Monday, November 23, 2009

Dana and Duchy Take on the KGB (Updated)

District 18 Delegate candidate and County Council staffer Dana Beyer has accused the county’s Ethics Commission of discriminating against her because of her transgender status and attempting to harm her political career. Her employer, Duchy Trachtenberg, has even compared the commission to the KGB. Are the heirs to the infamous Soviet spy empire really out to get them?

This issue goes back to late 2007, when the County Council unanimously passed a bill banning discrimination against transgender individuals that was authored by Duchy Trachtenberg, who is Beyer’s employer. The bill’s opponents, most of whom were organized in a group called Citizens for a Responsible Government (CRG), launched a campaign to gather signatures for a referendum to overturn the bill. The Montgomery County Board of Elections originally ruled that CRG gathered enough signatures to justify a referendum, but their finding was overturned by the courts. The transgender protection law is in effect today.

Beyer was one of several people that traveled the county to monitor CRG’s gathering of signatures in early 2008. Long-time readers will recall that we wrote about one encounter between Beyer and CRG volunteers that is relevant to the events now under discussion today. We asked Beyer what happened at the time:

Beyer, an aide to County Council Member Duchy Trachtenberg, Vice-President of Equality Maryland and former candidate for District 18 Delegate, told her side of the story to this blog. She said she encountered CRG’s petition collectors on Primary Election Day, the following weekend and President’s Day (2/18), the date of the incident in question. At the Bethesda Giant, she entered the store, told the manager that the petition collectors were violating store policy (which allows the group to collect signatures on only one weekend per month), and left soon after making the statements to the group shown on the video.
Here is the video that was taken by CRG of the incident:

After emerging from the grocery store, Beyer told the signature collectors, “An email went out; you’re going to be asked to leave. Any petitions gathered today are illegal.”

Why is this a problem? As a County Council employee, Beyer is subject to the county’s ethics code. County Code Chapter 19A-4(m) defines a “public employee” as including “the County Executive and each member of the County Council” along with “any person employed by a County agency, including the director of the agency.” No exemptions appear for council staff or any other employees operating off-the-clock. Even non-paid board and commission members are treated as employees. County Code Chapter 19A-14(e) states, “A public employee must not intimidate, threaten, coerce or discriminate against any person for the purpose of interfering with that person’s freedom to engage in political activity.”

The video by itself does not prove that Beyer violated the ethics code, but it does chronicle an incident that merits scrutiny. A reasonable person could believe that Beyer intended to discourage CRG’s volunteers from gathering signatures by her unsolicited statement to them that they were engaged in “illegal” activities. That judgment most appropriately belongs to police officers rather than County Council staffers. When CRG later filed an ethics complaint against Beyer, the video would have been available to the commission to demonstrate Beyer’s methods of dealing with the signature gatherers.

As it turns out, the video was not the decisive factor in the investigation. The Ethics Commission found enough evidence of misconduct by Beyer at another grocery store on a different day to justify holding a hearing on the matter. The commission has no power to punish offenders; it may only ask the County Attorney to take its findings to the courts. Beyer blasted the commission in a press conference and filed a complaint against them with the county’s Human Rights Commission on the following grounds:

1. The commission allegedly treated her unfairly by having investigators search her work computer without her knowledge. “You can't run a government like this,” Beyer said. “If this were a murder investigation or if it was a major multimillion fraud investigation, I could understand that. But for this?” Trachtenberg, said, “The use of KGB-type tactics to undermine the function of my council office is chilling.” According to the Examiner, County Council staff director Steve Farber was not notified of the computer search, which turned up nothing.

2. The commission allegedly leaked the existence of its investigation and its findings to unspecified individuals, a violation of the confidentiality requirement for ethics investigations.

3. Beyer told the Gazette, “The Ethics Commission has made a blatant political attack on me, because I am the first openly transgender government staffer in Maryland.”

4. The commission was allegedly motivated to harm Beyer’s political career. Beyer finished fifth in an eight-person District 18 Delegate race in 2006 and ran unsuccessfully for an appointment to replace Delegate Jane Lawton after she passed away in 2007. Beyer is currently running for Delegate in 2010.

5. Trachtenberg was another target. Beyer said, “I’m a means to an end, and that’s to destroy my boss politically.”

Your author has called out a LOT of politicians and bureaucrats over the last two years. Our rule is that big allegations require big evidence. Let’s examine each of Beyer’s charges more closely.

1. Records Access
Beyer claims ethics investigators secretly searched her work computer. If that is true, Beyer’s “rights” were not infringed since neither elected officials nor public employees have any private property rights over public records in their custody. The vast majority of those records are discoverable under Maryland’s Public Information Act. We saw the dangers of record access problems first-hand on this blog, when the Maryland Transportation Authority tipped off the state legislature on our public information request concerning free E-ZPasses for state legislators, potentially allowing some users to escape detection. Beyer also questions whether the Executive Branch should be able to conduct secret searches of County Council records. That is a matter between the Executive and the Council Members rather than a council staffer. Overall, the opinion of Beyer and Trachtenberg that inquiry into public records is equivalent to any actions undertaken by the KGB reflects basic disrespect for the concept of open government.

2. Leaks
If the commission leaked the investigation and/or its findings, it did a poor job of it. No media outlet or blog reported on this matter prior to Beyer’s press conference. Your author has MANY eyes and ears in the council building yet had no knowledge of it. The only person besides Beyer claiming that there was a leak is Trachtenberg, who would have known of the investigation through Beyer herself. The commission also interviewed several witnesses to Beyer’s behavior with CRG activists, all of whom would have had reason to believe that an investigation was underway as a result. Beyer has released no evidence of leaks at the moment. She only states her belief that leaks occurred.

3. Transgender Discrimination
Plaintiffs in discrimination cases often seek to prove animus, or overt and expressed hostility to members of a protected class, by the defendant. Beyer has presented no evidence of anti-transgender animus by any member of the Ethics Commission even though she alleges it. In fact, the video of her actions contains enough evidence to warrant scrutiny regardless of her gender status. Beyer’s theory appears to be that anyone who investigates her conduct is motivated by anti-transgender prejudice. That is far outside the scope and intent of the transgender protection law that she invokes.

4. Beyer’s Political Career
Only one member of the Ethics Commission lives in District 18: Antar C. Johnson, the chairman. He is a Democrat and made one $100 contribution to Ike Leggett on 8/5/06. Two members (Rafael Borras and Stuart Rick) are unaffiliated, one (Gilles Burger) is a Republican, and one other (Nina Weisbroth) is a Democrat. No members of the commission have ever contributed to any candidates in District 18. Weisbroth has contributed three times for a total of $175 to District 14 Delegate Anne Kaiser, an open lesbian and a heroine of the LGBT community. (Is Weisbroth the kind of person who would be logically suspected of anti-transgender bias?) There is no evidence that any commission members, much less a majority, are hostile to Beyer’s political candidacy.

5. Trachtenberg’s Political Career
Let’s remember the basic character of the Ethics Commission and its staff. Every member of the commission is appointed by the County Executive and confirmed by the County Council. The commission relies on staffers supplied by the Executive Branch. Its decisions are enforced, if at all, by action of the County Attorney, who reports to the Executive. In this case, the County Attorney actually conducted at least some of the investigation of Beyer on behalf of the commission.

Trachtenberg is closer to County Executive Ike Leggett than any other member of the County Council. When she ran in 2006, she sent a mailer featuring herself and Leggett all over the county. She endorsed Don Praisner and Ben Kramer in the District 4 special elections, both of whom were supported by Leggett, and worked to get both of them elected. She regularly accompanies Leggett at events around the county and is leaning heavily on his support to win a second term. Yet she is alleging that his Ethics Commission appointees, his County Attorney and his employees are using “KGB-type tactics” against her office. Any claim that Ike Leggett is a Soviet-style spymaster who dispatches minions to suppress Trachtenberg and Beyer is utterly preposterous and especially surprising coming from a woman who is depending on him for re-election.

The charges made by Beyer and Trachtenberg against the Ethics Commission and the County Executive’s staff are difficult to believe and, for the most part, collapse upon casual scrutiny. Their allegations’ unwarranted damage to the county’s reputation is exceeded only by their warranted damage to their own reputations. Hysteria and paranoia make for great press conferences and guaranteed coverage, but they are poor qualities in individuals performing public service.

Update: In a letter rich with unintended irony, Trachtenberg is now accusing the County Attorney of undertaking “a clandestine, and evidently unlawful, search of confidential files in the office of a sitting Councilmember. And I intend on getting to the bottom of this reckless abuse of authority.” She writes to him, “The people of Montgomery County have an expectation of transparent and ethical behavior on the part of all public servants. And they deserve no less.”

The irony here is that while Trachtenberg calls on the County Attorney to be transparent, her bone of contention is the scrutiny of public records in her possession. Those records, with very limited exceptions, are accessible to the citizenry under the state’s Public Information Act (PIA). Council Members and the County Executive answer PIA requests all the time. Is Trachtenberg saying that her records alone are confidential?

Disclosure: The author is the Treasurer of the District 18 Democratic Team. This post was written without the knowledge or sanction of any District 18 elected officials or candidates.