The Hastings' letter included a series of issues raised back in November, before the resolution draftd by Rep. Michael Capuano (D-Mass.), was publicly released. Ken Kellner, senior counsel to the ethics committee, cited several areas in a Nov. 9 e-mail where he believes the OCE could run into conflicts with the ethics committee or a criminal investigation by the Justice Department.
Pointing to the fact that OCE can also interview witnesses in ethics cases, although it does not have have subpoena power like the committee, Kellner suggested "the interview of witnesses by both the new entity and the Committee might result in conflicting statements that would undermine the value of testimony from that witness.
Kellner also objected to the the fact that the OCE would turn over materials to any member or staff when it sends a case to the ethics committee. In his view, this is a "bad idea for the Committee's purposes that the 'written report and findings of the board' be transmitted both to the Committee and to the individual under review. This will provide information to a potential respondent at an inappropriate stage, including alerting the respondent as to witnesses who have been identified as potential recipients of subpoenas."
In addition, Kellner suggested that it would be unwise for OCE to notify a potential target of a review that it was going to occur, since this would tip of that person.
Capuano told reporters that his ethics task force had interviewed Kellner and other ethics committee staff "several times" as his task force developed its proposal, and he said some of Kellner's concerns have already been addressed in his resolution, which was not formally released until mid-December.
"This was not intended to be an attack on the ethics committee," Capuano said, although he added that Kellner's e-mail "was written for people who have taken part in the ethics process and don't see anything wrong with it. I respectfully disagree."