October 26, 2012

MEMBERS OF the D.C. Council who misbehave — an occurrence that’s sadly not outside the norm — may continue in public office as long as they are able to physically do the job (i.e., they are not in jail). Short of recall by voters or a plea deal that mandates resignation, they can’t be dislodged. It’s a hole in city law that was highlighted by the recent misdeeds of two now-former council members. Depending upon the outcome of ongoing federal investigations, it could come into play again.

Three measures seeking to address this issue, the result of the council’s overhaul of city ethics policies last year, will appear on the ballot Nov. 6; the changes would amend the city charter and require voter approval.

D.C. residents should vote yes on Charter V, an amendment that would allow the council to expel a member found guilty of gross misconduct. In the past, council members have dodged the ethical transgressions of colleagues by pointing to the body’s inability to take action. Individual calls for resignation, even collective censure like the one issued to council member Marion Barry (D-Ward 8), are insufficient. Most legislative bodies, including Congress, have the means to hold members to account. Charter V would allow expulsion of a member for gross misconduct upon a five-sixths vote of its members. Getting 11 of 13 members is a high bar; a two-thirds majority might have been preferable. But the measure is a step in the right direction.

Charter amendments VI and VII deal with the disqualification from office of those convicted of felonies. They are problematic because of confusion about what the council intended and disagreement about what they would accomplish. Accordingly, we urge the council to withdraw the questions via a process in which the Board of Elections would make a public notice and not tally any votes cast. Failing that, voters should vote no on Charter VI and VII questions and send the council back to the drawing board.

The amendments, as they appear on the ballot, would make anyone holding the office of council member or mayor who has been convicted of a felony ineligible to remain in office and to ever hold that office again. Note that a council member convicted of a felony is free to run for mayor (and vice versa) and that a member who resigned just before conviction, as did Harry B. Thomas Jr. and Kwame R. Brown, would be free to run again.

Council members say the Board of Elections, the independent body charged with preparing summary language, went too far afield because the council’s intent was to require the forfeiture of the office for the remainder of the term, not to foreclose the individual for all time. But election officials quite rightly argue that the council is to blame for the confusion. Not only was the language of the original legislation unclear but, as election officials and others have told us, the council chose not to take corrective action suggested by the board when it became aware of the problem during the 10-day notice period before the ballots were printed. It seems no one wanted to be publicly identified with a modification.

The result is a significant disconnect that makes the measures, if approved, subject to legal challenge. Equally important is the absence of real discussion on the merits of a lifelong ban. Is violation of the public trust forever disqualifying, or is it anti-democratic to deny an individual a chance at redemption? These should be answered before the charter is changed.