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D.C. ethics agency failed to probe prominent whistleblower complaint, audit says

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The District’s ethics agency mishandled a 2018 whistleblower complaint and has repeatedly failed to respond to city workers seeking guidance regarding ethics, according to a new report by D.C. Auditor Kathy Patterson.

The report found that the D.C. Board of Ethics and Governmental Accountability failed to investigate a 2018 complaint from a whistleblower alleging that city officials improperly steered millions of dollars to an affordable-housing developer with political connections, despite repeated attempts by the whistleblower to raise the alarm and referrals from others in city government.

The ethics board launched an investigation a year later, after the D.C. auditor inquired about it.

The mishandling of the case appeared to be part of a broader pattern of dysfunction at the ethics agency, Patterson wrote. “We saw signs that this case was not unique and identified other instances in which BEGA’s failure to act appeared to interfere with it meeting its mission,” the report said.

The auditor identified five instances in which the ethics agency failed to respond to D.C. government employees who wanted advice about potential conflicts of interest, and an instance in which an agency lawyer acknowledged a case referred by the child welfare agency had “fallen through the cracks.”

“BEGA itself is not performing to the highest ethical standards nor fulfilling its safe harbor role,” Patterson wrote in her report.

Read the full report here

Brent Wolfingbarger, who directs the government ethics office, declined Thursday to discuss the audit. His office is charged with investigating allegations of ethical misconduct concerning District government employees and officials — including the mayor and the D.C. Council, as well as about 34,000 city workers. Five board members appointed by the mayor and confirmed by the council vote on how to resolve cases and can levy civil penalties, such as fines.

The whistleblower complaint was related to the Housing Production Trust Fund, the city’s primary tool for financing affordable-housing projects.

A high-ranking official at the D.C. Department of Housing and Community Development, the agency overseeing the trust fund, alleged that the Office of the Deputy Mayor for Planning and Economic Development directed the housing agency to steer funding to a project linked to a developer who used to work with the deputy mayor.

The complaint, obtained by The Washington Post, had no specific evidence of political favoritism and based the allegations on statements from a housing official suggesting the city had no choice but to fund the project.

The housing agency official first contacted the ethics agency on June 14, 2018, the day after the administration of Mayor Muriel E. Bowser (D) announced the project was one of nine selected for affordable-housing grants.

But the ethics agency did not follow up on the complaint, and the whistleblower contacted the auditor’s office in February.

The auditor’s office released a report in May that found five of the nine developers that won funding ranked in the bottom half of the applicants and included the two lowest-scoring proposals.

City officials said they had valid reasons for making those selections, including an unexpected availability of housing vouchers changing the feasibility of certain projects. The audit did not find evidence of political pressure.

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The audit was performed at the request of D.C. Council member Charles Allen (D-Ward 6), who chairs the committee that oversees the ethics board.

According to emails reviewed by the auditor’s office, the ethics board did not investigate the whistleblower complaint after it was made and did not assign a tracking number to the case.

Wolfingbarger told a council staffer in February he would circle back with the whistleblower but did not, the audit says.

After the auditor’s office released its own report on the allegations, Wolfingbarger told board members in June that he was waiting for the city inspector general’s office to complete its review. The next month, he told board members he launched a preliminary investigation once he confirmed the inspector general was no longer handling the case.

But the inspector general had already referred the case to the ethics board more than a year earlier, the audit found.

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In a written response Tuesday to the audit, Wolfingbarger said that he did not remember that referral when he briefed the ethics board and that it did not come up when he searched for emails related to the case before the meeting. He objected to Patterson calling his comments “misrepresentations.”

Wolfingbarger also acknowledged the agency’s failure to create a tracking number.

“Although we cannot make amends for the lengthy delay between the time we originally received the whistleblower’s Complaint and when we actually opened an investigation into [the whistleblower’s] allegations, we have begun to investigate this matter to determine what actually took place and whether any violations of the Code of Conduct occurred in the course of those events,” Wolfingbarger wrote.

Norma B. Hutcheson, the chairwoman of the ethics board, acknowledged the agency mishandled the whistleblower complaint but said the situation was an “aberration and not the part of a pattern or the norm.” She also said she didn’t believe Wolfingbarger meant to mislead the board with his comments about the inspector general’s role in investigating the manner.

“While the mishandling of the Complaint was an unfortunate oversight, it is one that the Board is resolved to correct given the importance of BEGA’s mission,” Hutcheson said in a prepared statement.

Allen declined to immediately comment, saying he needed to first read the audit.

The city ethics board was created earlier in the decade in the aftermath of federal convictions of multiple council members.

Some lawmakers have questioned whether the agency has been effective.

The board sidelined an ethics investigation of D.C. Council member Jack Evans (D-Ward 2) and the nexus between his private consulting work and actions as a public official. It cited the ongoing federal investigation of Evans, even though several other entities have been able to conduct their own probes of Evans. The board did fine Evans $20,000 for using government resources and touting his influence as an elected official while soliciting employment from local law firms.

The board also concluded that former D.C. Public Schools chancellor Antwan Wilson violated ethics policies and reprimanded him — more than a year after he had resigned under pressure.

“BEGA is supposed to be our watchdog and a safe harbor for employees who want to report wrongdoing,” said D.C. Council member Elissa Silverman (I-At Large). “This is more evidence that BEGA is not fulfilling its mission.”

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