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CITY COUNCIL’S ATTEMPT TO DEAL WITH ETHICS REFORM HAS TOO MANY FLAWS

This month our city council is grappling with what it believes will solve a whole host of ethics in government problems, the “Board of Ethics and Government Accountability Establishment and Comprehensive Ethics Reform Amendment Act of 2011,” introduced by Ward 4 Councilmember Muriel Bowser on behalf of the Committee on Government Operations which she chairs.

At the outset it contains an especially major flaw that has already been pointed out by many, including the editors of DC Watch’s TheMail, who wrote in their November 30th edition the following critique:

“The centerpiece of [the] bill is a newly created Board of Ethics and Government Accountability, which duplicates the current duties of the Board of Elections and Ethics and significantly reduces [its] duties, responsibility, and authority . . . . [The] bill will cripple the BOEE and reduce its members to glorified clerks, responsible for nothing more than registering voters and counting their votes.”

And earlier, in the November 20th edition of TheMail, the editors had this to say:

“Bowser’s proposal . . . tries to address the public concerns about corruption by creating an unnecessary, duplicative bureaucratic entity, the ‘Board of Ethics and Government Accountability.’ The new board would have some of the same duties and responsibilities as the current Board of Elections and Ethics and Office of Campaign Finance, and would essentially rearrange the deck chairs by adding new officials, appointed by the mayor and confirmed by the councilmembers, to oversee the mayor and the council. It’s an effective solution to the problem only if you believe that the problem is how to punt the ball until the public forgets about the current rash of scandals. Otherwise, it’s a near-total disappointment.”

We are in agreement with this sentiment.

But there are many other flaws with this bill, which is expected to receive its final vote at the council’s session of 2011, on December 20th. (Preliminary approval was voted on at first reading on the 6th.) These flaws were thoroughly presented to the government operations committee at its November 30th hearing by Arthur B. Spitzer, the legal director of the American Civil Liberties Union of the Nation’s Capital. We commend our readers to read his testimony with its succinct legal analysis supporting his several points of objection; the document is conveniently available on the DC Watch website at http://tinyurl.com/7p86nrg.

One problem that Spitzer discussed seemed to us to perfectly illustrate the impractical –- actually, objectionable –- overreach that if allowed to be retained will generate such an array of (presumably) unintended consequences that the whole house of cards will collapse in utter chaos. We are referring to the issue of privacy that Spitzer has so eloquently raised. In introducing his concerns, Spitzer rightly stated that “the broad invasions of privacy that the . . .  bill would mandate may be our most serious objection.”

“Existing law,” Spitzer stated, [already] requires the filing of non-public financial disclosure reports by a relatively limited number of officials and employees.” Continuing, he observed that the “bill would radically change this system in three ways. First, it would greatly expand the category of DC employees required to file financial disclosure reports. Second, it would greatly expand the scope of the information required to be disclosed. And third, it would make these reports public” –- meaning available for inspection by any curious person.

Now, while we are strong advocates of transparency when it comes to the acts of government agencies and their bureaucrats, we do not advocate an unfettered right of the public to inspect the purely private, non-governmental aspects, of the lives of government employees.

And, here’s where things go haywire. Given that “public official” is so broadly defined in the bill, the ACLU’s Spitzer rightly objected to an unreasonable invasion of personal privacy, as follows:

“It would be one thing to require public disclosure of major financial interests by high-level officials who make major decisions for the District, but it’s a very different thing to require public disclosure of even quite minor financial interests by possibly thousands of employees at levels down to those who merely [as stated in the bill] ‘participate substantially’ in most areas of government regulation. A person’s entire financial life — and that of his or her spouse — does not become the public’s business simply because the person has a job that involves, for example, inspecting fire hydrants or issuing vending licenses.”

“It is not the public’s business,” Spitzer concluded “– or the District of Columbia’s business as an employer — to know all of an employee’s connections to any and every non-profit organization, much less the connections of the employee’s spouse, domestic partner, or dependent children. If an employee is a deacon at a gay church, or a volunteer with a pro-choice or right-to-life organization, or if an employee’s spouse is a consultant to the National Rifle Association or Emily’s List, or if a dependant child volunteers with a “Ron Paul for president” organization, there is no justification for forcing such affiliations into public view at least not absent a business connection to the District of Columbia government that would involve the employee’s job. The [U.S.] Supreme Court has repeatedly rejected government attempts to pry into such affiliations.”

We rest our case.