December 6, 2012

THE DISTRICT’S NEWLY created ethics board is conducting a preliminary investigation into whether D.C. Council member Jim Graham (D-Ward 1) violated the city’s code of conduct. This is, by our count, the fifth time that some part of the District government has been alerted to issues about Mr. Graham’s actions concerning the city’s lottery contract. The ethics board should examine Mr. Graham’s conduct, but it also might want to figure out why this troubling matter was so long swept under the rug. A 2008 document that we obtained last week reveals how starkly the potential wrongdoing was portrayed at the time.

The D.C. Board of Ethics and Government Accountability launched its review in October after an independent investigation commissioned by the Washington Metropolitan Area Transit Authority concluded that Mr. Graham in 2008, then a member of the Metro board, violated the transit agency’s rules when he tried to get a developer to drop out of a land deal in exchange for his support of a separate lottery contract pending before the D.C. Council. Mr. Graham has denied wrongdoing.

What’s intriguing is how the investigation tracks conclusions reached in July 2008 by Robert G. Andary. Then the head of oversight and integrity for D.C. Chief Financial Officer Natwar M. Gandhi, Mr. Andary had been assigned to investigate a complaint, brought anonymously but in fact by Mr. Graham, against Eric W. Payne, the former procurement director for the lottery who is now suing the city for unlawful termination.

In exonerating Mr. Payne, Mr. Andary, as has previously been reported, uncovered allegations that Mr. Graham offered to support the lottery bid of a D.C. businessman if he got a partner in another firm to withdraw from the Metro deal. What was not known but is clear from the recently obtained draft of Mr. Andary’s July 29, 2008, report is his conclusion that Mr. Graham was not candid, may have had political motives in bringing the anonymous complaint and acted inappropriately.

“Moreover,” reads the signed draft report, “the investigation revealed how highly politicized the Lottery contract has become, and revealed inappropriate actions by Mr. Graham with respect to the Council’s consideration of the lottery contract.” That and other critical language does not appear in the final report; it is unclear why.

Mr. Andary told us a confidentiality agreement he signed with Mr. Gandhi’s office restricts him from public comment. He gave a deposition in Mr. Payne’s case, but the portions that deal with his 2008 investigation remain under court seal because of the contention by city attorneys that a confidential source (i.e., Mr. Graham) is involved.

A spokesman for Mr. Gandhi said that the chief financial officer did not see a draft of Mr. Andary’s report, receiving only the final report. The spokesman said that Mr. Gandhi’s deputy, who directly supervised Mr. Andary, does not recall suggesting changes to Mr. Andary.

What transpired in the months after Mr. Andary issued his report bears scrutiny. Why weren’t more questions asked; why was there seemingly so little interest in investigating serious allegations concerning an important city contract? A motion by Mr. Payne to lift the court seal will be heard Dec. 12. If the District is interested in finally providing some needed answers, it will drop its opposition.