D.C. Mun. Regs. r. 3-5902

Current through Register Vol. 71, No. 23, June 7, 2024

Rule 3-5902 - NEGOTIATED DISPOSITIONS

5902.1 A violation of the Code of Conduct may result in the negotiated disposition of a matter offered by the Director of Government Ethics, and accepted by respondent, subject to approval by the Ethics Board.

5902.2 The Director of Government Ethics or respondent can initiate a negotiated disposition at any point after an investigation has been opened by the Director and prior to the issuance of a final Order of the Ethics Board.

5902.3 A negotiated disposition shall be drafted by the Director of Government Ethics, who may, in his or her sole discretion, share the draft with respondent for any comments or suggested revisions. The decision of the Director of Government Ethics not to share a draft negotiated disposition with respondent for comments and changes is not appealable to the Ethics Board.

5902.4 The Director of Government Ethics and respondent may engage in discussions, including face-to-face meetings, telephone conversations, email exchanges, and other methods of communication, as often as necessary to negotiate a disposition.

5902.5 In the event that discussions between the Director of Government Ethics and respondent do not lead to a finalized negotiated disposition, the following shall be inadmissible as evidence in an open and adversarial hearing before the Ethics Board in the same matter:

(a) The fact that a negotiated disposition had been initiated or discussed; and

(b) Any oral statements of fact or admissions made by respondent to the Director solely during the discussions related to a negotiated disposition.

5902.6 In the event that discussions between the Director of Government Ethics and respondent do not lead to a finalized negotiated disposition, any documents provided by or on behalf of respondent to the Director shall not satisfy respondent's discovery obligations in the event that a hearing notice is issued to respondent by the Ethics Board in the same matter.

5902.7 In the event that discussions between the Director of Government Ethics and respondent do not lead to a finalized negotiated disposition, any documents provided by or on behalf of respondent to the Director may be used by the Director in an open and adversarial hearing before the Ethics Board in the same matter.

5902.8 A negotiated disposition of a matter shall be subject to approval by the Ethics Board.

5902.9 Prior to the Ethics Board's approval of a negotiated disposition, respondent shall not communicate with the Ethics Board ex parte on any substantive matters related to the negotiated disposition, or appear before the Ethics Board in closed session regarding the negotiated disposition without the express leave of the Ethics Board.

5902.10 Prior to the Ethics Board's approval of a negotiated disposition, the Ethics Board may, in its sole discretion, grant respondent's request to appear before it in open session on any substantive matter related to the negotiated disposition; provided, that respondent specify, in writing, the reason for the appearance request. The decision of the Ethics Board to deny respondent's request to appear before it in an open session on any substantive matter related to the negotiated dispositions is not a final order of the Ethics Board and is not appealable to D.C. Superior Court.

5902.11 The document memorializing a negotiated disposition shall include the following:

(a) A summary of the facts that show, by substantial evidence, respondent's violation of those provisions of the Code of Conduct set forth in the negotiated disposition;

(b) All penalties agreed upon by the Director of Government Ethics and respondent;

(c) A provision that any fine or restitution payable by respondent shall be due and owing at the time the negotiated disposition is approved by the Ethics Board; provided, that the Director of Government Ethics and respondent may agree that any fine or restitution be paid in certain installments over a period not to exceed one (1) year from the date of the Board's approval; and

(d) The terms of any expungement provision; and

(e) Any other provisions as may be agreed upon by the Director of Government Ethics and respondent so as to fully and fairly reflect the terms of the negotiated disposition.

5902.12 A negotiated disposition may include, but not be limited to, one or more of the following sanctions:

(a) Fines of not more than $5,000 per violation or three (3) times the amount of an unlawful contribution, expenditure, gift, honorarium, or receipt of outside income for each violation;

(b) Fines of not more than $25,000 for a violation of the Code of Conduct that substantially threatens the public trust;

(c) Public censure;

(d) Public reprimand;

(e) Public admonition;

(f) Non-public, informal admonition;

(g) Community service; provided, that the nature of the community service, the required number of service hours, the time period in which the required service hours are to be performed, and the location at (or the entity through which) the service is to be performed shall be specified in the negotiated disposition and that the information provided by respondent to show completion of the community service be verifiable by the Director of Government Ethics;

(h) Restitution; provided, that the amount of restitution, the identity of the recipient of the restitution, and the form of respondent's proof of payment shall be specified in the negotiated disposition;

(i) Remediation; or

(j) Any other sanction or penalty, as agreed to by the Director of Government Ethics and respondent.

5902.13 Respondent may request the Director of Government Ethics to include a provision in the negotiated disposition that respondent may be eligible to apply for expungement of the negotiated disposition after a specified period of time.

5902.14 The decision to include an expungement provision in the negotiated disposition and the establishment of the period of time for respondent's expungement application rest solely in the discretion of the Director of Government Ethics, is not appealable to the Ethics Board, and may be based upon one or more of the following factors:

(a) The seriousness of respondent's conduct;

(b) The impact of respondent's conduct on members of the public;

(c) The deterrent value to other District government employees;

(d) Respondent's prior and subsequent conduct;

(e) Respondent's efforts at rehabilitation; or

(f) Any other factors, as determined by the Director of Government Ethics.

5902.15 Where an expungement provision is included in the negotiated disposition, the Director of Government Ethics shall specify a period between six (6) months and one (1) year from the effective date of the negotiated disposition as the time after which respondent may apply for expungement.

5902.16 After the specified period, respondent may apply, in writing, for the negotiated disposition to be expunged; provided, that respondent includes with the application a written certification, signed under oath, that all of the following have occurred:

(a) Respondent has satisfactorily fulfilled all the terms of the negotiated disposition;

(b) There are no new or pending allegations of ethical misconduct against respondent; and

(c) There have been no additional findings of ethical misconduct against respondent between the effective date of the negotiated disposition and the date of the expungement application.

5902.17 The Director of Government Ethics shall respond, in writing, to respondent's expungement application within fifteen (15) days of its receipt. The Director shall specify the reasons for denying an expungement application.

5902.18 Respondent may appeal the decision of the Director of Government Ethics to deny the expungement request to the Ethics Board. The appeal shall be in writing, set forth the specific reasons why respondent disagrees with the denial, and shall be filed with the Board within fifteen (15) days of service of the denial on respondent.

5902.19 Within sixty (60) days after the filing of the appeal, the Ethics Board shall render its decision, which shall set forth the reasons for the decision and, if the Director's denial of expungement is upheld, shall also instruct respondent to refer to§ 5404 to determine his or her right to appeal.

5902.20 Where the Director of Government Ethics, or the Ethics Board on appeal, grants respondent's expungement application, the document memorializing the negotiated disposition shall be removed from the Ethics Board's website and, along with any other documents in the possession of the Director or the Board concerning the expunged matter, shall be retained by the Director of Government Ethics, but treated as non-public confidential documents.

5902.21 Except as provided in§§ 5902.22 and 5902.23, responses to inquiries for, or concerning the existence of, records that have been expunged will be: "No records are available."

5902.22 Expunged records will be available, upon written request, to any court, prosecutor, or law enforcement agency for any lawful purpose concerning the investigation or prosecution of any offense.

5902.23 Expunged records will not be available to any person, entity, or government agency for the purpose of making employment decisions, unless the records are demanded by a lawfully issued administrative, grand jury, or court-ordered subpoena.

5902.24 The Director of Government Ethics will take no action to remove references to, or records concerning, an expunged matter that are in the possession of other persons, entities, government agencies, or the news media, from private or public access.

5902.25 A negotiated disposition, except where the result is a non-public, informal disposition, shall be made available to the public by posting on the Ethics Board's website within thirty (30) days after the Board's approval.

5902.26 The Director of Government Ethics, in his or her sole discretion, may redact any negotiated disposition before posting to prevent the public disclosure of confidential or protected information, such as respondent's home address, the full names of persons other than respondent, Social Security numbers, and medical information. The decisions of the Director of Government Ethics regarding redactions are not appealable to the Ethics Board.

5902.27 A negotiated disposition that has been approved by the Ethics Board shall operate as a final order of the Ethics Board.

5902.28 Respondent's acceptance of a negotiated disposition shall be deemed a waiver of the right to appeal the negotiated disposition upon its approval by the Ethics Board.

5902.29 Upon a determination that respondent has breached the terms of a negotiated disposition, the Director of Government Ethics may do the following:

(a) Allow respondent to cure the breach and continue with the terms of the negotiated disposition;

(b) Recommend that the Ethics Board nullify the negotiated disposition and hold an open and adversarial hearing on the matter; or

(c) Seek authorization from the Ethics Board to file, on the Board's behalf, a petition in the Superior Court of the District of Columbia for enforcement of any civil penalty provided for in the negotiated disposition.

5902.30 The Director of Government Ethics' determination that respondent has breached the terms of the negotiated disposition is appealable to the Ethics Board:

(a) Respondent shall file such appeal with the Ethics Board within 30 days of notification that Respondent is in breach of the negotiated disposition; and

(b) Respondent may provide any pertinent materials for review by the Ethics Board.

5902.31 Respondent's acceptance of a negotiated disposition shall be deemed a waiver of any statute of limitation defenses in the event that the Ethics Board decides to hold an open and adversarial hearing on the matter as a result of respondent's breach.

D.C. Mun. Regs. r. 3-5902

Final Rulemaking published at 61 DCR 12222 (November 28, 2014)