D.C. Council member Jim Graham has lost his effort to reverse an ethics ruling that resulted in a reprimand from his colleagues.
A Superior Court judge ruled Wednesday that the Board of Ethics and Government Accountability was within its rights by issuing a February opinion that was critical of Graham’s conduct while declining to sanction him. The council proceeded to formally reprimand Graham later that month, stripping him of his oversight of liquor licensing.
Graham (D-Ward 1) claimed the board violated his constitutional due process rights and provisions of District law by not giving him an opportunity to personally defend himself before issuing its critical opinion. If the board is going to say publicly it had enough evidence to proceed to a formal investigation and possible sanctions, Graham argued, he should have be given the self-defense rights afforded to the subject of a formal investigation.
Judge Anthony C. Epstein, who had previously rejected Graham’s request for a temporary restraining order against the board, ruled otherwise: “If an agency concludes that the evidence is stronger than necessary to justify a formal investigation, it is entitled to say so – and to do so without affording the subject more process than he would otherwise be entitled to at this early stage of the case.”
Epstein said the right to self-defense is guaranteed because it would be otherwise unfair to impose sanctions, “not because [the board's] ability to characterize the strength of the evidence in preliminary investigations should be limited.” Further, Epstein found, the damage to Graham’s reputation the opinion may have caused did not entitle him to the due process afforded under the constitution to losses of “life, liberty, or property.”
Graham, who could take the matter to the D.C. Court of Appeals, said in a statement he would “respect” Epstein’s decision. He added: “I hope in the future that BEGA will permit a person the opportunity to be heard and confront the evidence, before issuing conclusions and findings. It is only fair.”
The ethics ruling and reprimand concerned Graham’s activity in 2008, while he was also a member of the Metro board of directors. The ethics board found “substantial evidence” Graham had suggested a businessman, Warren Williams Jr., withdraw from a Metro land deal in return for Graham’s support on an unrelated contract, thus breaking the city’s code of employee conduct.
Darrin Sobin, director of government ethics, said he was “very pleased” with the ruling.
More broadly, Epstein’s ruling represents a major victory for the young ethics board and its powers to hold public officials accountable. In a footnote, Epstein said administrative bodies like the ethics board have wide latitude to express their opinions outside of formal sanctions, saying they “can, and often should, conduct investigations, make findings, and issue advisory opinions even if they do not intend to take action against any particular individual.”
The board, he found, “had legitimate reasons to make findings concerning Mr. Graham‟s conduct, for example, in order to decide whether or to what extent additional training was warranted or new ethics guidance or rules were needed for Councilmembers.”