GOVERNMENT OF THE DISTRICT OF
COLUMBIA
OFFICE OF THE ATTORNEY GENERAL
1350 Pennsylvania Ave., NW, Suite 409, Washington, D.C.
20004, (202) 724-1301, Fax (202) 741-0580
ATTORNEY GENERAL
April 20, 2009
BY HAND
The Honorable Mary M. Cheh
Committee on Government Operations and the Environment
Council of the District of Columbia
1350 Pennsylvania Avenue, N.W., Suite 111
Washington, D.C. 20004
The Honorable Phil Mendelson
Committee on Public Safety and the Judiciary
Council of the District of Columbia
1350 Pennsylvania Avenue, N.W., Suite 402
Washington, D.C. 20004
Dear Chairpersons Cheh and Mendelson:
This letter concerns certain Council Resolutions,1
the March 27, 2009 letter to David Gragan, Director, Office of Contracting
and Procurement, from Councilmember Cheh, and the April 9, 2009 letter to
Mayor Adrian M. Fenty and the April 3, 2009 letter to Dr. Natwar Gandhi,
Chief Financial Officer, from both of you, concerning the donation of
surplus District property to Sosua in the Dominican Republic.
The donation of the surplus property, enabled by
emergency rulemaking published on March 20, 2009, provided for the
non-profit group, Peaceaholics, Inc., to transport a used fire truck and a
used ambulance, from the inventory of the Fire and Emergency Medical
Services Department, to the City of Sosua as part of a socially
responsible humanitarian initiative to address the economic and social
crisis in Sosua. While the fire truck and ambulance (hereafter FEMS
equipment) were in the process of being delivered to Sousa, the delivery
was cancelled because of the Council’s concerns and accusations regarding
the donation. The FEMS equipment is now being stored in the District.
On April 3, 2009 the Council requested the Office of the
Inspector General (OIG) to conduct an investigation concerning the FEMS
equipment. In a cooperative effort, I forwarded all my files
and my Report (copy attached) concerning the FEMS equipment
to the OIG on April 6, 2009. It is my intent to continue to cooperate
fully with the OIG investigation. Having requested an investigation by OIG,
it is improper for the Council now to seek, either through the Resolutions
and/or potential subpoenas, or through the letters referenced above,
simultaneously to conduct its own investigation. The OIG will be
conducting a thorough investigation which will provide much, if not all,
of the information that the Council seeks. If the Council still has
questions after reading the OIG Report, the Council can consider, at that
time, whether a Council investigation is warranted.
The primary reason why the Committees’ investigations
should be postponed at this time is that, in light of the Committee’s
accusations, the witnesses who may be called may need to assert privileges
for which legal representation would be required. These privileges
include, but are not limited to, the deliberative process privilege, the
executive communication privilege, the attorney-client privilege, and the
privileges related to the confidentiality of personnel records. These
privileges would affect not only the individual employees, but also any
documents the Committees might subpoena. Therefore, as stated in my April
6, 2009 letter to you regarding the investigation of employees of the
Office of the Chief Technology Officer (OCTO), even if the Committees wish
to proceed with the resolutions and investigations, the Committees would
need to work with the Office of the Attorney General to establish
procedures like those used when the Council investigated the fraud
allegations in the Office of Tax and Revenue (OTR). This would include
providing each of the Executive Branch witnesses with his or her own
counsel, preferably on a pro bono basis as was done with the OTR
investigation, to be present with the employees before each of the two
Council committees.
Secondly, in light of the breadth of the investigations
as described in the resolutions, the expenditure of resources that would
be required for the proposed investigations, as well as for the
preparation of responses to the April 9th letter2 in which you seek massive amounts of correspondence and
documentation, clearly would be outweighed by the human resource cost of
such investigations to the Executive Branch and to the District government
as a whole. Even if pro bono representation were secured for Executive
Branch employees who testify, the cost of the employees’ time and the
resulting loss of productivity to any involved agency would be huge. That
cost would be amplified even more when one considers the limited benefit
to be derived from the employees’ testimony as compared to other urgent
business before the Executive Branch and the Council. Indeed, the Council
informed the Executive Branch that a second hearing for the critical
Omnibus Crime legislation could not be held before May 18, 2009,
because the Council was preoccupied with the budget acts. It is not
acceptable that the City lose the benefit of the Omnibus Crime
legislation, and of council review and enactment of other important
legislation before summer, because of political preoccupations with the
FEMS equipment.
I strongly urge the Council to attend to these more
pressing legislative matters while we await the OIG’s report. As always, I
am available for further discussion of these matters.
Sincerely,
Peter J. Nickles
Attorney General for the District of Columbia
cc: Natwar Gandhi, OCFG
David Gragan, Director, OCP
Chief Rubin, FEMS
Chief Lanier, MPD
The Honorable Vincent C. Gray, Chairman
The Honorable Jim Graham
The Honorable Jack Evans
The Honorable David Catania
The Honorable Tommy Wells
The Honorable Yvette Alexander
The Honorable Muriel Bowser
The Honorable Kwame R. Brown
The Honorable Harry Thomas, Jr.
The Honorable Marion Barry
The Honorable Michael Brown
1 The
Resolutions – the Committee on Government Operations and the Environment
Surplus Property and Rulemaking Investigation Authorization Resolution of
2009, and the Committee on Public Safety and the Judiciary FEMS Apparatus
Disposition Investigation Authorization Resolution of 2009 – were approved
by their respective committees (hereafter, Committees) on April 9, 2009.
2 The April 9th letter requests that claims of privilege or
protection with respect to the items requested be made in a privilege log
with a description of the basis for the claims of privilege and all other
information required for a privilege log. Of course, as you know, the
concept of privilege logs derives from Federal Rule of Civil Procedure 45
(d) (2) (A). The Federal Rules of Civil Procedure are applicable to court
proceedings and not to civil investigations such as legislative or
administrative proceedings. (See, Wright and Miller, Federal
Practice and Procedure, § 2451, pg. 380-381, 3d
ed. 2008). Since there is no law that requires the Executive Branch to
prepare privilege logs in response to claims of privilege related to
Council investigations, there is no legal basis upon which the Council can
demand such logs.
COUNCIL OF THE DISTRICT OF COLUMBIA
WASHINGTON, D.C. 20004
April 21, 2009
Peter Nickles, Esq.
Attorney General for the District of Columbia
1350 Pennsylvania Ave., NW Suite 409
Washington, DC 20004
RE: Donation of Surplus FEMS Property
Dear Mr. Nickles:
We are in receipt of your April 20th letter urging us to
postpone or cancel the investigations authorized by our respective
committees regarding the "donation" of surplus FEMS property to
a foreign jurisdiction. Waiting for the Office of the Inspector General to
complete its investigation – an investigation, by the way, initiated at
our request – is not acceptable for a variety of reasons important to the
legislative branch.
The inquiry in this matter is very different than the
ones you cite as allegedly parallel. The investigations of the Office of
the Chief Technology Officer (OCTO) and Office of Tax and Revenue (OTR)
both involved criminal matters – indeed, search warrants and arrests
already had been carried out by the United States Attorney. As far as we
know, the "donation" to Sosua was not a crime, and there is no
criminal investigation pending. Please tell us if this is incorrect.
As Attorney General for the District of Columbia your
client is the city, not the Mayor. It is proper for the Council to demand
answers to its oversight inquiries. It has been our expectation that you
would not interfere. Indeed, your cooperation would be fully consistent
with the goal of transparency and accountability.
Sincerely,
Phil Mendelson, Chairman
Committee on Public Safety and the Judiciary
Mary Cheh, Chairman
Committee on Government Operations and the Environment