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D.C. Legislative Immunity Decision Ignores Constitutional-Legislative Differences
Wednesday, May 16th, 2012
Robert Wechsler
Last September, I wrote a
blog post about the attempt by District of Columbia council
members to block a subpoena by employing a legislative immunity
defense. The case involves retaliation against a whistleblower who
had alleged improper council input in the awarding of a lottery
contract.
On Monday, the federal district court for the District of Columbia decided that the council members (one of whom is now mayor) are required to testify about matters relating only to retaliation. However, the basis for this decision was solely that "efforts to exhort" the executive branch do not fit under the D.C. legislative immunity law's definition of "legislative duties."
I won't go further into the case, because the earlier blog post does this. What is most important about the decision is that it, like the Baltimore decisions, does not see any difference between "absolute" constitutional immunity (which itself is not really absolute) and common-law or, in this case, legislative immunity, which can be waived in many ways and which should only be considered one factor to be considered in relation to other laws, such as whistleblower protection, and not as something that overrides all other laws.
According to Note 7 of the decision, the district court has been interpreting the D.C. speech or debate law by relying on federal constitutional precedents. This is lazy at best. Even though the D.C. law is based on the federal constitutional language, it is not constitutional. The council could easily make an exception to the law for matters involving whistleblowers, or for government ethics situations. In fact, the council could, if it chose, strike the law altogether. Congress could not do that to the Speech or Debate Clause.
Council Involvement in the Procurement Process
An important side issue here is that the District's council is deeply involved in the procurement process pursuant to a law that requires council approval of any multiyear contract and any contract in excess of one million dollars. This sort of law practically calls for legislative interference in the procurement process. Even when a contract is properly bid, the council can change the terms or even the winner of the bid by threatening to reject the contract, or actually rejecting it and requiring another bid, as it did in this case.
A legislative body should be involved in determining whether a project is desirable, but once the policy aspects of the contract have been determined, the procurement office, and any independent procurement committee, should be allowed to act independently. If there are concerns about the legality of the process, the inspector general should investigate.
Robert Wechsler
Director of Research-Retired, City Ethics
203-859-1959
On Monday, the federal district court for the District of Columbia decided that the council members (one of whom is now mayor) are required to testify about matters relating only to retaliation. However, the basis for this decision was solely that "efforts to exhort" the executive branch do not fit under the D.C. legislative immunity law's definition of "legislative duties."
I won't go further into the case, because the earlier blog post does this. What is most important about the decision is that it, like the Baltimore decisions, does not see any difference between "absolute" constitutional immunity (which itself is not really absolute) and common-law or, in this case, legislative immunity, which can be waived in many ways and which should only be considered one factor to be considered in relation to other laws, such as whistleblower protection, and not as something that overrides all other laws.
According to Note 7 of the decision, the district court has been interpreting the D.C. speech or debate law by relying on federal constitutional precedents. This is lazy at best. Even though the D.C. law is based on the federal constitutional language, it is not constitutional. The council could easily make an exception to the law for matters involving whistleblowers, or for government ethics situations. In fact, the council could, if it chose, strike the law altogether. Congress could not do that to the Speech or Debate Clause.
Council Involvement in the Procurement Process
An important side issue here is that the District's council is deeply involved in the procurement process pursuant to a law that requires council approval of any multiyear contract and any contract in excess of one million dollars. This sort of law practically calls for legislative interference in the procurement process. Even when a contract is properly bid, the council can change the terms or even the winner of the bid by threatening to reject the contract, or actually rejecting it and requiring another bid, as it did in this case.
A legislative body should be involved in determining whether a project is desirable, but once the policy aspects of the contract have been determined, the procurement office, and any independent procurement committee, should be allowed to act independently. If there are concerns about the legality of the process, the inspector general should investigate.
Robert Wechsler
Director of Research-Retired, City Ethics
203-859-1959
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