July 1, 2012

A Personal Note

As many of you already know, our house burned down on May 4, and it was a total loss. The good news is that Dorothy and I were out running errands when the fire started, so we were not hurt, and we had no pets in the house. Otherwise, we were left with just the clothes on our backs and our car. Our lives have been difficult and disrupted since then, but with the help of friends and the kindnesses of many strangers, we’re slowly getting things back together. We are now in a dispute with our insurance company. To help us over this period, friends have formed an emergency fund. If you want to contribute, you can read the appeal letter that they have sent at http://www.dcwatch.com/themail/2012/12-07-01a.htm. We thank the many people who have reached out to us to help.

We’re going to get themail@dcwatch.com and the DCWatch web site back up and running, but it’s going to take time. Please be patient. You can help by submitting your messages to themail@dcwatch.com, just as you have in the past, writing about your lives and neighborhoods and public affairs and events in Washington, and keeping everyone else informed.

I look forward to hearing from you.


Since we’ve been away, there have been continuing developments in the DC government. Not only has Ward 5 Councilmember Harry Thomas, Jr., resigned from office, pled guilty, and begun a jail sentence; Council Chairman Kwame Brown has resigned; and the US Attorney’s investigations of government corruption and campaign malfeasance have continued along several other lines.

Yet the politicians in this city are still not acting as though they take the culture of corruption seriously, or are seriously concerned about it, or even that they believe that it is pervasive and infects our institutions. When the city council elected Councilmember Phil Mendelson to act as its Chairman to temporarily replace Kwame Brown, Mendelson supported Councilmember Michael Brown to be the Chairman pro tempore, and the majority of the councilmembers voted for Michael Brown, insisting that they were comfortable with and approved of his ethical standards and behavior, and felt those standards and that behavior qualified him to be a leader of the council; they were furious at any councilmembers who raised issues about his fitness to serve. When the mayor appointed Michael Kelly to head the Department of Housing and Community Development, the council knew that Kelly had engaged in an extramarital affair with a female aide in his previous government position in Philadelphia, and that he had resigned after employees there had accused him of rewarding the woman with raises. Similar allegations had been raised about Kelly when he was previously head of the DC Housing Authority. Yet not a single member of the council or person in the executive branch suggested that this behavior was inappropriate for a man nominated to be one of the highest-ranking cabinet members in the District government, or questioned why he was even interviewed for the position.

When the council created a new DC Board of Ethics to duplicate and replace the former DC Board of Elections and Ethics, the mayor nominated as its new chairman a former DC Attorney General, Robert Spagnoletti, who had acted as the mayor’s personal attorney and who described his law practice as consisting of “regularly advis[ing] individuals and businesses on how to navigate a variety of legal issues through the District of Columbia government and negotiat[ing] on their behalf with District of Columbia agencies and officials.” And the council rushes to push his nomination forward, pretending that it doesn’t see any potential conflict of interest between that law practice and judging the ethical probity of other peoples’ conflicts of interest. Roderic Woodson, one of the most prominent lobbyists in DC, whose law and lobbying firm represents major clients that do business with DC Water, was nominated by Mayor Gray to be a member of the utility company’s board of directors, and only one councilmember bothered to raise a public objection over that obvious conflict of interest. Other councilmember are not concerned, and Woodson taken offense that anyone would see a conflict where he sees only his public service. Gambling, of course, presents some of the greatest opportunities for governmental corruption. Op-ed writer Colbert King continues to pursue the obvious problems posed by Ward 1 Councilember Jim Graham’s actions in strong-arming bidders for the last lottery contract (“Jim Graham and the Lottery Contract Mess,” http://tinyurl.com/7yjw48n), but he is alone, supported by no other columnist, reporter, or politician.

The politicians, particularly, are silent. It is often said that our politicians give only lip service to high standards and good government. But these days, even lip service seems to be too much to ask of them; they can’t bother to make even that effort.

Gary Imhoff


Robert Spagnoletti, Ethics and Conflicts of Interest
Dorothy Brizill, dorothy@dcwatch.com

On June 5, Mayor Gray nominated three people — Robert Spagnoletti, Deborah Lathen, and Laura Richards — to serve on the newly created Board of Ethics and Government Accountability in the District of Columbia government. In his press release, the mayor argues that “these nominees have extensive experience in law, public service and ethics as well as sterling professional and personal reputations." Since then, however, serious conflict of interest questions have been raised regarding Mr. Gray’s selection of Robert Spagnoletti to serve as a member of and chair of the Ethics Board.

Although the ethics legislation that the council adopted in January (The Board of Ethics and Government Accountability Establishment and Comprehensive Ethics Reform Emergency Amendment Act of 2012, DC Act 19-298) was not perfect, it does, in Section 103, detail the qualifications for appointment to the Board. Specifically it states, "(f)(2) When appointing and approving a member of the Ethics Board, the Mayor and Council shall consider whether the individual possesses demonstrated integrity, independence, and public credibility, and whether the individual has particular knowledge, training, or experience in government ethics or in public transparency." That same section says that an Ethics Board member shall not: "(g)(4) Be a lobbyist" or "(g)(5) Use his or her status as a member to directly or indirectly attempt to influence any decision of the District government relating to any action that is not within the Ethics Board's purview. . . ." 

While I'm concerned about all three nominations to the Ethics Board, I am particularly concerned about the selection of Robert Spagnoletti to be a member of and the chair of the board. Attorney Prior to the council vote on Spagnoletti’s nomination vote, Muriel Bowser, chair of the council’s Government Operations Committee, has asked Attorney General Irving Nathan to prepare a memorandum on the Spagnoletti nomination that, I assume, will support the position that Spagnoletti won’t have a conflict of interest. In contrast, Nathan’s former special assistant and ethics counselor, Kathleen Clark, co-authored an op-ed for the Washington Post on June 23 that “details the conflicts presented by Spagnoletti’s legal practice” (Kathleen Clark and Robert Weschler, “Already, a Conflict for the New D.C. Board of Ethics,” http://preview.tinyurl.com/7549d4k). Meanwhile, the Post has editorialized in favor of Spagnoletti’s nomination and overlooked any serious objections (“The Right Choice Monitor DC Ethics,” http://preview.tinyurl.com/6nn6pjo). Here are some of my concerns. 

1) Spagnoletti fails to realize that his current legal practice at the law firm of Schertler and Onorato is in conflict with a position on the Ethics Board. His bio, posted on his law firm's web site (www.schertlerlaw.com/attorneys/spagnoletti.php), says, "Mr. Spagnoletti regularly advises individuals and businesses on how to navigate a variety of legal issues through the District government and negotiates on their behalf with District of Columbia agencies and officials." That bio page then details nine cases or legal matters in which Spagnoletti has served as lead attorney; seven of the nine involve the District government. The situation is further compounded by the fact that the law firm is very small; it has only ten attorneys. It has eleven "practice areas" that include "government and regulatory relations." The “practice area” page of the Schertler firm's web site states: "Schertler & Onorato's government practice, led by former D.C. Attorney General Robert Spagnoletti, is often the first choice for clients. In addition to defending against criminal, traffic, and juvenile delinquency charges, our lawyers represent clients in hearings before boards, commissions, and debarment panels; handle matters before the Office of Administrative Hearings and the Department of Motor Vehicles; negotiate employment and service contracts with various agencies; represent client interests before the Council of the District of Columbia; and interpret complex District laws and regulations for clients doing business with the District. We also assist clients who have claims against the District of Columbia by negotiating with, or litigating against, the city" (www.schlertlerlaw.com/practices/government-regulatory-relations.php). 

2) In response to the issues that were raised prior to and during the confirmation hearing, Spagnoletti has attempted to address concerns about conflicts of interest in his written testimony. On page 4, he detailed three scenarios of how he would handle conflicts of interest. The third category includes, "A District employee with whom I have had a personal or professional relationship has a matter before the Board." In that case, he says that he — personally, and in his own opinion — "would make an assessment of whether I should recuse myself. . . ." He put Mayor Gray into that category. In his confirmation hearing before the city council's Government Operations Committee, he indicated that any matter involving Mayor Gray or other persons he knew would fall into that category for a brief period of time, and that, “It is likely in the short term that I would recuse myself from board matters concerning Mayor Gray.” He also said, contrary to his law firm's web site description of his practice, that he had very few cases involving the District government, but since he would not now or in the future make his client list public and since he would make his own private determination, in secret, of whether there would be any potential conflict of interest with a client or government agency, the public will not be able to determine whether there is a conflict or appearance of conflict. It should additionally be noted that this is a small, three-member board. If Mr. Spagnoletti has to recuse himself on matters involving government agencies with whom he has dealings, it could create gridlock on the Board with a potential for tied votes. 

3) On page 3 of his testimony, Spagnoletti cited four examples of issues that he claims tested the independence and integrity of the Office of the Attorney General under his leadership, between 2002 and 2006, during the Williams administration. Two of the examples he cites raise questions. The first issue is, "Prosecution of persons who had forged election petitions on behalf of Mayor Williams." Because I was one of the lead challengers to Mayor Williams’ reelection committe’s petitions before the Board of Elections in 2002, I am very familiar with the details of this matter. Following decisions striking down the petitions by both the DC Board of Elections and the DC Court of Appeals, the BOEE referred five campaign workers to the US Attorney and the Office of the DC Attorney General for prosecution. Three years later, in the summer of 2005, after Mayor Williams had declared his intention not to seek a third term, Spagnoletti's office issued arrest warrants for three circulators who had forged these fraudulent petitions. He never actually served the warrants, claiming that the Office of the Attorney General could not find the three (even though Scott Bishop, who oversaw the forgery scheme, regularly visited the Wilson Building at that time). As a result, no one affiliated with the 2002 forged petitions for Williams was ever prosecuted, and it is wrong for Spagnoletti to now claim that anyone was. The second matter he highlights to demonstrate his independence and integrity is the policy memorandum he drafted for Mayor Williams regarding same-sex marriage. After he drafted it and submitted it, it sat in Mayor Williams' drawer for the next three years, and Spagnoletti never publicly raised it or spoke out about it, even though he was an active member of the gay community. These two matters, which Spagnoletti raises in his own testimony to demonstrate his independence and integrity, demonstrate the opposite in my mind. 

4) Moreover, at Spagnoletti’s confirmation hearing he acknowledged that he had served as Gray's personal attorney, and acknowledged that he had represented Gray in the dispute with Mayor Fenty about the fence that Gray erected around his house in 2010. He also admitted, although he did not volunteer, that he had represented Gray in a contentious matter before the Office of Campaign Finance when Gray was on the city council, but he did not offer any details about that matter. Given his past history with Mayor Gray, it was not surprising that he was then appointed to be a member of a small, select group chosen to oversee Gray's mayoral transition in 2010. On the transition committee, Spagnoletti co-chaired the committee on legal and public safety matters, and focused much of his attention to preparations for the election of the District’s first Attorney General in 2014.

5) For years, Spagnoletti has actively sought appointment to a judgeship. Since the Ethics Board is starting from scratch, and needs some stability in its initial leadership, Spagnoletti needs to be pressed as regards whether or not he would leave his position on the Ethics Board if a judgeship and/or the opportunity to run as Attorney General presented itself in 2014.


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