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BEFORE THE OFFICE OF CAMPAIGN FINANCE
ORDERStatement of the CaseThis matter came before the Office of Campaign Finance (hereinafter OCF) pursuant to a referral from the Office of the Inspector General for the District of Columbia (hereinafter OIG) in a published report entitled "Report of Investigation of the Fundraising Activities of the Executive Office of the Mayor (EOM)" (hereinafter Report) (OIG Control Number 2001-0-188 (S)). In the Report, the OIG has alleged that certain current and former employees engaged in behavior that violated provisions of the District of Columbia Personnel Manual Standards Of Conduct. In the instant case, the Inspector General has alleged that Henry S. McCall (hereinafter respondent), former Deputy Chief of Staff for External Affairs in the Executive Office of the Mayor (hereinafter EOM) engaged in private or personal business activity on government time and with the use of government resources on behalf of the private, non-profit Millennium Washington Capital Bicentennial Corporation (MWCBC) in violation of §§1800.1, 1803.1(e)(f), 1803.2(a), 1803.10, 1804.1(b)(d)(e) and (i) 1805.2 and 1806.1 of the District Personnel Manual (hereinafter DPM).1 Upon OCF's evaluation of the material amassed in this inquiry, it was decided that the parameters of this inquiry extended solely to the DPM employee conduct regulations. There was not any credible evidence that the respondent committed any violations of the District of Columbia Campaign Finance Reform and Conflict of Interest Act of 1974 (the Act), as amended, D.C. Official Code §§1-1101.01 et seq. (2001 Edition). Any alleged violation of the Act by the respondent would be predicated upon the premises that respondent realized personal gain through official conduct, engaged in any activity subject to the reporting requirements and contribution limitations of the Act, or used District government resources for campaign related activities.2 See D.C. Official Code § 11106.01. Additionally, fines maybe assessed for any violation of the Act. OCF's review did not reveal any such activity.Accordingly, where a violation of the DPM employee conduct regulations has occurred, OCF is limited with respect to any action which otherwise may be ordered. Inasmuch as the DPM consists of personnel regulations, fines cannot be assessed. The Director may only recommend disciplinary action to the person responsible for enforcing the provisions of the employee conduct rules against the respondent. By letter dated August 15, 2002, OCF requested respondent to appear at a scheduled hearing on August 23, 2002. The purpose of the hearing was to show cause why the respondent should not be found in violation of the Standards of Conduct, which the respondent was alleged to have violated in the OIG Report. On August 21, 2002, by letter, respondent requested an extension for said hearing date until after September 15, 2002, which was approved. On September 19, 2002, the respondent appeared before the OCF. Summary of EvidenceThe OIG has alleged that the respondent violated the above referenced provisions of the DPM as a result of his role as a Director and President of MWCBC, which was a private, non-profit, tax exempt corporation that was used to generate funds for non-government activity. Consequently, the OIG has alleged that the respondent engaged in activity which was not compatible with the full and proper discharge of his responsibilities as a government employee and created the appearance of an impropriety. On September 19, 2002 the respondent appeared pro se before the OCF at a scheduled hearing conducted by William O. SanFord, Esq., Senior Staff Attorney. Wesley Williams, OCF Investigator, was also present. Synopsis of ProceedingsThe respondent is the former EOM Deputy Chief of Staff for External Affairs. He was employed in that position from January 1999 until he resigned in March 2000. He is not currently a District government employee. During examination by Mr. SanFord, the respondent testified that he is familiar with the DPM Standards of Conduct; and he further testified that he had read and understood the allegations against him in the Report. The respondent was asked whether he was familiar with the MWCBC and to explain his relationship to and or his involvement in the corporation. The respondent conceded that he, along with Gregory McCarthy and Marie Drissel, had served as incorporators of the entity in the fall of 1999 while they were all EOM employees. According to the respondent, he played the lead role in incorporating MWCBC and establishing the 501( c)(3) tax-exempt corporation to create a vehicle through which funds could be used to finance the District's Millennium celebration and related activities with non-taxpayer dollars. Respondent testified that Mayor Anthony Williams (hereinafter the Mayor) and his former Chief of Staff, Dr. Abdusalam Omer (hereinafter Omer) initially promised him a $500,000.00 budget, but the funding from the program was not approved by the U.S. Congress, which has oversight authority over the District budget. Respondent testified that he eventually raised approximately $1,080,000.00, including $385,000.00 from the United States White House, which he received on December 13, 1999, after Omer informed him that promised funding had not been forthcoming. Respondent consistently testified that he acted with the knowledge and consent of both the Mayor and Omer throughout the duration of his involvement with MWCBC. Specifically, the respondent stated that he was reassigned to work on MWCBC full-time by the Mayor in June or July of 1999 and transferred from his position as Deputy Chief of Staff for External Affairs. Respondent further stated that the Mayor and Omer were kept informed of all the MWCBC activity. Respondent stated that he reported to Omer on an almost daily basis and reported to the Mayor every Monday morning during Senior Staff meetings that were attended by 20-30 senior employees each week. Respondent further stated that there was never a discussion regarding whether it was appropriate for him and other government employees to work on matters involving a non-government entity because the Mayor wanted the work done and it was presumed that the activity was government activity. Respondent conceded that MWCBC employees were housed in government offices at 441 Fourth Street, N.W., and used government furnishings, equipment and supplies even though they were working on behalf of a private entity. When questioned regarding as to who arranged for the office space, furnishings, equipment and supplies for the MWCBC employees, the respondent stated that the Mayor and Omer made the arrangements. Respondent conceded that he managed the MWCBC, established three bank accounts, co-signed checks and devoted full-time work on behalf of the MWCBC while he was employed and received compensation from the District government, between June or July of 1999 until he left the government in March of 2000. Respondent also conceded that he did not deposit any of the MWCBC funds into government accounts. Respondent corroborated Gregory McCarthy's contention that he was never a signatory on any of the MWCBC accounts.3 Respondent stated that when MWCBC's funding was not approved by the United States Congress, Omer arranged for a loan in the amount of $175,000.00 from the Washington Convention Center as "bridge funds" to keep the effort going. Respondent did not provide any details on how the transaction occurred.Respondent emphatically stated that he made no decisions without the consent of his superiors namely the Mayor and Omer, he raised funds for the MWCBC pursuant to requests by the Mayor, and reported to the Mayor and Omer on a consistent basis. Respondent denied that he knowingly violated the Standards of Conduct and attributed his activity to performing assignments from his superiors. Respondent additionally stated that at no time was he informed nor did he have any reason to believe that the activity in which he engaged was inappropriate in any regard. Findings of FactHaving reviewed the allegations and the record herein:
RecommendationHad Henry S. McCall remained an employee, it would have been my recommendation that the Director advise the Mayor of the District of Columbia to take disciplinary action against Henry S. McCall based upon his violations of the Standards of Conduct to include a change in his assigned duties, corrective or adverse action, his disqualification for a particular assignment, pursuant to DPM § 1801.2, or his removal from District government service. It should be noted that prior to the issuance of the Report, the Mayor appointed an EOM Ethics Counselor and scheduled meetings and workshops to inform and clarify each staff member as to the provisions and prohibitions of the Standards of Conduct. Because Henry S. McCall is no longer a District government employee, and, because the Mayor of the District of Columbia has taken steps to definitively and thoroughly inform each staff member as to provisions and prohibitions of the Standards of Conduct, I hereby recommend that the Director advise the Mayor to be always cognizant of this responsibility. 10/29/02 Kathy S. Williams ORDER OF THE DIRECTORThe circumstances surrounding the instant misconduct involved an employee who believed that his conduct was within the parameters of his job description. But, Henry S. McCall is no longer a District government employee, and, the Mayor has taken appropriate measures, by appointing an EOM Ethics Counselor and conducting extensive workshops, to apprise and reapprise his staff of the provisions and prohibitions of the Standards of Conduct. Thus, the Mayor has taken appropriate measures to ensure the integrity of government. I advise the Mayor to remain ever vigilant in this regard.This Order may be appealed to the Board of Elections and Ethics Within 15 days from issuance. 10/29/02Date Cecily E. Collier-Montgomery Parties Served: Henry S. McCall Inspector General Office of the Inspector General 717 14th Street, N. W., 5th Floor Washington, D.C. 20005 SERVICE OF ORDERThis is to certify that I have served a true copy of the foregoing order.S. Wesley Williams NOTICEPursuant to 3 DCMR § 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 a check or money order payable to the D.C. Treasurer, c/o Office of Campaign Finance, Suite 420, 2000 14th Street, NW, Washington, D.C. 20009._______________ 1. DPM § 1800.1 reads as follows:DPM § 1803.1 (e) and (f) read as follows: DPM § 1803.2(A) reads as follows: DPM § 1803.10 reads as follows: DPM §§ 1804.1(b), (d), (e), and (i) read as follows: DPM § 1805.2 reads as follows: DPM § 1806.1 reads as follows:
2. D.C. Law 14-36, "Campaign Finance Amendment Act of 2001," effective October 13, 2001, prohibits the use of District government resources for campaign related activities. 3. Gregory McCarthy (hereinafter McCarthy) is currently EOM Deputy Chief of Staff for Policy and Legislative Affairs. From January 1999 until August 2001, he was EOM Director of Policy Evaluation. The OIG also alleged that McCarthy violated the above referenced provisions of the DPM as a result of his role as a director for MWCBC. The OCF Director agreed and advised the Mayor, by Order, to warn McCarthy as to his prohibitive conduct; and to ensure that McCarthy participates in scheduled meetings and workshops to become closely familiar with the provisions and prohibitions of the DPM Standards of Conduct. |
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