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BEFORE THE OFFICE OF CAMPAIGN FINANCE
ORDERStatement of the CaseThis matter came before the Office of Campaign Finance (hereinafter OCF) pursuant to a referral from the Office of the Inspector General for the District of Columbia (hereinafter OIG) in a published report entitled "Report of Investigation of the Fundraising Activities of the Executive Office of the Mayor (EOM)" (hereinafter Report) (OIG Control Number 2001-0188 (S)). In the Report, the Inspector General has alleged that certain current and former employees engaged in behavior that violated provisions of the District of Columbia Personnel Manual Standards Of Conduct. In the instant case, the Inspector General has alleged that Gregory McCarthy (hereinafter respondent) engaged in private or personal business activity on government time and with the use of government resources on behalf of the private, non-profit Millennium Washington CapitolBicentennial Corporation (hereinafter MWCBC) in violation of § § 1803.1(f), 1804.1 (d) and 1805.2 of the District Personnel Manual (hereinafter DPM).1Upon OCF's evaluation of the material amassed in this inquiry, it was decided that the parameters of this inquiry extended solely to the DPM employee conduct regulations. There was not any credible evidence that the respondent committed any violations of the District of Columbia Campaign Finance Reform and Conflict of Interest Act of 1974 (the Act), as amended, D.C. Official Code §§1-1101.01 et seq. (2001 Edition). Any alleged violation of the Act by the respondent would be predicated upon the premises that respondent realized personal gain through official conduct, engaged in any activity subject to the reporting requirements and contribution limitations of the Act, or used District government resources for campaign related activities.2 See D.C. Official Code § 11106.01. Additionally, fines may be assessed for any violation of the Act. OCF's review did not reveal any such activity. Accordingly, where a violation of the DPM employee conduct regulations has occurred, OCF is limited with respect to any action which otherwise may be ordered. Inasmuch as the DPM consists of personnel regulations, fines cannot be assessed. The Director may only recommend disciplinary action to the person responsible for enforcing the provisions of the employee conduct rules against the respondent. By letter dated June 7, 2002, OCF requested respondent to appear at a scheduled hearing on June 17, 2002. The purpose of the hearing was to show cause why the respondent should not be found in violation of the Standards of Conduct, which the respondent was alleged to have violated in the OIG Report. Summary of EvidenceThe OIG has alleged that the respondent violated the above referenced provisions of the DPM as a result of his role as a director for MWCBC, which was a private non-profit tax exempt corporation that was used to generate funds for non-government activity. Consequently, the OIG has alleged that the respondent engaged in activity which was not compatible with the full and proper discharge of his responsibilities as a government employee and created the appearance of in impropriety. The OIG relies exclusively upon its Report, which is incorporated herein in its entirety. On June 17, 2002 the respondent appeared with counsel, Mark H. Touhey, Esq., before OCF at a scheduled hearing, conducted by William O. SanFord, Esq., Senior Staff Attorney. Wesley Williams, OCF Investigator, was also present. Synopsis of ProceedingsThe respondent is currently employed as the EOM Deputy Chief of Staff for Policy and Legislative Affairs. He has occupied this position approximately one (1) year. Prior to this appointment, respondent was employed as EOM Director of Policy Evaluation, his first D.C. government position, from January 1999 until August 2001. During examination by Mr. SanFord, the respondent testified that he is familiar with the Standards of Conduct as cited in the District of Columbia DPM. The respondent further testified that he had read and understood the allegations against him in the Report. The respondent was asked whether he was familiar with the MWCBC and to explain his relationship to and his involvement in, if any, in the corporation. The respondent conceded that he, along with Henry "Sandy" McCall (hereinafter McCall) and Marie Drissel (hereinafter Drissel), had served as incorporators of MWCBC in the fall of 1999 while they were all employed by D.C. government. However, the respondent stated that subsequent to signing its articles of incorporation, he did not participate in MWCBC in any manner. He further stated that he resigned from MWCBC in the fall of 2000. Respondent averred that he became an MWCBC incoporator pursuant to a request from McCall with the understanding that his signing of the articles of incorporation would be the extent of his involvement. Respondent further stated that he had no knowledge that he was a director of the corporation until he was advised of the allegations against him. Respondent denied any involvement in MWCB beyond signing its articles of incorporation. During direct examination by counsel, the respondent testified that he never held an interest, financial or otherwise in the MWCB; that he never discussed or transacted business on behalf of the corporation; that he never performed any duties or spoke with any one on behalf of the corporation; that he never attended a meeting or solicited funds on behalf of the corporation; that he never believed or understood that his role as an incorporator of the MWCB at anytime interfered with or was inconsistent with his role as a government official; and, finally, that he resigned from the corporation when he became aware that his involvement, albeit limited to that of an incorporator, was inappropriate. Findings of FactHaving reviewed the record in its entirety, I find:
Conclusions of Law
RecommendationPrior to the issuance of the Report, the Mayor appointed an EOM Ethics Counselor and scheduled meetings and workshops to inform and clarify each staff member as to the provisions and prohibitions of the DPM Standards of Conduct. The respondent has been in attendance at these sessions. Because the Mayor has taken steps to definitively and thoroughly train and inform each staff member as to provisions and prohibitions of the DPM Standards of Conduct, and because the respondent had limited participation in the business of MWCBC, and has since availed himself of ethics training, I hereby recommend the Director to recommend to the Mayor to warn the respondent to refrain, in the future, from prohibitive conduct. 10/29/02Date Kathy S. Williams ORDER OF THE DIRECTORPrior to the issuance of the Report, the Mayor appointed an EOM Ethics Counselor and scheduled meetings and workshops to inform and clarify each staff member as to the provisions and prohibitions of the DPM Standards of Conduct. I understand that the respondent has been attendance at these sessions. Because the Mayor has taken steps to definitively and thoroughly train and inform each staff member as to provisions and prohibitions of the DPM Standards of Conduct, and because the respondent had limited participation in the business of MWCBC, and has since availed himself of ethics training, I hereby recommend the Director to recommend to the Mayor to warn the respondent to refrain, in the future, from prohibitive conduct. This Order may be appealed to the Board of Elections and Ethics within 15 days from issuance.10/29/02 Cecily E. Collier-Montgomery Parties Served:Gregory McCarthy1334 Riggs Street, N.W. Washington, D.C. 20009 Mark H. Tuohey, III; Esq. Charles Maddox, Esq. SERVICE OF ORDERThis is to certify that I have served a true copy of the foregoing Order.S. Wesley Williams NOTICEPursuant to 3 DCMR § 3711.5 (1999), any fine imposed by the Director shall become effective on the 16' day following the issuance of a decision and order, if the respondent does not request an appeal of this matter. If applicable, within 10 days of the effective date of this Order, please make a check or money order payable to the D.C. Treasurer, c/o Office of Campaign Finance, Suite 420, 2000 14`h Street, N.W., Washington, D.C. 20009._______________ 1. DPM § 1803.1 (t) reads as follows: An employee shall avoid action, whether or not specifically prohibited by this chapter, which might result in, or create the appearance of the following:(f) Affecting adversely the confidence of the public in the integrity of government[.] DPM § 1804.1 reads, in part, as follows: An employee may not engage in any outside employment or other activity, which is not compatible with the full and proper discharge of his or her duties and responsibilities as a government employee. Activities or actions which are not compatible with government employment include but are not limited to, the following: (d) Maintaining financial or economic interest in or serving (with or without compensation) as an officer or director of an outside entity if there is any likelihood that such entity might be involved in an official government action or decision taken or recommended by the employee[.] DPM § 1805.2 reads as follows:No District employee... may acquire an interest in or operate any business or commercial enterprise, which is in any way related, directly or indirectly, to the employee's official duties, or which might otherwise be involved in an official action taken or recommended by the employee, or which is in any way related to matters over which the employee could wield any influence, official, or otherwise. 2. D.C. Law 14-36, "Campaign Finance Amendment Act of 2001," effective October 13, 2001, prohibits the use of District government resources for campaign related activities. |
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