June 23, 2012

This month, D.C. Mayor Vincent C. Gray (D) nominated Robert Spagnoletti to lead the new Board of Ethics and Government Accountability, and the D.C. Council is poised to consider that nomination Monday.

Spagnoletti is a highly regarded lawyer who served as the District’s first attorney general and before that as a federal prosecutor. By all accounts, he is a person of integrity, and the mayor should be credited with choosing someone of Spagnoletti’s stature for this post.

But members of this board will need more than competence and personal integrity. Government ethics requires analysis of conflicts of interest; that is, situations where an official’s personal interests, or the interests of his or her family, business associates or clients, conflict with the public interest. Ethics board members especially need to be free of conflicts of interests that could make it appear that they are not acting impartially.

It is on this question that Spagnoletti may have a problem.

Some commentators have asked whether Spagnoletti has a conflict stemming from his legal representation of Gray in a controversy with the District government, regarding a fence around Gray’s home.

Of much greater concern, though, are the conflicts presented by Spagnoletti’s legal practice more generally — his representation of private parties in their disputes with the District government. According to his firm’s Web site, Spagnoletti “regularly advises individuals and businesses on how to navigate a variety of legal issues through the District of Columbia government and negotiates on their behalf with District of Columbia agencies and officials.”

An ethics law already on the books may prevent Spagnoletti from continuing this part of his legal practice if he is confirmed. A federal statute makes it a crime for a District official to represent a private party in a dispute with the D.C. government. Even if Spagnoletti were to qualify for an exception to this law, as a part-time official, a District statute mandates that government officials shall not engage in outside employment that conflicts with their official responsibilities.

Representing private parties before the District would conflict with the responsibilities of the ethics board chair. Imagine that Spagnoletti were seeking for a client a permit from an agency at the same time the agency head was before the ethics board to seek an advisory opinion or as the target of an ethics complaint. If Spagnoletti appeared to be easy on the agency head, it could be seen as a way of helping his client get the permit, thereby undermining the public’s trust in the ethics board. If he was hard on the agency head, it could harm the client’s cause.

That is a classic conflict situation, where no matter what Spagnoletti did, there would be a bad result. In fact, when any city official appeared before the ethics board, Spagnoletti would have to consider the effect of his actions on clients who might soon be seeking benefits from that official. Spagnoletti could not be or appear impartial in the way someone could who seeks no benefits from city officials. Someone divided by such a conflict could act with integrity only by withdrawing from the matter, which a chair cannot do on more than the very rare occasion.

If Spagnoletti plans to forgo his representation of clients before the D.C. government, the District will be fortunate to have him serve as ethics board chair. But if he cannot forgo that part of his practice, he cannot serve on the ethics board, and the mayor would need to find someone else free of conflicts of interest and, therefore, able to get the ethics board up and running.

Kathleen Clark served as special counsel to the attorney general of the District of Columbia and is a law professor at Washington University in St. Louis. Robert Wechsler is director of research for City Ethics Inc. and author of the book “Local Government Ethics Programs.”

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