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OFFICE OF THE GENERAL COUNSEL May 28, 2003 Charles C. Maddox, EsquireInspector General 717 - 14th Street, N.W. Washington, D.C. 20005 RE: Letter Summarizing Report of Investigation Concerning Inadequate Oversight and Misconduct at the DC Board of Elections and Ethics and Office of Campaign Finance Dear Mr. Maddox: I write to correct the misleading information contained in your May 22, 2003, issuance, entitled, Letter Summarizing Report of Investigation Concerning Inadequate Oversight and Misconduct at the DC Board of Elections and Ethics and Office of Campaign Finance pertaining to an opinion I authored. In your summary, you stated:. Letter at 6. (Emphasis added). I take issue with your characterization of my argument as "dubious" and with your taking words out of context to give a misleading impression of my argument. The fact of the matter is that I opined that the Board of Election's interpretation that "the language in D.C. Official Code §1-1103.01 (a) that the OCF Director is "entitled to receive compensation at the maximum rate for Grade 16 of the District Schedule" is a floor, not a ceiling, is a reasonable one." (Opinion at 1). This opinion rested on the long recognized doctrine enunciated by the Supreme Court in Chevron USA Inc. V. Natural Resources Defense Council. Inc., that great deference is to be given to an administrative decision which is based on an interpretation of a statute or regulation that it administers, where such an interpretation is reasonable and not contrary to the language or legislative history of the statute. 467 U.S. 837, 842 (1984). Moreover, there is nothing "dubious" about the reasonableness of the Board of Election's interpretation that the statutory language means that the OCF Director is entitled to at least the maximum rate for Grade 16 of the District Schedule. In the absence of an express statement that the maximum Director is to be paid at the "maximum rate for Grade 16 of the District Schedule," or other limiting language, the provision is subject to more than one interpretation. For the language of D.C. Official Code §1-1103.01 (a) to be clearer, the Council should have drafted more artfully, as it has done on other occasions, to manifest its intent to cap a salary. A comparison of the language of §1-1103.01 (a) with the statutory salary provisions for the Mayor (section 421 (d) of the District Home Rule Act, codified at D.C. Official Code §1-204.21(d), which provides that "(d) The Mayor shall receive compensation, payable in equal installments, at a rate equal to the maximum rate.); the members of the Office of Employee Appeals (D.C. Official Code §1-606.01(f), which provides that: "(f) Each member of the Office is entitled to compensation at the rate of $125 per diem or $15.62 per hour whichever provides less,. . . not to exceed the sum of $20,000 per annum.); the Register of Wills (D.C. Official Code §11-2102(c)), which provides that "(c) The compensation of the Register of Wills shall be fixed by the Superior Court . . . at a rate not to exceed the maximum rate prescribed for GS-16 of the General Schedule); and the Inspector General's salary statutory provision (D.C. Official Code §2-302.08.(a)(1)((E), which provides that "The Inspector General shall be paid at an annual rate determined by the Mayor, except that such rate may not exceed the rate of basic nay payable for level IV of the Executive Schedule."), reveals that the legislature knows how to place limits on salaries when it intends to do so. In the absence of an express statement evidencing a salary cap, which is less than the $132,334 salary cap imposed by the Council for Excepted Service employees, my opinion that a court will give great deference to the Board of Election and Ethics' interpretation of D.C. Official Code §1-1103.01 (a) "as long as it is reasonable," is based on sound legal principles. 48 DCR 9724, 9726. Further, as was stated in my opinion, "[w]hen two equally reasonable interpretations of the statute in question are available the reviewing court must defer to the interpretative choice of the agency" charged with administering the statute in question. (Citation omitted). I hope this corrects any confusion surrounding the content of my opinion. I trust that you will not mischaracterize my opinions in the future. If you are still confused about the nature of my opinion, please feel free to contact me. Sincerely, cc: Honorable Linda W. Cropp, Chairman |
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