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What the District can learn from the Graham affair

By Kathleen Clark,

While the District does not have voting representation in Congress, it does have voting representation on certain regional authorities, including the Washington Metropolitan Area Transit Authority (WMATA), which runs the Metro system. Along with Virginia, Maryland and the federal government, the District sends two voting members to the Metro board.

A case now before the District’s new Board of Ethics and Government Accountability raises the question of the proper role for those D.C. members on the Metro board. Should they advocate the interests of the District before the board, or should they instead focus on broader regional interests, even if it means sacrificing the interests of the city?

A recent Metro internal investigation concluded that D.C. Council member Jim Graham (D-Ward 1), as the council’s representative on the Metro board, “pitted the interests of the Council of the District of Columbia against the interests of Metro, and thereby unnecessarily created a conflict of interest, or, at the least, the appearance of a conflict of interest.” Graham has vehemently denied any wrongdoing.

The accusation stems from a May 2008 meeting between Graham and representatives of W2I, which had tentatively been awarded the District’s lottery contract. One of the owners of W2I was Warren Williams Jr., who had multiple business ties to Metro and the D.C. government. Williams also held a partial ownership of the developer Banneker Ventures, which had submitted a bid to develop Metro-owned property on Florida Avenue. The lottery contract award was “tentative” in the sense that it had to come before the council, as all large contracts do. Thus, Williams was poised to benefit from two large public contracts: one with Metro and the other with the D.C. government.

In that meeting, several participants told Metro’s investigators, Graham suggested that he would support the D.C. lottery contract if Banneker withdrew its bid for the Metro development deal.

If these allegations are true, what is their legal significance?

This kind of horse-trading on unrelated matters would be highly irregular in a well-run public contracting system, where trained professionals must comply with procurement rules that are intended to ensure the government gets good value and all bidders get a fair shake.

But the District has taken a different approach to public contracting and allows legislators to have a say in major contracts. And horse-trading is what legislators do for a living.

According to Metro’s internal investigation, the horse-trading was improper because Graham “pitted the interests of the Council of the District of Columbia against the interests of Metro.” The theory is that Metro board members have an obligation to serve Metro as an institution rather than to advocate the interests of the jurisdiction that they represent.

But wasn’t Graham on the Metro board to advance the interests of the District?

If it occurred, this horse-trading may have been problematic, but not because it is a conflict of interest between the District and Metro. The Metro internal investigation suggested that Graham may have been motivated by personal animus against Williams; if Graham used his authority over Metro contracting to get back at Williams — a charge Graham disputes — then he was pursuing his own personal interest rather than either the District’s or Metro’s.

The D.C. Board of Ethics is tasked not just with investigating alleged wrongdoing but also with providing advice about current ethical standards and making recommendations about future ethics reforms. Whether or not the board decides to open a full investigation into Graham’s 2008 conduct, it could provide helpful guidance to District officials who serve on multijurisdictional boards such as Metro to clarify their proper role. The board may also want to address the ethical risks inherent in allowing a legislative body to play a role in a sensitive area such as contracting.

The District could benefit not just from a thorough airing of the facts regarding the controversial lottery contract but also from a hard look at its contracting process more generally.

The writer served as special counsel to the attorney general of the District of Columbia from June 2011 to March 2012 and is a law professor at Washington University in St. Louis.

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