Thank you for the information you provided under my Freedom of Information Act request. The information confirms that Councilmember Jack Evans has failed to provide Chairman Vincent Gray with a written statement detailing the reasons for his recusal on the convention center hotel financing legislation in June 2009.
As I noted in my original FOIA request (at the end of this chain of emails), D.C. law and regulations require that when a council member recuses himself because of the appearance of, or actual, conflict of interest, he must file a written statement explaining the recusal with your office, the Office of Campaign Finance and the Board of Elections and Ethics. I cited applicable portions of the law which clearly spell this out. (Please see the Addendum following this letter for some of the citations from my original FOIA application.)
Mr. Evans’s failure to file such a statement with the Chairman, along with his failure to file such a statement with the OCF and the BOEE, means — unequivocally — that Mr. Evans for more than a year has not been in compliance with the D.C. conflict of interest law and regulations contained in the D.C. Official Code and the D.C. Municipal Regulations, as well as D.C. Council Rule 202. All of these require that when a council member declares an appearance of a conflict of interest and recuses himself, he must then provide, in writing, a statement explaining the details of his recusal to the Office of Campaign Finance, the Board of Elections and Ethics and the Council Chairman.
Anticipating this would be the result of my FOIA request, the question I raised as part of my original FOIA request still stands: In the interest of the law being complied with, and in the interest of the public’s right to know, will Chairman Gray do his duty under the law and as leader of the Council and require Mr. Evans to file such a statement? That question was left unaddressed in your response to my FOIArequest, and I would like to get his response now.
Please bring this letter to Mr. Gray’s direct attention so that I can get some comment from him as to whether he will require Mr. Evans to comply with the conflict of interest law. I plan to use his response, as well as responses to the same question (if any) from the Office of Campaign Finance and Board of Elections and Ethics, for a news piece I plan to write for a local web site and as part of a news broadcast for a local radio station. And, as requested in my original FOIA filing, if Chairman Gray does take this step to require Mr. Evans to comply as the law demands, please provide me with a copy of whatever statement Mr. Evans files with the Chairman.
In a recent questionnaire for a local newspaper, Chairman Gray was asked if the D.C. government is “currently operating in an open, transparent manner?” And Chairman Gray answered: “The council is; the executive is not.” In answering a survey on government openness by several community groups, Chairman Gray stated: “As Mayor, I will ensure the District Government is open, accountable, and responsive; not hampered by efforts to withhold or delay access to public information.” Here is Chairman Gray’s opportunity to show that he will not only enforce the law when it comes to his own council members (albeit a year late), but that he can exercise the leadership to show that the council is in fact run openly regarding matters of conflict of interest.
Mr. Evans’s failure to file a written statement explaining his last-minute June 2009 recusal — on legislation which he spearheaded right up to the point of passage and which involved $272 million for a public financing package for the Marriott International convention center hotel — puts that principle of council openness in serious doubt. This situation stands out as a stark example that certain operations of the council — namely Mr. Evans’s vaguely acknowledged conflicts of interest issues — are shielded from public view.
I should note that the OCF has confirmed that Mr. Evans failed to file such a written statement with that office, too, even though he was required to do so by law. I asked the OCF general counsel on August 9 what her office planned to do about this noncompliance with the law, and she has thus far failed to respond. I will ask that office one more time before I submit anything for publication or broadcast. The Board of Elections and Ethics has failed even to respond to my FOIA request — even though the law requires it to respond within 15 working days. I have submitted followup emails to that office, but have still received no response. I will also give the BOEE one last try before submitting anything for publication or broadcast. (I will copy both of those offices on this email.) It is disheartening that so far our supposed watchdogs, our supposed enforcers of our conflict of interest laws, are remaining mute on this matter of vital public interest.
I don’t want to preach to Chairman Gray. He knows as well as I that council members and the council chairman have a special obligation to see to it that laws pertaining to themselves as council members are obeyed. I believe Chairman Gray made that point regarding the investigation into Councilmember Barry’s transgressions.
Chairman Gray also knows as well as I that when a council member recuses himself over an appearance of a conflict of interest that the citizenry wonders — and has a right to know under law and in the interests of good government — exactly what that conflict involves. This is especially the case when a private interest stands to benefit to the tune of $272 million from the city government’s largesse. This is no small matter especially since The Examiner newspaper reported on July 1, 2009 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.” See this Examiner article: D.C. tentatively OKs paying $72M more to finance convention center hotel. This matter cries out for public exposure.
Thank you again, Mr. Collins, for your attention to my FOIA request and for the information you provided to me. I now look forward to hearing what Chairman Gray intends to do.
As stated in my original FOIA request, D.C. law requires 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, Mr. Evans should have filed a written statement regarding his appearance of conflict of interest with your office, the Board of Elections and Ethics, and the Office of Campaign Finance.
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.
Several 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 again this recent Washington Post article 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 by law 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.