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BEFORE THE D.C. BOARD OF ELECTIONS AND ETHICS 441 4TH STREET, N. W., SUITE 200 WASHINGTON, D.C. 20004 (202) 727-2525 Dorothy A. Brizill v. D.C. Office of Campaign Finance Appellees. DATE:
May 5, 2004 BRIEFAPPELLANT DOES NOT HAVE STANDING TO REQUEST THE BOARD TO REVIEW THE D.C. OFFICE OF CAMPAIGN FINANCE'S APRIL 8, 2004 ORDER.On November 24, 2003, OCF accepted for filing the November 7 and 17, 2003 complaint of appellant wherein she alleged that Anthony A. Williams (Williams) and Vincent Mark J. Policy (Policy) violated the District of Columbia Campaign Finance Reform and Conflict of Interest Act of 1974 (the Act), as amended, D.C. Official Code Sections 1-1101.01 et seq. (2001 Edition), when Policy inappropriately donated pro bono legal services to Williams in a contractual dispute with Thomas Lindenfeld, and that Williams inappropriately received pro bono legal services from Policy therefor. Appellant specifically requested OCF to determine whether this donation of pro bono legal services, and receipt thereof, constituted "an illegal donation or something of value by a lobbyist to an elected official, whether services that are explicitly provided to an elected official as an individual can be considered as having been provided to that individual's political committee, and whether the representation that [Policy] is providing in this case falls within the boundaries of legal services that can legitimately be provided as volunteer services to a political campaign." Pursuant to 3 D.C.M.R. section 3705.4 (June 1998, as amended), "[a]ny party adversely affected by any order of the Director. .may obtain review of the order [by the] Board of Elections and Ethics[.]" Accordingly, appellant must show, among other things, that the Director's Order caused her injury in fact, that the interest she seeks to protect is within the zone of interest to be protected or regulated by the statute, and that there must be no clear legislative intent to withhold administrative review before the Board from her. In Re: Dorothy Brizill1 v. Sharon Pratt Kelly Committee, Friends of D.C. Political Action Committee, Barry Committee for Mayor '94 Committee, Washington Business Political Committee, BOEE 95-03, 95-04 (consolidated cases) (May 11, 1995) (Brizill). In Brizill, appellant complained of certain campaign violations against four (4) political committees. In support of her right to appeal, she claimed that she was "...a qualified elector of the District of Columbia and as the complainant in this and similar cases, [she was] adversely affected by OCF's actions and decision and therefore [had] a right to request a hearing de novo before the Board of Elections and Ethics." This Board denied her appeal because her allegations were simply "generalized grievances common to all citizens in the District of Columbia" and did not inure to "a direct and personal stake in the outcome of the decision"; she did not present any evidence to indicate that OCF acted arbitrarily or in excess of its statutory authority, so as to injure an interest that was "arguably within the zone of interests to be regulated by the statute"; and she did not demonstrate any "...facts that would have shown that she incurred any injury or if so, that [the] injury that she suffered was fairly traceable to the action by OCF or that there was a good likelihood the alleged injury would be redressed by a favorable decision." Brizill, at pp. 3-6. Similarly, appellant brings this action before the Board purely because she was the complainant. Only persons who have suffered a legal wrong or who are adversely affected may appeal to the Board. See D.C. Official Code Section 2-510(a) (2001 Edition). Appellant has not suffered any personal wrong or injury in fact as a result of the contractual dispute between Williams and Lindenfeld, nor in the manner in which counsel for Williams, Policy, attempts to resolve the dispute. Appellant is a stranger to the proceedings involving Williams and Lindenfeld; and, is a meddlesome interloper with regard to the attorney-client contract between Williams and Policy. Moreover, appellant would not have acquired any greater, or any, right had the OCF Director ruled differently in the matter below. Contrarily, during the Pre-Hearing Conference held on this matter before your Office of the General Counsel (OGC), appellant ignored the crux of her initial complaint -- that fro bono legal services were tendered and accepted by Policy and Williams -because, upon receipt of the Director's Order, she discovered that the Director found that a retainer agreement existed between Williams and Policy. Whereupon, she then supposed that Williams accepted a gift, in the form of forbearance, to pay for Policy's legal expenses in the Lindenfeld contractual dispute. Assuming, en arguendo, that Williams was extended forbearance to pay for legal services extended by Policy, i.e., a gift, the facts do not bear witness to the proposition. D.C. Official Code Section 1-1105.01(5) defines the term "gift" to mean, among other things, "forbearance ...and shall not include. . .a commercially reasonable loan made in the ordinary course of business." According to Black's Law Dictionary, "[w]ithin usury law, term signifies contractual obligation of lender or creditor to refrain, during given period of time, from requiring borrower or debtor to repay loan or debt then due and payable." See Black's at 580 (5th ed. 1979). For purposes of the lobbying act, there must be some contractual obligation by which the parties operate for the creditor to refrain from requiring and for the borrower to refrain from paying. Policy and Williams entered into a valid retainer
agreement for legal services on February 13, 2003; Policy issued a bill
to Williams on October 13, 2003, which included monthly billing for
services for the period of February through October 2003. There is
nothing within either document to indicate that Policy contractually
agreed to forebear on requiring payment and for Williams to forebear in
making payment. VINCENT MARK POLICY (POLICY) WAS, DURING THE PERIOD AT ISSUE, LISTED AS A LOBBYIST FOR A REGISTRANT.D.C. Official Code Section 1-1105.01(12) defines "registrant" to mean a person who is required to register as a lobbyist under the provisions of D.C. Official Code Section 1-1105.02. That section requires a person to register with the Director if the person receives compensation or expends funds in an amount of $250 or more in any 3consecutive-calendar-month period for lobbying. D.C. Official Code Section 1-1105.04 requires that registrants shall list on a registration form the names and addresses of each person expected to lobby on the registrant's behalf. On January 13, 2003, the firm of Greenstein DeLorme & Luchs, P.C. (the firm) in Washington, D.C., registered as a registrant and listed Policy as a person retained to lobby on its behalf Accordingly, only the firm is a registrant. As stated in the Director's Order, Policy is identified by the registrant, the firm, as a lobbyist therefor. Thus, his name was listed by OCF in the D.C. Register among the list of lobbyists for registrants in the District of Columbia. D.C. Official Code Section 1-1105.05 requires that each registrant shall file in July and January of each year a report signed under oath indicating lobbying activities during the previous 6-month period. The firm filed for 2003 and the reports reflect that the firm, nor Policy, received or expended $250 or more in any 3-consecutive-calendarmonth period for lobbying. During the Pre-Hearing Conference, appellant repeatedly stated that Policy was performing administrative and legislative lobbying; and, believed that "there does not have to be a nexus" between the expenditures and compensation and the subject of the lobbying. According to appellant, Policy is a "known lobbyist" who seeks to "lobby and influence particularly on housing and rental laws." Contrary to appellant's belief, the statute envisions that registrants must list "the identification, by formal designation if known, of the matters on which the registrant expects to lobby." See D.C. Code Section 1-1 105.04(b)(4). Likewise, on the activity reports, there must be a detailed pairing of expenses and compensation with government officials and the specific purposes for the lobbying. See D.C. Official Code, Section 1-1105.05. Appellant presented evidence of Policy testifying before the Council. This conduct is not included within the definition of lobbying. At D.C. Official Code, Section 1-1105.01(7)(B), the term "lobbying" does not include, among other things, information supplied in response to written inquiries by an executive agency, the Council or any public official; status inquiries of specific actions to an executive agency or the Council; and public testimony before the Council. Policy was listed as a lobbyist, for the purposes of the lobbying statute, for 2003, and he did not perform any lobbying activities. POLICY WAS NOT A REGISTRANT IN 2003, FOR THE PURPOSES OF THE LOBBYING STATUTE, AND POLICY DID NOT GIVE A GIFT TO MAYOR ANTHONY WILLIAMS (WILLIAMS) WHICH EXCEEDED $100 IN VALUE AND WHICH WAS GIVEN FOR THE PURPOSE OF INFLUENCING THE ACTIONS OF THE MAYOR IN MAKING OR INFLUENCING THE MAKING OF AN ADMINISTRATIVE DECISION OR LEGISLATIVE ACTION.First, Policy was not a registrant. Nonetheless, Policy was listed as a lobbyist for his firm, a registrant for 2003, and did not perform any lobbying activities. Second, notwithstanding that Policy was a lobbyist, he did not give a gift to Williams for legal services rendered in Williams' contractual dispute with Lindenfeld because there was a retainer agreement for Policy's representation of Williams in the dispute entered into by the parties in February 2003. In that agreement, there is an expectation by Policy of payment for services extended and an intention by Williams of payment for services received. Appellant presented evidence of Policy testifying before the Council. This conduct is not included within the definition of lobbying. At D.C. Official Code, Section 1-1105.01(7)(B), the term "lobbying" does not include, among other things, information supplied in response to written inquiries by an executive agency, the Council or any public official; status inquiries of specific actions to an executive agency or the Council; and public testimony before the Council. Third, according to the lobbying statute, there must be a specific outcome from lobbying the public official. It must be listed as to who lobbied and for what purpose. OCF cannot decide that "a known lobbyist has been lobbying" without a nexus, i.e., something to link the public official and the official action. Appellant cannot supply that link. CONCLUSIONFor the foregoing reasons, OCF respectfully requests that Appellant's appeal be dismissed. Respectfully submitted, Kathy S. Williams SERVICE OF ORDERThis is to certify that I have served a copy of this Brief on May 3, 2004 upon Dorothy Brizill, 1327 Girard Street, N.W., Washington, D.C., 20009. Kathy S. Williams 1. She is also the appellant herein. |
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