D.C. Legislative Immunity Decision Ignores Constitutional-Legislative Differences
Last September, I wrote <a href="http://www.cityethics.org/content/dc-legislative-immunity-case-alleging…; target="”_blank”">a
blog post</a> 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.<br>
<br>
On Monday, <a href="http://s3.documentcloud.org/documents/356454/memorandum-opinion-of-u-s-…; target="”_blank”">the
federal district court for the District of Columbia decided</a>
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."<br>
<br>
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.<br>
<br>
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.<br>
<br>
<b>Council Involvement in the Procurement Process</b><br>
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.<br>
<br>
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.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
203-859-1959