THE 2015 ELECTION IN THE TOWN OF CHEVY CHASE, MD

Report of the Joint Committee of the Town Election Board and Ethics Commission

August 31, 2015

TABLE OF CONTENTS

INTRODUCTION 1: WHAT HAPPENED?2: HOW DID IT HAPPEN?3: THE RATIONALE FOR THE STEALTH WRITE-IN4: ELECTION LAW5. TOWN ETHICS LAW6. DELIBERATIONS OF THE JOINT COMMITTEE7: CIVIC ETHICS 8: WHAT SHOULD BE DONE?

APPENDIX: EXHIBITS

MINORITY REPORT

“Whenever the people are well informed, they can be trusted with their own government.”

--Thomas Jefferson, private letter, 1789

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INTRODUCTION

Following the May 5, 2015 election, the Town Council asked the Town’s Election Board and Ethics Commission to jointly investigate the circumstances surrounding the election and make recommendations as appropriate, including possible modification of the Town’s election and ethics laws and regulations. This report responds to that request.1

Purpose of the Report

On May 5, 2015 the Town of Chevy Chase held an election for two seats on the five-member Town Council. Only two candidates, both incumbents, Mr. John Bickerman and Ms. Pat Burda, filed nominating petitions and Financial Disclosure Statements qualifying them to have their names printed on the ballot. The Town newsletter, the Forecast, thereupon announced that the election was “uncontested,” neglecting to note that Town election law also allows voters to write in names for council seats. The traditional Candidates’ Forum, a televised event during which candidates answer questions from Town residents, was also cancelled given the “uncontested” election.

But the election was not uncontested. Several names were, in fact, written in on the ballot, including one that got the second highest vote total, representing 6.8 percent of the electorate, by way of a “stealth” campaign.2 Dr. Fred Cecere received a sufficient number of votes to defeat incumbent Pat Burda, 168-119. (Mr. Bickerman was reelected with 228 votes.) There had been no public announcement of Dr. Cecere’s campaign.

Considerable controversy among Town residents accompanied these events once the election results were released. The purpose of this report is to enable the Town Council and citizens to sort through the circumstances of this election -- the what, how and why of these events -- and for the Joint Committee to make recommendations regarding needed changes in Town law and practice.

In offering an account of what happened in this controversial election and making recommendations, our intent is to provide the Council and the Town’s citizens with a sound basis upon which they can determine both the proper conduct of elections and, more broadly, the standards of conduct that should apply to Town politics and elections. Given the intensity of feelings elicited by this election, it is vital, in our view, for the

1 The Election Board and Ethics Commission, which we will refer to as the Joint Committee for the purposes of this report, are independent bodies whose first responsibility is to law and the citizens of the Town. We also endeavor to comply with requests of the Town Council that comport with those responsibilities, which we believe this report does. Members of both boards are volunteers who serve without pay, and without assigned staff assistance other than the part-time advice of the Town attorney and some administrative assistance from Town staff.

2 The Washington Post, in a front page article, dubbed the write in campaign the “stealth campaign,” a name which has stuck and provides a shorthand which is used in this report. See Bill Turque. “168 Votes Herald an Insurgency in the Tiny Town of Chevy Chase: on council race, unease over Purple Line, budget and home rules spurs startling write-in effort; a stealth campaign, and 168 votes; in this little town, it was an insurgency.” Washington Post, May 13, 2015. pp. A1,7.

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Council and the Town to address the issues raised by residents regarding the conduct of elections and standards of ethics in office.

Why Does This Matter?

Some residents have argued that while the election of a write-in candidate might have been unusual and controversial, the candidates were duly elected by the two highest vote totals, and the Town should just move on.

So why is this report necessary? Why does the recent election warrant any more attention than any other election? There are several reasons, in addition to the fact that the Town Council requested it.

First, this election has led to unusual acrimony in the Town. The election results prompted heated rhetoric, charges of violations of law, threats of lawsuits, and intimidation of volunteers on Town boards, all of which had been unfamiliar to the Town. It was a trauma for the “tiny town of Chevy Chase,” as the Washington Post article characterized it.

Numerous statements have been made by residents since the election reflecting their perspective on the write-in candidacy (see Appendix of Exhibits for a sampling of citizen comments). For residents involved in it, the write-in campaign was justified in order to correct what they viewed as serious problems in the conduct of Town activities and infringements on their property rights and ability to have their views heard. For those not involved in or aware of the write-in campaign, these events have been viewed as an infringement on their rights as citizens and voters to know who is running for office, the candidates’ positions on issues and their qualifications for office. These are polar opposite views and could have important implications for the conduct of future elections, as well as the overall comity of the Town.

Second, this was not just an unusual election; it was a unique occurrence in the Town’s history and a break from past traditions of openness and public debate.3 This was a well-organized campaign that had many of the characteristics of traditional election campaigns except it sought to avoid public debate and disclosure. According to concerns expressed by Town residents, it appears to have leveraged the fact of a low turnout, based on the general belief that the election was “uncontested”, to achieve success.

Third, the election resulted in a change in the governing coalition on the Town Council. That is not in and of itself unusual in the normal course of Town affairs, but this change occurred with only a small minority of the Town electorate participating. When the election results were announced, many people in the Town were left wondering what had

3 The Town was originally incorporated as a municipality in 1918 (as Section IV of the larger area known as Chevy Chase). The reliability of historical record keeping has varied over the years. So far as living memory and accessible records go, this was the first successful write in campaign in the Town’s history. Anyone with more complete records on this or other statements of historical fact in the report are encouraged to provide them to the Town office.

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happened, who had been elected, what his qualifications were, and what the new coalition stood for.

The stakes for the Town at this juncture in its history are high not just with regard to the Town’s civic values and the way it chooses its leaders but particularly so because of the critical challenges it confronts. These challenges include the pending Purple Line light rail project and the formulation of a twenty-year Bethesda Sector Plan, both of which could profoundly affect the life, property, and property values in the Town for the next generation, if not fundamentally alter its very nature.

Fourth, in the wake of the election, residents at public meetings of the Ethics Commission, the Town Council and the Joint Committee have raised questions with respect to compliance with the Town ethics and financial disclosure laws, the reporting of election results, and the fiduciary responsibilities of councilmembers. Residents have called for the Joint Committee to respond to those questions and to recommend any necessary amendment of laws or other remedial actions.

Finally, if laws are to be changed, it is important to have a rationale as to why they should be changed. Changing a law, especially in response to the negative consequences of one event, can itself have unintended consequences that may be worse than the problem it is intended to remedy, and needs to be carefully thought through.

In the final analysis, citizens need to ask what kind of a Town we want, what our core values are, and what kind of precedent and example this election and its aftermath have established for the Town. Residents are also entitled to concern about how the Town’s reputation in the broader community of Montgomery County and the Washington region may have been altered by the high visibility of this election, and how this may impact the Town’s effectiveness in dealing with challenges such as the Bethesda Sector Plan.

Organization of the Report

In an effort to illuminate these issues, the report is organized to address the following core questions:

First, what happened? What were the basic circumstances in the 2015 election cycle, including the pertinent facts and sequence of events?

Second, why did it happen? What motivated the organizers and supporters of the secret write-in campaign? Why didn’t they simply announce their candidate, as is normally done in campaigns that have any serious intention of winning, and have him campaign to explain why he was running and why voters should vote for him?

Third, what are the legal, ethical and policy implications for the Town? Were any laws broken? Should there be laws to prevent, or mitigate, such an occurrence in the future? Were there ethical breaches?

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Finally, what, if anything, should be done? Was there inappropriate or otherwise ill-advised conduct in terms of law, ethics and/or good public policy? What are our recommendations for remedial action, whether by the Town Council or by others?

1. WHAT HAPPENED?

The Town of Chevy Chase, Maryland, is an incorporated municipality with a council-manager form of government, including a five-member Town Council on which each elected councilmember serves a two year term. Council elections are staggered so that in alternate years either two or three seats are up for election. As a result there is a Town election every year.4

Any qualified voter who has resided in the Town for one year immediately preceding the election can become a candidate for the Council by filing a timely nominating petition with the signatures of five other qualified voters, and a financial disclosure statement. By statute, the Town of Chevy Chase also permits voters to write in names on the ballot.

On May 5, 2015 the Town held an election for two seats on the Town Council. Two candidates, Mr. John Bickerman and Ms. Pat Burda, both incumbents, had filed nominating petitions and financial disclosure statements. When no other candidates had filed by the legal deadline for nominating petitions, the special election edition of the Town newsletter, the Forecast, announced that the election was “uncontested”, neglecting to note that voters can also write in names on the ballot.

Unbeknownst to the general electorate, a “stealth” write-in campaign was organized by a group of citizens on behalf of Dr. Fred Cecere. The goal of the write-in campaign was to defeat Councilmember Pat Burda by re-electing Councilmember John Bickerman and securing a write-in victory for Dr. Cecere.

One of the organizers of the write-in campaign, Mr. Ed Albert, e-mailed “like-minded” residents on election day that “[b]ecause they [Ms. Burda and her supporters] believe they are uncontested, we have a good window to start a change back to a friendly, thoughtful council that takes care of basic services and administers sensible rules.” Mr. Albert encouraged this select group to go to the polls between 5 and 8 p.m., a period “ideal for the element of surprise” and “Vote John Bickerman. Write in ’Fred Cecere’ DO NOT vote for anyone else.” Mr. Albert’s email noted that “We have worked very hard to keep this among the right group. Pls only give those names to those you feel 100% certain are like minded. If you check with me first. I will let you know if they are already covered.“5

44 Officers of the Town Council are elected annually from among the five council members. The mayor is elected by a majority of the council from among its members for a one-year term. The principal role of the mayor is to chair the council and symbolically represent the Town.

5 Email from Ed Albert, May 5, 2015. Because the stealth write-in campaign was conducted in secret, Mr. Albert’s email, which apparently “leaked out” inadvertently,” is one of the few sources of documentation available to help the broader public understand that campaign’s rationale and policy intentions, and so is

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About an hour before the polls closed, at the beginning of the scheduled Council meeting, Councilmember Al Lang introduced Dr. Cecere as a “write-in candidate” to the Chair of the Ethics Commission, Mr. Barry Hager. At the same time, Mr. Lang handed Dr. Cecere’s financial disclosure statement to Mr. Hager. It was dated the day before the election, on May 4th. Mr. Hager responded that it should be submitted to the Town staff. When the polls closed at 8 pm on Election Day the vote totals showed the following: John Bickerman: 228; Fred Cecere: 168; Pat Burda: 119, with several other names also written in but gaining only one or two votes.

The Election Board delayed reporting the results to the Council pending consideration of the Ethics Commission as to whether Fred Cecere was in compliance with the Town ethics ordinance which requires the filing of a Financial Disclosure Statement by candidates for Town Council. After two public meetings and deliberations, by a 2-1 decision, the Ethics Commission found, based on the language of the Town’s ordinances, that the Commission could not conclude that Dr. Cecere had violated the financial disclosure law. The Election Board then proceeded to report the final election results to the Town Council, with Mr. Bickerman and Dr. Cecere declared the winners.

At the first meeting of the new Town Council, Dr. Cecere was installed, and Mr. Lang was elected Mayor, Mr. Bickerman Vice Mayor, and Dr. Cecere Treasurer, with the three now forming a new governing coalition replacing the former governing coalition of Ms. Burda, Ms. Kathy Strom, and Ms. Vicky Taplin.

The new Town Council, on the motion of Vice Mayor Bickerman and with unanimous consent, asked the Election Board and Ethics Commission to work together to produce a report explaining the facts and circumstances of the 2015 election and to recommend appropriate reforms.

2. HOW DID IT HAPPEN?

This was the first successful write-in campaign in the Town’s history. Write-in campaigns in general rarely succeed. So how did this one? It succeeded as the result of several factors, including effective organization, secrecy, a misleading announcement by the Town government that the election was “uncontested,” the consequent misperception by voters who therefore stayed away from the polls, causing an unusually low voter turnout, and inaction on the part of Town Council members who knew about the stealth campaign prior to election day but did not correct the public record and alert voters that the election in fact was contested.

a. Organization

referred to in several places in this report.

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At the simplest level, a group of motivated citizens organized a highly effective write-in campaign and their candidate won. However, that doesn’t explain how 168 voters, a mere 6.8 per cent of the electorate, were able to pull off the write-in victory. Part of the answer is that the write-in campaign was well-organized. Compared to the historical norm of political campaigning for the Town Council in Chevy Chase, it appears to have been sophisticated in its strategy, tactics and communications, including the effective use of social media which can reach targeted audiences.

b. Secrecy

The write-in campaign for Dr. Cecere was undertaken in relative secrecy (relative because at least 168 people were in on the secret). All elections have some elements of secrecy since voting is by secret ballot and it is normal for an organized campaign to maintain some degree of secrecy regarding its strategy.

It is unusual, however, for an organized write-in campaign that is serious about winning to be kept a secret confined only to reliably supportive voters. In fact, write-in campaigns more typically strive for as much attention as they can get, in order to compensate for the fact that their candidate does not appear on the ballot and probably has difficulty getting public attention and opportunities to appear in candidate forums.

To be sure, some political campaigns concentrate on “motivating the base,” and may direct little effort to trying to persuade uncommitted voters if they believe their natural constituency is large enough to win in a moderately low-turnout election. But even these kinds of efforts, while they may minimize their public visibility in order not to stir the opposition out of their complacency, don’t attempt to keep the entire campaign itself a secret. But that is precisely what the organized write-in campaign for Dr. Cecere in fact did successfully.

Stealth can involve an aspect of deception, in the sense of acting in a manner intended that someone will believe something that is not true. In the case of the stealth write-in campaign, the strategy hinged on the deception that the electorate believe the election was “uncontested” when in fact it was contested, as indicated by Mr. Albert’s email (“[b]ecause they believe they are uncontested, we have a good window … “).

Dr. Cecere’s supporters on Election Day were a small minority of the electorate, which would explain the rationale of the Albert email’s entreaty not to allow this information to get out to anyone who is not the “right group” and to confine the voting directions to those who are in the “right group.” The only way they could win was if most voters stayed away from the polls in the belief that, because the election was uncontested, there was little reason for them to vote.

In past “uncontested” Town elections, no more than about 6 percent of the electorate had come out to vote. So if the stealth campaign could garner more than 6 percent of voters to the polls, without mobilizing the other side, they stood a chance of writing in enough votes to elect Dr. Cecere, as well as reelecting Councilmember Bickerman. Then Dr.

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Cecere and Councilmember Bickerman, together with Councilmember Lang, would constitute a governing majority on the Town Council.

As it turned out, Dr. Cecere’s 168 write-in votes represented 6.8 percent of the Town electorate of 2,470 active registered voters, sufficient to outweigh the low voter turnout consistent with those historical patterns in “uncontested” elections. In 2013, a contested election, Ms. Burda received 384 votes.

c. Misinformed electorate

An important reason the stealth strategy was successful is that the voters were also told by the Town’s special election edition of the Forecast, that the election was “uncontested.” Many citizens have stated they did not vote for that reason.

Ms. Anthula Gross, then a member of the Election Board, has explained how the election came to be characterized as “uncontested.” The Election Board had initially expected the election would be contested, and enlisted Charles Duffy, a local cable TV show host, to moderate the candidate’s forum that is traditionally held before the Town elections.

However, when the Election Board learned that by the filing deadline only two candidates (the two incumbents) had filed for the two council seats, Ms. Gross concluded that the election was “uncontested,” that the candidates’ forum should be converted to a ”Meet and Greet” opportunity for voters to informally converse with the candidates, and that the voters should be so informed. (There also was no longer a need to enlist an experienced moderator such as Charles Duffy.) Accordingly, the traditional candidates’ forum was cancelled and the voters were so informed.

These actions all complied with previous Town practice under similar circumstances, as well as general practice in neighboring jurisdictions. For instance, Chevy Chase View actually cancels elections if there is no contest among candidates filing petitions of nomination, even though it normally allows for write-ins. Chevy Chase Village does not permit write-ins at all.

In a strictly technical sense, the Forecast announcement that “the election is uncontested,” may have been true at the moment it was published (a few days prior to April 23, 2015). It was, at that point, too late for other candidates to qualify by filing a petition of nomination. And the Joint Committee has not been able to determine with certainty when the Cecere campaign was initiated.

However, in hindsight, the message was at its core misleading, even if there was no intention to mislead by proceeding in a manner that seemed to conform with past practice. As events have shown, there was no way of knowing whether a Town election would be “uncontested” until it was over, so long as a write-in candidacy was allowed as under current law. It would have been more precise for the Town to have informed the electorate that just two candidates had qualified to appear on the ballot for the two council seats, but that voters could also write in names on the ballot.

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d. Inaction to Correct the Record

A question raised repeatedly in public meetings since the election is whether Town officials had a responsibility to correct that misleading public record if and when they learned that the election was not in fact “uncontested” but was being seriously contested by the stealth write-in campaign.6

In order to respond to those residents’ questions, the Joint Committee on June 5th sent a letter to the five then-incumbent council members asking them if they had known about or engaged in the stealth write-in campaign for Dr. Cecere during or before the election. Councilmembers Burda, Strom and Taplin promptly responded, each indicating that they had not been aware of the Cecere write in campaign until around 7:00 p.m. on Election Day, shortly before the polls closed.7

Neither Mayor Lang nor Vice Mayor Bickerman responded in writing to the Joint Committee’s letter of inquiry either to answer the questions or to explain why they would not. This has impeded the Joint Committee in ascertaining the facts about what happened during the campaign and seems inconsistent with the fact that both Councilmembers Lang and Bickerman voted to ask the Joint Committee to undertake this inquiry in the first place. Their failure to respond makes it impossible for the Joint Committee to state with complete certainty whether either of them knew of the campaign prior to the misleading Forecast publication. We have concluded, however, that they were aware of the campaign prior to Election Day but failed to alert the general public to the misleading nature of the Forecast and other public statements and actions, such as cancellation of the candidates’ forum, that conveyed the message of an “uncontested” election.

In an earlier communication to the Ethics Commission, Mr. Bickerman had promised that he was “prepared to respond to any questions the Committee has regarding my role in efforts to elect Fred [Cecere], as well as any other issues the Committee would like me to address.” In reneging on that promise, Mr. Bickerman later stated publicly that he had no intention of answering the Joint Committee’s letter of inquiry because it was a violation of his Constitutional rights. The Joint Committee believes it was altogether appropriate to ask Mr. Bickerman and Mr. Lang to answer questions in a fact-gathering exercise both of them initiated by voting for council action establishing the Joint Committee, and which at least Mr. Bickerman had earlier pledged to answer.

Mayor Lang, who also voted to establish the Joint Committee, has remained silent, to the best of our knowledge, as to why he never responded to the Joint Committee inquiry.

The refusal of Mayor Lang and Vice Mayor Bickerman to cooperate with the Joint Committee in the preparation of this report has naturally created an obstacle to carrying

6 Under Town law, the Town Council guides and approves the Election Board’s actions regarding “the form and text of all notices or other communications forwarded to the citizens.”

7 See Appendix-Exhibits: Letter of inquiry from Joint Committee of Election Board and Ethics Commission, June 5, 2015 to Town Councilmembers incumbent during Election 2015 and responses

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out the task they assigned to us. However, the Joint Committee, relying on various sources of information, including statements the two have made to other Town residents, has concluded that both Mr. Lang and Mr. Bickerman did know about the Cecere write-in campaign at least a few days prior to the election, and that Mr. Bickerman gave advice to that campaign as well.8 And we know at a minimum that Mr. Lang knew of the write-in campaign as of Election Day itself since he was the person who introduced the candidate and presented the candidate’s Financial Disclosure Statement to the Chair of the Ethics Commission shortly before the polls closed.

Numerous Town residents have argued that the failure of Councilmembers Lang and Bickerman to correct the record once they learned the election was in fact “contested”, constituted a dereliction of responsibility on their part. Citizens have characterized this in various ways, ranging from an alleged violation of law to a failure of fiduciary responsibility to a failure of ethical or civic responsibility.

Vice Mayor Bickerman has publicly denied that he had any responsibility whatsoever to the voters in this matter. His explanation to the Ethics Commission when it made its determination regarding the timeliness of the filing of Dr. Cecere’s Financial Disclosure Statement was essentially that politics is politics, and the stealth write-in campaign was simply a political trick. Mr. Bickerman, who demanded extra time to testify before the Joint Committee because he was a Town Councilmember, maintained that as a private individual he has a Constitutional right to practice politics as he sees fit, and that he has no responsibility to divulge his or anyone else’s political strategies, even if they depended on the deception that the election was uncontested. Mr. Bickerman claims he had no responsibility for any information put out in the Forecast, and that he didn’t even read the blurb about the election being “uncontested.”

As noted earlier, the Joint Committee believes that Councilmembers Lang and Bickerman share responsibility for the misleading information the Town sent citizens informing them that the election was “uncontested”. Mr. Bickerman is the only Town official who has denied that responsibility, claiming he had no involvement in sending that message, and that he never read it in the Forecast. Nonetheless, that does not absolve him of his responsibility as a member of the Town Council to guide and approve the Election Board’s actions regarding “the form and text of all notices or other communications forwarded to the citizens” as stated in Town law.

8 In testimony before the Ethics Commission Mr. Bickerman acknowledged that he was aware of the Cecere campaign as early as Friday, May 1, 2015, several days before the election. He has also stated in private conversation that he advised the Cecere campaign regarding the need for write-in candidates to submit a financial disclosure statement. Mr. Lang knew about the Cecere campaign during the election if only because Dr. Cecere gave him his candidate’s financial disclosure statement on Election Day; and various individuals have indicated Mr. Lang has acknowledged knowing about the stealth write-in campaign at least several days before Election Day. (See Exhibits, email of Ann Wild, e.g.) In addition, Mr. Lang told one Town resident that he had been actively involved in seeking candidates for the write-in campaign.

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Moreover, Ms. Gross has stated that on April 23, 2015 when she contacted Councilmembers Burda and Bickerman to remind them of the Meet and Greet, both were aware of the event and assured her that they would be coming. Ms. Gross also noted that Mr. Bickerman asked her if many people were expected and she replied that there probably would not be many since the election was uncontested. So it is clear that whether or not Mr. Bickerman actually read the blurb in the Forecast informing voters that the election was “uncontested,” he was certainly aware by April 23rd, well before the election, that that was the Town’s official position. To be clear, Mr. Bickerman did not deny that he was aware that was the Town’s official position; he simply stated that he had not read the blurb in the Forecast to that effect.

The Joint Committee concludes that both Mr. Lang and Mr. Bickerman knew that the Town government had informed

the voters that the election was “uncontested”; both Mr. Lang and Mr. Bickerman knew before the election about the stealth

write-in campaign in support of Dr. Cecere, and therefore that the election was in fact contested;

neither Mr. Lang nor Mr. Bickerman took actions to correct the record and inform Town voters in general that the election was in fact contested.

Residents of the Town have contended in hearings before the Joint Committee that Town Council members have at least a fiduciary, if not a legal, responsibility to accurately inform residents about facts pertinent to the government of the Town. Mr. Bickerman has at times denied such a fiduciary responsibility. Yet it would seem unlikely that he or any Council member would argue that he/she is at liberty to allow a materially misleading statement made to the public at large about the finances of the Town to remain unchallenged or uncorrected on the public record if the Council member knew the information to be untrue. Surely the duty to correct misleading statements relating to elections that determine the governance of the Town is as great as the duty to correct misstatements about the Town’s finances.

As for a specific legal basis for arguing that a Council member has a fiduciary responsibility to the Town public, Article 6 of the Maryland Constitution’s Declaration of Rights states that “all persons invested with the Legislative or Executive powers of Government are the Trustees of the Public, and, as such, accountable for their conduct.” Since the Town of Chevy Chase is chartered under the Constitution and laws of Maryland, that applies to Town councilmembers. Indeed, the Oath of Office for Council members says, in part, “I will be faithful and bear true allegiance to the State of Maryland, and support the Constitution and Laws thereof…” And the concept of being a “Trustee” of the “Public” is at its heart a statement that government officials have a fiduciary responsibility with regard to the public.

As for a specific legal duty to correct incorrect information that a municipality has provided to its residents, the case of Blackwell v. City of Seat Pleasant, a 1993 case from the Maryland Court of Appeals has been cited by several residents. At issue there was a publication by a town government that misled Town residents into thinking that the time

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period for seeking a referendum challenge to Council resolutions had already passed, thereby depriving citizens of their right to seek a referendum in a timely fashion. The Court invalidated the Council resolutions based on the fact that the public was misled. The residents’ rights were impinged by the Council’s failure to provide accurate and proper notice to the public.

3. THE RATIONALE FOR THE STEALTH WRITE-IN

Why did it happen? Why did a group of citizens feel it necessary to depart from the Town’s civic traditions and mount a stealth write-in campaign? Supporters of the write in campaign have offered four general lines of explanation in the aftermath of the election.

a.Climate of Town Government

The first has to do with the general climate of Town government. Dr. Cecere has said the stealth write-in campaign was necessary and justified because of what his supporters felt was the Town government’s “tyranny and bullying.”9 These are serious charges. However, to our knowledge Dr. Cecere has offered no specifics or evidence to support them.

Dr. Cecere has also justified the stealth campaign on the grounds that many of his supporters felt “a quiet anger,” in part because they had been “disrespected.”

b. Town Policies and Administration

A second line of explanation offered by supporters of the stealth write in campaign was the need to correct Town policies and administration.

Frequently cited, for instance, was citizen frustration with what they perceived to be over-regulation and imposition on their property rights, both in the form of overly restrictive policies and procedures as well as the overbearing manner in which they were seen to be administered.

Mr. Albert’s experience in attempting to expand his fence into the public right of way is a grievance that has been cited. Mr. Bickerman has said he was motivated to get into Town politics because the Town’s “condescending and obnoxious” process regarding setback rules left him with a rear deck so small there was no room for a table to eat on. And Mr. Lang has said that the resistance he encountered trying to convert a screened-in porch to a room for his aging father is what motivated him to run for the Town Council.10 In another example, some parents of students at Chevy Chase Elementary were angered over the Council’s initial resistance to the placement of portable classrooms on the school’s playground areas. While the Council adjusted its position, resentment over this issue appears to have lingered.

9 Turque, Washington Post, May 13, 2015. pp. A1,7.10 Turque. Washington Post, May 13, 2015. pp. A1,7.

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c. Role of Town Government

A third line of explanation advanced by supporters of the stealth write-in campaign as to its justification is that the role of municipal government as practiced by the Town of Chevy Chase required a radical overhaul, as did the Town’s financial management.

For instance, Mr. Albert, has argued that the Town government should confine itself to basic municipal “housekeeping functions” -- such as picking up the trash and fixing the potholes -- and should generally refrain from advocacy activities beyond the Town’s borders.

Questions regarding the basic role of municipal government are always legitimate concerns of citizens, and in fact have a long history. The “housekeeping” model of municipal government was widely debated in the first quarter of the 20th century and almost universally abandoned as outdated in any modern urban setting, but is, of course, always open for reconsideration.

The Town Council itself played a leading role in updating the vision of municipal government in Maryland in the early 1970s, working with municipalities throughout Maryland to provide a base of research and argument regarding the appropriate role of municipal government. That effort concluded that a key role of municipalities, small ones in particular, was to effectively represent their citizens before higher levels of county, state and federal government on decisions that have a significant impact on the lives, property and property values of their citizens.11

The Town Council in that period played a role in protecting the Town from County-level plans for massive development of the Bethesda Central Business District which would have radically and negatively affected the Town. Today there is still disagreement in the Town about how the Town government should respond to challenges from State and County plans for transportation and business development contiguous to our Town.

Another concern raised by supporters of the stealth campaign is that the cost of Town government and taxes are exorbitantly high, due both to misguided spending on inappropriate government services and to fiscal mismanagement. Here again, such issues are entirely legitimate concerns of taxpayers, and rightly subject to scrutiny. However, the charge of structural fiscal mismanagement is curious in a municipality such as ours with no debt and a fund surplus equal to about twice the annual operating budget. Some citizens believe such a rainy day fund might stand the Town in good stead as it confronts significant fluctuations in projected income tax revenue due largely to state and federal

11 See R. Scott Fosler, chairman, et al. 1974. The Challenge to Municipal Government. Report of the Maryland Municipal League Committee on the Functions of Municipal Government. Annapolis, MD: Maryland Municipal League.

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government actions over which the Town has no control, including, for instance, the recent Supreme Court decision in Comptroller of the Treasury of Maryland v. Wynne.12

Meanwhile, one charge that has been raised: that the Town has an outrageously high property tax rate, is simply wrong. In recent years the Town Council has reduced the property tax rate to zero; there currently is no property tax in the Town of Chevy Chase.

d. Nature of Town Politics

A fourth line of explanation for the stealth write in campaign is that it was “just politics.” Councilman Bickerman stoutly defended this position and the stealth write-in campaign in his testimony before the Ethics Commission13.

The essence of Mr. Bickerman’s argument seems to be that politics is politics, pretty much the same everywhere. And politics involves political trickery, which is to be expected as a normal part of the process, so long as it does not violate the law. Mr. Bickerman has acknowledged that the vast majority of Town voters may have been tricked by the stealth campaign, but his position appears to be that that there was nothing wrong with that, because that is how politics works. He cited an example of how the Barack Obama campaign had tricked the Hillary Clinton campaign in 2008, in making the point that trickery is inherent in politics.

People might get angry at being tricked, according to Mr. Bickerman, but anyone who did not vote in the recent Town election had no one to blame but themselves. Nobody suppressed their right to vote, he argued; those voters simply chose not to exercise that right. The essence of Mr. Bickerman’s position seems to be that in politics, whatever is not illegal is permissible.

A counterargument to Mr. Bickerman’s position is that politics is not necessarily the same everywhere, nor need it be. It is what the people in a jurisdiction choose it to be.

Another aspect of the stealth campaign that related to the nature of Town politics is why, given the range of complaints and criticisms of the incumbent Town government, the supporters of the stealth campaign did not go to the electorate openly and seek a change in the composition of the Council? A traditional view would hold that this is what elections are meant to be about—a robust exchange of views and visions leading to a democratic choice that shows the preferences of a majority of the electorate. Failing to take that open route and to participate in the traditional public campaign process has cast doubt on the motivations of those involved in the stealth campaign by many Town voters who feel as if they were misled about the contested nature of the election, and has

12 In a 5-4 decision last May the U. S. Supreme Court held that Maryland’s personal income tax scheme, which taxes income that its residents earn both within and outside the state but does not provide residents with a full credit against the income taxes that they pay to other states, violates the Commerce Clause. While this ruling will no doubt benefit many Town taxpayers, it will also negatively affect Town revenue from its share of the state income tax. 13 Councilman John Bickerman, testimony before the Ethics Commission, May 11, 2015

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obscured, in the eyes of many Town citizens, whatever electoral mandate the victors sought or believe themselves to have won.

And the mandate from the 2015 election matters. The Town still faces urgent and important questions about how to respond to the potential development of the Purple Line and to the challenges from new development in Bethesda, on the Town border.

4. ELECTION LAWPost-Election Actions of the Election Board and Applicable Laws

The evening of the election, the Town Election Board followed its usual practice in counting the ballots, and reported the results to the Town Council.

The day after the election, The Town Election Board then met with the town attorney and carefully analyzed the somewhat complex provisions of applicable State law and the Town code and charter governing write-in candidates and financial disclosure requirements. (An analysis of these requirements is provided below).

The Board noted that State and Town laws appear to be in conflict as to when a write-in candidate must file a Financial Disclosure statement and are therefore difficult to reconcile. After lengthy deliberations the Board determined that it was unable to certify the election because there was “substantial evidence that Dr. Cecere may not have complied with financial disclosure requirements.” The Board did not find that Dr. Cecere had violated these requirements; rather, it determined that because Dr. Cecere’s obligations were not readily apparent, it should refer the issue to the town’s Ethics Commission, requesting an advisory opinion as to whether he had complied with applicable disclosure laws.

Summary of Applicable Laws

Maryland State Elections Law requires a write-in candidate to submit a “certificate of candidacy” within 7 days of expenditure of at least $51 to promote the candidacy, or no later than the Wednesday before the election for which the certificate is filed. (Md. Code, Elections Art. Sec. 5-303). Maryland State Ethics Law requires all persons required to submit certificates of candidacy (thus including write-in candidates) to submit an initial, or “first” Financial Disclosure Statement no later than the filing of the certificate of candidacy and another by April 30 in the year of the election.

Write-in candidacy is currently authorized by the Town election law (Town Code, Sec. 8-3(a)). There is no Town requirement that write-in candidates register—only persons desiring to get their names on the ballot and election notice must submit nominating petitions. (Town Code, Secs 8-3(b) and 8-4(b)). Voters are informed in the election notice that that there will be blanks on the printed ballot “for the purpose of adding write-in candidates at the time of the election” (Town Code, Sec. 8-4(b). However, under the Town ethics law, a “candidate” for office must file a financial

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disclosure statement no later than the filing of the nominating petition. (Town Code, Sec. 2-56(b) 2)).

State Ethics Law requires the Town to adopt an ethics ordinance in a form approved by the State Ethics Commission (Md. Code, Gen. Provisions Art. Sec 807). The financial disclosure provisions in the Town’s Ethics Ordinance must be “equivalent to or exceed” the requirements of the State Ethics Law (Md. Code, Gen. Provisions Art., Sec 5-809). The State Ethics Law (upon which the Town law was required to be equivalently modeled) used the structure of the State Elections Law, which requires that write-in candidates file certificates of candidacy. In addition, the Model State Law, which was designed to assist municipalities in drafting local financial disclosure and other ethics provisions (and upon which the current Town financial disclosure law is based) does not mention write-in candidates, but requires that “a candidate to be an elected official” must file financial disclosure statements.

In sum, under State law, write-in candidates must file certificates of candidacy, and all persons required to file certificates must also file Financial Disclosure Statements. Town law, which specifically authorizes write-in candidates, requires that all candidates for office file Financial Disclosure Statements, but does not link this requirement to any type of filing notification.

5. TOWN ETHICS LAWPost-Election Deliberations of the Ethics Commission:

The primary responsibility of the Town Ethics Commission, under Maryland state law and the Town of Chevy Chase Ethics Ordinance, is to make certain that there are no financial conflicts of interests in the conduct of Town officials and candidates for the Town Council. Insuring against conflicts of interest is largely done by requiring the filing of Financial Disclosure Statements by covered officials and candidates which are reviewed for completeness and adequacy by the Ethics Commission.

Under the State and Town laws, all incumbent members of the Town Council, key Town staff and all candidates for Town Council must file such Financial Disclosure Statements annually. The deadline for filing such statements is spelled out in the Town Ethics Ordinance.

In the case of the May 5, 2015 election, all of the incumbent members of the Council, including the two announced candidates for reelection, Ms. Burda and Mr. Bickerman, duly filed their financial disclosures in a timely fashion. An email letter from the Chair of the Ethics Commission on the day of the election which was addressed to Council incumbents, including both of the announced candidates for the Council, confirmed that all of the required Financial Disclosure Statements had been filed in a timely fashion.

At the beginning of the Town Council meeting scheduled for the evening of the election (at 7:00 PM, May 5, one hour before the polls were to close in the election), however, Councilmember Lang handed to Ethics Commission Chair Hager a Financial Disclosure

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statement from Fred Cecere, who Mr. Lang then described as a “write-in candidate.” Mr. Hager said that the statement should be presented to the Town staff, and Councilmember Lang did so. The Town staff the next day distributed copies of Dr. Cecere’s Financial Disclosure Statement to the members of the Ethics Commission.

The Ethics commission thus found itself confronted with the Financial Disclosure Statement from Dr. Cecere which had not been available to the Commission prior to the election. Since it was understood as of May 6 that Mr. Cecere had received enough write-in votes to have been apparently elected to the Council, the question of the adequacy and timeliness of the filing of his Financial Disclosure Statement arose. Since the Ethics Commission had not seen his Financial Disclosure Statement before, a meeting was called for Friday May 8 to consider those questions.

In the meantime, the Elections Board had concluded, as noted above, that there might be a question regarding Dr. Cecere’s eligibility to be elected to serve on the Council based on his failure to comply with the Ethics Ordinance and its requirement regarding financial disclosure. The Election Board had thus withheld certification of the election and requested that the Ethics Commission make a determination about whether Dr. Cecere had complied with the Ethics Ordinance, as described in Section 4 above.

The Ethics Commission met on May 8 in public session. While part of the meeting was conducted in executive session in order to obtain legal advice from the Town Counsel, the initial deliberations of the Commission were in public, the press was in attendance and Dr. Cecere himself and other town residents were given the opportunity to speak to the Commission.

The Commission did not reach a decision on May 8 on the adequacy of Dr. Cecere’s Financial Disclosure Statement, and scheduled another public meeting for May 11 to continue its deliberations. As the Commission members were advised by Town counsel, under Maryland State Open Meetings Act rules, no oral conversations between any two members of the three-person Commission were allowable in the interim as two persons constitute a quorum of the Commission for a meeting, and no meeting of the Commission can occur without public notice and openness to the public.

On May 11, the Ethics Commission convened again to consider whether Dr. Cecere’s Financial Disclosure Statement had met statutory requirements for eligibility to serve on the Council. This meeting attracted considerable public attention since by this point most Town residents had become well aware of the unexpected outcome of the May 5 election, and many citizens wished to appear and testify about their views as to the legitimacy of what had transpired in the election.

Ethics Commission Chair Hager attempted to point out that this meeting was not in the nature of a public hearing but was a decisional meeting of the Ethics Commission. That said, numerous members of the public were allowed to make statements, including Council member Bickerman who made a lengthy argument about the legitimacy of what

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had transpired in the May 5 election and who cast aspersions at the Ethics Commission, calling it a “kangaroo court” at one point.

After receiving public testimony, the three members of the Ethics Commission in open session debated the question of the adequacy of Mr. Cecere’s Financial Disclosure Statement. Ms. Soltis took the position that Town election law explicitly permits write-in candidacies and that the statutory requirement for filing a Financial Disclosure Statement was inextricably linked to those candidates who file a nominating petition to be listed as a candidate on the official Town ballot. Based on the plain language of the statute she concluded that write-in candidates were not required to file a Financial Disclosure Statement by the deadline referenced in the Ethics Ordinance.

Ms. Soltis therefore believed that Dr. Cecere had not failed to comply with any statutory requirement for filing his Financial Disclsure Statement. In her view, Dr. Cecere had not failed to comply with any statutory deadline for the filing of a Financial Disclosure Statement by a write-in candidate.

Mr. Fosler found, in keeping with Mr. Hager’s position, that both state law and the Town Ethics Ordinance clearly intended and required that a qualification for being elected to the Town Council, applicable to all candidates and write-ins, was the submission and validation of a Financial Disclosure Statement; but he also found, along with Ms. Soltis, that in the case of write-in candidates the Town ordinance did not provide any clear dates by when the submission and validation were required to be made, nor did state law. Mr. Fosler concluded, therefore, that while Dr. Cecere was required to file a Financial Disclosure statement, which he had done, there were no clear criteria upon which to determine that he had not filed it in a timely fashion.

Mr. Hager took the position that a reading of the Town Ethics Ordinance in conjunction with the State Ethics and Election laws indicates that write-in candidates, like all other candidates for Council, must file a Financial Disclosure Statement with the Ethics Commission. Sec. 2-56 of the Ethics Ordinance imposes that obligation on “all local elected officials and candidates to be local elected officials” without exception. That is consistent with Maryland state law which likewise imposes a financial disclosure obligation on all candidates, with no distinction made for write-in candidates. (See Md. Code, General Provisions, Sec. 5-601.) Since Maryland state law states that the Town of Chevy Chase Ethics Ordinance must “be equivalent to or exceed the requirements” of the State Ethics law, Chairman Hager contended that the Town Ethics Ordinance would fail to meet the state standard if it were not interpreted to require the filing of a Financial Disclosure Statement by all candidates, including a write-in candidate.

As for the deadline for such filing, the Town Ethics Ordinance provides two possible dates: the first is simultaneous with the deadline for filing a nomination petition, which is the third Tuesday before the election (April 14 this year). See Sec. 2-56 (b) (2). The second is a “catch-all” deadline that gives each candidate a final, drop-dead deadline of April 30 by which time to file a satisfactory FD: If a candidate “otherwise fails to file a

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proper statement by April 30…(he/she) shall be deemed to have withdrawn the candidacy.” Sec. 2-56 (b) (4).

Maryland State Election Law contemplates write-in candidates and requires such candidates to file a “certificate of candidacy” essentially one week prior to the election. Therefore Mr. Hager concluded that the April 30 deadline is both reasonable and consistent with Maryland State Ethics and Election laws and that Mr. Cecere had not met that mandatory deadline.

After debate and comments among the three Ethics Commissioners, a motion was put forward by Commissioner Fosler that the Ethics Commission could not find that Dr. Cecere had violated the Town Ethics Ordinance by failing to file a Financial Disclosure Statement in a timely fashion.

On that motion, Commissioners Soltis and Fosler voted aye and Chairman Hager voted no. Thus, by a 2-1 margin the Ethics Commission did not find an ethics violation in the matter of Dr. Cecere’s filing of a Financial Disclosure Statement at the end of Election Day, May 5.

The Town Council and the Election Board were notified of this decision on May 12. Shortly thereafter, the Election Board certified the election of Mr. Bickerman and Dr. Cecere.

6. DELIBERATIONS of the JOINT COMMITTEE:

On May 13, in addition to swearing in John Bickerman and Fred Cecere to new terms as Council Members, the Town Council voted unanimously to request the Ethics Commission and Election Board to jointly investigate the circumstances of the May 5 election and to provide recommendations to the Council on how to better coordinate the Ethics and Election laws and on any changes in those laws that might be suggested by the events surrounding the election of a write-in candidate.

The Joint Committee held several meetings in response to the Council’s request, during some of which Town residents participated actively and vocally. (See the last paragraph of Mr. Charrow’s Minority Report.) The Joint Committee has also received a number of comments submitted to the Town and the Committee by residents. While comments from the public have been diverse, most have focused on their concern about “stealth elections.”

On May 26, the first meeting was held of the Joint Ethics Commission and Election Board. That meeting became largely a public hearing due to the large number of residents who sought to be heard and to raise questions about the write-in campaign and the propriety of what had happened in the May 5 elections. Questions were particularly focused on the fact that official Town publications had notified residents that the Council elections were “uncontested” and that at least one member of the Council, Mr. Bickerman, and possibly another, Mr. Lang, were aware of the Cecere write-in candidacy

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at least a few days before the election and took no steps to alert other Town residents or officials that the “uncontested” characterization was inaccurate.

No action was taken at that meeting with respect to suggested changes in Town law or practice, but it was agreed the Joint Committee would meet again soon and would begin to prepare a report on what had happened in the campaign and election and possible reforms.

On June 4, the Joint Committee met again in public session to consider actual recommendations for reforms or changes in Town law to respond to the events of the May 5 election. Discussion centered on whether to continue to allow write-in candidates, as is allowed under current law, and if so, whether to require that write-in candidates file Financial Disclosure Statements by the deadlines now in the Town Ordinance and/or whether to follow Maryland state law and require write-in candidates to file a “certificate of candidacy” prior to the election.

After debate, Mr. Hager moved that the Joint Committee recommend to the Town Council that write-in candidates continue to be allowed, but that write-in candidates must submit a certificate of candidacy at least 14 days prior to the election in order to be eligible for service on the Council. That motion was adopted by both the Ethics Commission (by a 2-0 vote, with Ms. Soltis not present or voting) and the Election Board (by a 2-1 vote, with Mr. Charrow in opposition). This recommendation to the Council would make Town law consistent with Maryland State law in its treatment of write-in candidates.

In a subsequent discussion about what Financial Disclosure requirement to impose on write-in candidates, the majority view was that Financial Disclosure Statements should only be required of a write-in in the event he or she won a position on the Council. Mr. Hager from the Ethics Commission and Ms. Tristani of the Election Board dissented from that view, arguing that, consistent with current Town Ethics law, all candidates should be treated equally with respect to the filing requirement. The recommendation to the Town Council, however, per the majority view, is that a Financial Disclosure Statement must be filed by any write-in candidate who wins a seat on the Council prior to being allowed to assume that Council position.

Also at the June 4 meeting, to respond to public comments and questions about the involvement of then-incumbent members of the Council in the “stealth” write-in campaign, Mr. Hager proposed that a letter be sent to all five members of the pre-election Council to inquire about the facts of their knowledge of, and involvement, if any, in the campaign of Dr. Cecere.

That proposal was vigorously debated, with Mr. Charrow of the Election Board contending that such a letter was unconstitutional. The decision to send the letter of inquiry to the five Council members was approved by a vote of 2-0 by the Ethics Commission and 2-1 in the Election Board, with Mr. Charrow dissenting. The letter was sent the following day, June 5. (See Appendix.)

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Three of the Council members responded within a few days: Councilmembers Burda, Strom and Taplin confirming that they had no knowledge of the Cecere candidacy until minutes prior to the polls closing on Election Day. Neither Councilmember Bickerman nor Lang have responded to the June 5 letter of inquiry to this date.

On June 12, the two Chairs, Mr. Lawton and Mr. Hager, were notified that Mayor Lang had scheduled an agenda item for the June 17 Council meeting to deal with the issue of what to do about write-in candidacies. Mayor Lang stated that “we have your write-in candidate recommendation” and that Town Counsel could discuss it for the Council. Given that the Joint Committee chairs felt strongly that this was a premature and unnecessary action, and that the Joint Committee had not in fact transmitted any recommendation to the Council at that time, Mr. Lawton and Mr. Hager wrote a letter to the Mayor on June 12 making it clear that the Joint Committee was still working on its recommendations and on a report to the Council which would be forthcoming as soon as the Joint Committee’s work could be completed.

In the June 12 letter, the two chairs also pointed out that the Joint Committee had sent the letters of inquiry to the Council members but had not received responses from all of the Council members. The letter requested responses to the letter “as soon as possible” and noted that “those responses will inform our further discussion and decisions about necessary reforms.”

The Joint Committee then met again on June 15. Committee members expressed concern that the Council apparently intended to act on the write-in candidate issue without waiting for the completion of the Joint Committee’s work. Based on that concern, a Resolution was adopted by the Joint Commission on a 5-1 vote (with Mr. Charrow dissenting).

The Resolution was to be sent to the Council stating that the “Joint Committee strongly objects to any action by the Council on potential changes in election or ethics laws until the Ethics Commission and Election Board have completed their work and submitted written recommendations proposing changes in the law, and addressing the ethical/legal responsibility of Council Members during an election, and have provided an accompanying explanatory report to the Council and to the residents of the Town.”

The resolution was sent with a cover letter to the Council on June 16. (See Appendix.) On June 17, the Town Council did not take up changes to the Town Code and instead voted to impose a deadline of the end of August for the work and report of the Joint Committee. In the subsequent weeks, the Joint Committee has been engaged in writing this report conveying our recommendations for legal changes and our analysis of the legal and ethical issues raised by residents in our public meetings and through messages sent by residents to the Joint Committee.

7. CIVIC ETHICS

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In the wake of the 2015 election, residents have raised the question of whether there is a code of ethical conduct for Town officials, and, if not, whether there needs to be a formal code of ethics.

It is not the role, or the purpose, of this report, to make a final determination of what is ethical, moral, or in the best interest of the Town regarding the conduct of elections and politics. That is a determination that must be made by the Town Council and Town citizens. However, we believe it is our responsibility to be clear that there is a difference between two types of standards -- legal standards on the one hand, and ethical, moral and public policy standards on the other – and that both are valid and necessary standards of conduct. In other words, just because legal standards have been met does not necessarily mean that the ethical, moral and public interest standards have also been met.

Legal standards of conduct are generally easier to identify and articulate because they are grounded in written documents that have the force of law, and because there is an authoritative set of institutions for the clarification and application of the law. Even with this foundation, legal standards can be ambiguous, as was demonstrated when the Ethics Commission wrestled with the question of whether Dr. Cecere had complied with State and Town ethics law in the filing of his candidate’s financial disclosure statement. Those deliberations produced a split 2-1 decision in favor of Dr. Cecere, and also a conclusion by the Ethics Commission that the legal standards in the Town ethics ordinance are unclear and should be clarified by amendment of that ordinance.

a.Formal Code of Civic Ethics

There is, to be sure, a commonly shared formal code of civic ethics founded on respect for the Constitution and the rule of law, and embedded in State and Town election and ethics laws.

Moreover, the Maryland Constitution Declaration of Rights also embeds in law a general code of ethical conduct for public officials, holding that “all persons invested with the Legislative or Executive powers of Government are the Trustees of the Public, and, as such, accountable for their conduct.” Since the Town of Chevy Chase is chartered under the Constitution and laws of Maryland, that applies to Town councilmembers. As noted above, adherence to state law is part of their Oath of Office.

However, there is little in the way of a formal civic ethics law or code that applies to Town officials beyond these legally embodied state codes of conduct. Despite its broad title, the Town Ethics Ordinance is almost entirely devoted to addressing financial conflicts of interest. The major task assigned to the Ethics Commission is to police the requirement that all elected Town officials, key Town managers and candidates for the Council file Financial Disclosure Statements in a timely fashion. Those Statements are to be maintained by the Town and made available to the Town in order for financial conflicts of interest to be ascertained.

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The Ethics Commission, under the current Ordinance, is not explicitly empowered to enforce other types of ethics provisions such as a duty to accurately inform or not to mislead residents with respect to the Town finances or elections.

Likewise, the Town Election Board is formally charged with ensuring that all candidates who qualify to be on the ballot are placed on the ballot and that the voting on Election Day is conducted without fraud and the ballots cast are correctly tallied. The Board is not invested with the power to police the conduct of candidates during the campaign.

b. Informal Code of Civic Ethics

Ethical, moral and policy standards are generally more difficult to identify, articulate and enforce than are legal standards, because there is rarely a degree of clarity and supportive infrastructure for them similar to that which applies to legal standards. In the case of the Town of Chevy Chase, there is no formal, authoritative set of ethical, moral or policy standards that provides a framework for how elections and politics should be conducted. However, that is not to say that there are no informal standards in this arena. The problem is that such informal standards tend to be assumed, and go unstated, until their boundaries are tested by a different set of informal standards. And that is essentially what happened in the recent election.  There now seem to be at least two competing sets of ethical standards in the Town for conduct of elections and politics. A traditional set of civic ethics holds that elections should afford the opportunity for all candidates and voters to publically present and debate their positions, in the interest of fairness to all sides, and in the interest of determining which positions and leaders are best suited to address the interests of the Town at any given time. The write-in option was traditionally viewed as a mechanism for providing every citizen to express their view on who should be elected, including the opportunity to make that case publically during the course of an election.

Another set of standards holds that in politics, anything that is not illegal is permissible, including the legal election of someone in a stealth write-in campaign without having to subject themselves to the traditional civic ethics of public presentation and discussion of their positions.

Both of these sets of ethical standards are legal. It is up to the Town Council and citizens of the Town to determine which set – or which combination or other set of ethical standards – they wish to have shape the elections and political life of the Town.

Traditionally certain norms have been followed in the conduct of campaigns for the Town Council, including full public disclosure and engagement by candidates regarding the following:

Declaration of candidacy Statement of qualifications for office Record of service and demonstrated commitment to the community

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Vision for the Town Articulation of community goals and the best strategies for achieving them Proposals for change (a platform) Benchmarks for assessment of performance in office and accountability Open conversation and debate with all citizens and voters, including during a

Candidates’ Forum

The recent stealth write-in campaign did not follow these traditional civic norms. Dr. Cecere made no declaration of candidacy nor did he present to the public a statement of his qualifications for office. Indeed, he contended in public meetings of the Ethics Commission after the election that he had not been a candidate and had conducted no campaign activities, but allowed people to use his name in the stealth campaign.

Thus he did not, prior to the election, present his record of service or demonstrated commitment to the community; he offered no vision for the Town, and no assessment of current conditions or articulation of community goals and strategies; he made no proposals for change (i.e. no platform); established no benchmarks for assessment of his performance in office and accountability; and engaged in no open conversation or debate with all citizens and voters such as in the traditional candidates’ forum held in each year that there has been an openly contested election.

Nor did the campaign supporting Dr. Cecere follow any of these traditional practices on his behalf.

There was no legal requirement for the stealth write-in campaign to have complied with the Town’s traditional, informal civic ethics. And perhaps it is the case, as Mr. Bickerman seems to have suggested, that the Town’s traditional civic ethics are outdated, and that a more hardnosed, big-city style of politics is inevitable. But before accepting that proposition, it may be useful to consider what value the traditional civic ethics hold and whether the Town wishes to take steps to retain them.

c. The Practical Value of Civic Ethics

A number of Town residents have expressed the view that what occurred in the 2015 election was simply not fair, whether legal or not. Closely related to the common notion of “fair play” is the even deeper concept of “trust.” For many people, trust is an inherent value, in the sense that it offers more peace of mind to live in an environment of trust than distrust. But trust is also an instrumental value in creating a healthy and prosperous civic culture.

There is an extensive literature on the value of trust in political and economic systems.14 It turns out trust not only creates an environment with greater peace of mind, a more

14 See for example Francis Fukuyama’s 1995 book Trust: The Social Virtues and Creation of Prosperity. New York: Free Press, which provides both the basic argument on why trust has such practical importance in high performance societies, as well as access to the related literature.

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pleasant place to live. It is also exquisitely efficient. When people trust each other, they don’t have to be constantly looking behind their backs, or wondering if they require more extensive and elaborate guarantees to be sure they can count on agreements being carried out and fair play being observed.

When trust breaks down, the costs of providing for one’s security go up: more laws, more regulations, more insurance, financial and otherwise. The rule of law, to be sure, is essential for trust in a complex society; but over-reliance on law alone – “if it’s legal it’s permissible” – can quickly erode the less visible social and civic capital that ultimately permits a lawful society to function in peace and prosperity.

The Town of Chevy Chase has historically been a high-trust community. But there are signs that that may be changing. The recent stealth campaign has plainly depleted our community’s store of civic trust – and social and civic capital.

A general openness in the conduct of elections, like trust, is an inherent value: it’s nice to know who’s running for the Town Council and what they stand for, especially if you’re expected to cast an intelligent vote.

But open access and free flow of information in elections, as in economic markets, is also an instrumental value. If the Town is to identify and select the most suitable people to effectively govern and represent its interests at any given time, it’s critical for voters to know the qualifications of candidates, their knowledge of local issues, their experience in solving problems, and their capacity to run operations like a municipal government, This is not just a matter of democratic ideals; it is a matter of hard-nosed practicality.

And our neighboring communities, such as those in the coalitions our Town Council earlier played a key role in organizing to constrain overdevelopment in Bethesda, need to know that they were dealing with trustworthy partners. It is important to consider whether the stealth write-in campaign may suggest to Town citizens that they should be wary and skeptical of their neighbors, or whether it may have suggested to our neighboring communities in Montgomery County and the Greater Washington region that our Town may not be the trustworthy partners we have always claimed to be.

8. WHAT SHOULD BE DONE?

The request from the Town Council to the Ethics Commission and the Election Board since the election was to investigate the circumstances of the election and make any recommendations we see fit about changes in either ethics or election laws. Our inquiry to date has involved a series of public meetings where numerous residents spoke, and the receipt of comments from Town residents submitted through the Town office. As noted, we also sent letters of inquiry to the 5 then-incumbent Council members regarding their involvement in the write-in campaign, to which 3 of the 5 Council members replied.

During this process a wide range of possible actions or changes in existing law have been suggested by Town residents. At one end of the spectrum, there are those who advocate

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doing nothing at all and assuming that such a stealth write-in campaign will simply never occur again, since it will now have lost the element of surprise on which it depended for success. At the other end of the spectrum, some residents believe the election should not be allowed to stand due to the circumstances of the write-in campaign.

a.Recommendations Regarding the 2015 Election:

In the early hours and days after the election, it was advocated by some that the Ethics Commission find that Dr. Cecere’s candidacy should be disallowed and his election nullified based on his not having filed the required Financial Disclosure form in a timely fashion. The Ethics Commission, based on its deliberations from May 6 to May 11, decided not to take that action by its 2-1 vote on May 11, as described above.

Others upset with the outcome of the election have suggested in various ways that there should be some litigation based on the conduct of the stealth campaign. In that regard, the Joint Committee notes the commendable stance taken by former Council Member Burda in her written remarks to the Ethics Commission on May 11, prior to the Commission having decided on the issue of the legality of Dr. Cecere’s Financial Disclosure filing.

Ms. Burda made a cogent legal argument that because Dr. Cecere had not filed his FD by the final deadline stated in the Ethics Ordinance (April 30), he was “ineligible for election.” However, Ms. Burda also wrote that “I want to make it clear that I will abide by the decision of the Ethics Commission and not file suit if, as a result of its decision, I lose my seat on the Town Council.”

It is clear that the divisive effect of the write-in campaign could only be exacerbated by any litigation regarding the outcome of the election. Thus, in the judgment of the Joint Committee, that should not be pursued as an option. The election should be put behind us. The results of the election as they now stand should be allowed to stand. Ms. Burda, who plainly had the most to lose due to this result, is to be commended for counseling against litigation herself.

The Joint Committee also notes that one of the sources of acrimony over the election results has been a number of threats of litigation that have been made. Statements and communications that attempt to influence the conduct of public officials and members of Town Boards or Committees by threats of litigation are wholly out of keeping with the Town’s traditions and are plainly corrosive of the good will in the neighborhood. That, among the other reasons, counsels against any recommendation for litigation regarding the election’s conduct or outcome. Likewise, the Joint Committee is not inclined to refer this matter to the Maryland State Attorney General for investigation as some have recommended, based on the facts available to us at this time. This too would sustain the divisiveness of the stealth campaign and would further damage the reputation of the Town with other Maryland citizens and with State and local officials.

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b. Recall Proposals:

One of the more frequently-mentioned proposals is for the Town to have a recall mechanism for Council members. The suggestion by a number of residents that recalls might be needed entailed a further discussion among residents about the requirements to trigger a recall, notably what percentage of Town voters or households should be required. The complexity of that discussion and our concern about further divisiveness in the community leads the Joint Committee away from recommending a recall mechanism.

Leaving aside the trigger-level of any recall provision, the reality is that the Town already has elections each year, and the composition of the Town Council can be completely changed every two years, based on the current electoral system. Adding the potential for interim recall elections would seem burdensome on the Town electorate and surely would add to the rancor and sectarianism that the 2015 election has already produced.

c. Recommended changes to Town Ethics and Election laws:

The Joint Committee is not content to assume that a stealth campaign like this will simply never happen again and therefore no reform of our ethics or election laws is needed. The decision taken by the Joint Committee in its meeting on June 4 was to recommend that the Town election law be changed as necessary to continue to allow write-in candidacies, but to conform to Maryland state law regarding write-in candidacies. Specifically, the Town law should require that any write-in candidate must file a certificate of candidacy with the Election Board at least 14 days prior to the election in order to be eligible to be elected to serve on the Town Council.

That change to conformity with Maryland state law will ensure that the Town and Town residents are aware of those who are running for Town Council, whether or not the candidate has decided to eschew being on the ballot. This should prevent future stealth campaigns in which the candidate (or intended recipient of write-in votes) is not made public, with the minimum possible constraints on write-ins consistent with that end.

Access to the ballot is already extraordinarily easy in the Town, requiring only a petition with signatures of 5 fellow Town residents and entailing no fees. But if, for whatever reason, a candidate does not wish to seek ballot access or fails to do so by the deadline, filing a certificate of candidacy by the 14-day deadline will allow a write-in candidate to proceed. The only obvious objection to requiring such a public certificate is that this constrains the opportunity for a stealth campaign. Given the impact and fallout from the stealth campaign of 2015, the judgment of the Joint Committee is precisely that such a stealth campaign should not be countenanced in the future.

Voters of course are also still free to cast their personal votes by writing in the name of anyone they like, whether as a matter of protest or whatever. Their votes will be duly tabulated by the Election Board and reported to the Town as they are now. But election

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to service on the Council would be open only to those on the ballot or candidates who file the requisite certificate of candidacy in a timely fashion.

In order to impose minimal burdens on a write-in candidate, the decision of a majority of the Joint Committee was to further recommend amending the Town Ethics Ordinance to require that a Financial Disclosure statement be required only of any write-in candidate who wins election and is eligible to serve on the Council. This ensures that there is no suggestion that a person who receives write-in votes is, as a consequence, obliged to file a public Financial Disclosure statement, unless they win election and are eligible and desirous of serving on the Council.

The requirement should be that the elected write-in candidate cannot assume a seat on the Council unless and until a proper Financial Disclosure statement has been filed with the Town and accepted by the Ethics Commission.

The question of when a write-in candidate should file a financial disclosure statement—before or after the election—was a difficult one for the Joint Committee. Requiring filing of a Financial Disclosure Statement before the election would be consistent with State law for write-in candidates and would provide Town residents with the candidate’s financial information in time to consider it before voting. On the other hand, completing the form is somewhat burdensome, and the information to date appears to be underutilized by the public. Election Board Chair Lawton recently reviewed the statements of candidates and Council members and found no information that would have caused him to vote for or against a candidate. And he noted that only two persons had reviewed the statements since they were filed in April.

Election Board Member Tristani felt strongly however that the rule regarding the filing of Financial Disclosure Statements by a write-in candidate should be in conformity with State law and should be the equivalent of the requirement imposed on candidates who seek access to the ballot. Mr. Hager agreed with her view.

The Town Counsel consulted with the Counsel for the State Ethics Commission to inquire whether her office had addressed the apparent conflict between the State-mandated April 30 deadline for filing a Financial Disclosure Statement with a local law that would allow write-in candidates to file after April 30. She indicated that local laws are supposed to follow the State requirements as close as practical, but State ethics laws are not meant to supersede local election laws for write-in candidates.

The approach being recommended by the Joint Commission would be similar to the approach permitted for appointees to the Council, who must file within 30 days after their appointment. Any amendment of the Town Ethics Ordinance will require approval of the State Ethics Commission. The Joint Commission recommendation is consistent with the informal guidance already received from the State Commission.

d. Town Discussion of Ethics and Ethics Code:

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One frequently advocated reform has been the creation of some sort of formal ethics code or the expansion of the ethics ordinance to clearly encompass the question of the duty of Town officials not to mislead the public about material issues affecting Town elections. As suggested by our discussion in this report, the Joint Commission believes ethical conduct by Town officials is a prerequisite to good governance and public confidence in our Town government.

However, drafting a formal ethics code would be an extensive and sensitive matter which is beyond what the Joint Committee could undertake within the roughly ten-week time frame it has been given to produce this report and make recommendations. What we would recommend, or encourage, is that the Town Council take seriously the concern that has been expressed by the public about aspects of the conduct of Town officials with respect to the write-in campaign.

The Council itself should address this ethics issue in coming months, and should invite further comment from the public as to what the public believes should be done in this area. In that regard, the Joint Committee notes once again our disappointment that two of the current Council members have not been forthcoming or responsive to the Joint Committee’s formal request for information about their behavior in this matter. Candor and openness should be the starting point for the discussion of official ethics that the Town should have.

If Mayor Lang and Vice Mayor Bickerman continue to refuse to respond to the June 5 letter of inquiry, the Joint Committee requests that the Town Council assess the legal basis for the refusal and consider whether responses should be compelled through legal process or other means. Also, Mayor Lang and Vice Mayor Bickerman should be reminded of the responsibility to preserve all records—including electronic communications on office and personal devices and accounts—that may be relevant to further inquiry or legal action.

In that regard, a majority of both the Ethics Commission and the Election Board, in considering the draft of this report in an open public meeting on August 14, voted for the following statement: “We believe that Council Members Lang and Bickerman should provide members of our Town with complete details of their involvement in the stealth campaign. Otherwise, it is likely that the obvious mistrust and anger toward them will continue, and likely frustrate the important work of the Council. Only by providing this information to the electorate can the Town begin to heal.”

This report on the 2015 Town election was prepared by the members of the Town of Chevy Chase Ethics Commission and Election Board, acting together as a Joint Committee.

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The report was approved for submission to the members of the Town Council at a public meeting on August 31, 2015. Approval was by recorded vote, with a 3-0 vote in favor of the report in the Ethics Commission and a 2-1 vote in favor of the report in the Election Board, with Mr. Robert Charrow dissenting.

Respectfully submitted,

Town Election Board Town Ethics Commission

Stephan Lawton, Chair Barry Hager, ChairGloria Tristani Scott Fosler

Debra Soltis

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