The Board of Ethics and Government Accountability should be commended for its decision to investigate whether Jim Graham violated the city's Code of Conduct when he "bartered" his vote on a 2008 D.C. Lottery contract for changes to a Metro development project. But the three-member panel, headed by Robert Spagnoletti, can't stop there. There are other issues that compel examination, including the role played by the legislature's general counsel.
V. David Zvenyach represented Graham during Metro's investigation and a related court case involving the firing of whistleblower Eric Payne by Chief Financial Officer Natwar Gandhi. Payne has asserted in court documents that Graham retaliated against him after Payne asked CFO auditors and the inspector general to review the councilman's actions to force a rebid of the lottery contract. (Graham, then-Chairman Vincent C. Gray and others were upset that a company called W2I, which included principal Warren Williams, won the competitively bid contract.)
"It is a matter of public record that I represented Mr. Graham in the Payne matter and in connection with the Metro investigation," Zvenyach wrote me in an email. "I'm not at liberty to divulge the specifics of my representation."
Why should the general counsel, paid by the public, represent an elected official who may have violated local laws?
"The [council] had institutional interests in both matters, and I represented [Graham] in his official capacity," said Zvenyach, adding that council rules require he "provide legal representation on behalf of ... every member and council staff person for actions taken within the scope of their legislative duties.
"For my office to make judgments about whom to represent based on political considerations would be inappropriate and, in the long run, would do harm to the public interest," Zvenyach added.
That wide latitude can only spell future trouble. After all, the U.S. attorney is conducting an investigation into District government corruption. Could a council member tagged in such a probe claim to have been acting within the bounds of his legislative responsibility, pulling in Zvenyach and his team of publicly financed lawyers?
Lawyers I spoke with said the council's legal representation policy poses conflicts: There could be the clash between institution and member interests; they are not always aligned. Further, under some circumstances, the legislature's lawyer could be turned into a witness.
"It doesn't matter who you work for, as a lawyer you still have ethical responsibilities," one attorney told me.
"I have recused myself and my deputy with respect to the council's consideration of [the Graham] matter," Zvenyach told me.
It's too late for divestment. The mess already has been created.
Perhaps the ethics board could clean up things. It could provide clear and stronger guidelines for when the legislature's general counsel should provide representation to individual members.
Ultimately, the council's prime interests as an institution, including those of its general counsel, should be representing District residents and ensuring enforcement of local laws. Camouflaging individual legislators' questionable behaviors or wrongdoing is a job for private-sector attorneys.
Jonetta Rose Barras can be reached at email@example.com.
Jonetta Rose Barras' column appears on Tuesday and Friday. She can be reached at firstname.lastname@example.org.