Members of the mayor’s cabinet and Attorney General Karl Racine traded jabs Wednesday at a D.C. Council round table hearing over Mayor Muriel Bowser’s proposed legislation that would dilute the powers of the attorney general.
Bowser wants a beefed up legal counsel office under her watch to provide legal reviews for contracts, city laws and other matters that are generally handled by the Office of the Attorney General.
Racine, though, countered her proposed changes as legally insufficient, saying they would undermine his authority to provide the city with an unbiased legal opinion, free of political influence.
The only reason to enact the mayor’s proposed legislation, according to Racine, is “to place the attorney general under the mayor’s control and to curtail the functions of the attorney general.”
At contention between the two offices is language in the Budget Support Act that would give the Mayor’s Office of Legal Council the authority to bypass the attorney general’s office and provide legal sufficiency reviews if requested by the mayor.
The Bowser legislation also codifies the relationship between the mayor and attorney general as “client to attorney,” effectively eliminating the office’s ability whistleblow or openly criticize contentious Mayoral plans.
But the mayor’s special advisor, Beverly Perry, told the council panel that her office put that language in the budget rider bill to preempt a bill introduced by D.C. Council Chairman Phil Mendelson, on Racine’s behalf, that she said would greatly expand the power of the attorney general’s office.
Included in that bill are the powers to review and certify legislation, control legal settlements under $1.5 million, and issue binding opinions on all city government agencies.
“In effect, it creates a fourth branch of government with wide-ranging, unprecedented powers, which would substitute its judgment and prerogative for those of the other branches,” Perry said. “This proposal, if approved, would make the council and the executive dependent on the consent of the Attorney General.”
When the mayor or city council proposes laws, according to Perry, lawyers review the measures to make sure they are legally sound and no legal risks will arise from the action.
She said the attorney general can, if he chooses, “be integral to the legal review process, by providing his independent legal view,” but giving Racine the sole responsibility of providing legal advice would be an intrusive overreach and the Mayor’s Office of Legal Counsel is just another option.
The responsibility of the Mayor’s Office of Legal Counsel, according to Director Mark Tuohey, is to advise and guide, and it is up to the mayor to decide if she wants to accept legal advise from his office or the attorney general’s office.
“Policy matters are the providence of the mayor,” Tuohey said. “Legal advice on those matters is the providence of who the mayor chooses to seek it from.”
Perry likened the relationship between the mayor and the attorney general to that of a CEO and her general counsel. The CEO can seek outside counsel if they so choose, but they are not bound to the internal lawyers. The mayor’s office wants to be able to move forward with policy decisions irrespective of the opinion of the attorney general.
If the city has to go to court, though, it will be Racine’s office tasked with defending the laws put in place by the mayor and Racine wants to “ensure that the policy being pursued, or the deal being pursued, complies with District of Columbia law.”
Racine put forward the hypothetical situation where the Office of the Attorney General wasn’t consulted before the government went ahead with a policy initiative that ran afoul of city laws.
“Can you imagine the lack of faith businesses and citizens would have,” he said
The fight over the two competing bills is far from over, according to Councilman Kenyan McDuffie, who oversaw the round table discussion.
“If we go forward with the mayor’s proposal, this will end up in court,” he said.
Racine’s bill is currently awaiting action in the council’s Judiciary Committee and Bowser’s bill, since it is part of her budget package currently going through numerous oversight hearings, still has a long road ahead of it before it becomes law.
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