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Government and People
GOVERNMENT OF THE DISTRICT OF COLUMBIA
Office of Corporation Counsel
Legal Counsel Division
TO: Othello Mahone
FROM: Wayne C. Witkowski
DATE: December 30, 1999
SUBJECT: Can the Interim Director of DHCD Continue Acting in that Capacity Beyond 180 Days? (AL-99-704)
This is in response to your December 22, 1999 request for expedited advice, which we received through Andrew Ridley, Assistant Corporation Counsel, on whether you may continue to serve in the position of Interim Director beyond 180 days of your appointment. We have also been requested to address whether you can continue to be paid beyond the 180 days.
With respect to the first question, we conclude, based on our preliminary and expedited review, that relevant statutory language authorizes you to continue to serve as Interim Director of DHCD beyond 180 days of your appointment. With respect to the second question, relevant statutory language essentially provides that no District funds may be expended to compensate a person - such as you - who is serving in an acting capacity as a subordinate agency head if the Mayor fails to nominate a person for the same position within 180 days of the acting appointment. While arguments can be made both ways, we conclude that, under the better view, this non-payment provision is invalid and unenforceable as contrary to the federal Antideficiency Act. Therefore, we believe that you lawfully may continue to be paid if you serve as Interim Director of DHCD for more than 180 days.
Under section 2(a) of the Confirmation Act of 1978 ("Confirmation Act"), effective March 3, 1979, D.C. Law 2-142, D.C. Code §1-633.7(a) (1999 Repl.), the Mayor is required to nominate persons to serve as subordinate agency heads in the Executive Service established by D.C. Code § 1-611.1, subject to the advice and consent of the Council, within 180 calendar days of the date of a vacancy.1 However, the Confirmation Act expressly allows the Mayor to designate an acting subordinate agency head, and does not prohibit this acting agency head from serving in that position beyond 180 days of the date of the vacancy. See D.C. Code §1-633.7(a)(2).2 When the Council wished to prohibit an appointee from serving in a position after a certain period of time, it specifically so provided. For example, in section 2(c) of the Confirmation Act, D.C. Code § 1633.7(c), the Council provided: "No person shall serve in a hold-over capacity for longer than 180 days after the expiration of the term to which he or she was appointed...." While §2(c) concerns an initial term appointment and your appointment as Interim Director of DHCD is indefinite, the provision shows that the Council knows how to limit the Mayor's appointment power to a specific period when it wishes to do so. Thus, I conclude that, for appointments that are not for a designated term, such as the Interim Director of DHCD3, the Confirmation Act does not prohibit the appointee from continuing to act in the position to which he or she was appointed beyond 180 days of the appointment.
As to the compensation issue, section 2(a)(1) of the Confirmation Act does provide that no District funds may be expended to compensate any person serving in the position if the Mayor fails to nominate a person within 180 days of the vacancy. D.C. Code §1-633.7(a)(1). The question is whether an Interim Director may continue to serve in that position beyond 180 days of the vacancy and not be paid. Although contrary arguments can be made, I believe that the strongest argument is that the prohibition on payment is invalid and unenforceable because, if implemented, it would violate the pertinent provision of the federal Antideficiency Act, 31 U.S.C. §1342.
31 U.S.C. § 1342 states:
As interpreted by the courts and an opinion of the United States Attorney General, 30 Op. Att'y Gen. 51, this provision prohibits an appointee from serving without compensation or waiving compensation in whole or part if compensation for a position is fixed by law. See Office of the General Counsel, United States General Accounting Office, Principles of Federal Appropriations Law, Vol. II, pp. 6-58 through 6-59 (2d Ed.). In this instance, compensation is "fixed by law" because, under §1052 of the District of Columbia Government Comprehensive Merit Personnel Act of 1978 ("CMPA"), effective June 10, 1998, D.C. Law 12-124, D.C. Code §1-611.52, the pay schedule for the Executive Service is divided into 5 pay levels. Each level has a minimum and maximum salary range established by the Mayor, subject to Council review.4 Thus, the Anti-Deficiency Act makes it unlawful for the person serving as the head of DHCD to serve without compensation.
If implemented as written, section 2(a)(1) of the Confirmation Act would prohibit the expenditure of District funds on the salary of an Interim Director of DHCD serving beyond 180 days without a Mayoral nomination to the Council for the same position. While there may be other lawful ways for the Council to limit the Mayor's power to make acting appointments without Council confirmation, we believe that the one embodied in the Confirmation Act is invalid because it would require the violation of a federal law that has supremacy under Article I, Section 8, Clause 17 of the United States Constitution -- specifically, 31 U.S.C. §1342. See Sutherland Stat Const § 36.08 (5th Ed.) ("the subordinate legislative body's enactment is suspended and rendered unenforceable by the existence of the superior legislative body's enactment").
Under D.C. Code §49-601 (1997 Repl.), an invalid provision of any act of the Council is deemed severable and "shall not affect other provisions or applications of the act which can be given effect without the invalid provision", unless the Council provides otherwise. Consequently, we conclude that section 2(a)(1) should be severed from the Confirmation Act, allowing an acting - or, as here, an interim - subordinate agency head to continue to receive compensation beyond 180 days of the date of the vacancy.
In summary, based on our preliminary and expedited review, we conclude that 31 U.S.C. §1342 prohibits you, an acting subordinate agency head appointed to the Executive Service under D.C. Code §1-611.51 et seq., from serving without compensation. We also conclude that, since the Confirmation Act allows you to continue to serve as Interim Director of DHCD beyond 180 days of the vacancy, you may continue to be paid beyond the 180 days.
1. The provisions pertaining to the Executive Service codified at D.C. Code §§ 1-611.1 et seq. were repealed and were replaced with the Executive Service provisions codified at D.C. Code §§ 1-611.51 et seq.
2. Because the functions of an "interim" subordinate agency head like you are identical in all relevant respects to those of an "acting" subordinate agency head, we here apply to you the provisions of the Confirmation Act that govern an "acting" subordinate agency head.
3. I understand that you were appointed as Interim Director on or about July 2, 1999 by Mayor's Order, and that this order places no term limit on your appointment.
4. The Mayor is required to designate the appropriate level for each subordinate agency head position. Id. Under § 1053 of the CMPA, D.C. Code §1-611.53, a person appointed to a position in the Executive Service "shall receive a salary set at any amount within the salary range for that level that the Mayor determines to be appropriate."
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