D.C. Mayor Muriel Bowser is right to ignore the high jinks of Council member Mary Cheh. District residents, who believe elected officials should hold themselves to a higher ethical standard, may also want to dismiss the Ward 3 legislator’s recently released report from an investigation into the resignation of the former director of the city’s Department of General Services (DGS) and the subsequent firing of two senior-level managers at the agency; the allegedly aggrieved workers had claimed they were terminated because they refused to steer a contract to a local construction company that made campaign contributions to the mayor.
Surprisingly, Cheh’s report is mostly a compilation of opinions, innuendos, circumstantial evidence, wild accusations and contradictory conclusions. Consider that she asserted as a finding that Fort Myer Construction Corporation is a “favored” contractor. That statement seemed counter to another one made by her in that same report indicating there was “no evidence of political influence.”
What are Cheh’s motives for this un-choreographed shuffling, and the issuance of a report that wasn't approved by either her committee or the council?
Her motivations look and smell political. After all, there has been some recognition of the culprit in the contracting scandal: Earlier this year, Cheh and Council Chairman Phil Mendelson introduced legislation that would strip DGS of its independent contracting authority, forcing those services to be provided through the citywide Office of Contracting and Procurement.
TBR recognizes this is election season. Not only are there forces angling to kick Bowser out of the mayoral suite, there are others—local and national—interested in forcing campaign finance reform in the city, including preventing contractors from making contributions to political campaigns. Underscoring the politics at play, the DC Republican Party has called for U.S Representative Trey Gowdy (R-SC), chairman of the House Committee on Oversight and Government Reform to “conduct a formal inquiry into [the contracting controversy] and bring District officials to Capitol Hill for testimony under oath.”
How outlandish is that?!
The DC GOP may want to read the record (as TBR did) instead of just relying on press reports. And Congress may want to deal with the political corruption stinking up the White House.
Cheh’s recommendations, seem to be in service, at least in part, to achieving a political agenda that may involve weakening the executive by any means necessary. Fort Myer appears to be a pawn. For example, it would be difficult for Cheh to recommend, as she did, that the city should consider denying contractors the opportunity to make campaign contributions, if she hadn’t labeled Fort Myer a “favored” contractor, leaving the media and others to offer that the company benefited because it gave money to the mayor.
Council members also have received and accepted contributions from Fort Myer. What’s more, hundreds of businesses make donations to political campaigns. Cheh knows that. She and her allies are on a mission.
Cheh would be unable to recommend in her report an expansion of the definition of lobbying if she didn’t directly and carelessly sully an individual businessman’s character. “The definition of lobbying is too narrow because it did not cover advocacy or outreach related to contracts.” Interestingly, the council declined to take up that issue during its last session, Robert Spagnoletti, head of the board of government ethics, reminded her. And what about nonprofit organizations, who often lobby for legislation that relates to pending contracting opportunities? Would they, too, be required to register?
When TBR asked Cheh in writing several questions seeking clarification and explanation of her disjointed logic, she did not provide specific answers.
More egregious is the fact that Cheh apparently disrespected the council committee process and appears to have engaged in what some might consider unethical behavior. Three out of the five members of her committee had objected strongly to two previous versions of the report. They were troubled by what she had written. They said they wanted to support the release of a report but could not endorse some of the conclusions she had developed that were tied tenuously, if at all, to the evidence that had been gathered during the hearings. Cheh ignored the entreaties of her colleagues.
She subsequently scheduled a meeting on the issue on a day she knew those members—Ward 2’s Jack Evans, Ward 4’s Brandon Todd and Ward 5’s Kenyan McDuffie-- would not be present because of previous engagements. Then she persuaded Chairman Phil Mendelson to attend so that she could have a quorum. (Similar to the U.S. Vice President’s role in the Senate, the council chairman can vote in any committee to break a tie or establish a quorum.) During the meeting, she said she wanted to release the record--raw materials or documents and testimony--the committee had collected from its hearings, most of which were held in 2016.
Evans managed to make it to the committee meeting and argued against the release of those documents. He said Cheh had convinced people to testify because they thought the information would be held private. In fact, she had said on Dec. 16, 2016, “The testimony and evidence that we’ve received today is confidential and may not be released to the public pursuant to Council Rule 504 (b).” She also stated, however, if she determined the information was not related to personnel or disciplinary matters she would released it. But, in nearly every interview conducted by Cheh, she asked witnesses to evaluate the performance of the aggrieved employees in their roles at DGS. Several people judged the two individuals involved in the controversial contracting to be wanting.
Given the assurances and warnings, Cheh may have violated her own rules; she noted during the hearing, anyone who did that “would be subjected to an ethics violation, as well as potentially legal actions by anyone adversely affected.” (We’ll have to wait to see if any of the people who testified before the committee files an ethics complaint or a lawsuit.”)
Mendelson said through a spokesperson that following TBR’s questions to him about Cheh’s actions, he "reached out to the Council’s General Counsel. But there does not appear to be a breach of ethics, as you put it, in this case…Action is not expected to be taken [against Cheh] at this time.”
Cheh didn’t simply publish documents and transcripts, however. In a lone-ranger type move, she issued her own report—the report that wasn’t endorsed by her committee and of which the committee had not approved any release. Making a distinction without a difference, she put only her name on the document. However, by using her title as chairperson of the committee, she gave the impression members had backed the distribution. The majority did not.
In violating standard committee procedures, she has contributed to the misinformation in press stories, many of which asserted wrongdoing had been found. As a matter of fact, there was none.
“The conclusion of the Cheh report was that there was ‘no evidence that the employees were separated illegally’ and that it ‘cannot definitively conclude that the Executive treated Fort Myer in a favored manner,’” Todd said when TBR asked him about the report.
”The report itself should have focused on [those] conclusions and how [they were] arrived at,” continued Todd, adding the report was “written in such a manner that could bias public perspective. Therefore, I could not support the released version of the report.”
In her defense, Cheh offered through a spokesperson this general comment, which provided no insight: “Last fall, there were public allegations that something improper had occurred involving the Executive and the Department of General Services in the awarding of government contracts, the separation of employees there and the resignation of the Director. I held three hearings in a closed session with the purpose of determining whether something improper did or did not occur. As the Chair of the committee with oversight over DGS, I felt it was the committee’s obligation and stated that I would look at and report on those allegations. That is exactly what I did.”
Cheh has done a terrible disservice to the public by deliberately offering opinion as fact in order, it appears, to score points and support a political agenda.
TBR has seen this movie before. In 2010, as then-Mayor Adrian Fenty was launching his reelection bid, several council members and their supporters accused him of contract-steering and corruption. Unfortunately, Fenty lost that election, in part because of that negative portrayal.
It's worth noting, however, that the majority of those council members involved in the assault against Fenty would later plead guilty to various federal felonies. (One council member was accused of wrongdoing but the federal investigation ended when a new U.S. Attorney took office; in the interim several of that council member's allies and key campaign workers pled guilty to felonies or misdemeanors.) In other words, the accusers were really the ones who were found to be corrupt.
To be clear, according to her solo-report, Cheh found “no political influence” and “no evidence that DGS employees were separated illegally.” In fact, based on hearing records, several senior-level employees including Nancy Hapeman, general counsel of the Office of Contracting and Procurement and who is described by some as the “dean” of contracting, offered that they believed both Alao and Sandoval to be in jobs for which they lack all of the requisite skills and experiences.
Nevertheless, after threatening to file a lawsuit against the District because of their terminations, the two men received a combined settlement from the Office of the Attorney General for $600,000—Alao, $250,000 and Sandoval $350,000--according to the OAG. It should be noted Sandoval had previously worked for the OAG before joining DGS. Maybe Aloa and Sandoval were "favored" employees.
Interestingly, Cheh has yet to object to the outlay of those public funds, even as she and others have complained that the city settled years-old claims filed by Fort Myer, some of which were the result of the company performing work and not being paid for these additional duties requested by the government.
TBR does not have a dog in this fight, although Fort Myer is one of several corporations that have given charitable contributions over the years to her nonprofit organization that works with fatherless girls and women from underserved communities. Equally true, TBR did not support Bowser in the 2014 General Election; then-At-large Council member David Catania was TBR’s choice for the mayoral suite. TBR does admit, however, that she asserted in previous articles that DGS is a dysfunctional agency that should be dismantled.
This isn't just another game of inside baseball, however. Cheh and the council have raised fundamental concerns about executive branch functions and prerogatives: Does the executive have the authority to fire an at-will employee or any employee who knowingly violates District laws, including contracting rules and regulations.
What big city mayor can’t hire or fire staff? Obviously, there are regulations governing every classification of employee. While Alao and Sandoval believed they should not have been terminated, TBR believes based on the timeline and how long the problems regarding the contracts for Buzzard Point and St. Elizabeths languished, the employees were not fired soon enough.
Speaking of which, Cheh’s intervention, through the public hearing, suggests that the council also has concerns about whether it is prudent for the city administrator—the person responsible for the daily, on the ground operations of the government—to intervene when a major economic development project is poised to be derailed by the mishandling of a contract and threats of an appeal by the contractor.
If the COO of a multi-billion corporation can’t intervene, who should?
City Administrator Rashad Young jumped into what was then a roiling dispute over several questionable actions by DGS. The employees and the agency’s director had changed the scoring system affecting small and local businesses. ANA Harvey, head of the Department of Small and Local Business Development, told Cheh that she had conveyed her concerns and objections to the DGS director. The OAG would not sign off on the legal sufficiency of the DGS infrastructure contracts because of information and assumptions being made by Sandoval in evaluating Fort Myer's submission. Sandoval ignored that process and wrote his own legal sufficiency statement. Further, as Hapeman testified, it was clear Sandoval was biased against Fort Myer.
Keith Gada, a staffer inside the office of the Deputy Mayor for Planning and Economic Development, told Cheh that the Buzzard Point project, where a soccer stadium and associated works infrastructure were to be constructed, was behind 45 days. That was the reason he called DGS to determine the status of the contract. It also seemed reasonable for someone to assume that Fort Myer would get the contract. It had been the winning bidder twice for the Buzzard Point project, when the contract was initially handled by the Department of Public Transportation. It lost its bid for the same contract after that project was transferred to DGS, although the services being requested had not been substantially altered. That alone is worth asking whether DGS was subtly engaged in steering a contract away from Fort Myer.
The project delays, the committee hearings, the transcription and compilation of documents appear a waste of public money. It's not over: the DC GOP thinks the chaotic Republican-led Congress should step into local affairs even as the city’s inspector general reportedly has begun treading the same ground as the council committee.