Paint It, Bleak How a big-time public-interest lawsuit died in Jack Evans' office

HostSecret: Why did Evans set up a meeting between paint reps and city big shots?
Darrow Montgomery

The work of former Attorney General Linda Singer followed a pattern that would sound familiar to fans of Michael Moore flicks: First, she endeavored to stick it to the titans of capitalism. Then, after the vested interests found out what she was up to, they put down their cigars and beat back the threat, restoring the oppressive status quo.

Just this week, for example, the D.C. Council heard testimony about Singer’s attempt to sue the pants off of Bank of America for its alleged involvement in the District’s property-tax scam. Peter Nickles, general counsel to Mayor Adrian M. Fenty at the time, squelched that initiative with a flick of his bureaucratic wrist.

Singer’s attack on lead-paint companies followed a similar trajectory. Last August, Singer’s office dispatched letters to four companies informing them that the District would be suing them for creating a public nuisance by once manufacturing toxic paint pigments. “The goal of pursuing such litigation would be to compel companies that substantially contributed to this public nuisance in the past to contribute now to the cost of its abatement,” wrote deputy ­Bennett ­Rushkoff, above Singer’s signature.

There was precedent for the power move. In February 2006, a jury in Rhode Island ordered three former manufacturers of lead paint to clean up more 300,000 homes and public facilities in the state. For years, states and municipalities had tried various legal strategies to go after the paint companies, but the Rhode Island verdict—predicated on the idea that lead paint constitutes a public nuisance—was the first time they ever had to come up with the billions necessary for such a cleanup.

When it comes to lead paint, the District of Columbia sure could use money like that. D.C. has thousands of units of housing, for instance, that date before 1978—the year that lead paint was banned. An abnormally high number of kids tested—those lucky enough to get tested, anyway—show dangerous levels of lead in their bloodstream. Only recently has the city gotten serious on cracking down on lead paint, and there’s plenty of ways a big payday might help turn around the city’s thus-far atrocious record on the matter.

Singer decided to focus on paint issues early on. For one thing, she stepped up suits against landlords who had failed to clean up lead paint on their properties. But Singer also looked at going after the manufacturers. In March, Singer and staff met with representatives from the corporate descendants of lead-paint makers to discuss options for addressing lead poisoning in children. The paint companies, of course, didn’t consider a lawsuit a particularly good option, and they presented Singer & Co. with a binder detailing programs instituted by various jurisdictions across the country that, according to a letter from a paint industry attorney, do a better job of keeping lead paint away from kids “than expensive and time-consuming litigation based on speculative legal theories which are not recognized under DC law.”

Needless to say, when Singer decided to sue anyway, the paint companies didn’t take it too well. At least three of the four fired letters back. This response, from a lawyer for Sherwin-Williams, is representative: “These lawsuits can be counterproductive and undermine other effective strategies for addressing lead risks that can arise from poorly maintained older housing.”

And they wanted to talk it over with the city. The result was a meeting held Sept. 20 with Singer, deputies Rushkoff and Alan Morrison, City Administrator Dan Tangherlini, environment department chief George Hawkins, Council Chairman Vincent C. Gray, and more than a half-dozen representatives of the paint industry.

The meeting was hosted by Ward 2 Councilmember Jack Evans in a Wilson Building conference room. Why Evans? It certainly didn’t hurt that old Evans buddy Bill Hall is a lawyer for the National Paint and Coatings Association. An attorney for Winston & Strawn, Hall was the longtime chair of Evans’ political action committee and a compatriot in bringing baseball to the District (as well as in holding court at Cafe Milano). And he’s the guy who wrote the letter about “expensive and time-consuming litigation” above.

Evans chose not to respond to inquiries about the meeting made through his spokesperson, Sean Metcalf, by LL’s deadline. And Hall, asked why Evans had hosted the meeting, told LL, “I have no comment regarding that aspect of it.”

At the meeting, paint-industry reps, predictably, questioned the wisdom of pursuing any potential lawsuit, according to Morrison and others present at the meeting.

As for Evans’ role, says Morrison, he “expressed concern at various times that this was a matter that could come to the city council in one way or the other....He was there because he was obviously interested in the question of whether this lawsuit should be brought.”

Also present at the meeting: former Attorney General Robert J. Spagnoletti, who had left office in October 2006. Why does that matter? Under District employment regulations, former senior executive branch employees are banned from “having any transactions with the former agency intended to influence the agency in connection with any particular government matter pending before the agency or in which it has a direct and substantial interest.”

Spagnoletti had been hired by Hall to weigh in on whether the District could legally hire an outside law firm on a contingency-fee basis. That was an issue because virtually all of the public-nuisance claims against the lead-paint industry have been litigated, at least in part, by outside attorneys working on a contingency basis. That’s because these cases are generally too time-consuming, expensive, and risky to warrant using government attorneys. Among the more prominent firms pressing the cases is Motley Rice, the firm of South Carolina trial attorney Ron Motley, who brought the tobacco industry to its knees partnering with various states’ attorneys general. Motley Rice and other firms had approached the city about doing a similar partnership with the District on lead paint.

The results of Spagnoletti’s research were contained in a 21-page memo dated Sept. 18 that concluded that “[i]n my view, a contingency fee contract is not authorized—indeed, is prohibited—by current District and federal law.” At the Sept. 20 meeting, Spagnoletti gave a brief oral presentation on the memo. When the subject of contingency fees came up, however, Singer made it clear that she had no intention of using outside counsel on the case—at least initially.

Did Spagnoletti’s appearance constitute a transaction intended to influence his former agency “in connection with any particular government matter”? Singer thought so. Five days after the meeting, Thorn Pozen—the ethics counsel in the AG’s office—phoned Spagnoletti at Singer’s request to inquire about any possible breaches of employment restrictions. Spagnoletti followed up with a letter on Oct. 1, writing, “In short, I have absolutely adhered to those restrictions.”

In an e-mail to LL, Spagnoletti said his work was “carefully considered by myself and outside ethics counsel, appropriate, and permitted by government ethics rules.”

The gist of Spagnoletti’s defense, as presented in the letters, is as follows: I didn’t do any work for paint companies; I worked for Bill Hall, who merely asked me to provide a legal opinion. What he does with that opinion is not relevant.

Pozen, in a letter back to Spagnoletti four days later, wrote that he remained “quite disturbed, from a government ethics standpoint, by both your actions leading up to and at the meeting you attended on September 20.” In particular, Pozen pointed out that Spagnoletti’s original memo specifically mentions the paint industry several times. He also accused Spagnoletti of lying when he obtained documents from the attorney general’s office in order to prepare the memos.

Spagnoletti wrote back in a five-page letter on Oct. 19, in which he denied making any representations as to whether he was working on lead-paint matters when approaching the AG’s office for help in drafting his memo. He also reiterated that the Sept. 20 meeting was intended to influence Evans, not the AG’s office.

The tête-à-tête came to a head in a Nov. 28 letter back to Spagnoletti from Pozen, who wrote, “I continue to be greatly troubled by what I understand to be your actions at that meeting, and I strongly disagree with the rationale you put forward in defense of those actions.”

But they ended up letting him off the hook: “Despite the seriousness of your conduct and your failure to recognize the ethical issues that it raises, given your previous strong record of ethical conduct and service to the OAG...the OAG has decided to exercise its discretion, based on the information currently available, not to pursue formal action against you,” Pozen wrote.

Meanwhile, work on the lead-paint lawsuits continued into the fall. “We felt pretty confident that we could move ahead,” says Morrison.

A group of interns from the Georgetown University law school collected data, constructed arguments, prepared exhibits, and performed legal research. But once the interns finished their stints, work on claims against lead-paint manufacturers ceased, sources say. Their work remains in a box in the attorney general’s office.

Singer, who resigned in December amid reports of clashes with Nickles, declined to comment. Nickles, now acting attorney general, says that any action against lead-paint manufacturers is now “in a holding pattern.”

Nickles did not attend the Sept. 20 meeting, but sources say he has been highly critical of pursuing any public-nuisance litigation against lead-paint makers.

Says Morrison, “I’d be surprised if Peter Nickles has a strong urge to move ahead against the paint companies.”

In an interview, Nickles cited a pair of concerns: One is the restriction on contingency-fee agreements; second is the record of lead-paint claims in various state courts. In the past year, supreme courts in Missouri and New Jersey killed public-nuisance lawsuits, and courts in Ohio and Wisconsin stopped other claims against paint manufacturers. The Rhode Island verdict isn’t final yet, either—appeals are pending.

On the day the story broke that Nickles had put the kibosh on the attorney general’s pursuit of Bank of America, LL asked him whether he had similarly big-footed Singer on the lead-paint issue. “I don’t recall anything, except the fact that we believed all the way through the executive that this was a thing we needed to look at closely,” he says. “There was no direction [to Singer].”

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Letters sent to paint companies by D.C. Attorney General's office on Aug. 21 (PDF)

Responses from paint companies to lawsuit threats (PDF)

Oct. 1 letter from Robert Spagnoletti to Thorn Pozen (PDF)

Oct. 5 letter from Pozen to Spagnoletti (PDF)

Oct. 19 letter from Spagnoletti to Pozen (PDF)

Nov. 28 letter from Pozen to Spagnoletti (PDF)

Our Readers Say

Boxing up that initial grunt work and saving it for a rainy day seems like a smart move. Until the precedent of the Rhode Island case is held up in appeal, what good would it do the District to involve itself in a protracted civil suit against the deep-pockets of major industrial manufacturers? Especially if, as the article suggests, representation on a contingency-fee basis is not a guarantee.
The Attorney General should be an elected position. Then the AG could serve independently without interference from the Mayor and City Council Members. At present everyone wants to control the AG. The AG should be an independent watchdog not afraid to step on a few toes. The AG should answer to the citizens not special interests.
Dear LL,

From New York University School of Law I received Juris Doctor degree in 1977.
From Syracuse Univ Maxwell School I received a Master of Public Admin in 1984.
Subsequent to receiving my MPA, I became a Presidential Mangement Intern at the U.S. Department of Housing and Urban Development from 1982 to 1984.

In the course of my two-year tenure as an "intern," I drafted what would soon
become Fed "Lead Based Paint Hazard Elimination Act of 1984." "Prime" to that statute was establishment of three-year period during which lead-based paint had to be eliminated by subsidy housing landlords under the threat of penalty.

After close to a quarter century, why in District of Columbia have professional government attorneys failed to do that which a federal intern did 25 years ago?
Instead, DC would put all its broken eggs in a genl "publc nuisance" law basket
The most public nusiance in this whole story is former DCAG Robert Spagnoletti!

Within the Office of DC Attorney General lies an ethics counsel who among other things is responsible for enforcing influence peddling regultions v. AG.
Sounds an awful lot like "the fox guarding the hen house" to li'l ole me!! If former DCAG Spagnoletti had any ethics he would turn himself into DC Bar.

"Power To The" people have expended much time and energy in taxing demand
for DC statehood. When are DC citizens going to spend more time and energy in demanding that their would-be government put more "state" in the "hood."

Esq. Robert A "Bobby" Spiegel
Forever Freedom's Flying Eagle
Puttin' the "Do" in Dupont Circle

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