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 <a href="http://www.legaltimes.typepad.com/files/motion-for-protective-order-1.p…; target="”_blank”">Motion
for a Protective Order on Behalf of Mayor Vincent C. Gray</a>
filed on Thursday in the case of <i>Payne v. District of Columbia</i>. 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.<br>
<br>
<b>The Case</b><br>
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.<br>
<br>
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.<br>
<br>
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.<br>
<br>
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.<br>
<br>
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"?<br>
<br>
<b>D.C. Legislative Immunity Is Not Absolute</b><br>
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. <br>
<br>
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.<br>
<br>
The statutory provision, entitled Legislative Immunity, reads:<ul>
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.</ul>
"Legislative duties" is defined as follows:<ul>
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)).</ul>
<b>Possible Solutions</b><br>
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?<br>
<br>
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.<br>
<br>
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.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
203-859-1959