The D.C. Board of Elections will hold a hearing Friday afternoon to consider a formal appeal from D.C. Councilmember Elissa Silverman (I-At Large) of a recent ruling from the Office of Campaign Finance that found she had misspent public campaign funds on polling in a primary race in which she wasn’t a candidate.

The elections board hearing was first reported by WAMU political analyst Tom Sherwood on Wednesday night.

The board says it will consider one part of Silverman’s response to the ruling: she accuses OCF of improperly “moving the goalposts” by completing the investigation, contradicting assurances from an OCF attorney that he “did not want to influence the upcoming” election and would give Silverman more time to respond to the accusations.

The dispute stems from two polls that Silverman — who is running for re-election in a competitive eight-way race for two At-Large seats — conducted in Ward 3 ahead of the June Democratic primary. After the polling, three candidates in the large field for that D.C. Council seat dropped out and threw their support behind eventual victor Matthew Frumin.

Critics — including losing candidate Eric Goulet — accused Silverman of improperly using the polling results she obtained to push the three candidates to drop out, effectively violating city regulations against coordination between campaigns and potentially serving as an illegal campaign contribution to them. In August, Karim Marshall, an independent candidate in the At-Large contest, asked OCF to investigate Silverman over the polling.

The OCF ruling last week found that Silverman — who participated in the Fair Elections public financing system that matches small-dollar campaign contributions with public money — improperly used campaign funds on the polling since she wasn’t a candidate in the Ward 3 race, but it did not investigate nor make and determinations on whether she coordinated with Ward 3 candidates in encouraging them to drop out of the race so Frumin could win.

In her appeal, Silverman’s attorney Jason Downs says the polling was permissible because it helped her better understand Ward 3 voters, was conducted to assist a decision in whom she would endorse ahead of the Democratic primary, and served to test new polling companies and methods she could use in the At-Large race. Downs additionally argues that the standard OCF would set with its ruling against Silverman could open the door to additional scrutiny of all manner of campaign expenses by candidates using the Fair Elections system, thus discouraging candidates for office from using it.

“If any spending to benefit a candidate’s election can be forged into a campaign-finance violation without evidence to the contrary, OCF will become a clearinghouse for campaign expenditures, examining the ‘purpose’ of every expenditure to determine whether it was truly for the purpose of financing or furthering the candidate’s election,” wrote Downs.

The heart of Silverman’s appeal, though, revolves around how OCF conducted the investigation.

Downs says that OCF general counsel William SanFord had agreed to give Silverman up to 90 days to file a response to Marshall’s late-August complaint, and that SanFord said he “did not want to influence the upcoming election.” (In the OCF ruling, SanFord denies that Silverman was given 90 days to respond.) Downs says SanFord unexpectedly reversed course in late September, setting a deadline for Silverman to respond by mid-October.

Downs also says that SanFord violated Silverman’s due process rights by finding that she broke a rule that was not cited in Marshall’s original complaint, thus not giving Silverman and Downs the chance to respond properly.

The OCF ruling has roiled the competitive race At-Large race, coming just as in-person early voting started and while many D.C. residents are returning their mail ballots. Marshall has asked OCF to reconsider his complaint that Silverman improperly coordinated with candidates in the Ward 3 race, while Goulet has asked the U.S. Attorney for D.C. to investigate the matter. D.C. activist Ron Moten rallied a small group on the steps of the Wilson Building this week, asking Silverman to step out of the At-Large race.

D.C. Attorney General Karl Racine, who has endorsed Silverman, told the Washington City Paper that the pile-on against her was “ridiculous hyperbole” that served to benefit incumbent Councilmember Anita Bonds (D-At Large) and Councilmember Kenyan McDuffie (D-Ward 5), who is fighting for Silverman’s seat.

“All of this is directed to change the script and turn the attention away from the fact that we have two incumbents running in the race that have proven to be mouthpieces of the developer class,” he told the City Paper, speaking in his personal capacity.

In a statement on Wednesday afternoon, Silverman said her main concern was that the OCF ruling would prevent future candidates from using the Fair Elections system, which limits how much contributors can give to campaigns and prohibits businesses from giving. She also indirectly criticized McDuffie, who has been financing his campaign with traditional fundraising — including contributions from lobbyists and developers.

“My real concern comes from the potential it has to dissuade other candidates from participating in the Fair Elections program and deciding to use traditional financing,” she said. “We have seen what happens when politicians rely on big money donors to power their campaigns. You only need to look as far as some of my most competitive opponents who have bankrolled their campaigns with $1,000 checks from special interests.”

Silverman has been the target of concerted political efforts in the past. In 2018, Mayor Muriel Bowser threw her full support and resources behind a challenger to Silverman, Dionne Bussey-Reeder. (In that race, Silverman accused Bowser of violating campaign finance laws when she held a rally with Bussey-Reeder.) This time around, a new political committee founded by prominent developers and charter-school supporters is spending some $200,000 to oppose Silverman and support McDuffie.