An ethics investigation against gay D.C. Council member Jim Graham was dismissed on Thursday. (Washington Blade file photo by Michael Key)

The recently created D.C. Board of Ethics and Government Accountability says it found “sufficient evidence” that gay D.C. Council member Jim Graham (D-Ward 1) violated the city’s code of conduct for a public official.

But in a 27-page opinion issued on Thursday, the three-member board declared that the improper actions it claims Graham took in 2008 to interfere with the selection of competing companies for lucrative Metro and D.C. Lottery contracts occurred before the city’s new ethics law went into effect last year.

Based on the U.S. Constitution’s prohibition on holding someone responsible for an action that wasn’t prohibited by law at the time the person committed the action, the board said it decided not to open a formal investigation into Graham’s alleged ethics breach and dismissed the case.

“[W]e find there to be sufficient evidence to conclude that Council member Graham committed one or more violations of the District of Columbia Code of Conduct, justifying a formal investigation and the issuance of Notice of Violation,” the board said in its opinion.

“However, Constitutional constraints concerning ex post facto application of the sanctions available to the board effectively prevent the board from imposing any sanction on Council member Graham for his misconduct,” the ruling states.

“Without the power to sanction Council member Graham, the Board concludes that there is little benefit to advancing the preliminary investigation to a formal investigation and issuing a notice of violation,” the board said. “Accordingly, this matter is DISMISSED,” it said.

Graham’s attorney, William W. Taylor III, said in a statement that he and Graham expected the Ethics Board to end its proceedings.

“It is disappointing and unfair, however, for the Board to purport to make “findings” which Mr. Graham has no opportunity to contest and had no notice would be at issue in this matter,” Taylor said.

The Board’s initial proceeding in the Graham case was to determine whether the board should conduct a “formal” investigation, not to determine whether Graham had committed ethical violations, Taylor said.

“Therefore, under its own rules, the Board was not permitted or required to make ‘findings’ about Council member Graham’s conduct,” he said.

The Board of Ethics, which is chaired by gay former D.C. Attorney General Robert Spagnoletti, began its probe into an alleged ethics breach by Graham after the completion of an earlier investigation conducted by a law firm on behalf of the Metro transit board.

That investigation found that Graham violated the Metro board’s ethics rules in his alleged dealings with a Metro contract. Graham was a member of the Metro board at the time the alleged improprieties took place in 2008.

The Metro board probe, and the Board of Ethics findings released this week, each claimed that Graham offered to support a bid for a lottery contract from a D.C. businessman if the businessman agreed to withdraw a separate bid for a contract from Metro. The Metro contract was for a major real estate development project on land owned by Metro.

The Ethics Board findings, among other things, allege that Graham wanted the Metro contract to go to another company whose two principal owners made campaign contributions to Graham in the past. Graham has vigorously denied his motive for favoring the bid from the opposing businessmen was based on their campaign contributions to him. He said he favored the opposing company because it was better qualified to carry out the development project.

In its ruling, the Ethics board said Graham violated three provisions in the Code of Conduct – he lost his independence and “impartiality,” he gave preferential treatment, and he damaged public confidence in government.

The Ethics Board’s findings prompted the Washington Post to publish an editorial Thursday night calling for Graham to resign from the Council.

“I am not resigning,” Graham said in a statement released on Friday.

“There has been no allegations or suggestion that a crime has been committed, or that there is an illegal financial request or laws that have been broken,” he said. “I categorically deny any connection between any campaign donation and my actions on these matters.”

Graham added, “I am now in discussions with my lawyer as to next legal steps.”