Petition for Writ of Mandamus by
Linda Cropp, Chairman, City Council, and all members of the Council
June 2, 2003

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DISTRICT OF COLUMBIA
COURT OF APPEALS

Petition Number 030A28

PETITION FOR WRIT OF MANDAMUS

In support of this request, Petitioners state as follows:

1. Pursuant to section 404(a) of the District of Columbia Home Rule Act (D.C. Official Code 1-204.04(a)), the Council enacted the Inspector General Qualifications Emergency Amendment Act of 2003 (D.C. Act 15-78), which became effective April 29, 2003 (50 DCR 3643), the Inspector General Qualifications Temporary Amendment Act of 2003 (D.C. Act 15-79; 50 DCR 3647), which is pending the conclusion of its 30-day mandatory Congressional review period; and enacted the Inspector General Qualifications Amendment Act of 2003 (Bill 15-183) (collectively to be referred to as "IG Qualification Laws"), to provide minimum qualifications for the position of Inspector General.
2. Each of the Petitioners are Members of the Council of the District of Columbia and each voted in favor of all of the IG Qualification Laws, with the exception of Harold Brazil.
3. Respondent, Mayor Anthony Williams, vetoed each of the IG Qualifications Laws. The Council overwhelmingly overrode the Emergency and Temporary bills, and has scheduled a vote at tomorrow's legislative session on the possible override of the Mayor's May 16, 2003 veto of the permanent bill (Bill 15-183). Copies of the veto letters are attached hereto as Exhibits A, B, and C. None of the veto letters indicated that the Mayor would refuse to enforce the laws, if they were duly adopted.
4. The minimum qualifications for the position of Inspector General are now that a person be: (I) "A graduate of an accredited law school and a member in good standing of the bar of the District of Columbia for at least 7 years immediately preceding his or her appointment, and shall have 7 years experience in the practice of law"; (ii) "Licensed as a certified public accountant in the District of Columbia under Chapter I-B of Title 47 of the District of Columbia Official Code for at least 7 years immediately preceding his or her appointment and shall have 7 years experience, in the aggregate, in the practice of accounting, tax consulting, or financial consulting;" or (iii) "The holder of a certified public accountant certificate from the District of Columbia Board of Accountancy and a member of the Greater Washington Society of Certified Public Accountants, and shall have 7 years experience in the practice of public accounting."
5. As stated by the Inspector General Qualification Emergency Amendment Act of 2003 (D.C. Act 15-78), "a person who holds the position of Inspector General and who does not meet the requirements . . . on June 1, 2003 shall not continue to hold the position and the position shall be vacant."
6. By letter dated May 30, 2003, the Mayor indicated that he does not intend to enforce the Inspector General Qualifications Emergency Amendment Act of 2003 (D.C. Act 15-78), but that he plans to ignore a duly adopted law of the District of Columbia, and not to seek a declaratory judgment. His letter does not indicate whether the incumbent Inspector General can meet the qualifications to continue to hold office.
7. Section 422(a) of the District of Columbia Home Rule Act (D.C. Official Code §1-204.22(a)) states, in relevant part, that the "Mayor shall be responsible for the proper execution of all laws relating to the District." On January 2, 2003, Mayor Anthony Williams took an oath of office attesting that he would faithfully execute the laws of the District of Columbia. The Inspector General Qualifications Emergency Amendment Act of 2003 is the law in the District of Columbia, and has been law since April 29, 2003. By refusing to "faithfully execute" this District law, the Mayor has violated section 422 of the District Charter, his oath of office, and the principles of separation of powers by usurping the power of both the legislative and judicial branches of government.
8. Further, Petitioners rely on the statements set forth in the accompanying Memorandum of Points and Authorities in Support of Petition for Writ of Mandamus.

WHEREFORE, Petitioners request this Court to compel the respondent, Mayor Anthony Williams, to make the requisite determination as to whether the incumbent Inspector General meets the minimum qualifications as set forth in the Inspector General Qualification Emergency Amendment Act of 2003 (D.C. Act 15-78), and if he finds that the incumbent Inspector General does not meet the minimum qualifications, to take the necessary steps to ensure that the incumbent Inspector General vacates the office, including, if necessary, directing the Office of the Corporation to initiate a quo warranto action, pursuant to D.C. Official Code § 16-3521 et seq.

Respectfully submitted,
Charlotte Brookins-Hudson
General Counsel (#954244)
Council of the District of Columbia
1350 Pennsylvania Avenue, N.W. - Suite 4
Washington, D.C. 20004
(202) 724-8026
(202) 724-8192 (facsimile)
Cbrookinshudson@dccouncil.us
Attorney for Petitioners

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DISTRICT OF COLUMBIA
COURT OF APPEALS

Petition Number 030A28

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PETITIONERS' PETITION FOR WRIT OF MANDAMUS

Background Information

A. Council makes policy decision that minimum qualifications are necessary for an IG.

The Council made a policy determination that minimum qualifications were needed for a person to hold the position of Inspector General. That policy determination is set forth in three bills adopted by the Council: the Inspector General Qualifications Emergency Amendment Act of 2003 (D.C. Act 15-78), which became effective April 29, 2003, the Inspector General Qualifications Temporary Amendment Act of 2003 (D.C. Act 15-79), which is projected to conclude its mandatory 30-day Congressional review period by June 20, 2003, and the Inspector General Qualifications Amendment Act of 2003 (Bill 15-183: D.C. Act 15---) (collectively referred to as "IG Qualification Laws"), to provide minimum qualifications for the Office of Inspector General. Those laws made the qualifications applicable to the incumbent Inspector General.

In relevant part, the laws state that:

(D) The Inspector General shall be appointed:

"(i) Without regard to party affiliation;
"(ii) On the basis of integrity;
"(iii) With a minimum of 7 years of supervisory and management experience; and
"(iv) With a minimum of 7 years demonstrated experience and ability, in the aggregate, in law, accounting, auditing, financial management analysis, public administration, or investigations.".

"(d) A new subparagraph (D-i) is added to read as follows:

"(D-i)(i) The Inspector General shall be

"(I) A graduate of an accredited law school and a member in good standing of the bar of the District of Columbia for at least 7 years immediately preceding his or her appointment, and shall have 7 years experience in the practice of law;
"(II) Licensed as a certified public accountant in the District of Columbia under Chapter I-B of Title 47 of the District of Columbia Official Code for at least 7 years immediately preceding his or her appointment and shall have 7 years experience, in the aggregate, in the practice of accounting, tax consulting, or financial consulting; or
"(III) The holder of a certified public accountant certificate from the District of Columbia Board of Accountancy and a member of the Greater Washington Society of Certified Public Accountants, and shall have 7 years experience in the practice of public accounting.

The new section 208(a)(1)(D-i)(ii) of the District of Columbia Procurement Practices Act of 1985, effective February 21, 1986 (D.C. Law 6-85; D.C. Official Code §2-302.08(a)(1)), as added by the Inspector General Qualifications Emergency Act, mandates that the incumbent Inspector General vacate the office if he does not meet the qualifications by June 1, 2003.

B. Mayor refuses to acknowledge the law, but rather declares it illegal.

On May 30, 2003, Mayor Williams issued a letter to the Chairman of the Council, with copies to the Members of the Council (and executive branch officials), indicating his intent to not execute the law. It is a separation of powers violation for the Mayor to declare a duly adopted law of the District of Columbia to be "null, void, and of no effect." If the Mayor believes that the law is unlawful and usurps powers given only to the executive, he can and should have sought clarification of the law by this court.

Relevant Statutory Provisions

District Charter (Title IV of the Home Rule Act).

A. Power of the Mayor - HRA § 422 (D.C. Official Code §1-204.22)

§1-204.22. Powers and duties.

The executive power of the District shall be vested in the Mayor who shall be the chief executive officer of the District government. In addition, except as otherwise provided in this chapter, all functions granted to or vested in the Commissioner of the District of Columbia, as established under Reorganization Plan No. 3 of 1967, shall be carried out by the Mayor in accordance with this chapter. The Mayor shall be responsible for the proper execution of all laws relating to the District, and for the proper administration of the affairs of the District coming under his jurisdiction or control, including but not limited to the following powers, duties, and functions:

(1) The Mayor may designate the officer or officers of the executive department of the District who may, during periods of disability or absence from the District of the Mayor, execute and perform the powers and duties of the Mayor.

(2) The Mayor shall administer all laws relating to the appointment, promotion, discipline, separation, and other conditions of employment of personnel in the Office of the Mayor, personnel in executive departments of the District, and members of boards, commissions, and other agencies, who, under laws in effect on the date immediately preceding January 2, 1975, were subject to appointment and removal by the Commissioner of the District of Columbia. All actions affecting such personnel and such members shall, until such time as legislation is enacted by the Council superseding such laws and establishing a permanent District government merit system, pursuant to paragraph (3) of this section, continue to be subject to the provisions of acts of Congress relating to the appointment, promotion, discipline, separation, and other conditions of employment applicable to officers and employees of the District government, to §1-207.13, and where applicable, to the provisions of the joint agreement between the Commissioners and the Civil Service Commission authorized by Executive Order No. 5491 of November 18, 1930, relating to the appointment of District personnel. He shall appoint or assign persons to positions formerly occupied, ex officio, by the Commissioner of the District of Columbia or by the Assistant to the Commissioner and shall have power to remove such persons from such positions. The officers and employees of each agency with respect to which legislative power is delegated by this chapter and which immediately prior to January 2, 1975, was not subject to the administrative control of the Commissioner of the District, shall continue to be appointed and removed in accordance with applicable laws until such time as such laws may be superseded by legislation passed by the Council establishing a permanent District government merit system pursuant to paragraph (3) of this section.

B. Power of the Council - HRA § 404 (D.C. Official Code § 1-204.04).

§1-204.04. Powers of the Council.

(a) Subject to the limitations specified in §§ 1-206.01 to 1-206.04, the legislative power granted to the District by this chapter is vested in and shall be exercised by the Council in accordance with this chapter. In addition, except as otherwise provided in this chapter, all functions granted to or imposed upon, or vested in or transferred to the District of Columbia Council, as established by Reorganization Plan No. 3 of 1967, shall be carried out by the Council in accordance with the provisions of this chapter.

(b) The Council shall have authority to create, abolish, or organize any office, agency, department, or instrumentality of the government of the District and to define the powers, duties, and responsibilities of any such office, agency, department, or instrumentality.

Local Laws

A. Inspector General Statute

§2-302.08. Creation and duties of Office of the Inspector General.

(a)(1)(A) There is created within the executive branch of the government of the District of Columbia the Office of the Inspector General. The Office shall be headed by an Inspector General appointed pursuant to subparagraph (B) of this subsection, who shall serve for a term of 6 years and shall be subject to removal only for cause by the Mayor (with the approval of the District of Columbia Financial Responsibility and Management Assistance Authority in a control year) or (in the case of a control year) by the Authority. The Inspector General may be reappointed for additional terms.

(B) During a control year, the Inspector General shall be appointed by the Mayor as follows:

(i) Prior to the appointment of the Inspector General, the Authority may submit recommendations for the appointment to the Mayor.

(ii) In consultation with the Authority and the Council, the Mayor shall nominate an individual for appointment and notify the Council of the nomination.

(iii) After the expiration of the 7-day period which begins on the date the Mayor notifies the Council of the nomination under sub-subparagraph (ii) of this subparagraph, the Mayor shall notify the Authority of the nomination.

(iv) The nomination shall be effective subject to approval by a majority vote of the Authority.

(C) During a year which is not a control year, the Inspector General shall be appointed by the Mayor with the advice and consent of the Council. Prior to appointment, the Authority may submit recommendations for the appointment.

(D) The Inspector General shall be appointed without regard to party affiliation and solely on the basis of integrity and demonstrated ability in accounting, auditing, financial management analysis, public administration, or investigations.

(E) The Inspector General shall be paid at an annual rate determined by the Mayor, except that such rate may not exceed the rate of basic pay payable for level N of the Executive Schedule.

B. General Rule of Severability

Even if the Mayor could declare laws to be invalid and thereby to ignore such laws, his position in this case violates section 2 of the General Rule of Severability Adoption Act of 1983, effective March 14, 1984 (D.C. Law 5-56; D.C. Official Code § 45-201). That act presumes that all laws of the District of Columbia are severable, except where there is an express provision that makes such laws nonseverable. Under the General Rule of Severability Adoption Act of 1983, a provision found to be unlawful is severable. Consequently, even if the new section 208(a)(1)(D-i)(ii) is invalid, the remainder of the IG Qualifications Emergency Act remains valid.

§ 45-201. Established; exceptions.

(a) Except as provided in subsection (b) of this section, if any provision of any act of the Council of the District of Columbia or the application thereof to any person or circumstance is held to be unconstitutional or beyond the statutory authority of the Council of the District of Columbia, or otherwise invalid, the declaration of invalidity shall not affect other provisions or applications of the act which can be given effect without the invalid provision or application, and to this end the provisions of each act of the Council of the District of Columbia are deemed severable.

(b) The Council of the District of Columbia may provide, within the provisions of a specific act, that the provisions of a specific act are non severable or that certain specified provisions are deemed inoperative if certain other provisions of the act are declared invalid. If the Council of the District of Columbia provides for a special nonseverability clause as provided in this subsection, the long title of the act shall reflect the inclusion of a special nonseverability clause.

Conclusion

There is no denying that the Council has lost confidence in the incumbent Inspector General and it believes that he lacks the necessary qualifications to perform the duties of the Inspector General. But this lack of confidence does not argue against the legitimacy of the qualifications, only the impetus for the law. The law is a valid law. The only question for a court is whether the Council has duly exercised its legislative duty.

Respectfully submitted,

Charlotte Brookins-Hudson
General Counsel (#954244)
Council of the District of Columbia
1350 Pennsylvania Avenue, N.W. - Suite 4
Washington, D.C. 20004
(202) 724-8026
(202) 724-8192 (facsimile)
Cbrookinshudson@dccouncil.us 
Attorney for Petitioners

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DISTRICT OF COLUMBIA
COURT OF APPEALS

Petition Number 030A28

CERTIFICATE OF SERVICE

Honorable Anthony A. Williams, Mayor
1350 Pennsylvania Avenue, N.W.
Mayor's Correspondence Unit
Second Floor
Washington, D.C. 20004

Ms. Arabella Teal
Interim Corporation Counsel
1350 Pennsylvania Avenue, N.W. - Suite 409
Washington, D.C. 20004

Mr. John A. Koskinen
City Administrator
1350 Pennsylvania Avenue, N.W. - Suite 310
Washington, D.C. 20004

Charlotte Brookins-Hudson (#954255)
General Counsel
(202) 724-8026

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DISTRICT OF COLUMBIA
COURT OF APPEALS

Petition Number 030A28

JOINT MOTION FOR EXPEDITED CONSIDERATION OF PETITION FOR WRIT OF MANDAMUS

1. This is a petition for a writ of mandamus to resolve the present controversy concerning the enforcement of the Inspector General Qualifications Emergency Amendment Act of 2003 (D.C. Act 15-78), which became effective April 29, 2003. 
2. Expedition of the proceedings in this action is in the best interests of the public and is warranted in the circumstances of this case.

WHEREFORE, Petitioners and Respondent, respectfully request that the Court issue an order scheduling responses and oral argument, if necessary, for the dates set forth above, or for any other date convenient to the Court and to the Counsel for Petitioners and Respondent. Alternatively, we respectfully request that a conference call be held with the parties and the appropriate person from your Chambers to schedule the argument for the earliest date convenient to the Court and to all of the parties.

Respectfully submitted,
Charlotte Brookins-Hudson
General Counsel (#954244)
Council of the District of Columbia
1350 Pennsylvania Avenue, N.W. - Suite 4
Washington, D.C. 20004
(202) 724-8026
(202) 724-8192 (facsimile)
Cbrookinshudson@dccouncil.us
Attorney for Petitioners

Anthony A. Williams, Mayor
Arabella Teal (#414110)
Interim Corporation Counsel
1350 Pennsylvania Avenue, N.W. - Suite 409
Washington, D.C. 20004
(202) 724-1520
(202) 724-6577
Arabella.teal@dc.gov
Attorney for Respondent

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DISTRICT OF COLUMBIA
COURT OF APPEALS

Petition Number 030A28

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF JOINT MOTION FOR EXPEDITED CONSIDERATION OF PETITION FOR WRIT OF MANDAMUS

Respectfully submitted,

Anthony A. Williams, Mayor
Arabella Teal (#414110)
Interim Corporation Counsel
1350 Pennsylvania Avenue, N.W. - Suite 409
Washington, D.C. 20004
(202) 724-1520
(202) 724-6577
Arabella.teal@dc.gov 

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DISTRICT OF COLUMBIA
COURT OF APPEALS

Petition Number 030A28

ORDER

This matter comes before the Court on the Joint Motion for Expedited Consideration of Petition for Writ of Mandamus. Upon consideration of the joint request, and it appearing that expedited consideration is in the best interest of the public, it is by this Court this ______ day of 2003;

ORDERED: That the Joint Motion for Expedited Consideration of Petition for Writ of Mandamus is GRANTED.

FURTHER ORDERED THAT:

Respondent respond to the Petition for Writ of Mandamus no later than Tuesday, June 3, 2003, that Petitioners respond to the Respondent's response by Wednesday June 4, 2003, and that oral argument, if necessary, is scheduled for 2003.

JUDGE

cc: Charlotte Brookins-Hudson
General Counsel
Office of the General Counsel
Council of the District of Columbia
1350 Pennsylvania Avenue, N.W., Suite 4
Washington, D.C. 20004

Arabella Teal
Interim Corporation Counsel
Office of the Corporation Counsel
1350 Pennsylvania Avenue, N.W., Suite 409
Washington, D.C. 20004

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DISTRICT OF COLUMBIA
COURT OF APPEALS

Petition Number 030A28

CERTIFICATE OF SERVICE

Honorable Anthony A. Williams, Mayor
1350 Pennsylvania Avenue, N.W.
Mayor's Correspondence Unit
Second Floor
Washington, D.C. 20004

Ms. Arabella Teal
Interim Corporation Counsel
1350 Pennsylvania Avenue, N.W. - Suite 409
Washington, D.C. 20004

Mr. John A. Koskinen
City Administrator
1350 Pennsylvania Avenue, N.W. - Suite 310
Washington, D.C. 20004

Charlotte Brookings-Hudson - (#954255)
General Counsel
(202) 724-8026