Why can’t Jack Evans get his story straight?
Words and Photographs by Jeffrey Anderson
The D.C. Board of Ethics and Government Accountability last week blundered into leaking what sounds like bad news for Ward 2 Councilmember Jack Evans.
According to unapproved minutes from the Board’s January 10 meeting, a “formal investigation into allegations that Councilmember Evans violated the Council Code of Conduct is currently stayed due to a criminal investigation.”
A transcript of the meeting showed that BEGA Director Brent Wolfinbarger actually had stated “the investigation has been stayed,” according to a BEGA memo broadcast via Twitter last week. The transcript also showed that when asked why BEGA stayed its ethics probe, Wolfinbarger replied: “The investigation has been stayed because of an ongoing law enforcement investigation,” (Emphasis added.)
Such statements cause District Dig to emphasize that Evans has not been charged with anything illegal or unethical, and that even if he eventually is, he is innocent until proven guilty.
Yet in assessing his standing as the Council’s most senior member—and chair of the influential Committee on Finance and Revenue—these recent revelations also are cause to consider how Evans has responded to questions about ethics in recent months.
BEGA began investigating Evans last January regarding “allegations that an elected official took an action or participated in a decision that affected their (or an affiliated person’s) financial interest,” according to an April 2018 complaint report first reported by The Dig. (Washington City Paper later reported that BEGA also was investigating Evans for allegedly “lobbying on behalf of a client for a law firm at which he was employed.” And, that he had allegedly “made false statements on his most recent financial disclosure statement in connection with his outside activities and that he violated rules regarding outside employment.”
A political controversy of yesteryear points to the potential origin of at least one of the complaints.
In 2016, in the midst of a fierce lobbying effort, Evans spearheaded a failed attempt to clear regulatory hurdles for a digital sign operator named Don MacCord—a closely watched story that I (and others) reported on in 2017. (MacCord has since been indicted in federal court in San Francisco for fraud and obstruction of justice in connection with his digital sign endeavor in D.C.)
Last February, however, The Dig reported on emails obtained through the Freedom of Information Act that exposed something more revelatory: Months prior to Evans pushing the Council to pass emergency digital-sign legislation in December 2016, MacCord had offered his son a paid internship. (Evans later pulled back the bill before it was formally introduced for lack of votes.)
Less than a week later, Evans told a reporter with The Washington Post that his son never took the internship. “There’s no connection between any of this stuff,” he said at the time, claiming he could not even recall why he had promoted the legislation. “We do hundreds of pieces of legislation down here.”
Then, in April, after exposing the existence of the BEGA probe, The Dig reported that Evans had formed a consulting firm called NSE Consulting LLC at his Georgetown row house in July 2016 with lawyer-lobbyist-developer-confidante Bill Jarvis serving as “Organizer” and Registered Agent.
About 10 days later, The Post reported that Evans had received two $25,000 checks from MacCord in August 2016, shortly after formation of the firm. Evans told The Post that nothing came of the matter because he returned the checks two weeks after receiving them.
Evans’s entanglements with MacCord and his home-based “consulting” firm have resulted in nagging and unwelcome questions for a man as singularly powerful as Evans.
And his story keeps changing.
For starters, by the time he was interviewed for the second story in The Post, Evans had regained his memory as to why he was pushing digital sign legislation in the first place: He brought the bill forward at the request of “lobbyist David Wilmot,” The Post reported. (Wilmot was not registered as a lobbyist at the time, according to BEGA records, but he registered as one in early 2017. In a more recent story in The Post he is referred to as an “attorney” for the digital sign firm, a status The Dig could not confirm.)
Evans also told The Post that he negotiated the payments from MacCord as a retainer for future “legal services” related to business dealings outside the District. “There was nothing improper about it,” he said. “From my perspective, I like to be very clean, for lack of a better way of discussing it, because the perception always becomes more important than reality.”
Evans is licensed to practice law in the District, but it is unclear whether the work he has done over the course of a couple of decades at white shoe law firms Patton Boggs and Manatt, Phelps & Phillips could be described as “legal services.” MacCord’s firm had offices in Nevada and Washington state at the time, but Evans is not licensed in either jurisdiction. In fact, The Dig could not find him licensed anywhere but with the D.C. Bar. (The Post also reports that MacCord’s firm had no significant business outside the District.)
Moreover, a Two-Year Report for Domestic and Foreign Entity that Evans filed with the Department of Consumer and Regulatory Affairs says nothing about legal services. And it says nothing about professional services in other states. Asked for a brief statement of the firm’s business affairs in D.C., Evans’s report simply says “Business consulting.”
Saul Jay Singer, Senior Legal Ethics Counsel for the D.C. Bar says the distinction between lawyers, lobbyists and consultants is an important one—even if perennial influencers use their business titles interchangeably.
Commenting in general and not in any way with respect to Evans, Singer points out that states have statutes that address the unauthorized practice of law (UPL). With a few exceptions that vary by jurisdiction, such as federal practice, special permission from the court, or corporate representation, he says, those statutes require that a lawyer be licensed in the state where he or she is planning to provide legal services.
As for payment for future legal services, commonly known as a retainer, the standard is to deposit the funds into a trust account, according to the D.C. Bar’s Rules of Professional Conduct. Nominal amounts or funds expected to be held for a short period of time are required to be deposited in the D.C. Interest on Lawyer’s Trust Account (IOLTA) for safekeeping. (Evans claimed he never deposited the checks but simply held onto them until he had second thoughts and returned them.)
Whereas there are no formal standards of professional conduct for lobbyists and consultants, says a prominent D.C. lawyer who requested anonymity, there are for members of the D.C. Bar. “You can’t separate yourself and say ‘Today I am a lobbyist or a consultant and don’t have to follow the Rules of Professional Conduct,” the lawyer says. “Those rules impose a very high standard of ethical conduct which includes avoiding an appearance of impropriety or conflict of interest.”
Evans has declined to disclose his clients so it’s hard to know the precise nature of the services he provides as the sole member of NSE Consulting. And though Financial Disclosure Statements elected officials must file with BEGA ask for income derived from outside employment, BEGA allows officials to use their own discretion in deciding whether to identify any specific client or matter that could present a conflict of interest.
During a November 30 appearance on the WAMU “Politics Hour” with reporter Patrick Madden sitting in for Kojo Nnamdi along with co-host Tom Sherwood, Madden broached the subject of NSE and Evans’s business relationship with Bill Jarvis.
Evans insisted that he “never has and never will” have a business relationship with Jarvis, a close friend who has lobbied him on digital billboard legislation at Nationals Park, and, on behalf of D.C. Lottery vendor DC09, on gaming competition from Maryland and on sports betting. (Jarvis is currently lobbying the entire Council on sports betting, an initiative that Evans has spearheaded and will oversee through the finance committee. Evans has removed Jarvis as Registered Agent of his company and appointed himself.)
Asked by WAMU to describe what his company does, Evans replied, “It’s a legal firm.” Asked about his clients, he replied, “Any law firm that gives the same answer that I will is that our clients are proprietary information, so you just have to rely on me.”
His characterization of his outside business got fuzzier, however, when The Post interviewed Evans for a recent story that exposed his receipt of a stock certificate from MacCord’s company in October 2016, just two months before his legislative director Ruth Werner met with MacCord’s lobbyists and Evans sought to have the digital sign legislation placed on the Council agenda. (As with the internship for his son, and the two $25,000 checks, Evans said he declined to accept the stock certificate and returned it immediately.)
Asked what he had planned to do for MacCord, Evans told The Post the idea was to focus “solely” on ventures outside the District, but that, “We never got to that stage—I’ll be honest with you. It was kind of like consult with them about—they are a national—they did work in cities on advertising. So it was basically to consult with them about what they were doing.”
But if Evans is vague about what his firm does, he’s even more unclear about his stream of revenue.
NSE Consulting first appears in one of Evans’s financial disclosure statements on May 17, 2017, when he reported “consulting” revenue between $50,001 and $100,000 for 2016, according to documents on file with BEGA. (He reported the same amount of revenue for the same year from his side job at Manatt.)
Evans made a second disclosure, signed November 1, 2017, which again reports his Manatt income but makes no mention of NSE or any additional income for 2017.
Six months later, however, on May 3, 2018, after attracting media attention, Evans reports “Consulting” income from NSE in the $50,001 to $100,000 range—but his filing states the disclosure is for the calendar year 2016, which he had already disclosed.
Here the timing gets interesting. The Post story on Evans receiving and returning the two checks ran on May 7. The story noted that Evans made no reference to NSE in his November 2017 filing. Yet a week later, on May 14, Evans filed a new financial disclosure statement disclosing that in fact he earned between $100,001 and $250,000 through NSE for “Consulting” in 2017.
There must be some explanation for why it took Evans three financial disclosures in a six-month period to report what he earned in 2017 from his “Consulting” work, but he’s not offering one. Evans has declined to comment or answer any of The Dig’s questions, at times deferring to the (now suspended) BEGA investigation.
Evans may appear confused as he fends off media inquiries, and as he files the requisite disclosure statements with BEGA, but on December 14, he filed a relatively straightforward financial disclosure statement that shows he made between $50,001 and $100,000 through NSE for the first half of 2018.
But he still declines to disclose his clients and he offers no details regarding the services he provides. And the nature of his firm still seems to be evolving. Instead of “Business consulting,” or “Consulting,” or “legal services,” he describes it as “LEGAL/CONSULTING.”
That should clear things up a little.
*This post has been updated to report that Bill Jarvis lobbied Jack Evans (in June 2018) on sports betting and is currently lobbying the entire Council to award a sole source contract to his client, lottery vendor DC09. (Jarvis also contributed $500 to Evans’s constituent services fund during this timeframe.)