making local government more ethical

D.C. Legislative Immunity in a Case Alleging Retaliation Against a Whistleblower

Did you know that the District of Columbia has its own Speech or Debate Clause? I learned this from reading the Motion for a Protective Order on Behalf of Mayor Vincent C. Gray filed on Thursday in the case of Payne v. District of Columbia. Gray, a former council president, is seeking to be protected from testifying in a case involving alleged retaliation against a whistleblower. A principal argument for protection is based on an unusual form of legislative immunity, based on a local ordinance rather than on a constitutional provision or common-law immunity.

The Case
Payne was Director of Contracts in the General Counsel’s Office for the Office of the Chief Financial Officer. He alleges that he approved a contract that was bid, with only one other bidder, and that the CFO failed to award the contract as approved and allowed elected and executive officials, including members of the D.C. Council, to have improper input in the award process. Mayor Gray was then the council president.

When Payne filed a report about the matter with his department's Office of Integrity and Oversight and with the city's Inspector General, he alleges, there was retaliation against him. He says he was demoted, subjected to several internal investigations, pressured to resign, and terminated.

He has subpoenaed Mayor Gray to be deposed, along with other council members, presumably regarding their involvement, if any, in the retaliation (although this is not spelled out in the subpoena). Although a federal court case, this is essentially an ethics matter, as it involves retaliation against a whistleblower and, possibly, misuse of office in doing so.

Gray seeks a protective order from testifying in this case. His principal argument involves the Speech or Debate Clause, that is, that he has absolute legislative immunity regarding legislative activity, and that the council's involvement in awarding the contract was legislative activity.

But this case is not really about the council's involvement in awarding the contract. It's about the council's possible involvement in or knowledge of the retaliation against Payne. Would either involvement in or knowledge of any retaliation constitute "legislative activity"?

D.C. Legislative Immunity Is Not Absolute
D.C.'s Speech or Debate Clause is not a constitutional provision, but a statute (what would be called an ordinance in other cities), D.C. Official Code § 1-301.42. It does not have the force of a constitutional clause; for example, it is not absolute. It is simply a reflection of the fact that the council wants to self-regulate its members' conduct and that it doesn't want its members to have to appear in any matter as a witness or as a party.

A form of this statute goes all the way back to 1973, which is, coincidentally, just the time that D.C. and many other jurisdictions started passing ethics laws. The council could easily change this rule at any time, for example, by making an exception for ethics matters or for cases involving retaliation against whistleblowers. In other words, although Gray argues that he has absolute immunity, his immunity is not absolute at all. When immunity is absolute, a legislative body cannot waive any part of that immunity.

The statutory provision, entitled Legislative Immunity, reads:
    For any speech or debate made in the course of their legislative duties, the members of the Council shall not be questioned in any other place.
"Legislative duties" is defined as follows:
    The responsibilities of each member of the Council in the exercise of such member's functions as a legislative representative, including but not limited to:  Everything said, written or done during legislative sessions, meetings, or investigations of the Council or any committee of the Council, and everything said, written, or done in the process of drafting and publishing legislation and legislative reports. (D.C. Official Code § 1-301.41(b)).
Possible Solutions
Let's assume, for the sake of argument, that Gray knew about or was involved in acts of retaliation against Payne. Is it truly in the interest of the District of Columbia not to have him testify about these matters? Would it not be better for the District's attorney general to seek to limit questioning to matters outside of legislative activity, agreeing about what is and is not legislative activity as part of an agreement with Payne's counsel?

The council could require its members to testify on anything directly relevant to the issue of retaliation. It is in the council's interest to have this issue dealt with as transparently as possible. If there is nothing to hide, then the matter will be put to rest. If council members were involved in or had knowledge of any retaliation, this should be known to the public and the council should take steps as it chooses.

It should also be pointed out that, since a council member's immunity is not absolute, a current or former council member may waive the immunity. Waiver is especially desirable when the deposition would not involve any core legislative activity, such as voting or debating or drafting legislation. In other words, Gray is not required to protect his constituents by raising the legislative immunity defense. Nor do I believe he is required to do what the District's attorney general advises him to do. He is raising the defense because he chooses to. He could just as well choose not to raise the defense, in the name of government ethics and transparency, and to not create a precedent that effectively suggests to other council members that they raise an immunity defense in situations where it is not in the best interests of the city or of the council member's constituents.

Robert Wechsler
Director of Research, City Ethics