Office of Campaign Finance Brief in reply to
Mayor Williams’s Appeal
August 9, 2000

IN THE DISTRICT OF COLUMBIA BOARD OF ELECTIONS AND ETHICS
441 4th STREET N. W.
WASHINGTON, D. C. 20001

IN THE MATTER OF Anthony A. Williams Mayor

DOCKET NO.:

BRIEF ON BEHALF OF DISTRICT OF COLUMBIA OFFICE OF CAMPAIGN FINANCE

INTRODUCTION

On June 16, 2000, the Office of Campaign Finance (OCF) decided that a press conference held by Mayor Williams on June 8, 2000 was a government sponsored activity designed to promote voter ratification of "The School Governance Amendment Act of 2000" (Charter Amendment). As such, OCF ruled that the ". . .activity ran afoul... of the District of Columbia Personnel Regulations [(Standards of Conduct)] 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." In the Matter of Anthony A. Williams, Mayor, OCF Docket No. MUR 00-01 (June 16, 2000) (Order). Contrary to that asserted by the Office of the Corporation Counsel on behalf of Mayor Anthony Williams (OCC), OCF acknowledges that Mayor Williams may express his view on a ballot measure, and that the public is entitled to know that view, but Mayor Williams may not use government resources to tell people how to vote.

STATEMENT OF FACTS

OCF does not object to the Statement of Facts as presented by OCC, but presents the following clarifying facts for the record.

Mayor Anthony A. Williams is an employee of the District of Columbia. See Order at Attachment E. 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 Order at Memorandum at Attachments D & E.

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.

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 Order at Answer to Interrogatory No. 1 at Attachment E. Further 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 Order at Answer to Interrogatory No. 2 at Attachment E.

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 Order at Answer to Interrogatory No. 7 at Attachment E. 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 Order at Answer to Interrogatory No. 1 at Attachment E.

ARGUMENT

OCC misconstrues the OCF ruling. OCF determined that "[b]y 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 Williams, at the least, created the appearance of 'affecting adversely the confidence of the public in the integrity of the government'; and violated the Standards of Conduct." Order at p. 8. Quite the opposite from that presented by OCC, the OCF ruling does not prohibit Mayor Williams from holding ". . .a press conference in his official capacity and [using] the limited resources of his Office to address issues of interest and concern to the electorate."

The operative event in this matter is the June 27, 2000 election on the matter of a Charter Amendment. More importantly, the operative issue in this matter is Mayor Williams' conduct with respect thereto. From the onset, OCC ignores both the event and the issue.

To wit, OCC primarily relies upon a memorandum construing the federal Anti-Lobbying Act, 18 U.S.C. §1913, prepared by the Office of Legal Counsel (OLC) of the United States Department of Justice for the proposition that a chief executive has the right to communicate views to the public and to use appropriate aides and resources in doing so. See Brief on Behalf of Anthony A. Williams, Mayor (Brief) at 7-9. The contents of this memorandum have no bearing on the instant matter. Specifically, the memorandum is inapplicable because it does not concern the subject scenario: the chief executive's communication and use of government resources to influence a pending election on a ballot measure. Significantly, the OLC Memorandum on lobbying is not on point with "lobbying" as practiced in the District of Columbia. OCF states in its Order:

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.'

By definition, one cannot "lobby" the electorate in the District of Columbia with regard to a legislative measure. Id. On the contrary, such activity, when applied to the electorate is "campaigning." OCF further states in its Order:

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) at 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.'

The Mayor believed that the use of the resources of his office as Mayor to support the proposed Charter Amendment, was consistent with the Opinion of the Office of the Corporation Counsel dated May 25, 2000. See Order at Attachment A. The Office reached several conclusions concerning the use of government employees for "lobbying" activities related to the Charter Amendment. Of relevance, the Office stated:

"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.

"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."

OCF disagreed that because the purpose of the school governance referendum was to amend the District Charter, the public could be viewed as the legislative body, and thus, those employees who would normally lobby the Council could lobby the public on the issue. 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.

OCC wrongly states that the cases cited by OCF do not support its Order. For example, OCF relied upon District of Columbia Common Cause v. The District of Columbia and David Rivers, No. 85-3528 (D.D.C. October 21, 1986) (Common Cause I), for the premise that government's use of government resources to promote the defeat of a ballot question is misconduct. The court stated that the "government has an obligation to remain neutral and not spend public funds advocating or opposing an initiative on the ballot."

OCC asserts that Common Cause I is concerned with both constitutional and appropriations issues, and avows that, upon appeal, ". . .the D.C. Circuit refused to affirm the decision on plaintiffs' First Amendment claim[.]" Brief at 10 citing District of Columbia Common Cause, et al. v. The District of Columbia, et al., 858 F.2d 1 (D.C. Cir. 1988) (Common Cause II). The Court recognized, however, that ". . .the First Amendment claim was not so attenuated and unsubstantial as to be absolutely devoid of merit." Id. On the contrary, the Court simply declined to address the First Amendment argument, because it concluded that the appellees must prevail on the pendent claim.

In a like manner, OCC attempts to distinguish 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 Dep't 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). He states that the court ". . .made clear that it was concerned about the seemingly unbridled use of government funds in the election process[.]" In this case, e. 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. That .unbridled use" of public funds could not be used to attempt to persuade the electorate either to approve or disapprove the bond issue. Notably, 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.

Similarly, in Stern, et al v. Kramarsky, 84 Misc. 2d 447, 375 N.Y.S. 2d 235 (ICY. Sup. Ct. 1975), an organization of women's groups united to defeat what was known as the Equal Rights Amendment, and other plaintiffs, sought to enjoin the state's Division of Human Rights from supporting the passage thereof. The Court granted the injunction and stated, "Improper expenditure of funds, whether directly through promotional and advertising activities or indirectly through the use of government employees or facilities cannot be tolerated." Id., at 239. The Court added, "No agency may misuse any such funds for promoting its own opinions, whims or beliefs, irrespective of the high ideals or worthy cause it espouses, promotes or promulgates." Id. Moreover, the Court pronounced, "The spectacle of State agencies campaigning for or against propositions or proposed constitutional amendments to be voted on by the public, albeit perhaps well-motivated, can only demean the democratic process." Id.

The rule that partisan campaigning by governmental entities is antithetical to democratic values has been accepted in other jurisdictions. See "Contemplating the Dilemma of Government as Speaker: Judicially Identified Limits on Government Speech in the Context of Carter v. City of Las Cruces," 27 N.M.L.Rev. 517 (Summer 1997), citing Anderson. et al. v. City of Boston et al., 376 Mass. 178, 380 N.E.2d 628 (Mass. 1978); Burt, et al. v. Blumenauer, et. al., 299 Ore. 55, 699 P. 2d 168 (Ore. 1985).

OCC claims that the Mayor was simply holding a routine press conference on June 8, 2000, wherein, in accordance with standard practice, he distributed a "press kit," which "was prepared by government employees using government equipment and supplies," is untenable. See Brief. First, the event on June 8, 2000 was not a press conference. According to his release on District of Columbia Government stationery headed "Executive Office of the Mayor," Mayor Williams joined other city leaders ". . .to launch the `Yes on June 27th' campaign." See Order at Attachment E. Moreover, the release referred to the June 8, 2000, occasion as "the launch event." Id. Second, within the "press kit," were pages documents unequivocally urging the voters of the District of Columbia to "vote yes" on the Charter Amendment. Id. The event of June 8, 2000 was not a press conference; the event of June 8, 2000 was a political campaign initiated by Mayor Williams for an affirmative vote for the Charter Amendment.

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. See Order.

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(f) 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.

As shown, the Mayor 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; although 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.

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, the Mayor, 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.

CONCLUSION

OCF did not err in its ruling. As the agency entrusted with enforcement of the Standards of Conduct against Mayor Williams, OCF properly ordered 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. Mayor Williams' activities constitute misconduct because he used government resources to campaign to urge the electorate to vote in a specific way, thereby removing neutrality and impartiality from the presentation of this issue. As such, he created the appearance of "affecting adversely the confidence of the public in the integrity of government"; and violated the Standards of Conduct.

Simply stated OCF did not seek to prevent the Mayor from expressing his view on the Charter Amendment. OCF did, however, take action to prevent the Mayor from telling the electorate how to vote on the Charter Amendment.

Respectfully submitted,

Cecily E. Collier-Montgomery
Director

Kathy S. Williams
General Counsel