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Barry Undercuts Council -- Again
Phil Mendelson
August 1997

This column was first published in the May 21st edition of the Northwest Current newspaper. In late July Congress took from the Mayor and gave to the Control Board appointment authority for nine major city agencies -- and left no role to the Council. The directorships affected include the ones cited in my column: Public Works, Administrative Services, Health, and Human Services. I think the Council's failure to exercise its oversight responsibility vis a vis these appointments is the reason Congress has now "forgotten" to include a role for the Council in future appointments.




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arion Barry is once again executing a power play. He is robbing the Council of one of its primary powers -- the power to review and confirm executive appointments -- and the Council is letting him get away with it.

This issue is fundamental to good government. "I don't understand why Councilmembers aren't yelling and screaming," said citizen watchdog Dorothy Brizill in a recent Current.

Increasingly, Barry is appointing agency directors and board and commission members on a temporary basis. "Acting" appointments are not submitted to the Council.

The issue came to the fore recently when Woodley Park activists learned that a Board of Zoning Adjustment (BZA) member who was against them on the Washington Sheraton expansion issue would be around to vote against them again, because of a last-minute "acting" appointment.

BZA member Angel Clarens is not alone. Numerous city agencies are currently headed by acting directors. (The Mayor labels them "interim," but this is a distinction without substance.) The departments of Administrative Services, Human Services, Health, and Public Works are four examples. The Mayor's practice is defended by Corporation Counsel, who also serves in an acting capacity.

This is not the way to run a government: to keep appointees hanging on a temporary string. Acting personnel serve without the fullness of authority and certainty that comes with permanency. An acting director is more easily replaced from above, finds less acceptance from below, and may easily lose the desired permanent appointment at the slightest misstep. A bureaucracy pieced together by temporary appointments is vulnerable to systematic arbitrariness.

In such a tenuous environment, how assertive is Cel Bernardino likely to be at the Department of Public Works on the thorny issue of recycling? How eagerly will Wayne Casey tackle the entrenched bureaucracy at the Department of Human Services?

The Council limited acting-director appointments in 1989 by legislating that "no District funds may be expended to compensate any person" serving in an acting capacity for more than 180 days. Yet Bernardino has headed Public Works since October 1996, Casey has headed Human Services since May 1996, and Dallas Evans has headed Administrative Services since February 1996. They continue to draw paychecks without a whimper from the Council.

In 1993 the Council passed another law to limit the Mayor's ability to circumvent the appointment-confirmation process. It prohibits members of boards and commissions from holding over more than six months after their terms expire.

This gets us back to BZA member Angel Clarens. Mr. Clarens' term expired last September. He then held over because Mayor Barry failed to appoint a successor. Now the Mayor seeks to hold him still, with a 90-day acting appointment and an opinion from (acting) Corporation Counsel that successive acting appointments may follow indefinitely until Mr. Clarens' permanent successor is named.

This is outrageous. The Mayor is evading the confirmation law. The point of confirmation is to subject appointees to public oversight. Oversight weeds out controversial and incompetent nominees. Oversight enables the Council to scrutinize and affect practices within an agency, board, or commission. The Mayor is eluding oversight and the Council is acquiescing.

Confirmation is an integral part of the checks and balances between the branches of government. The Council, however, doesn't grasp the concept. Just this month the Senate strong-armed President Clinton over federal contracting by withholding confirmation of Alexis Herman as Labor secretary. Our City Council would never do something like that. Indeed, Councilmember Patterson has told The Current that to legally challenge the Mayor on this issue, or to politically pressure him such as by withholding action on all appointments until he agrees to abide by the confirmation law "would only compound the problem by leaving agencies without enough members to function."

It's not clear what the Council will do. Maybe they'll write another law to state what the current law already states. Mayor Barry would love that.

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Phil Mendelson is Chairman of Advisory Neighborhood Commission 3-C, and a former staff person for Jim Nathanson and then David Clarke at the City Council. He ran city-wide for the Council last year.

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