July 19, 2010

Vincent C. Gray, Chairman
Council of the District of Columbia
John A. Wilson Building
1350 Pennsylvania Avenue, N.W.
Suite 504
Washington, DC 20004

D.C. FREEDOM OF INFORMATION ACT REQUEST

Dear Chairman Gray:

Pursuant to the provisions of the District of Columbia Freedom of Information Act, I request that you provide me with a copy of a statement of an appearance of conflict of interest and recusal by Councilmember Jack Evans pertaining to the $272 million public financing package for the Marriott International convention center hotel. This statement should have been filed sometime in late June or early July 2009, as required by the D.C. Municipal Regulations regarding potential conflicts of interest by councilmembers and other D.C. public officials (Title 3, Chapter 33, “Elections and Ethics Conflict of  Interest and Use of Government Resources for Campaign-Related Purposes,” Rule 3300, 3301, 3302, 3303, 3304, 3305).

I say, “should have been filed” because last July 1, 2009, The Examiner newspaper reported that Mr. Evans recused himself the day before from the final vote on the public subsidy for the convention center hotel “because his law firm, Patton Boggs, represents Marriott.” LINK TO EXAMINER  ARTICLE: http://www.washingtonexaminer.com/local/D_C_-tentatively-OKs-paying-_72M-more-to-finance-convention-center-hotel-7903531-49548487.html

Just a few days earlier, on June 26, 2009, Evans, as chairman of the Committee and Finance and Revenue. had submitted a report to all council members on Bill 18-310, the “New Convention Center Hotel Amendment Act of 2009.” In that report, Evans, who had been actively involved in every step of bringing this bill to a final vote and had theretofore mentioned nothing about any possible conflict, said he was recusing himself  “from the consideration of this measure in order to avoid the appearance of a conflict of interest.” He offered no further explanation of his late-stage recusal in his committee report to council members, nor did he explain how this appearance of a conflict had only developed at the last moment.

D.C. conflict of interest law and regulations require that when a council member or other public official recuses himself because of a potential or actual conflict of interest, “that public official shall prepare a written statement describing the following: (a) The matter requiring action or decision, and (b) The nature of the potential conflict of interest with respect to such action or decision.” (The language quoted is from Rule 3303.1.)

Rule 3303.2 requires that the public official “shall deliver a copy of the statement to the following: (a) The Board of Elections and Ethics, in care of General Counsel; (b) The Director of the Office of Campaign Finance; and (c) The immediate superior…of the public official.”

Rule 3303.3 states that a council member’s immediate superior is the “Chairman of the Council.”

Thus, if Mr. Evans complied with the conflict of interest laws and regulations when he recused himself June 30, 2009, he should have filed a written statement regarding same with your office, the Board of Elections and Ethics, and the Office of Campaign Finance. (I intend to make separate requests for the same statement from the BOEE and the OCF, and have copied them on this FOIA request to you.) It is that written statement of which I am seeking a copy under the D.C. Freedom of Information Act.

If Mr. Evans, in fact, provided your office with such a written statement, Rule 3304.1(a) requires you, as his superior, to “Cause the statement to be printed in the record of the proceedings of the body of which the person is a member or employee.” If, in fact, such a statement was submitted by Mr. Evans and if, in fact, it was published in the record of the Council proceedings, please provide me with a copy of that document and a link to where it was published.

If such a statement was not provided to you, I would ask that you take the appropriate steps to obtain such a statement from Mr. Evans and, once it is in hand, to provide me with a copy of it under the D.C. Freedom of Information Act.

Additionally, Chairman Gray, I would point out that Mr. Evans, despite his recusal and acknowledgement of a potential conflict of interest, continued in the months that followed that action to be actively involved in bringing the stalled convention center hotel deal to completion. Numerous news article earlier this year and more recently have reported that Mr. Evans and D.C. Attorney General Peter J. Nickles were closely involved in apparently successful behind-the-scenes negotiations to settle a legal dispute between Marriott and JBG Cos. — a dispute that was blocking completion of the convention hotel deal. (See this most recent article at http://www.washingtonpost.com/wp-dyn/content/article/2010/07/06/AR2010070605056.html about Mr. Evans’s role in helping the contending parties reach an agreement in principle to settle the dispute.)

Section 3302.1 requires that a public official, “when confronted with a conflict or potential conflict of interest…shall remove himself or herself from influence over actions and decisions on the matter on which there is a conflict or potential conflict.” This shift by Mr. Evans to a non-recusal posture after his earlier declaration of recusal would appear to be contrary to what the conflict of interest law and regulations require. Namely, that once Mr. Evans declared a potential conflict of interest, he was obligated to completely remove himself from further “influence over actions” on the Marriott-related matter — and not engage in behind-the-scenes activities that continue to create the appearance of a conflict of interest.

I look forward to a response from your office within 15 business days as required under the D.C. Freedom of Information Act. Thank you for your prompt attention to this matter.

Sincerely,

John Hanrahan

cc: Kenneth J. McGhie, general counsel, D.C. Board of Elections and Ethics
Cecily E. Collier-Montgomery, director, Office of Campaign Finance
Kathy S. Williams, general counsel, Office of Campaign Finance
Brian J. Flowers, general counsel, Council of the District of Columbia