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Excepted and Executive Service Domicile Requirement Emergency Amendment Act of 2002
Bill 14-581

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Bill 14-581 Mayor’s Veto


March 25, 2002

The Honorable Linda W. Cropp
Council of the District of Columbia
John A. Wilson Building
1350 Pennsylvania Avenue NW
Washington, DC 20004

Dear Chairman Cropp:

I hereby veto Bill 14-581 the "Excepted and Executive Service Domicile Requirement Emergency Amendment Act of 2002." This bill is both unreasonable in its specificity and application, and constitutes an intrusion by the legislature on executive functions.

Passage of this bill will likely be construed by the courts to violate various constitutional rights, particularly as it pertains to 1) the specificity of proofs needed to prove domicile, and 2) the retro-applicability of the bill to those hired before March 5, 2002. The provision that eliminates the issuance of waivers could also be construed as limiting an executive function that is, in certain limited circumstances, necessary to exercise in order to staff the government with the most qualified employees.

Specificity of Proof. The legislation would require an appointee to submit 11 specific documents to prove domicile in the District. As written, the language does not provide for reasonable discretion to waive submission of any of the required items. It could be argued that some of the documents bear no reasonable relationship to a court could find that the bill violates substantive due process rights.

Retroactivity: This bill would force all excepted service employees to comply with new domicile standards that were not in effect at the time of their initial appointments. This could subject the District to significant liability given prohibitions against this form of retroactivity. Furthermore, if this bill revokes waivers for non-OCTO appointees, a non-OCTO appointee could argue that s/he had a property right in the waiver and that revocation of the waiver would violate substantive due process. The equal protection clause of the U.S. Constitution may also be at issue in that the proposed law exempts one group of employees (OCTO employees) from the requirements of the statute without a "rational" explanation.

Elimination of Waivers: This bill would prohibit the Office of Personnel from issuing residency waivers. It is unclear whether or not waivers could be granted at all under this legislation. This provision would greatly impede the Mayor's ability to hire staff for hardto-fill positions and would breach the separation between the legislative and the executive branches of government.

The Office of Personnel has used the waiver authority judiciously. Of the 107 waivers granted, only eight residency waivers were granted for hard-to-fill positions that were not in OCTO or the Office of the Inspector General (OIG). Of the remaining 99 positions, 75 Excepted Service employees are within OIG, and 24 are at OCTO, or serving an information technology function. It should be noted, that local law (due to a provision inserted by Congress) does not specify qualification requirements for OIG appointments. As such, the Office of Personnel has uniformly granted residency waivers to this agency without evaluation or review.

The current personnel policies for the Excepted and Executive Service classes provide an adequate framework to meet our goal of hiring the most talented people to live in and serve the District of Columbia.

Overall, consideration of this legislation was hampered by the lack of even the most minimal consultation with the Administration. As such, we were not afforded an opportunity to have these significant concerns considered and addressed by the Council. I strongly urge that any future legislation addressing this matter be subjected to review for legal sufficiency and that the legislative process allow for the full measure of public hearing and public participation prior to a vote.

As always, I would welcome the opportunity to discuss this matter with you and other members of the Council.

Anthony A. Williams

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