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ANTHONY A. WILLIAMS
MAYOR
March 25, 2002
The Honorable Linda W. Cropp
Chairman
Council of the District of Columbia
John A. Wilson Building
1350 Pennsylvania Avenue NW
Washington, DC 20004
Dear Chairman Cropp:
I hereby veto Bill 14-581 the "Excepted and
Executive Service Domicile Requirement Emergency Amendment Act of
2002." This bill is both unreasonable in its specificity and
application, and constitutes an intrusion by the legislature on executive
functions.
Passage of this bill will likely be construed by the
courts to violate various constitutional rights, particularly as it
pertains to 1) the specificity of proofs needed to prove domicile, and 2)
the retro-applicability of the bill to those hired before March 5, 2002.
The provision that eliminates the issuance of waivers could also be
construed as limiting an executive function that is, in certain limited
circumstances, necessary to exercise in order to staff the government with
the most qualified employees.
Specificity of Proof. The legislation would
require an appointee to submit 11 specific documents to prove domicile in
the District. As written, the language does not provide for reasonable
discretion to waive submission of any of the required items. It could be
argued that some of the documents bear no reasonable relationship to a
court could find that the bill violates substantive due process rights.
Retroactivity: This bill would force all
excepted service employees to comply with new domicile standards that were
not in effect at the time of their initial appointments. This could
subject the District to significant liability given prohibitions against
this form of retroactivity. Furthermore, if this bill revokes waivers for
non-OCTO appointees, a non-OCTO appointee could argue that s/he had a
property right in the waiver and that revocation of the waiver would
violate substantive due process. The equal protection clause of the U.S.
Constitution may also be at issue in that the proposed law exempts one
group of employees (OCTO employees) from the requirements of the statute
without a "rational" explanation.
Elimination of Waivers: This bill would
prohibit the Office of Personnel from issuing residency waivers. It is
unclear whether or not waivers could be granted at all under this
legislation. This provision would greatly impede the Mayor's ability to
hire staff for hardto-fill positions and would breach the separation
between the legislative and the executive branches of government.
The Office of Personnel has used the waiver
authority judiciously. Of the 107 waivers granted, only eight residency
waivers were granted for hard-to-fill positions that were not in OCTO or
the Office of the Inspector General (OIG). Of the remaining 99 positions,
75 Excepted Service employees are within OIG, and 24 are at OCTO, or
serving an information technology function. It should be noted, that local
law (due to a provision inserted by Congress) does not specify
qualification requirements for OIG appointments. As such, the Office of
Personnel has uniformly granted residency waivers to this agency without
evaluation or review.
The current personnel policies for the Excepted and
Executive Service classes provide an adequate framework to meet our goal
of hiring the most talented people to live in and serve the District of
Columbia.
Overall, consideration of this legislation was hampered by the lack of
even the most minimal consultation with the Administration. As such, we
were not afforded an opportunity to have these significant concerns
considered and addressed by the Council. I strongly urge that any future
legislation addressing this matter be subjected to review for legal
sufficiency and that the legislative process allow for the full measure of
public hearing and public participation prior to a vote.
As always, I would welcome the opportunity to discuss this matter with
you and other members of the Council.
Sincerely,
Anthony A. Williams
Mayor |
