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OFFICE OF THE ATTORNEY GENERAL 1350 Pennsylvania Ave., NW, Suite 409, Washington, D.C. 20004, (202) 724-1301, Fax (202) 741-0580 ATTORNEY GENERAL May 5, 2009 BY HAND The Honorable Mary M. Cheh The Honorable Phil Mendelson Dear Chairpersons Cheh and Mendelson: This letter concerns the April 28, 2009 letter and subpoena duces tecum, issued by the Committee on Government Operations and the Environment, to Robin Booth, Property Disposal Specialist, Office of Contracting and Procurement, and the April 30, 2009 subpoena duces tecum, issued by the Committee on Public Safety and the Judiciary (collectively, Committees), to Ronald E. Gill, Jr., Deputy Fire Chief, D.C. Fire and Emergency Medical Services. Both subpoenas seek information at oral deposition regarding the proposed donation of a surplus District government fire truck and ambulance to the City of Sosua in the Dominican Republic. The deposition for Ms. Booth is scheduled for May 7, 2009 at 10 am and the deposition for Deputy Gill is scheduled for May 8, 2009 at 2:30 pm. Please be advised that both Ms. Booth and Deputy Gill have accepted service of their subpoenas. I have spoken with Councilmember Cheh about my concerns that the Council's investigation of this matter will cause an unnecessary diversion of scarce resources. My April 20, 2009 letter to you (copy attached) discusses this and other serious concerns. However, in an effort to be cooperative, the Executive Branch will commence production of the requested documents, to the extent that they are non-privileged, on a rolling basis starting on May 7, 2009.While I will provide you with non-privileged documents, you and your Committees need to work out an attorney representation procedure for Ms. Booth and Deputy Gill akin to that developed by your attorneys WilmerHale acting on behalf of the Council concerning the Office of Tax Revenue investigation (OTR investigation). Another copy of the witness procedures developed for the OTR investigation is attached for your convenience. We will be happy to present Ms. Booth and Deputy Gill for deposition once these procedures are in place. This legal representation is especially critical given the potential for possible conflicts with the government's interests under D.C. Bar Rule of Professional Conduct 1.13. If you have any questions regarding this letter, please call me at 727-1597. Thank you. Sincerely, Peter J. Nickles Attachments cc: Natwar Gandhi, OCFO Back to top of page THE JOHN A. WILSON BUILDING 1350 PENNSYLVANIA AVENUE. N.W. WASHINGTON. D,C. 20001 May 6. 2009 BY HAND Peter Nickles Dear Mr. Nickles: The Committee on Government Operations and the Environment and the Committee on Public Safety and the Judiciary (collectively. Committees) are in receipt of your letter dated May 5, 2009, regarding the scheduled depositions of Ms. Robin Booth and Deputy Chief Ronald Gill. The Committees appreciate the Executive Branch's cooperation in this investigation. and construe the letter as a request for an extension of time in which to comply with properly served subpoenas duces tecum, rather than a refusal to fully comply with the terms specified therein. The Committees will therefore agree to accept complete production of the documents requested by no later than Friday. May 15, 2009, and will postpone the deposition of Ms. Booth until 3:30 p.m. on Friday, May 15, 2009. and the deposition of Deputy Chief Gill until 2:00 p.m. on Friday, May 15, 2009.1 The Committees have been advised by the Office of the General Counsel for the Council for the District of Columbia that, while the Council rules provide witnesses with a right to have counsel present, there is no right to have counsel provided.2 As such, because the Committees are not under any obligation to provide counsel, the Committees expect that both Ms. Booth and Deputy Chief Gill will appear at the depositions. Moreover, insofar as any potential conflict of interest may exist under D.C. Bar Rule of Professional Conduct 1.13, it is the responsibility of the attorney to resolve or avoid such conflicts, not the committees’. The Committees note, though, that if the Office of the Attorney General does not intend to represent Ms. Booth or Deputy Chief Gill, it is entirely unclear what authority you have to insist that counsel be provided to witnesses. The Committees would also remind the Executive Branch that it is the official policy of the District of Columbia to “[e]nhance the rights of District employees to challenge the actions of failures of their agencies . . . to express their views without fear of retaliation through . . . complete and frank responses to Council inquires.” D.C. Official Code §1-615.51(1). Finally, the Committees note that the Executive Branch has neither provided any documents in response to our document request dates april 9, 2009, nor affirmatively stated that it would not comply with that request. Your April 20, 2009, letter raised “concerns” regarding the expenditure of resources, but fell far short of a statement of either intent to cooperate or a refusal to do so. Please be advised that, if the previously requested documents are not provided by May 15, 2009, the Committees may require such production through use of a subpoena. We appreciate the Executive Branch’s continued cooperation in this matter. Sincerely, Mary M. Cheh, Chairperson Phil Mendelson, Chairperson 1. If the Executive Branch intends to assert any privileges, please refer to Instruction #6, which states, inter alia, that “[w]ith respect to any claim of privilege as to one or more documents requested herein, provide a list with [certain enumerated] information, and any additional information necessary to permit the Committee to assess the applicability of the privilege claimed, for each such document.” 2. Furthermore. while the Office of Tax and Revenue investigation involved allegations of criminal conduct, the current investigations do not. The Committees appreciate the benefits of having pro bono counsel represent the deponents, and various pro bono resources, which can in certain instances be obtained through the University of the District of Columbia or the D.C. Bar, for example. Nonetheless. because there is no obligation for the Committees to provide counsel, it is wholly inappropriate to refuse to appear for deposition because no "attorney representation procedure" is in place. |
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