials' advocacy of policy positions was made to the public in general. Here, assuming that the legal principles described in Schulz, Common Cause, and the Office of Legal Counsel opinion concerning the federal Anti-Lobbying Act applied to the activities surrounding the Mayor's June 8, 2000 press conference, those activities fall well within the range of action permitted by these three decisions.

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