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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 The Honorable Phil Mendelson 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 cc: Natwar Gandhi, OCFG 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 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 Mary Cheh, Chairman |
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