Month: August 2011

In all the hoopla over the House Ethics Committee’s appointment of an outside counsel and the allegations of impropriety in the Committee’s investigation of Representative Maxine Waters, one serious issue has largely escaped attention. Someone leaked to Politico reporter John Bresnahan “hundreds of pages of confidential Ethics Committee emails, memos and notes” relating to the investigations of Waters and Representative Charlie Rangel. These documents, three of which were posted by Bresnahan, formed the basis of his July 18 expose on the infighting between former Ethics staff director Blake Chisam and two former attorneys on the staff, Morgan Kim and Stacy Sovereign.

The leak was an extremely serious violation of House and Committee rules. Under House Rule XI(3)(d), every member and staffer of the Ethics Committee must execute the following oath or affirmation before obtaining access to confidential information:

“I do solemnly swear (or affirm) that I will not disclose, to any person or entity outside the Committee on Ethics, any information received in the course of my service with the committee, except as authorized by the committee or in accordance with its rules.”

The Committee rules clearly prohibit disclosure to persons outside the Committee of information relating to an investigation or any investigative or adjudicatory proceedings and ban making any confidential information public absent “an affirmative vote of a majority of members of the Committee.” See Ethics Committee Rule 7 (b), (c) & (d).

The Committee takes these confidentiality requirements very seriously. Not long ago it fired a staffer who inadvertently put an internal Committee document on a publicly accessible computer network.

Moreover, both House and Committee rules state that “[b]reaches of confidentiality shall be investigated by the Committee and appropriate action shall be taken” (emphasis added). An investigation of this breach, therefore, would seem to be mandatory, not optional.

An interesting question may arise if the source of the leak turns out to be someone who no longer works for the Ethics Committee or the House of Representatives. What powers, if any, does the Committee have to punish the breach of confidentiality in that case? If the answer is none, the Committee may need to consider whether it has adequate policies in place to ensure that departing members or staff do not take with them and subsequently release highly confidential documents or information.

It is unclear whether this leaking is within the scope of the responsibility given to the outside counsel. But someone needs to investigate it.

The contract between the House Ethics Committee and Billy Martin’s law firm, Dorsey & Whitney, provides that “the Chairman of the Committee reserves the right to terminate this contract at any time.”

TPM commented on this provision as follows: “That would all seem quite normal, except of course, part of Martin’s job is to investigate Bonner and other Republicans’ alleged role in the prosecutorial abuse and unprofessional behavior involved in the Waters’ case.” Melanie Sloan of CREW is quoted as saying that this provision “seems surprising given that part of the investigation has to be of Bonner himself.”

I don’t know about that, but I wonder whether it is actually “normal” for the Chairman to be able to terminate a contract with outside counsel. Ethics Committee Rule 6(i) says “Outside counsel may be dismissed prior to the end of a contract between the Committee and such counsel only by a majority vote of the members of the Committee.” Am I missing something, or does the Dorsey & Whitney contract conflict with that rule?

 

 

According to this statement released on July 20 by the chair and ranking member of the House Ethics Committee, the Committee has retained Billy Martin as outside counsel “to review, advise, and assist the Committee in completing the matter of Representative Maxine Waters.”  However, rather than asking Martin to focus on the allegations against Waters, the Committee has directed that his “very first task” will be to conduct a “thorough review” of “serious allegations” regarding the “Committee’s own conduct in this matter.” The statement says that these allegations have been made by “Representative Waters and others,” but does not specify what they are.  It does, however, invite Waters to “clarify her concerns to the Committee and outside counsel.”

I think it is admirable that the Committee has sought an outside review of its own conduct. It is, however, worth asking exactly what Martin is supposed to do. Neither the Committee’s statement nor its contract with Martin’s firm makes this clear.

This July 18 story in Politico delineates a series of charges by Blake Chisam, the Committee’s former staff director, against two lawyers, Morgan Kim and Stacy Sovereign, who worked on both the Waters and Rangel cases.  Both Kim and Sovereign were placed on administrative leave in late 2010, and they have since left the Committee’s employ. Politico posted three internal memos written by Chisam regarding Kim and Sovereign, which it says were among “hundreds of pages of pages of confidential Ethics Committee emails, memos and notes obtained by POLITICO involving the high-profile investigations into Waters and Rangel that for the first time lay out the details of the allegations surrounding the suspensions of Kim and Sovereign.”

Chisam’s memos, which are in the nature of memoranda for the file designed to document the basis for adverse employment action, make a variety of allegations against the two staffers. He accuses them of being incompetent, lazy, unprofessional, dishonest, insubordinate, and biased. (Other than that, they were great). Because of the obviously poisoned personal relationship between Chisam and these subordinates, it is difficult to know how much to credit his allegations. But they undoubtedly raise questions about the fitness of these individuals to serve in such sensitive positions.

Given that Kim and Sovereign have left the Committee, however, their employment status is no longer an issue. It seems odd that the Committee would want outside counsel to investigate these charges (at taxpayer expense) unless they have some broader significance. And it is difficult to see how most of them would. After all, if the Committee decides to proceed with the Waters case, a new team of lawyers will have to review the matter, make its own decisions about what evidence to present and what charges to recommend (as the case was remanded to the investigatory subcommittee), and, if it comes to that, present the case to an adjudicatory subcommittee. It is not evident how the prior alleged mishandling would taint the Committee’s ability to render a fair decision.

There are two ways in which Chisam’s allegations would seem to be relevant to a potential future proceeding with regard to Waters. First, he alleges that Kim and Sovereign engaged in impermissible “ex parte communications” with members of the adjudicatory subcommittee, particularly Representative McCaul and, to a lesser extent, then-Ranking Member Bonner. It is by no means clear what the standards are for such communications, which are not addressed expressly by the Committee’s rules. Chisam himself does not contend that all such communications are improper, only those that are inappropriately “adversarial.”

As a practical matter, it seems almost inevitable that Martin will recommend that some members of the Committee be recused from future involvement in the Waters case. Whether or not Martin agrees with or can substantiate Chisam’s allegations, recusal would help to ensure public confidence in the process and remove any potential taint from the prior proceedings. Rather than further delaying the Waters proceeding while he tries to untangle the legal and factual aspects of the alleged ex parte communications, it would make more sense for Martin to figure out who ought to be recused in order for the matter to move forward.

Second, Chisam raises questions about whether certain information obtained by the two attorneys was inadmissible because it was learned from settlement negotiations. This seems like a straightforward evidentiary issue on which a future adjudicatory subcommittee could rule in the normal course. Martin certainly can and should review the issue and provide a recommendation, but it hardly seems like something that would require extensive investigation.

Rather than focusing primarily on the allegations against Kim and Sovereign, it would seem to make much more sense for Martin first to address the question of whether the Waters matter should move forward at all. This means reviewing the allegations and evidence against Waters, and making a judgment as to what charges, if any, are merited. If Martin believes that charges should proceed, he should also make recommendations to ensure that the proceedings are, and are perceived to be, fair.

This does not mean that Martin should ignore other issues (which I will discuss in another post). But if he focuses first on the minutiae of the allegations against Kim and Sovereign, the case will likely sink further into a morass of accusations and counter-accusations, delaying if not preventing a satisfactory resolution to the Waters case.