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Government of the District of Columbia Office of the Corporation Counsel Judiciary Square 411 Fourth St., N.W. Washington, DC 20001 April 23, 1998 Dr. Andrew F. Brimmer Re: Employment Agreement with Chief Charles H. Ramsey Dear Dr. Brimmer: I received from your office yesterday a copy of the Employment Agreement with the new Chief of the Metropolitan Police Department (MPD), Charles H. Ramsey, signed by you, the Mayor, and Chief Ramsey on April 21. As you know, the Mayor wholeheartedly supports Chief Ramsey's appointment and the financial terms of that agreement. Moreover, the Mayor is prepared to support Chief Ramsey fully in carrying out his new responsibilities. In doing so, the Mayor will consult with the Authority and with all other parties to the December 10, 1996, Memorandum of Understanding (MOU) with respect to the MPD. However, after reviewing the Employment Agreement, I was obliged to inform the Mayor, and must let you know, that in my opinion the following provision of the Agreement (among others) is unlawful: Mr. Ramsey shall report directly to the Authority through the Chair or a designated Member of the Authority, or through other designated party or parties. In the first place, the Mayor has statutory authority to appoint the Chief of Police, DC Code §4-104 (1994 Repl.), as well as authority under the Home Rule Charter and the DC Code to supervise the Chief of Police and the MPD generally. DC Code §1-242 (1992 Repl.); id. §4-115 (1994 Repl.). The Mayor cannot lawfully delegate through an agreement with the Authority — an entity outside the Executive Branch of the District government — the right to exercise supervisory authority over the Chief of Police. The Home Rule Charter is clear on this point: "The Mayor may delegate any of his [or her] functions (other than the function of approving or disapproving acts passed by the Council or the function of approving contracts between the District and the federal government under §1-1131) to any officer employee, or agency of the executive office of the Mayor, or to any director of an executive department who may, with the approval of the Mayor, make a further delegation of all or part of such functions to subordinates under his [or her] jurisdictions." DC Code §1-242(6) (1997 Supp.) (emphasis added). The Charter, therefore, permits the Mayor to delegate his executive authority only within the Executive Branch of the District government; he is not authorized to delegate his supervisory and personnel authority over Chief Ramsey to the Financial Authority or its designee. Accordingly, the Mayor's signature on Chief Ramsey's contract, to the extent to purports to delegate nondelegable power to the Financial Authority, is a legal nullity. The Financial Authority, moreover, has no other legal basis, independent of a lawful Mayoral delegation, for assuming authority over the Chief of Police. Two arguments may be proffered, neither of which works. First, under section 11102 of the National Capital Revitalization Act, approved August 5, 1997 (Pub.L. 105-33, 111 stat. 251), the Authority can "develop and implement management reform plans" for nine enumerated departments (not including the MPD) and for all government "entities" with respect to four "items" (meaning functions), including "personnel." Appointment of a police chief if not, as such, "management reform," statutory language that refers to structural improvement of systems or programs. Thus, the contract with Chief Ramsey does not come within the Authority's power over management reform of "personnel." Second, the Authority cannot require the Chief of the MPD to report to the Authority by invoking its power under section 207(d) of the District of Columbia Financial Responsibility and Management Assistance Act, approved April 17, 1995 (Pub.L. 104-8, 109 stat. 97), DC Code §47-392.7(d) (1997 Repl.). That power is limited to issuance of "orders, rules, or regulations" that are "within the authority of the Mayor or the head of any department or agency of the District government" to issue. As indicated earlier, the Mayor has no authority to delegate his power over the MPD or its Chief to an entity, such as the Financial Authority, that is outside the Executive Branch of the District government. I am having my staff expeditiously review the Employment Agreement as a whole for other possible legal problems. A preliminary review indicates, first, that other provisions of the agreement violate the Charter in the same way that the one quoted above does; e.g., "the Authority shall fix any other terms and conditions of employment"; "Mr. Ramsey's base salary shall be reviewed by the Chair of the Authority, a designated member of the Authority, or other Authority designee on an annual basis"; "[t]he Authority shall have the right to terminate Mr. Ramsey for cause" under certain circumstances, and, in any event, without cause if certain financial settlements are paid. (Emphasis added.) Moreover, it appears that certain terms and conditions of Chief Ramsey's Employment Agreement may require legislative amendment — or waiver — of the Comprehensive Merit Personnel Act and the pending Omnibus Personnel Reform Amendment Act of 1997. I will apprise you of the results of this review as soon as it is finished. As to the provisions violated the Home Rule Charter, I suggest that counsel for the Authority and I get together to work out substitute language for the parties to consider. While the law provides that the Chief of Police ordinarily reports to the Mayor — and does not permit delegation of that function outside the "executive office of the Mayor" or outside an "executive department" of the District government — the Mayor has authorized me to say that he will continue to honor the consensus approach taken by the parties to the December 10, 1996 MOU at their regular meetings. Furthermore, in the vent that local legislation is required to give legal certainty to other terms and conditions in the Employment Agreement, this Office is prepared to draft an appropriate legislative proposal for consideration by the Mayor and submission to the Council of the District of Columbia on an expedited basis. Sincerely, John M. Ferren cc: Mayor Marion Barry, Jr. |
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