May 13, 2013

METRO’S BOARD of directors has pretty much told D.C. Council member Jim Graham (D-Ward 1) he’s on his own in defending against a lawsuit brought over events that occurred while he was on the board. The board was well within its rights in determining Mr. Graham’s inappropriate actions at the center of the suit were outside the scope of his duties and thus not subject to indemnification. But Metro can’t so easily distance itself from its own culpability in enabling Mr. Graham’s questionable conduct.

Mr. Graham had sought reimbursement for legal fees and any judgment resulting from a real estate company’s federal lawsuit against him, Metro and another developer. Banneker Ventures is seeking $100 million in damages for what it alleges was Mr. Graham’s improper interference dating to 2008 with its plans to develop Metro-owned land on Florida Avenue NW.

William W. Taylor, Mr. Graham’s attorney, said the decision, which he called “very disappointing,” was without basis and wondered what message the unusual rejection might send to those thinking about service on the board. He said Mr. Graham has done nothing wrong and will evaluate his options.

As they voted Thursday 6 to 2 to deny the request, board members acknowledged the importance of indemnification — with which we agree — in allowing public officials to vigorously undertake their duties and make decisions without the fear of litigation that holds them personally liable. They worried about sending a signal that might discourage people from public service.

But they concluded they had no choice but to say no to Mr. Graham because at issue was behavior — direct and unilateral engagement with developers, trying to leverage one interest against another — that went beyond the scope of his duties. Moreover, those actions — as determined by an independent investigation commissioned by the board and separately ratified by two other entities (including the D.C. Council) — violated the board’s code of conduct.

It’s hard to fault the board’s reasoning. We believe it struggled with a decision that was probably personally hard for many. But we wish Metro had taken an earlier interest in these matters, investigating concerns when they were first raised by a Banneker attorney in 2010, rather than looking the other way. And we have to wonder if Metro also potentially being on the hook in the lawsuit had anything to do with this dramatic decision to separate itself from Mr. Graham.