Committee on Public Safety and the Judiciary
November 17, 2008
A PROPOSED RESOLUTION IN THE COUNCIL OF THE DISTRICT OF COLUMBIA
To disapprove the appointment of Peter J. Nickles
as the Attorney General for the District of Columbia.
RESOLVED BY THE
COUNCIL OF THE DISTRICT OF COLUMBIA, That this resolution may be cited as the "Attorney
General Peter J. Nickles Confirmation Disapproval Resolution of 2008"
Sec. 2. The Council of the District of Columbia
disapproves the appointment of:
Peter J. Nickles
9341 Cornwell Farm Road
Great Falls, VA 22066
as the Attorney General for the District of
Columbia, in accordance with section 2 of the Confirmation Act of 1978. effective March 3. 1979
(D.C. Law 2-142; D.C. Official Code § I-523.01). to serve at the pleasure of the Mayor.
Sec. 3. The Council of the District of Columbia
shall transmit a copy of this resolution, upon its adoption, to
the nominee and to the Office of the Mayor.
Sec. 4. This resolution shall take effect
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COUNCIL OF THE DISTRICT OF COLUMBIA,
COMMITTEE ON PUBLIC SAFETY AND THE JUDICIARY
1350 Pennsylvania Avenue, N W 20004
FROM: Councilmember Phil Mendelson, Chairman, Committee
on Public Safety and the Judiciary
TO: All Councilmembers
DATE: November 17, 2008
SUBJECT: Report on PR 17-928. "Attorney General
Peter J. Nickles Confirmation Disapproval Resolution of 2008"
The Committee on Public Safety and the Judiciary, to
which PR 17-928, the "Attorney General Peter J. Nickles
Confirmation Disapproval Resolution of 2008" was referred. reports
favorably thereon. and recommends approval by the Council.
I. Background and Need
II. Legislative Chronology
III. Summary of Testimony
IV. Impact on Existent Law
V. Fiscal Impact
VI. Section-by-Section Analysis
VII. Committee Action
I. BACKGROUND AND NEED
The purpose of Proposed Resolution I7-928 is to
disapprove the nomination of Peter J. Nickles as the Attorney General
for the District of Columbia. Mr. Nickles is currently a resident of
Great Falls, Virginia.
In making this recommendation, the Committee emphasizes a
number of concerns with appointing this nominee to position of the
Attorney General. Mr. Nickles' tenure as Acting Attorney General is
replete with actions and statements that show he regards his primary
responsibility to he to the Mayor. If the past eleven months in which
Mr. Nickles has served in this role -- six spent in an interim capacity
and nearly five as the nominee -- are prologue to how he will operate
in this role if confirmed, then the Attorney General for the District of
Columbia will continue to operate in a capacity that is, essentially,
the Mayor's attorney rather than the city's.
The Attorney General is the chief law enforcement officer
in the District of Columbia with responsibility for representing the
public interest and upholding the law. As such. the Attorney General must have judgment, sensitivity,
absolute commitment to the rule of law, and the understanding he or she
has one client: the government. These interests should be paramount
every aspect of the Attorney General's service. These interests Survive
any one individual Attorney General, and survive any administration
during which lie or she is appointed. Tile enemies of this office should
not be spent pursuing a partisan agenda.
With regard to the nominee's independence, this vote is
the Council's only check. Mr. Nickles' predecessors have universally
recognized the independence innate in this role. The Committee believes
that the rights, the safety, and the security of the citizens of the
District of Columbia should not, on principle, be sacrificed to
individual politics. However, in judgment. temperament, and practice,
Mr. Nickles has adhered to his belief that the Attorney General's
primary client is the Mayor, leaving the role of the peoples' chief law
enforcement officer vacant. In the Council's role reviewing a
candidate's fitness for office, it is crucial to consider the impact
that confirmation has on the citizens of the District of Columbia.
A nomination submitted to the Council should not be
considered a fait accompli. Rather, a nomination instigates the
Council's oversight role in assuring that the candidate put forth is
competent. has nothing disqualifying about him or her, understands his
or her role and the mission of the agency, has vision for the agency,
and will serve in the best interests of the District and its citizens.
The Committee believes that the nominee does not meet this standard and
recommends to the Council the disapproval of his confirmation.
QUALIFICATIONS FOR THE OFFICE OF THE ATTORNEY GENERAL
Without question, Mr. Nickles possesses a resume of
exceptional experience and knowledge. A graduate of Princeton University
and Harvard Law School, Mr. Nickles has over four decades of experience
practicing as an attorney. The majority of this time was spent at
Covington & Burling, a law firm where he became a partner in 1971.
During his tenure in private practice, Mr. Nickles litigated cases that
advanced the rights of the disadvantaged and brought cases that improved
conditions for those without a voice.
Ills efforts while in private practice have helped to
secure relief for the District's homeless and mentally Ill residents in
the form of the creation of community-based services for persons with
mental illnesses. lie was an advocate for prisoners' rights and
represented prisoners in claims of unconstitutional conditions in
District facilities. These efforts helped resolve deficiencies in the
security, health care, sanitation, and fire safety provided to
prisoners. Mr. Nickles also represented a class of women prisoners in a
class action that resulted in an injunction requiring the District to
provide adequate reproductive health care and prevent harassment and
sexual abuse. With particular focus on prisoners' rights, Mr. Nickles'
work has led to improved conditions, reduced violence, and better
service.1 For this and other work. Mr. Nickles was awarded the District of Columbia Bar's Pro
Bono Lawyer of The Year Award for 1998.
Mr. Nickles has been a member of the D.C. Bar since 1964,
and has served the District legal community as an advisor and teacher.
From 1970 until 1975, he was Chairman to Covington & Burling's
Neighborhood Legal Services Program for the District. Between 1980 and
1992, lie served as an Adjunct Professor of Law at Howard Law School.
Early in his career, between 1968 and 1970, Mr. Nickles served as
general counsel of the Jackson State Task Force and the Kent State Task
Force, reporting to the Scranton Commission on Campus Unrest.
Mr. Nickles remained in private practice until he was
asked to serve as general counsel by Mayor Fenty when he took office in
January 2006. He remained in that role until January -1008. when he was
appointed to the position of Acting Attorney General following the
departure of Linda Singer. Under his regime, the Office of the Attorney
General has experienced certain improvements. The agency has, during his
tenure, made strides in affirmative litigation efforts. filing actions
against slumlords, against a managed care organization, and against
other entities to enforce consumer protection laws. He has also made
rulemaking a priority, focusing the efforts of OAG's Rulemaking Section
to update city regulations and increase efficiency.2 Mr. Nickles has
also developed a professional development program for support staff, a
comprehensive trial skills training program for lawyers, and an awards
program for outstanding employees.
It is also worth noting that Mr. Nickles was involved in
a collaborative effort to respond. with regulations and legislation, to
the recent Supreme Court decision affecting the District's handgun ban.
RESIDENCY IN THE DISTRICT OF COLUMBIA
While currently a resident of Virginia, the nominee has
stated that, if confirmed. he will move into the District. The Council
has sought similar assurances from Mr. Nickles in the past. When he
first came to the District government in January 2006, Mr. Nickles
stated his intention to take up residency in the District since it was
presumed at the time that the residency requirement applicable to
subordinate agency heads applied to the Mayor's general counsel as well.
However, nearing the expiration of the 180 day deadline with which to
comply. Mr. Nickles indicated that he was "too busy" to do so.3 Only after Mr. Nickles decided that
he would rather remain a resident of Virginia was it determined
that the Mayor's general counsel is not required to live in the
The residency requirement for many District government
positions has been given considerable focus by the Council in reviewing
nominees, and rightly so. Living within the District allows those who
work for local government to create personal ties to the jurisdiction
that enable them to better serve District residents. Mr. Nickles has not
made an effort to become a District resident since he began working for
the city in January 2006. This symbolic reluctance to become a resident
has angered many in the community. Indeed, his current commute to work
from outside the District sends a powerful statement to the residents on
whose behalf the Attorney General functions.
Residency is about more than just renting an apartment in
the District. For the chief law enforcement officer, it is imperative
that there be a strong connection to this jurisdiction. The law requires
the Attorney General to be a resident of the District throughout his or
her tenure.4 The unique nature of the Attorney General makes it
important that the individual in that role he closely connected to the
needs and wants of this jurisdiction. Making the District one's home
means that an individual has an ultimate stake in the outcome of
CONFLATION OF ROLE OF GENERAL COUNSEL TO THE MAYOR AND
ATTORNEY GENERAL TO THE DISTRICT OF COLUMBIA
A review of Mr. Nickles' record while serving as the
Mayor's general counsel, and his record to date as the Acting Attorney
General for the District of Columbia, illustrates that the nominee sees
little distinction in the client and duties of these two positions. In
both capacities Mr. Nickles unapologetically views the Mayor as the
primary client,5 and has shown in many of his actions that lie sees no
limitation on his role regardless of his title. The Council has been
dogmatic in asserting that the Attorney General serves the District and
not any single politician, party, or ideology. However. the nominee has
shown that lie either does not recognize or does not value any
distinction in these roles.6
The problem. never previously viewed as an institutional
issue, is the nominee's assertion that the Attorney General does not
possess any independence from the Executive Office of the Mayor.
Predecessors to this role have disagreed. Former Attorney General Robert
Spagnoletti testified before this Committee in January 2008 that
there are often matters where the Office of the Attorney
General must represent the interests of the District as a whole, and
such representation may come into conflict with the political interests
of the Mayor and his Executive Office.7
Mr. Spagnoletti said that during his tenure he did not
experience any encroachment on his independence and was able to make
decisions without consideration or concern for politics.8
Mr. Spagnoletti also noted the importance of being able
to exercise such independence, as the Attorney General, in fulfilling
his or her obligations, may be called upon to prosecute those in the
Executive branch. He encountered this very issue just a few years ago.
when as Attorney General he brought criminal charges against then Mayor
Williams' staff after an investigation found potential election law
violations. Mr. Spagnoletti was able to proceed because, as he phrased
it: "Even when we prosecuted those closest to the Mayor or his
staff, we were free from influence or pressure."9 Questioned about
how he would proceed if his obligations as Attorney General came into
conflict with the Executive, Mr. Nickles only responded that he does not
anticipate any conflicts.10
Mr. Nickles is clearly an advisor to the Mayor on a
variety of political matters. If in his role as the Attorney General he
is later required to defend these same political matters, his defense
strategy is compromised. An ulterior motive to justify the Mayor's
politics, or his own, abandons the District of Columbia and its citizens
as a client. For talented advocates, the law becomes not an answer to a
question, but a tool that is used to achieve a purpose. The nominee
appears skilled in this kind of advocacy. Tile concern is that Mr.
Nickles has demonstrated through words and actions that lie plans to
advocate for the Mayor in his role as Attorney General. The Committee is
concerned that the District and its citizens are therefore left
General Counsel to the Mayor
January 2007-January 2008
Mr. Nickles served as the Mayor's general counsel
beginning January 2. 2007, when the current mayor took office, and he
remained in that role until taking the reigns as Acting Attorney General
in January 2008. In a position appointment without any public input or
oversight from the Council, Mr. Nickles expanded the role of the Mayor's
general counsel to become actively engaged in the operations of
government, and, in particular, the operations of the Office of the
Attorney General. During this period Mr. Nickles was, at times, the
voice of the Executive. Even more problematic, however, were instances
where he was the voice of the Attorney General although neither
appointed nor confirmed as such.
Legal Action against Bank of America
When news broke in late 2007 of a scandal in the Office
of Tax and Revenue that was likely to lead to significant losses to the
city, then Attorney General Linda Singer moved quickly to seek damages
from Bank of America for its role in cashing fraudulent checks. By
December her efforts were underway and were welcomed as a means to
mitigate some of the District's losses. On December 6, however, the
Mayor's general counsel, Peter Nickles, e-mailed Attorney General Singer
directing her to "[s]top work on this [lawsuit]."11 He wrote
in a later e-mail to Singer that "[t]he Mayor has spoken, and I
trust you will listen."12 This action exceeded the authority of his
office, but perhaps even more troubling is his suggestion that the
Attorney General should subvert her own legal opinion for the political
priorities of the Executive Branch.
Even after this exchange, with the lawsuit against Bank
of America seemingly aborted. Ms. Singer's efforts to obtain a tolling
agreement with the bank were again extinguished by Mr. Nickles. Mr.
Nickles testified soon after becoming Acting Attorney General in January
that a tolling agreement was unnecessary. Ironically, by the time of his
confirmation hearing Mr. Nickles was lauding the tolling agreement he
had just obtained. Mr. Nickles previously testified that no claim would
be precluded under law as a result of this delay. If so. the inevitable
question is: why get a tolling agreement now''
Departure of Previous Attorney General:
Attorney General Linda Singer announced her resignation
from the Office of the Attorney General on December 17, 2007. Having
been confirmed by the Council a mere eight months prior, her departure
meant more turnover in the Attorney General position and disruption to
the agency. Widely reported as the reason for her departure, and with an
alternative explanation conspicuously lacking, was Ms. Singer's growing
frustration with interference from the Mayor's general counsel in the
duties of her office and the Mayor's increasing reliance on Mr. Nickles in snaking legal decisions on behalf of the
District. Even before Ms. Singer's departure, Mr. Nickles appeared in
court at times as if he were the Attorney General, prompting one U.S.
District Court judge to question why Mr. Nickles was doing so much
talking when lie wasn't recognized as a lawyer in the case.14 In
response to criticism of his conflation of these roles. Mr. Nickles
stated lie was merely "coordinating" legal efforts for the
Acting Attorney General for the District of Columbia
The Council has been able to see a preview over the past 11 months of what the District might expect from the agency under his
leadership. Thus far the District has witnessed an Attorney General who
sees no lines or limitations on his role in government. So what can be
expected is little or no restriction on the authority of the Attorney
General. Yet the position derives its very identity from its
separateness, from the trust garnered by the Attorney General's ability
to render independent legal advice. Providing superior legal service to
the District of Columbia should remain the ultimate aim, without regard
to politics. Mr. Nickles' actions for the past 11 months raise concerns
about his ability to remain independent from such outside influence.
Terminations in a number of District agencies have come
at the request, or with the direct involvement, of the Attorney General.
Mr. Nickles has sought to make himself the public face of accountability
and efficiency in District government. With the primary duties of
managing a large legal office and operating as the District's chief
lawyer, the Attorney General is not expected, nor is it even desirable,
to conduct the executive functions of the Mayor or of the many other
District agencies. However, Mr. Nickles has inserted himself into the
operations of a number of agencies as well as reinserting himself into
his former role as the Mayor's general counsel.
In July of this year, the interim deputy general counsel
to the Mayor stepped down after ethics charges led to the loss of his
law license. Although no longer the Mayor's attorney, it was Mr.
Nickles, nearly half a year into his role as the District's Attorney
General, and not the Mayor's current general counsel that requested the
deputy's resignation.16 This action raises concerns about where Mr. Nickles' focus lies, as well as
concerns over whom the nominee views as his primary client.
More recently. Mr. Nickles publicly acknowledged that he
had tangled up his previous and current positions. A number of witnesses
at the October hearing on Mr. Nickles nomination stated a deep concern
over his handling of the termination of the Rent Administrator within
the Department of Housing and Community Development. Witnesses also
testified that Mr. Nickles, appearing at a public forum to respond to
concerns surrounding the firing and other tenant issues, was
non-responsive and visibly irritated by questions from the public.17
Although he had been serving in the role of Attorney General for the
previous 11 months, Mr. Nickles stated of his actions at the public
forum: "I regret the issue relating to Ms. Wiggins; and I
wholeheartedly confess that in that situation I was acting as the
Mr. Nickles' recent comments regarding the proposed
lottery contract illustrate the difficulty in determining what he views
as the boundaries of his role. As the District looks to the Attorney
General for legal advice, to see the Attorney General also operate as an
advocate for the Mayor's policy priorities is confusing to individuals
both in and out of government.
When the Mayor initially submitted a proposed lottery
contract with W2I to the Council, the Acting Attorney General publicly
expressed disappointment in the Council for not acting to approve the
Mayor's proposal.19 To date Mr. Nickles has been involved in a
number of aspects of this issue. In May he was also involved in
investigations into bias in the lottery vendor selection process.20 By
September, having completed an investigation into the selection process,
evaluated the contract proposal submitted by the Mayor, and chastised
the Council for not acting. Mr. Nickles was also in the process of
investigating the current contractor, Lottery Technology Enterprises,
for security breaches.21 His involvement in so many aspects of this
issue create problems for those seeking to rely on the Attorney
General's independent legal advice, not being able to tell whether lie
is instead acting as advocate for the Mayor.
JUDGMENT & INDEPENDENCE
In the 11 months since he first took charge of the
Office of the Attorney General, Mr. Nickles has launched a number of
initiatives, pursued a range of' policies, and made public continents
that the Committee believes raise serious constitutional concerns, a
lack sensitivity for civil liberties, and show a lack of respect for
process. While some of' his pursuits would, if pursued by other means,
likely receive widespread support, the Committee believes it necessary
to emphasize the importance of process.
District Employee Terminations:
Processes for personnel actions are of great importance,
particularly in civil service. Disputed terminations can spur lawsuits
that drag on for years and result in high costs to taxpayers from
litigation and continued compensation for the duration of the dispute.
The government should take great care to ensure rights are protected and
employment regulations followed. Mr. Nickles approach has at times been
in opposition to this with deleterious effects for the District.
Personnel actions within the Office of Attorney General
itself have caused the president of the attorneys' union to warn that
the net effect of Mr. Nickles' decisions has been detrimental to
government.22 The termination of several attorneys at OAG earlier this
year was cited by the Acting Attorney General as necessary because of
agency budgetary constraints. Mr. Nickles stated that budget constraints
were cited to save the attorneys from public embarrassment over the
actual reason for their termination: deficient performance.23 It was
later discovered that a number of these attorneys had received
"satisfactory" performance evaluations. Even if these
evaluations were negative, informing individuals of the deficiency, and
providing an opportunity to correct. would have been both proper and
Steve Anderson, President of the AFGE Local 1403,
testified that whether the reason was budgetary constraints or
substandard performance, management still failed to tallow the process
established in the law for terminating the employees.24 The union found
that Mr. Nickles was unwilling to engage in reasonable discussions over
the terminations, and ultimately took the District to court. Mr. Nickles
eventually settled their case, but three employees continue to pursue
age discrimination eases against the District.25 These actions are a
deterrent to labor and management cooperation, and lead to losses that
that cannot Immediately be quantified.
However the loss to the frontline workforce, and the
deleterious effect on employee morale, is readily observable. A number
of employees within the Office of the Attorney General lime already
shared their frustration with the agency leadership.
In other agencies Mr. Nickles has taken an active role in
terminations, including the Metropolitan Police Department and the Child
and Family Services Agency. In both cases questions have been raised as
to whether the proper legal process was followed, and court orders have
been issued requiring the District to rehire terminated workers. In the
case of MPD, after a court ordered the rehiring of 20 officers, Mr.
Nickles advised the Chief of Police to re-fire. His intervention into
was in contradiction to a court determination that MPD had not met
critical disciplinary deadlines. Failing to meet the administrative
requirements resulted in the order that the officers be reinstated; in
nearly every case with full back pay and benefits. At CFSA, an
arbitrator overruled Mr. Nickles' firing of unionized workers because
there was no evidence of' an investigation. Notwithstanding this
decision, the Attorney General responded that the workers would remain
fired. In both cases Mr. Nickles defended these terminations, not only
creating animus with union members but also increasing litigation
against the District.
Concerns about Mr. Nickles' judgment were raised almost
immediately after his assuming the role of Active Attorney General. Only
weeks into his new role, Mr. Nickles fired Alan Morrison, the special
counsel hired to defend the District's handgun ban before the Supreme
Court, shortly before the case was to he argued. Mr. Morrison had been
hired by Mr. Nickles predecessor for the express purpose of arguing the
gun ban case.26 His termination came within a week of the District's
deadline to submit a legal brief in the case.
The timing of the termination alone is problematic.
Equally concerning, however, is the lack
of rationale given by Mr. Nickles for this decision. Mr. Morrison
suggested that the termination was part of an effort by Mr. Nickles to
purge the office of his predecessor's allies. and to root out any
individual who "was part of' a campaign" to discredit the
Fenty administration. This again raises concerns as to whether the
nominee exercises independence from the Mayor in operating as the
E-mail Deletion Policy
As general counsel to the Mayor, Mr. Nickles helped
promulgate and push an e-mail deletion policy that raised eyebrows as
well as a number of questions in the wake of a White House scandal
involving the deletion of e-mails. The proposed policy sought to have
all e-mails automatically, and permanently, deleted after six months.
One does not need to look far to recognize that this plan
was ill-conceived. Within the past year District government has been
rocked by its own scandal within the Office of Tax and Revenue (OTR)
that has cost the District millions. An e-mail policy, like the one
proposed, would have put evidence of this scandal in jeopardy. With
e-mail retention currently burdening the system, Mr. Nickles advocated a
"conservative" policy for retention.28 However. as the OTR
scandal demonstrates, the preservation of such information is essential.
This policy was poorly devised, and does not demonstrate what works best
for the District. Fortunately. the Executive succumbed to pressure from
the Council and the public and backed away from the proposal.
Proposed Rulemaking Regarding Gender Expression
On April 4, 2008, the Office of the Inspector General
issued a Management Alert Report for the Department of Corrections (DOC)
policy on inmate gender classification. The report stated that DOC's
inmate classification and housing policy may violate certain provisions
of the D.C. Human Rights Act and related regulations promulgated by the
Office of Human Rights." This stirred concern in the Council and in
the public, but even more so when the Administration proposed rulemaking
to exempt agencies, including DOC, from certain requirements under the
Human Rights Act.30
Mr. Nickles testified at his confirmation hearing that in
moving forward with the proposed rulemaking he thought he had worked
out a solution. However, his actions sparked outrage from a number of
members of the public at the same hearing. Alison Gill, testifying on
behalf of the D.C. Trans Coalition, questioned Mr. Nickles' legal
judgment and his lack of sensitivity toward individual liberties and
human rights. Ms. Gill referenced a May 13 letter from Mr. Nickles to
the Inspector General in which the Acting Attorney General wrote that
the new policy for DOC is consistent and compliant with District human
rights laws and regulations.31 The Council and members of the public
were shocked by the District's pursuit of this policy. DC Trans
Coalition testified that the policies Mr. Nickles referenced simply
placed in writing what the Inspector General had found noncompliant
with the D.C. Human Rights Act.32
Provoking even more outrage, Mr. Nickles' October 3
response to a complaint filed before the District's Office of Human
Rights justified the new DOC policies by invoking the "business
necessity" exemption to the Human Rights Act. Ms. Gill responded
that "[i]n effect, [Mr. Nickles) is stating that the only way the
DC Jail can possibly function is to discriminate on the basis of gender identity and expression"
(emphasis original).33 GLAA Vice President Rick Rosendall testified that
this proposed rulemaking "ran roughshod over the Human Rights
Commission, an independent agency charged with defending [the D.C. Human
Rights Act] rather than with defending any DC government agency policy
at any cost."34 The focus of the Attorney General should be ensuring
that agencies comply with human rights protections m the law, not in seeking exemptions to those requirements.
Concern for Civil Liberties
Mr. Nickles' defense of certain Executive initiatives
raises questions about his commitment to defend civil liberties. Certain
initiatives the Executive has pursued. such as the police checkpoints,
raise serious constitutional questions that must be given serious
in terms of legal analysis, and a meaningful explanation of this
analysis. With regard to the checkpoint program, this is not what the
The checkpoints were utilized on two occasions in
June-July of this year. Mr. Nickles stated that, prior to
implementation, the Office of the Attorney General worked
collaboratively with the U.S. Attorney's Office and the Metropolitan
Police Department to conduct "a comprehensive review of the
initiative's legality."35 However, just two weeks before the
checkpoints were launched a top prosecutor at the U.S. Attorney's Office
raised serious concerns about the constitutionality of the program.
Assistant U.S. Attorney Bradley Weinsheimer wrote MPD on May 20th that
he is "very concerned that the [checkpoints] will not pass
constitutional muster or at least that there are so many circumstances
that will lead to discretionary authority on the part of officers that
as applied, the [checkpoints) will he unconstitutional."36
Nevertheless, Mr. Nickles forged ahead with the
initiative, stating that the legal justification could be found in two
legal memorandums from his office. The first of these, produced on June
4th, stated that the proposed checkpoint program met legal sufficiency.
however, civil rights groups argued that the legal sufficiency on which
Mr. Nickles and the July 4 memoranda relied was ignoring the on-point
ease law that suggested there were serious constitutional problems with
the program. On June 10th, six days after Mr. Nickles stated that he was
"not worried about the constitutionality"37 of the program, a
follow-up memorandum was prepared to address these cases. The memorandum states
that the cases were "all reviewed by this Office prior to my June
4, 2008 memorandum,"38 but Mr. Nickles' based his earlier comments
on the constitutionality of the checkpoints without being briefed about
these possible issues.
Without a full legal analysis of this program, Mr.
Nickles stormed ahead without deliberation or consideration of any
ramifications, such as an encroachment on civil liberties. The opinion
offered to justify the constitutionality of the checkpoints, and Mr.
trickles dismissive reaction to any questioning, makes the Attorney
General appear more concerned with providing justification for the
Executive's program then providing an independent legal review.
This program followed another Metropolitan Police
Department initiative that raised an equal number of constitutional
concerns. The "Safe Homes Initiative'' as first announced. allowed
police officers to go door-to-door to ask residents in high-crime
neighborhoods to search their homes for guns. In this case, however, the
widespread uproar from residents and civil liberties groups caused the
Administration to cease implementation of the program as it had
A preliminary injunction to enjoin further implementation
of the MPD checkpoints was recently denied, although the underlying
lawsuit alleging civil rights violation is still ongoing.39 The
Administration has backed off the Safe Homes Initiative. However, the
pattern is nonetheless disturbing. The nominee sees his role as advocate
for the Mayor, without regard to the descending web of infringement on
civil liberties of District residents.
Interaction with the Council
In testifying before this Committee in January 2008,
former Attorney General Robert Spagnoletti defined the job of Attorney
General as having three major components: (I) manager of a very large
government office; (2) chief lawyer for the District: and (3) a key
player in the political process between the executive and legislative
branches.40 As Acting Attorney General for the past I I months, Mr.
Nickles has had plenty of opportunity to act as a key player between the
Mayor and the Council. However, throughout this period Mr. Nickles has
often operated in a way that frustrates the ability of the Council to
fulfill its defined role and is disrespectful to the Council's status as
a coequal branch of government.
Very recently the Council sought, and properly obtained,
several subpoenas for testimony and documents from Department of Housing
and Community Development employees over the termination of` the Rent Administrator. In an
response to the Committee on Housing and Urban Affairs, Mr. Nickles
informed the Committee Chairperson that the employees "respectfully
decline to appear, or to produce the referenced documents, in response
to the subpoenas."41 The letter further explained a range of
privileges being asserted to exempt the employees from testifying. Mr.
Nickles testified that he thought the subpoena was too broad, and did
not believe that the Council had the authority to make those subpoenaed
answer over privilege.42
Whether or not the claims to privilege are valid, Mr.
Nickles recommendation to ignore the underlying subpoenas ignores the
rule of law, ignores the separation of powers, and is outright
dismissive of the Council's role. In responding to a subpoena, the
process is clear: the individual appears, is questioned, and if a
privilege exists, the individual may raise it. Ignoring the Council
subpoena was not only legally flawed, but was also disrespectful to the
The public process and transparency in government exist
for a reason. Government gains its legitimacy from such openness. The
Acting Attorney General has sought to frustrate this: advising witnesses
to ignore Council subpoenas, failing to send witnesses to public
hearings to respond to community concerns, and pushing the expansion of
Executive authority to the detriment of the legislative process. Mr.
Nickles has sought to justify efforts by the Executive to subvert the
Council's role with regard to everything from school closings to
development projects. His justifications appear to increasingly inform
the Council that its proposed action is in violation of' the authority
granted to the Executive under the Home Rule Charter. Increasingly, this
appears more as a means to advocate for Executive action than to
objectively advise the Council as to its authority.
In making its recommendation to disapprove the
confirmation of' Mr. Nickles to the position of Attorney General, the
Committee stresses the concerns raised throughout this report. In his
actions and in his judgment Mr. Nickles has shown himself to lack
independence from the Mayor. Without independence, the District must
remain guarded with regard to the comments and actions of Mr. Nickles.
Predecessors to this role have stated that the Attorney General must
have the confidence to say no to the Executive when the law or ethics
require.43 The actions of the Attorney General must inspire trust in the
In an Attorney General, the District needs the guiding
hand of' an individual who will place the District above the partisan
agenda of any individual, administration, or party, and who will possess the vision, independence, and skill to guide
the District in all law business without deterring to the whims or
wishes of the Executive. In considering Peter Nickles for the role of
Attorney General. we must be confident that the nominee will place
service to the District paramount to any such agenda. We must be sure
that the nominee will serve under a banner of independence and
impartiality. We must be sure that Mr. Nickles' vision for the District
of Columbia is in alignment with the vision we all share.
II. LEGISLATIVE CHRONOLOGY
January 6, 2008 Peter Nickles is
appointed Acting Attorney General by Mayor Adrian Fenty.
July 2. 2008 PR 17-928, the "Attorney General Peter
J. Nickles Confirmation Resolution of 2008," is introduced by
Chairman Gray at the request of the Mayor, and is referred to the
Committee on Public Safety and the Judiciary.
July 18, 2008 Notice of Intent to act on
PR 17-928 is published in the D.C. Register.
August 15, 2008 Notice of Public Hearing
is published in the D.C. Register.
October 17, 2008 The Committee on Public
Safety and the Judiciary holds a public hearing on PR 17-928.
November 17, 2008 The Committee on Public Safety and the
Judiciary marks-up PR 17-928.
III. SUMMARY OF TESTIMONY
The Committee on Public Safety and the Judiciary held a
public hearing on PR 17-928 on Friday October 17, 2008. The testimony
summarized below is from that hearing. A copy of this testimony is
attached to this report.
Paul Tagliabue, Former Commissioner, National Football
League; Senior of Counsel, Covington and Burling, LLP, testified in
support of the nominee. Mr. Tagliabue cited his knowledge and respect of
the nominee gathered through four decades of knowing him both
professionally and personally.
Carol Fennelly, Executive Director, Hope House DC,
testified in support of the nominee. Ms. Fennelly stressed the nominee's
history of advocacy in urging his confirmation.
Togo D. West, Jr., Former United States Secretary o f
Veterans, Affairs; Former United States Secretary of the Army; Chairman,
TLI Leadership Group, testified in support of the nominee. In
recommending his confirmation, Mr. West focused on Mr. Nickles'
professionalism and public service.
Cathy L. Lanier, Chief of Police, Metropolitan Police
Department, testified in support of the nominee. Chief Lanier testified
about her experience working cooperatively with Mr. Nickles during his
tenure as Acting Attorney General, and noted his strong leadership
Shelley Broderick, Dean, University of the District of
Columbia David A. Clarke School of Law, testified in support of the
nominee. Ms. Broderick spoke of Mr. Nickles leadership in expanding the
UDC intern program within OAG, as well as his work bringing lawsuits
against the District on behalf of the voiceless.
Jim McGrath, Chairman, TENAC, testified in opposition to
the nominee. Mr. McGrath testified that Mr. Nickles is lacking in both
the demeanor and temperament to serve as the District's Attorney
General, and remarked on the nominee being dismissive when interacting
with tenant advocates and showing disdain when questioned on tenant
Steven J. Anderson, President, Local 1403 AFGE, testified
in support of the nominee with qualifications. In particular, the union
has challenged some of Mr. Nickles' personnel decisions and continues to
argue that the net effect of these decisions has been to reduce
productivity and morale.
Alison Gill, D.C Trans Coalition, testified in opposition
to the nominee. Ms. Gill testified that the D.C. Trans Coalition
believes Mr. Nickles has, during his tenure as Acting Attorney General,
sought to justify discrimination against the transgender community and
to undermine the D.C. Human Rights Act.
Rick Rosendall, Vice President for Political Affairs, Gay
and Lesbian Activists Alliance of Washington, D.C., testified in
opposition to the nominee unless Mr. Nickles stopped efforts to weaken
transgender protection rules, end opposition to domestic partnership
parentage legislation, and commit to consulting with the GLBT community
on issues affecting that community.
George R. Clark, Federation of Citizens Associations,
testified in opposition to the nominee. Mr. Clark stated that at the
Federation's 45 member organizations voted unanimously' to oppose Mr.
Nickles for the position of Attorney General. He also stressed that
District residents are entitled to an independent Attorney General who
is their lawyer, not the lawyer for the Mayor.
Patrick Joseph Tayman, Public Witness, testified in
opposition to the nominee. Mr. Tayman discussed the alleged interference
by Mr. Nickles, when serving as the Mayor's general counsel, with the duties of the then Attorney General
Linda Singer. He also voiced opposition to Mr. Nickles' nomination given
that he is not a District resident.
Robert Vinson Brannum, Public Witness, testified as to a
number of' concerns he has with the nominee, particularly his residency
outside of the District, his interaction with and efforts to involve the
community, his views on the role of the Council, and his lack of
independence from the Mayor.
Al Bilik, Council 20 AFSCME, testified in opposition to
the nominee. Mr. Bilik testified as to a number of perceived errors in
terminations carried out by Mr. Nickles, and suggested that the nominee
may have violated D.C. legal ethics rules. He also stressed the
importance of an Attorney General that would exercise considered,
independent judgment in applying the law.
David Schwartzman, Legislative Agenda and Tax &
Budget Coordinator, DC Statehood Green Party, testified in opposition to
the nominee. Mr. Schwartzman discussed a few of the issues he believes
make Mr. Nickles unfit for the position of Attorney General. including
his refusal to comply with subpoenas issued by the Council and
disrespect he has shown in his treatment of District government union
Alex Martin, President, Cleveland House Tenants
Association, testified in opposition to the nominee. Mr. Martin
testified that Mr. Nickles illustrated poor temperament in responding to
public inquiries into the recent firing of the Rent Administrator.
Jonathan Strong, Public Witness, testified in opposition
to the nominee. Mr. Strong noted that the Council often does not get to
observe the behavior of a nominee before the individual's confirmation.
Having had the opportunity to do so with this nominee. Mr. Strong urged
the Council to "decline" his confirmation.
Kristopher Baumann, President, Fraternal Order of Police,
testified in opposition to the nominee. Mr. Baumann stated that he was
initially impressed by Mr. Nickles, but that too many questions have
been raised since his nomination. He also testified that Mr. Nickles has
inserted himself in a way that has never been seen before, and that the
District will long be paying for the errors the nominee has made while
Acting Attorney General.
Lawrence Guyot, Public Witness, testified in opposition
to the nominee. Mr. Guyot stated his concern that Mr. Nickles would not
be able to refrain from acting as the Mayor's attorney while serving in
the position of the District's Attorney General.
Michael Sindram, Public Witness, testified that the
Attorney General is not the Mayor's attorney.
John W. Fenwick, Public Witness, testified in support of
the nominee with qualifications. Mr. Fenwick stated that he was behind
Mr. Nickles so long as the he acted as the lawyer for the District and
not for the Mayor.
Geraldine Hobby, Public Witness, testified in opposition
to the nominee. Ms. Hobby expressed concern about the lack of compassion
shown by Mr. Nickles in responding to complaints about the governments
handling of disability retirement cases.
Peter J. Nickles, Nominee, Attorney General for the
District of Columbia, testified regarding his vision for the Office of
the Attorney General and his five top priorities for improving the
agency. His testimony, and answers to written committee questions, are
IV. IMPACT ON EXISTING LAW
The position of Attorney General exists pursuant to §
1-610.51 of the D.C. Official Code. By operation of law, the appointment
is deemed approved on the 90th' day after submission by the Mayor,
excluding days of Council recess, unless the Council takes action. The
90th day is December 13, 2008.
V. FISCAL IMPACT
PR 17-928 will have no adverse fiscal impact on the
District of Columbia budget or financial plan. Compensation for service
as Attorney General for the District of Columbia is provided pursuant to
D.C. Official Code § 1-610.52 and has been included in the District's
budget appropriation. The Attorney General will receive a salary of S
175,000 and is eligible for an annual performance incentive, not to
exceed 10% of base pay, based upon the successful attainment of goals
and performance contract, subject to agency funding.
VI. SECTION-BY-SECTION ANALYSIS
Section 1 states the long
and short titles for PR 17-928.
Section 2 disapproves the appointment of Peter J. Nickles
as the Attorney General for the District of Columbia.
Section 3 requires that a copy of the resolution, upon
adoption, be transmitted to the nominee and the Mayor.
Section 4 provides that the resolution shall take effect
VII. COMMITTEE ACTION
On November 17, 2008. the Committee on Public Safety and
the Judiciary met to consider PR 17-928, the "Attorney General
Peter J. Nickles Confirmation Resolution of 2008.'' The meeting was
called to order at 10:46 a.m. and PR 17-928 was the third item on the
agenda. After ascertaining a quorum (Chairman Mendelson, and
Councilmembers Alexander, Bowser. Cheh, and Evans present), Chairman
Mendelson moved an amendment to the print, changing the approval
resolution to a disapproval resolution. Councilmembers Bowser and Evans
made statements in opposition to the amendment. Chairman Mendelson moved
the amendment, which was approved by a vote of three to two (Chairman
Mendelson and Councilmembers Alexander and Cheh voting yes;
Councilmembers Bowser and Evans voting no). Chairperson Mendelson moved
the amended print. Councilmembers Bowser and Evans made statements in
opposition to the amendment. Chairman Mendelson moved the print, which
was approved by a vote of three to two (Chairman Mendelson and
Councilmembers Alexander and Cheh voting yes: Councilmembers Bowser and
Evans voting no). Chairman Mendelson moved the report, with leave for
staff to make technical and conforming amendments. The report was
approved by a vote of three to two (Chairman Mendelson and
Councilmembers Alexander and Cheh voting yes; Councilmembers Bowser and
Evans voting no). The meeting adjourned at 11:22 a.m.
1. PR 17-928 as
2. Written responses to the Committee's questions of the
3. Written testimony and letters of support.
4. Committee Print for PR 17-928.
1. District of Columbia Office of the Attorney General
website: Acting AG Bio Peter Nickles, http://oag.dc.gov/occ/cwp/view,a,3,q,638711.asp
(last visited Nov. 6. 2008).
2. Letter from Peter J. Nickles, Acting Attorney General,
District of Columbia Office of the Attorney General, to Phil Mendelson,
Chairperson. Committee on Public Safety and the Judiciary, Council of
the District of Columbia. 4-5 (Oct. 15. 2'008) [hereinafter Letter from
Nickles to Mendelson, Oct. 15, 2008 (on file with the Committee).
3. See James Jones, Fenty's Top Legal Adviser Faces
Residency Test, WASH. CITY PAPER, June 15. 2007. at 10. ("W ay back in November, when Nickles was introduced to
the press. he indicated he would, as
required by law, take up residency in the District."; "With
only 20 days left to make the move, Nickles says he's been too busy
keeping District agencies out of receivership to do much house
shopping."): see also Yolanda Woodlee, Failure to Move Spurs Legal Debate, Council Members Seek to Close
Apparent Loophole in Residency Law, WASH. POST, Sept. 9, 2007, at C6.
4. D.C. OFFICIAL CODE & 1-515.01(e) (2008). That
paragraph reads: "Each subordinate agency, independent agency, and
instrumentality head shall be a resident of the District of Columbia
throughout his or her tenure and shall forfeit his or her position if he
or she fails to remain a resident of the District of Columbia.''
5. See Bill 17-548, the Attorney General for the District of
Columbia Clarification Act of 2007, Hearing Before the Council of the
District of Columbia Committee on Public Safety and the Judiciary, 2
(Jan. 28, 2008) (written testimony of Acting Attorney General Peter J.
[hereinafter Nickles testimony, Bill 17-548] ("Enacting the bill
would sever the accountability of the Attorney General to the Mayor and
the Executive Branch. which is the Attorney General's primary client.
undermining the Executive's ability to execute the laws.").
6. Confronted by a sharp ideological change froth previous
holders of the office, the Council took steps to clarify the role of the
Attorney General (see Bill 17-548). The testimony submitted by then
Acting Attorney General Nickles on this legislation dismissed any
benefit of such clarification and questioned what problem the
aimed to resolve. See Nickles testimony. Bill 17-548, at 11 (Under the heading "Lack of Beneficial Purposes and
Effects." Mr. Nickles wrote, "It is unclear what problems the
bill seeks to solve.").
7. Bill 17-548, the Attorney General for the District of
Columbia Clarification Act of 2007, Hearing Before the Council of the
District of Columbia Committee on Public Safety and the Judiciary, 3-4
(Jan. 28, 2008) (written testimony of former Attorney General Robert
Spagnoletti) 3-4 [hereinafter Spagnoletti testimony] ("The
clearest example of this is in the context of criminal prosecution where
the decision to bring and pursue charges must be free from political
8. Mr. Spagnoletti testified: "I was very fortunate to
serve under Mayor Williams who appreciated the need for independence of
the Office of Attorney General and allowed me and my staff to make
decisions based on the strength of the case and not political
concerns.'' Id. at 4.
10. Letter from Nickles to Mendelson, Oct. 15, 2008, at 3.
Mr. Nickles reiterated this position during questioning at the October
17, 2008 hearing to consider his confirmation.
11. Carol D. Leonnig, Fenty General Counsel Halted Action
Against Bank in Tax Fraud Case, WASH. POST, Jan. 28, 2008, at B1.
13. See Gary Emerling, Singer Quits As Attorney General: No
Reason Given for Move, WASH. TIMES, Dec. 18, 2007, at B1; see also David
Nakamura and Carol D. Leonnig, Attorney General Quits; Clash With Fenty
Aide Cited; Top Lawyer Felt Sidelined, WASH. POST, Dec. 18, 2007, at
14. Nakamura and Leonnig, supra note 13.
15 Bill Myers, A.G.'s Absence Questioned, THE EXAMINER,
Nov. 11, 2007, available at http://www.examiner.com/a-1033635~A.G.'s%20absence%20questioned.htm
Nov. 11, 2008).
16. Jeff Jeffrey, Fenty Lawyer Resigns, Is Disbarred:
Million-dollar Malpractice Case Involving Botched Divorce Led to
Downfall, LEGAL TIMES, July 28, 2008, at 1. ("Fenty [ ] spokeswoman
Leslie Kershaw: "When Attorney General Nickles learned of
allegations stemming from some private work before [the deputy general
counsel] worked for the government, received his resignation on June
16.") Id. at 6. "Says .Acting Attorney General Peter
Nickles, "I asked for his resignation,
and I got it within 36 hours."" Mike DeBonis, Vetting Zoo,
CITY PAPER, Aug. 1, 2008, at 14.
17. See, PR 17-928, Attorney General Peter J. Nickles
Confirmation Resolution of 2008, Hearing Before the Council of the District of Columbia Committee on Public Safety
and the Judiciary (Oct. 17, 2008) (written testimony of Jim McGrath.
Chairman. D.C. Tenants Advocacy Coalition (TENAC)) [Hereinafter McGrath
18. PR 17-928, Attorney General Peter J. Nickles Confirmation
Resolution of 2008, Hearing Before the Council of the District of
Columbia Committee on Public Safety and the Judiciary, (Oct. 17, 2008)
(oral testimony of Peter J. Nickles, nominee for Attorney General,
Office of the Attorney General for the District of Columbia).
19. Nikita Stewart. $120 Million Lottery Deal Tabled by
D.C. Council; Members Say They Want More Data, WASH. POST, May 14, 2008,
20. Nikita Stewart, The D.C. Lottery's Tangled Roots,
Controversy Over Proposals Shows Intricate Links, WASH. POST, May 18,
2008, at C1.
21. David M. Nakamura, City Hits Lottery Firm
with $1.4 Million Fine, D.C. Wire, Sept. 18, 2008, 12:00 PM, available at
(last visited Nov. 11, 2008).
22. PR 17-928, Attorney General Peter J. Nickles Confirmation
Resolution of 2008, Hearing Before the Council of the District of
Columbia Committee on Public Safety and the Judiciary (Oct. 17, 2008)
(written testimony of Steve Anderson, President, AFGE Local 1403)
[hereinafter Anderson testimony].
23. Letter from Peter J. Nickles, Acting Attorney General,
District of Columbia Office of the Attorney General, to Councilmember,
At-Large, Council of the District of Columbia, 1 (July 1, 2008). Mr.
Nickles stated: "I was advised that budgetary constraints were
cited in the proposed notices in an effort to minimize the emotional
impact on the attorneys whose performance was deficient." Id.
24. Anderson testimony, at 2.
26. David Nakamura, Attorney for D.C. Gun Ban Case Fired;
Counsel Was Set to Defend Law Before High Court, WASH. POST, Jan. 3,
2008, at B1. Jan. 3. 2008.
28. See Yolanda Woodlee, City E-Mails to
Be Purged After 6 Months, WASH. POST, Aug. 3, 2007, at B6.
29. Department of Corrections and Office of Human Rights,
DOC Policy on Inmate Gender Identification May Violate District
Regulations, Office of the Inspector General, Inspections and
Evaluations Division, Management Alert Report, MAR 08-I-005 (April 4,
30. The Proposed Rulemaking, published in the July 11, 2008
issue of the District of Columbia Register, sought to amend Title
Chapter 8 of the District of Columbia Municipal Regulations. Proposed
subsections 801.3 and 801.4 would would have exempted them from the
protections of the Human Rights Act, individuals "incarcerated, institutionalized, or otherwise within the District's
31. Letter from Peter J. Nickles, Interim Attorney General.
District of Columbia Office of the Attorney General, to Charles
Willoughby, Inspector General. District of Columbia Office of the
Inspector General. (May 13, 2008).
32. See PR 17-928, Attorney General Peter J. Nickles
Confirmation Resolution of 2008, Hearing Before the Council of the
District of Columbia Committee on Public Safety and the Judiciary, 1
(Oct. 17, 2008) (written testimony of Alison Gill, D.C. Trans
33. Id. at 2.
34. PR 17-928, Attorney General Peter J. Nickles Confirmation
Resolution of 2008, Hearing Before the Council of the District of
Columbia Committee on Public Safety and the Judiciary, 2 (Oct. 17, 2008)
(written testimony of Rick Rosendall, Vice President for Political
Affairs, Gay and Lesbian Activists Alliance). the District of Columbia
Committee on Public Safety and the Judiciary, 2 (Oct. 17, 2008) (written
testimony of Rick Rosendall. Vice President for Political Affairs, Gay and
Lesbian Activists Alliance).
35. Letter from Nickles to Mendelson. Oct. 15,
2008. at 13.
36. Michael Neibauer, Attorney Questioned Constitutionality
of Sealed Safety Zones in May, THE EXAMINER, June 5, 2008, available at
(last visited Nov. 13,
37. Michael Neibauer, Lanier plans to seal off rough 'hoods
in latest effort to stop wave of violence. THE EXAMINER, June 4, 2008,
available at http://www.examiner.com/a-1423820~Lanier_ plans_ to_ seal_ off_ rough_ hoods_ in_ latest_
effort_ to_ stop_ wave_ of_ violence.html (last visited Nov. 11, 2008).
38. Memorandum from Wayne C. Witkowski, Deputy Attorney
General, to Peter J. Nickles. Interim Attorney General. Re: Supplemental
legal Sufficiency of Metropolitan Police Department Plan to Restrict
Vehicle Traffic i n high Crime Neighborhoods (June 10. 2008) (on file
with the Committee).
39. On October 30. 2008. the U.S. District Court for the
District of Columbia issued a decision denying a motion for a
preliminary injunction to enjoin further implementation of the
checkpoints. Mills v. District of Columbia. No. 081061 (RJL) (D.D.C.
filed Oct. 30. 2008).
40. Spagnoletti testimony, at 4.
41. Letter from Peter J. Nickles, Acting Attorney General,
Office of the Attorney General. to Marion Barry, Chairperson, Committee
on Housing and Urban Affairs, 2, October 8, 2008.
42. Nickles oral
testimony, Oct. 17, 2008.
43. Spagnoletti testimony, 4.