Attorney General's Office Gazette: October 2013
Council Postpones Attorney General Election
The first-ever election for a D.C. Attorney General has been moved back four years, from 2014 to 2018, the D.C. Council decided on October 1. The 7-6 vote settled an issue (pending passive congressional review) on which discussion began back in 2010, when D.C. voters approved a measure to change what has historically been a mayoral appointment into an elective position, as is the case in 43 states.
Because the 2010 Charter Amendment said that the Attorney General election would be held on or after January 1, 2014, it had been assumed that the vote would take place next year. In anticipation of the election, Mayor Vincent C. Gray proposed that general counsel for D.C. government agencies, who now report to OAG, should instead report to the mayor after the Attorney General becomes elected. The bill was recommended by Attorney General Nathan after a study by an OAG task force chaired by Ariel Levinson-Waldman, the Senior Counsel to the Attorney General.
The mayor and attorney general argued that attorneys for agencies controlled by the mayor should report to the mayor rather than to different elected official. When the proposal was considered by the Council this summer, several members expressed the view that the election should be delayed because of uncertainty over OAG’s structure.
After a preliminary vote in July, the Council in October approved the change involving the general counsel. The bill also would create an office in the Executive Office of the Mayor to coordinate issues involving the agency counsel.
OAG did not advocate delaying the election but opined it was within the Council’s authority to take that action. A lawsuit challenging the election delay is pending in D.C. Superior Court. The OAG is representing the named defendants in that action -- the Board of Elections and the Council.
The mayor will ask the Council to specify that the change regarding agency general counsel reporting becomes effective only after the Attorney General election in late 2018.
The Gray administration also will continue to push for a change in the D.C. Hatch Act that would allow current OAG employees to run for Attorney General without first resigning their positions. Attorney General Nathan and others have contended that lawyers now at OAG should not be barred from running for an office for which they are well qualified.
After the Council action, Attorney General Nathan said, “We are pleased that the Council finally has removed a cloud of uncertainty over the scope of our office after it becomes an elected one. And D.C. law should be amended so that those currently working at OAG may run for Attorney General."
OAG Suit Leads to Receiver at Charter School
At OAG’s request, D.C. Superior Court Judge Craig Iscoe on October 3 appointed Joshua Kern as receiver to oversee Options Public Charter School and froze the assets of two corporations set up by three of the school's former managers.
The judge acted in a lawsuit filed two days earlier by the District alleging that Options, a school for about 400 secondary-school students that is located at 1375 E St., N.E., has been operated by the former managers “not for the purpose of maximizing benefits for at-risk youth” but instead to maximize income, revenue, and profits for themselves and for their corporations.
Much of the public funds involved in the case allegedly derived from an increase in the number of the school’s students assigned to special education levels that generate higher-than average per-pupil revenue.
OAG became involved in this matter after the District of Columbia Public Charter School Board found evidence of self-dealing by Options’ management.
The lawsuit generally alleged a “pattern of self-dealing” by former managers Dr. Donna D. Montgomery, Dr. David Cranford, and Paul S. Dalton, and their corporations, Exceptional Education Management Corporation and Exceptional Education Service, Inc. Other defendants are Dr. J.C. Hayward, former chair of Options’ board of trustees, and Jeremy J. Williams, a former official of the Public Charter School Board who served on the Options Board of Trustees finance committee while still working for the Public Charter School Board.
Attorney General Nathan praised Ellen Efros, Deputy Attorney General heading the Public Interest Division, and attorneys Bennett Rushkoff and Jimmy Rock, for their work on the case. Scott Pearson, executive director of the Public Charter School Board, wrote the attorneys after their court appearance on Oct. 3, “I thought you were outstanding and I was proud, as a D.C. taxpayer to be represented by you.”
Court Victories Won by Two OAG Divisions
Our Public Interest and Civil Litigation Divisions prevailed in major cases in recent months that are now featured on the OAG website.
Here is a quick summary. Visit the OAG site under “highlighted cases” for more details.
Public Interest Division
In August, D.C. Superior Court Judge Anthony Epstein granted summary judgment in favor of all defendants in a case filed by Metropolitan Police District officers under the D.C. Whistleblower Protection Act. The three plaintiffs alleged that they were denied leadership positions because they disclosed problems with the MPD’s breathalyzer instruments. The judge rejected all of their claims.
The previous month, Judge Epstein denied D.C. Councilmember Jim Graham’s petition for review of the Board of Ethics and Government Accountability (BEGA)’s investigation of his alleged ethics violations.
Also in July, U.S. District Judge Colleen Kollar-Kotelly denied motions by Kingman Park Civic Association challenging the planned DC Streetcar line along H Street and Benning Road.
Among other decisions in Public Interest Division cases since the last issue of AGOG, D.C. Superior Court Judge Peter A. Krauthamer denied a Fraternal Order of Police motion for summary judgment in a case seeking BlackBerry messages involving former Mayor Adrian Fenty, Superior Court Judge Epstein rejected a case by 34 former employees of the Department of Parks and Recreation challenging the elimination of their positions, and a tour business lost a constitutional challenge to D.C. regulations of their work.
Civil Litigation Division
In a case alleging excessive force by a Metropolitan Police Department officer, U.S. District Court Judge Amy Berman Jackson granted summary judgment in August for the defendants, saying that the officer used only the minimal amount of force necessary for an arrest during an April 2012 International Monetary Fund protest.
A jury returned a verdict in favor of D.C. in an employment case, agreeing last May that a former driver for the D.C. Department of Health had not been terminated for complaining about treatment based on his race.
In another jury trial, D.C. won a verdict in July in a case by a former correctional officer alleging that he was wrongfully terminated in violation of the Americans With Disabilities Act.
Among other cases from the division, a judge dismissed a discrimination case by a former Corrections Department employee, a jury returned a verdict in favor of a D.C. Public Library police officer who was charged with false arrest, and D.C. won a case in the Contract Appeals Board in which a tree service sought $600,000 in damages against D.C. over a change in the tree-trimming schedule.
OAG Presses for Campaign Finance Reform
Continuing an effort that began last year, Attorney General Nathan is urging the D.C. Council to pass a campaign reform proposal that was introduced by Mayor Vincent C. Gray with OAG’s backing. The plan has been pending before a Council committee, with no result so far.
Speaking to the Democratic Party organization in Ward 3 in September, the AG said that D.C. officials should “be doing all we can do to end the perception or reality that to obtain contracts or grants in D.C., you must ‘pay to play.’ “
The bill would bar those have or are seeking contracts or grants with the District valued at $250,000 or more from contributing to any elected official or candidate who could be involved in the approval process for the contract or grant. It also would prohibit such people from contributing to any entity in which an official or candidate with oversight over the approval process has a significant interest.
It would require organizations supporting or opposing any candidate, initiative, referendum or recall to identify the sources and amounts of any contributions they receive and any expenditures they make.
A September 19, WAMU Radio report on a press briefing by Mayor Gray and Ariel Levinson-Waldman, Senior Counsel to AG Nathan, discussed the bill's provision to prevent donors from "bundling" checks through related corporate entities.
Levinson-Waldman explained at the session that the bill would stop LLC bundling by implementing new limits on how many affiliated LLCs can give to one candidate, reported WAMU's Patrick Madden.
At his appearance before Ward 3 Democrats, AG Nathan said the Council should act “before the 2014 election process gets into full swing.”
AG to Speak on Impaired Driving
Attorney General Nathan is scheduled to be the featured speaker Oct. 18 at the annual awards ceremony of the Washington Regional Alcohol Program (WRAP). At the session, the organization anounces its annual WRAPPY awards. OAG's Public Safety Division won a WRAPPY award last year for its effective prosecution of impaired-driving cases. The program is being held a little more than one year after D.C. resumed use of breath-testing instruments in a collaborative effort involving OAG, the Metropolitan Police Department, and the Office of the Chief Medical Examiner.
The New Ruff Fellows: What Are They Doing?
Last year, OAG began the Ruff Fellows program with three District of Columbia law schools to provide the District with additional legal assistance and to promote public interest legal service. The fellowships are named in honor of Charles (Chuck) F.C. Ruff, the former D.C. Corporation Counsel (the position now known as Attorney General.)
In our last issue, we heard from the first group of Ruff Fellows, graduates of Georgetown University Law Center, George Washington University Law School, and UDC David A. Clarke School of Law.
This year, a group of 19 fellows from George Washington and Georgetown are working at OAG. In the next two issues of AGOG, we’ll see what our current fellows are doing.
The Washington Lawyer magazine of the District of Columbia Bar published a feature on the Ruff Fellows program, which can be seen here http://www.dcbar.org/for_lawyers/resources/publications/washington_lawyer/september_2013/legalbeat.cfm
Here is the first of two Ruff Fellows reports. The other Fellows will tell their stories in the next issue of AGOG.
Chuck Coughlin (Georgetown): in Section IV of the Civil Litigation Division, I was almost immediately given my own caseload of constitutional, tort, and employment claims. I have drafted several successful dispositive motions, including a motion for summary judgment arguing that the plaintiff had not exhausted administrative remedies as required by the Prison Litigation Reform Act. I have also managed discovery, including taking and defending depositions. In a constitutional case with 24 police officers named as defendants in addition to the District of Columbia, I will soon depose the plaintiff after having met with each of the available officers, filing motions to dismiss on behalf of two of the officers, and having prepared responses for all others. Another highlight for me was working closely with–and learning a substantial amount from–Kerslyn Featherstone to prepare for a trial. The case settled on the eve of trial, but by then I had taken part in a pre-trial hearing, met with and prepped several witnesses, and prepared and mocked my opening statement.
Greg Cumming (Georgetown)
I work in the OAG’s Office of the Solicitor General, where I handle a variety of civil and administrative appeals. One of the highlights has been arguing a case before the D.C. Court of Appeals defending the District’s automated traffic enforcement system against a due process challenge. We recently received a published decision upholding the District’s law. Though much of the credit should go to my predecessor, Brad Sarnell, who drafted the brief, it was a great experience and very rewarding to obtain a favorable result for the District. More broadly, my cases include civil fines and violations, negligence suits, constitutional challenges, and disability and unemployment compensation claims. I have really enjoyed the opportunity to handle a variety of cases and gain substantial writing experience and feedback.
Matt Lane (George Washington)
I am working with Civil Litigation Section I, focusing on government contract cases. In this role, I have worked with a small group of OAG attorneys on many cases before the D.C. Contract Appeals Board as well as cases before the Superior Court. This work has spanned from Answers to Post Trial Briefs (or settlement negotiations), and everything in between.
Little more than four months after arriving at OAG, I got the opportunity to conduct my first hearing on the merits before the Contract Appeals Board. While we have not yet received a decision, we believe it went well, and it was certainly good preparation for the four trials I have scheduled over the next two months.
Cali Lanza-Weil (George Washington)
In Section I of the Civil Litigation Division, I am assigned to a number of tort and employment law cases. I regularly appear in court and have gained experience in many aspects of litigation including oral argument, motions to dismiss, defending depositions, negotiations, and discovery.
The brightest highlight of my experience thus far was my first trial in the U.S. District Court. Mentored by my co-counsel, AAG Michael Addo, I was responsible for two of the four District witnesses and the opening statement. Throughout the trial I analyzed many of the legal issues that arose at trial and participated in discussions as the trial strategy evolved in response to the case presented by the plaintiff in this ADA reasonable accommodation and termination case. At the end of the five-day trial, the jury found in favor of the District on both counts.
Dan Mayer (George Washington)
Working in the Legal Counsel Division, I play a significant role in making sure the District government operates according to the law. This includes thorough review of proposed rulemakings, draft Mayor’s Orders, draft bills, and Council-passed bills for legal sufficiency. In addition to detailed technical review, I frequently address issues of agencies’ statutory authority, compliance with the Home Rule Act and the separation of powers between the Mayor and the Council, compliance with federal law, and individual liberties and equal protection. I often work closely with agency counsel to better understand the proposals and make any needed revisions. LCD also provides advice memoranda to agencies in order to help resolve ambiguous or disputed legal standards. Some highlights of the legal advice I’ve prepared include the Fourth Amendment rights of public employees, the Fifth Amendment privilege against self-incrimination in internal investigations, the applicability of FOIA exemptions to certain agency files, the REAL ID Act, and constitutional issues in what became the Mayor’s proposal to provide driver licenses to undocumented immigrants, and consultation with state AG offices on how they handle medical marijuana issues.
Jacob Narva (Georgetown)
I have been working in the Attorney General’s Immediate Office. I have done a wide variety of work. This includes writing memos and briefs, editing and drafting letters to be sent out, general litigation preparation, and research on the laws of a wide range of other jurisdictions. I have worked with lawyers from multiple sections as well as from different offices. The issues I have worked on have included everything from evaluating FOIA requests, freedom of speech cases, and analyzing proposed legislation. Overall I have learned a lot, and it has been a great experience.
Portia Roundtree (Georgetown)
I’ve had the opportunity to work on a wide variety of cases in the Civil Litigation Division. One highlight was preparing for trial in a Fourth Amendment case in federal court. Although the case ended up settling just minutes before I was supposed to give my opening statement, the time I spent preparing to defend the police officers was invaluable. I learned that trial attorneys have to be ready for anything. I am currently working with co-counsel on a multi-million dollar medical malpractice case involving dozens of experts. I also have two jury trials scheduled in the next two months-- a motor vehicle accident case, and an employment discrimination case. I hope to remain with the Office of the Attorney General after my fellowship ends and continue to build on this experience.
Lauren Sharrock (George Washington) I am a trial attorney in the Mental Health Section. During my time here, I have handled motions, probable cause hearings, and hearings before the Commission on Mental Health. I also coordinate guardianship matters that go forward in Probate Court. I have enjoyed working in such a fast-paced environment. I get to work alongside passionate attorneys doing critical work on behalf of the District.
Public Interest Division in Channel 4 Consumer Story
Bennett Rushkoff, chief of the Public Advocacy Section of OAG's Public Interest Division, appeared in a WRC-TV Channel 4 consumer segment September 9 on automatic renewals. Rushoff discussed the lack of disclosure to consumers by some companies that subscriptions or contracts for services are being renewed automatically.
WRC interviewed Rushkoff after the OAG settled a case against the online social networking website Classmates.com in July. OAG's lawsuit alleged that Classmates failed to notify consumers clearly and conspicuously that their memberships would be automatically renewed unless they took action to terminate the subscription. In the settlement, Classmates agreed to provide automatic-renewal reminder notices to D.C. consumers with subscription terms of one year or more so that they can choose not to renew their subscriptions.
9 Youth Employees Spend Summer at OAG
OAG has enthusiastically participated in the annual Summer Youth Employee Program for many years. Since 2009, Angela Jiggetts-Bazzi and Amanda Lee have coordinated the program for OAG. This summer, OAG hosted nine summer youth employees who attend various colleges. The participating supervisors were David Fisher, Emma Clark, Danielle Coleman, Sherry Roberts, Joseph Allen, Harold Johnson, Jacqueline Thompson, Quinzel Jackson, and Jeanette Manning.
In addition to their normal work duties, Gene Jackson, Jeinine McClain, Amanda Lee, Melissa Sharpe of OHR and Aaron Thompson of DCHR/ING provided learning workshops to aid progressive work and life development skills. This was the best summer yet and we are pleased to have received a positive evaluation from the young adults. Here is what two of them said:
“My favorite part was going out with [CSSD] to “Beat the Streets.” Going out and talking to people was the most fun.
- Brett Tielman-Fenelus, University of Delaware
“My favorite part of the program was meeting every Wednesday. It was very refreshing and I learned so much about how OAG operates. I enjoyed the staff and their professionalism. No complaints.”
- Brandy Briggs, Benedict College
Recent Employees of the Month
More OAG staff members have been named Employees of the Month. For July, the honor went to Keya Ross, intern coordinator in the Personnel, Labor and Employment Division.
One co-worker said that Keya “improves the lives of the lawyers in OAG. She recruits, clears and organizes interns to assist in the legal work of the litigating divisions of the Office. Without the assistance of these interns, over-burdened attorneys would be further overwhelmed. … Keya adds this important work with our interns to another of her other significant contributions to OAG—assisting in the relationship with our pro bono attorneys. Keya monitors the comings and goings of these volunteers and ensures that OAG is able efficiently to use their services. “
For September, the winner was Joe Hooper, support enforcement specialist in the enforcement unit of the Child Support Services Division. In August, he won national recognition from the National Child Support Enforcement Association as the outstanding child support professional (non-managerial).
A fellow worker cited his “outstanding professionalism, customer service, and natural reflex of exceeding job expectations,” adding that “Joe usually arrives for work about 7 or 8 am, and reluctantly calls it a day after about 7 p.m., when the child-support program DCSES is shut down for evening maintenance. During the day, Mr. Hooper does not socialize much or “visit” other workers in their cubicles. Frequently, co-workers will consult him in his cubicle concerning complex case processing questions. Joe is always available, always approachable, and the very epitome of a “team player.” “
OAG Running Team In 200-Mile Relay Race
New and Departed OAG Staff Members
New employees: Elaine Block, LCD; Lisa Butler, OGC/DISB; Morghan Copeland, CSSD; Kimberly Daniels, CSSD; Rahsaan Dickerson, PLED; Aida Garoute, CSSD; Leigh Gaskins, PSD/Juvenile; Shannon Hall, SSD; Richard Horton, OGC/DISB; Denise Katz-Prober, PSD; Rashee Raj Kumar, PSD; Tara Newberry Mitchell, OGC/DGS; Walter Tucker, SSD
Departed employees: Tiffany Alexander, PSD; Tannisha Bell, Mental Health; Tiffany Brown, DDS; Thea Davis, PHCD; Sergio Flores, CSSD; John Grimaldi, LCD; Jeanette Manning, PSD