Too Cute by Half

Dear Judges and Juries:

Today’s editorial in The Washington Post, http://tinyurl.com/4yx2uyv, describes the money pit that Councilmember Harry Thomas, Jr., has dug for himself, and the fantastic plan that two of his legal advisors have devised to get him (and them) out of it. Councilmember Thomas has already paid the DC government the first fifty thousand dollars of the settlement agreement that he signed with the DC Attorney General, and he has obligated himself to pay the two hundred fifty thousand dollars left in five more installments over the next two and a half years. Councilmember Thomas has not revealed the source of the funds that he used to repay the first fifty thousand dollars, or where he plans to get the additional quarter million dollars to repay the rest.

In addition, by the end of this affair — not only the civil action brought by the DC Attorney General but also the criminal charges pending from the US Attorney — the councilmember will have legal bills that will far exceed the money that he will have to repay the government for the misappropriated funds. Councilmember Thomas’ primary attorney has been Frederick Cooke; the settlement agreement with the Attorney General revealed that he has also engaged Abbe Lowell; and today’s editorial revealed that he has also engaged John Ray as a third attorney. The expenses of this very costly legal team will mount up quickly into the hundreds of thousands of dollars. On July 25, Freeman Klopott reported in The Washington Examiner (http://washingtonexaminer.com/local/dc/2011/07/legal-defense-fund-being-set-thomas) that Cooke and Ray planned to set up a legal defense fund for Thomas, assumedly to pay both his settlement costs and his legal fees, that would supposedly be operated as a blind trust.

The Post editorial today has a fuller description: “John Ray, a former council member who is one of Mr. Thomas’s attorneys, said a legal defense fund is being established. Mr. Ray told us Monday that no money has yet been raised but a trust is being created with an appointed trustee who would collect and disburse funds without the knowledge or involvement of Mr. Thomas. Mr. Ray said he didn’t know the answers to our questions about permissible uses of the money, limits on contributions, or disclosure of donors. He referred us to Frederick D. Cooke, Jr., another of Mr. Thomas’s attorneys, who declined to discuss the fund. It’s unclear what laws or rules would apply to this fund. No one from the Office of Campaign Finance, the DC attorney general’s office, or the general counsel for the DC council was willing to discuss the issue. Multiple local and federal statutes and rules apply to gifts to public officials, depending upon the circumstances, and DC law has strict restrictions on gifts from registered lobbyists (a designation that applies to Mr. Ray and Mr. Cooke).”

Let us answer some of the Post’s questions, and give some reasons why Ray’s and Cooke’s scheme is illegal in itself. First, as the editorial points out, both Fred Cooke and John Ray are registered lobbyists with the District of Columbia government, and Ray is involved as a lobbyist with Councilmember Thomas on several issues, both in Ward 5 and citywide. DC Code Sec. 1-1105.06(a) says that, “No registrant [lobbyist] or anyone acting on behalf of a registrant shall offer, give, or cause to be given a gift to an official in the legislative or executive branch or a member of his or her staff, that exceeds $100 in value in the aggregate in any calendar year.” DC Code Sec. 1-1105.06(b) says, “No official in the legislative or executive branch or a member of his or her staff shall solicit or accept anything of value in violation of subsection (a) of this section.” These provisions absolutely prevent Cooke and Ray, as lobbyists, from setting up such a legal defense fund, even if they name a third person as a beard to act as the titular head of such a fund, and they prevent Thomas from accepting the proceeds of such a fund.

Thomas, Cooke, and Ray also appear to believe that they could establish such a fund and not report the source and amount of such funds — that they can create the legal defense fund as a “blind” trust and not have to disclose the donors and amounts if they don’t inform Thomas of them. That’s not true. Any donations to such a fund would be gifts to Thomas, since they would be paying his legal obligations to the DC government and Thomas’ attorneys. (DC Code Sec. 1-1106.02 defines “gift” as “a payment, subscription, advance, forbearance, rendering or deposit of money, services or anything of value. . . .”) As an elected official in the District of Columbia, Harry Thomas is required to file both an annual financial disclosure statement (FDS) and an honoraria and outside income disclosure statement (HOIDS) with the Office of Campaign Finance. On these two forms, he has to disclose the source and amount of all outside income, any honoraria earned, all outside liabilities borrowed exceeding one thousand dollars, and all gifts received exceeding one hundred dollars in a calendar year. Thomas must report any contributions to a legal defense fund specifically. He cannot avoid the requirement by reporting them as anonymous gifts in unknown amounts. In addition, the city council’s Code of Official Conduct, adopted following the recent controversy over Councilmember Marion Barry’s abuse of earmarks, states that, “Councilmembers shall not ask for or accept, either directly or through someone else, any gift, gratuity, favor, loan, entertainment, or anything of value from a person who has or is seeking a contract with the District of Columbia, is regulated by the District; or has any interest that may be affected by the Councilmember’s performance of official duties.” That rule prohibits practically anyone who has any reason to donate to Councilmember Thomas’ legal defense fund from donating to it.

There is one alternative, of course, that makes all of these legal restrictions irrelevant. Cooke and Ray could set up a legal defense fund for Thomas, anyone could donate any amount to it, and donations would not ever have to be reported. All that would have to happen first is that Councilmember Thomas would have to resign his office, and not be an elected official of the District of Columbia.

Gary Imhoff, themail@dcwatch.com
Dorothy Brizill, dorothy@dcwatch.com

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DC’s Counterproductive Parking Meter Policies
Gabe Goldberg, gabe at gabegold dot com

We all know DC recently changed parking meter policies — more meters run weekdays until 10:00 p.m. and on Saturdays. But meters that have two-hour limits keep those same limits in the evening. So places that used to be good for evening activity parking — on E Street, for example, where meters only ran until 6:30 p.m. — are useless for evening activities because even though you’re allowed to feed the meter and stay beyond two hours, you have to return to the meter to do it. So if you’re going to a meeting, or a restaurant or theater, you can’t park there.

I don’t mind paying meters, even at the eight quarters per hour rate. But regulations have gotten so confusing, including conflicts between meters and signs, and signposts with four signs listing varying regulations by day and time, that trying to park safely legally is a challenge.

I wonder whether this is all simple incompetence in administering meters, or whether the goal is making parking harder. Or, of course, enhancing revenue by confusing people about when to park and pay. That might benefit the city’s garage industry, but it can’t be good for DC business if people start wondering whether it’s worth the hassle to come into the city. Don’t suggest Metro; I’m not close enough to a stop for that to be useful.

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Recall the Government
Harold Foster, Petworth, incanato@earthlink.net

I will shock you all with an ultra-short post this time. Are any of the rest of you sick and tired enough of the current governmental arrangements to be ready to talk about rather radically restructuring District government? What am I talking about this time?

Well. For one thing: instead of individual recall elections, how about a no confidence ballot that, in effect, would allow the electors of this city to recall the entire council at one time? Or something similar for the mayor? As with the current restriction on individual recall ballots, there could or should be at least one calendar — or fiscal — year before a recall like this could be scheduled. And recalls would continue to be prohibited during the last calendar year before a regularly scheduled general election in the city.

If the entire council is recalled, it would trigger a new election within, say, forty-five to sixty days. And, of course, the councilmembers deserving of reelection would most likely be reelected. It sort of creates a semi-parliamentary system here, whereby an elected government could, in a sense, fall. That said, I would point out that there is, in fact, a precedent right here in North America. Both before and immediately after the War of Independence, electors could formally “instruct” their representatives in state legislatures, the Continental Congress and, initially, the US Congress right after the Constitution was ratified. And representatives who did not follow those formal instructions could be recalled. So it is not as if this idea is all that alien to these shores. And, anyway: considering the current alternatives, how bad would that be? Just another thought to get us all capital-t thinking.

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Passing of Community Activist Dave McIntire
Phil Shapiro, pshapiro@his.com

Longtime Columbia Heights community activist Dave McIntire passed unexpectedly from a brain bleed on July 6. [See the message from Elizabeth McIntire in themail, July 24]. Those of us who knew Dave cherished him for his love of community, his smarts, his quirky sense of humor, his love of diversity.

In the mid-1990’s Dave set up one of the first neighborhood web sites in the nation, the Columbia Heights web site, at http://innercity.org. One of the things I admired most about Dave was his willingness to help others. At the drop of a hat he’d show up to help with community work. He will be missed.

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