Jack Evans' ethics saga continues

November 13, 2019

During one of his four interviews with investigators at the law firm O’Melveny & Myers, Ward 2 DC Council member Jack Evans was asked to identify the specific circumstances that would trigger a conflict of interest. He reportedly offered a few examples before concluding that, “I’ll know it when I see it. I mean that. That’s one of the most famous quotes in the Supreme Court of the United States,” according to a report submitted by O’Melveny to the council.

“And I use that because that’s the answer to your question … I know it when I see it,” Evans added.

 

That remark seems glib; besides, Justice Potter Stewart was talking about obscenity when he offered the quote Evans appropriated. What’s more, given that O’Melveny & Myers has asserted its investigators found at least 11 alleged violations of the Code of Conduct and the council rules by Evans from 2014 through 2019, some might conclude the District’s longest-serving legislator has a vision problem. 

 

“All of us should shudder at what we read,” Ward 3’s Mary Cheh said on Tuesday in response to questions from the press. “It reflects a bit of arrogance and willful blindness to ethical requirements.”

 

Unsurprisingly, a majority of Evans’ colleagues, including Cheh, have called for his resignation. Cheh chairs the ad hoc committee charged with making a final recommendation on the punishment that should be meted out. The committee includes all members except Evans.

 

Some of these same individuals strongly advocated for his reprimand or censure earlier this year when it was revealed he had used council resources to distribute an email seeking employment with a local law firm. The council ultimately decided on a reprimand.

 

Evans’ colleagues intensified their opposition to him after the ethics committee of the board of the Washington Metropolitan Area Transit Authority (WMATA) cited him for violating the board’s Code of Conduct and for failing to disclose possible conflicts of interest related to three of his consulting clients. Council members also revealed their disintegrating trust in Evans after he appeared before them in June to defend himself against the WMATA allegations; by that time he had resigned from the WMATA board. In July, the council voted to strip him of his Committee of Finance and Revenue chairmanship.

 

DC Council Chairman Phil Mendelson joined Ward 3 DC Council member Mary Cheh, chair of the ad hoc committee handling the Jack Evans investigation, at a Tuesday afternoon news conference where they released the O’Melveny & Myers report. 

 

Fast-forward to this week: Cheh’s stated position and those of other council members raise legitimate questions about whether Evans can expect to receive an objective review or analysis of all the facts and his responses. In a letter sent Wednesday to Council Chairman Phil Mendelson and Cheh, Evans’ two attorneys — Abbe David Lowell, with Winston & Strawn, and Mark Tuohey, of counsel at BakerHostetler — expressed concern about the pace at which events have been moving since the release of the report. “Please restore a fair process,” they asked, arguing that the leak of the document to the press was done with “malice and intent to poison the well of public opinion.

 

“Every U.S. and DC citizen deserves a fair process and a time and place to explain his or her actions,” Lowell and Tuohey added in their correspondence.

 

On Thursday afternoon, Ward 7’s Vincent Gray stepped in, making a similar argument. In 2010 his mayoral campaign was accused of violating various federal laws. Several individuals associated with that operation eventually pleaded guilty. Gray was never formally charged; however, intense press scrutiny turned public opinion against him and he lost his re-election bid. “I firmly believe in due process and can appreciate better than most what it feels like to not be afforded that,” he said in a prepared statement released Thursday. 

 

Gray argued that the ad hoc committee was just beginning its work. “It concerns me that nine of the twelve members have weighed in publicly before we even had our first substantive meeting … Regardless of how we feel about the findings in the O’Melveny report, other developments and news report that preceded it, our duty is to ensure a fair process.” 

 

Despite the fact that others have called for Evans to give up his council seat, Gray made clear he does not intend to call for Evans’ resignation “at this time.” Further, he has asked former DC Attorney General Irv Nathan to act as his adviser during the upcoming proceedings.

 

The 90-day process, as prescribed by council rules, allows O’Melveny to present its report and for Evans or his lawyers to offer his defense. Then, council members are supposed to deliberate and issue their own report with recommendations for punishment.

 

If public indignation continues to grow and political opponents become more vocal, other council members could join the kick-him-out chorus, notwithstanding Gray’s admonitions. On Wednesday, Charles Wilson, chair of the DC Democratic State Committee, publicly acknowledged that he had asked Evans, a member of that body, to “take a step back” and consider the distraction being caused by the various investigations.

 

There is already a formal recall process under way, with a group of activists circulating petitions. Six individuals have launched campaigns to run for the council seat Evans has held since 1991; Evans has not yet formally announced his intentions. The Democratic primary is just seven months away.

 

Further, Evans was reprimanded in March for some of the same violations identified in the new O’Melveny report and stripped in July of his chairmanship of the powerful Committee on Finance and Revenue.

 

Whether Evans ultimately decides to resign is up to him. He should not be removed entirely from the council. Nor should he be kicked off every committee on which he is now assigned; that action, in my view, would penalize Ward 2 residents and deny them the right to participate in their government.

 

There is, however, good and solid reason, based on the findings of the O’Melveny report, for the council to censure Evans. “Censure” and “reprimand” may sound similar, but under the council’s rules the former does carry more weight.

The problem confronting the legislature doesn’t stop with Evans, however. It’s a tad more complex than that. The ethics regime the council installed, after several members were charged with federal crimes, suffers from insufficient oversight to assess its efficacy and efficiency — and is in dire need of some reforms.

 

For example, O’Melveny found that Evans did not provide key information on his financial disclosure statement, particularly the names of the clients for his NSE consulting service. Wasn’t it the responsibility of staff at the Board of Ethics and Government Accountability (BEGA) or in the Office of the General Counsel for the DC Council to flag his report as incomplete, demanding he provide the missing information or cite him at that time as violating disclosure rules? “Or was it just a piece of paper put in the inbox, and nobody ever read it?” asked veteran government watchdog Dorothy Brizill, head of DC Watch. She called BEGA a “rudderless body.” 

 

Last month, DC Auditor Kathy Patterson issued a report, alleging that the BEGA did not properly handle a whistleblower complaint about possible steering of housing funds. She also asserted that whistleblower “case was not unique” or “an isolated mishandling and losing track of matters submitted to BEGA, both for investigation and for ethics advice.” An oversight hearing on BEGA has been scheduled for Nov. 22.

 

The O’Melveny report also exposed operational gaps. If elected officials are permitted by law to be employed in the private sector, how should one working at a law firm or as a consultant respond to ordinary requests from clients that fall into the category of run-of-the-mill constituent services and that are not directly related to any public policy or vote on particular legislation? Are the clients to be denied the opportunity to seek help from their elected representative with clearing an alley, for example, or reaching a government agency? Is the elected official required to seek an ethics opinion each time such service is provided to a client?

 

The bright spot in the 100-page document may be that it corrects the record of some misreporting. The press had suggested there may have been unethical interactions between Evans and William Jarvis, who helped the council member establish his NSE consulting firm. A particular focus was on Jarvis’ lobbying for the sports wagering contract with Intralot, which Evans supported. However, the report says, “The investigation did not find evidence sufficient to establish that these relationships were likely to present direct and predictable effect on Evans’ personal financial interest within the meaning of the Code of Conduct or council rules during the relevant period.”

 

Jarvis was one of 15 people O’Melveny & Myers interviewed beginning this summer after being hired by the council to review Evans’ official and outside activities with an eye to any possible conflicts or violations of the legislature’s rules and codes. Six others declined to meet with investigators, either citing health issues, disputing the council’s jurisdictional authority or claiming their Fifth Amendment rights. The latter may have been prompted by the fact that the federal government is conducting a criminal investigation of Evans. That matter is related, in part, to his association with Donald MacCord, former owner of Digi Outdoor Media. In California, his home state, MacCord pleaded guilty to a variety of felonies, including fraud, growing out his efforts to establish an exterior digital advertising business in DC and other jurisdictions. He was sentenced to three years in prison.

 

Investigators at O’Melveny raised significant concerns about Evans’ actions over the five-year period covered by the report. During that time, he was employed by Squire Patton Boggs (2014 and one month in 2015) and Manatt, Phelps & Phillips LLP (Oct. 5, 2015, through Nov. 17, 2017); he also opened and operated his NSE consulting firm (July 2016 through early 2019). He earned a total of $241,583.35 with the two law firms, according to the report. At his consulting firm he brought in $430,000, mostly through retainers. 

 

Much has been made about the retainers Evans negotiated through his consulting business. Retainers are not unusual in the private sector, however. They are the bread and butter of most law firms, lobbyists, public relations and crisis management firms. Many DC lawyers and mouthpieces would be in the breadline were it not for their ability to secure such payment arrangements while performing very little work.

 

I am no apologist for Evans, although he has made an enormous contribution to the growth, development and vibrancy of DC. Still, I will not provide him any safe harbor. Unquestionably, he violated the council’s ethics rules. He has made that confession multiple times. 

 

This week’s report documents that he failed to take aggressive, proactive steps that could have avoided violations while shielding himself against the public assault he is experiencing. He seems to have used attorney-client privilege standards where they did not apply and placed greater confidence in his own ethical judgment and analysis than that of others. 

 

Interestingly, O’Melveny noted that it “did not attempt to assess the extent to which any of Evans’ personal or attributed financial interests had an actual impact on any legislative or other official business of the Council or the District government.

 

“It may well be that many of the conflicts of interest described in the report ultimately did not change Evans’ behavior,” investigators wrote in their report. “And it may well be that the actions that Evans took were in the public interest. In his interview, Evans assured us that was always the case.”

 

Evans’ attorneys, Lowell and Tuohey, have highlighted that latter finding. But they took issue with the tone and content of the O’Melveny report. In their 67-page response, they accused investigators of cherry-picking comments like the “I know when I see it” remark. They said investigators misinterpreted laws and rules, misapplied them or made up new requirements that do not necessarily reflect the legislature’s intent. 

 

They complained that many of the violations were connected with a company that wasn’t an NSE client — Digi Outdoor Media, which had sought to plaster city buildings with digital advertisements. Evans initially had agreed to provide consulting services to the company. Donald MacCord, Digi’s president at the time, sent two checks to establish the relationship. Evans was out of town; when he got back, he returned those checks, essentially backing out of the arrangement. O’Melveny asserted that technically for the 20 days — the time between when the checks were sent and when they were returned — Digi Outdoor Media was a client of NSE. What’s more O’Melveny argued in its report that because Evans said he might be willing to accept Digi as a client at a later date, the digital advertising company became a “prospective” client and ethics rules applied. 

 

Lowell and Tuohey also challenged the validity of several alleged violations, arguing that “outside employment that is allowed … does not extinguish a legislator’s responsibilities to his constituents”; they also asserted that votes taken by Evans should have been considered within the context of his long-standing positions. 

 

There may be some logic to both assertions. Anyone who has followed Evans’ public policy agenda knows he would have advocated for Pepco-Exelon merger regardless of who he worked for. He is not a fan of tax increases; it’s not shocking he opposed an 18% parking tax. Moreover, he has been a huge supporter of business development, so urging construction of a sound studio on New York Avenue NE was not uncharacteristic for him. 

 

“The allegations of wrongdoing against Jack Evans have been reported and repeated and echoed and then the subject of various inquiries and investigations,” wrote Lowell and Tuohey. 

 

It’s true that allegations and the evidence in the O’Melveny report in large measure had been presented in news articles and other ethics investigations. This part of the saga will come to an end in 90 days.

 

What is more important, however, is what measures the council will take to ensure offenses like those committed by Evans will not be repeated in the future. Will legislators make changes to the current ethics regime — in terms of rules, laws and enforcement? Or, will they portray this as only about Evans, kick him to the curb and try to walk away?

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