This table lists a selection of legal advice memos issued by this Office’s Legal Counsel Division. These informal memos are based on established law and practice and are intended as guidance for interested parties and members of the public. They generally are signed by the Deputy Attorney General for the Legal Counsel Division and are separate from the formal Opinions of the Attorney General, which can be found here.






Use of Appropriations for COVID-19 Rapid Testing Kits

May the Office of the Attorney General (“OAG”) use appropriated funds to purchase COVID-19 rapid test kits to test OAG employees and visitors to OAG facilities?

Appropriated funds may be used to purchase rapid test kits for certain uses when the prevalence of COVID-19 requires such testing for OAG to maintain the health and safety of employees and others present on OAG premises.


OAG Responsibility to Represent the D.C. Auditor

Is the Office of the Attorney General responsible for representing the Office of the District of Columbia Auditor in suits brought by entities outside the District government?

Yes, because the Office of the District of Columbia Auditor is a non-sui juris body that lacks express authority to represent itself.


Mayoral Authority to Reduce the Budget of an Independent Agency

May the Mayor reduce funds appropriated to the Sentencing Commission during a fiscal year?

Yes, the Mayor may adopt this budgetary change under section 453 of the Home Rule Act, but only with Council approval.


Legal Status of “Nudge” or “Skill” Video Gaming Machines

Would certain types of video gaming machines, referred to as “nudge” or “skill” games, be considered gambling devices in the District?

While the parameters of such video gaming machines are highly variable, there is a significant likelihood that they are games of chance, and therefore gambling devices, under D.C. Official Code § 22-1104, and a strong likelihood that they are gambling devices under the Johnson Act. In order not to be considered gambling devices in the District, a game should be winnable in every iteration of the game, and a perfectly skilled player should at a minimum be able to regularly win money at the game.


Authority to Enforce the Financial Exploitation of Vulnerable Adults and the Elderly Amendment Act of 2016

Does the Office of the Attorney General (“OAG”), rather than the United States Attorney, have the authority to pursue civil penalties and injunctive relief, and to issue subpoenas under the Financial Exploitation of Vulnerable Adults and the Elderly Amendment Act of 2016?

OAG may exercise all three of these powers.


Penalty Structure for Riot Offenses

Is the Riot Act, which appears to provide that someone who incites a riot that results in serious bodily harm or property damage above $5,000 may be charged with a felony rioting offense, while someone who willfully engages in the riot but does not incite it may be charged only with a rioting misdemeanor, ambiguous and is a legislative fix required?

The Riot Act’s penalty provisions are unambiguous. In the context of a riot causing significant property damage or serious bodily harm, the statute imposes a higher penalty on those who incited the riot than on those who participated in it. The legislative history indicates that this was an intentional choice because those who take part in a riot can often be charged with other offenses.


OAG’s Common-Law Authority to Bring Actions

What is the scope of Office of the Attorney General’s (“OAG”) authority to bring claims that no statute specifically authorizes OAG to bring or forecloses it from bringing?

The broad authority vested with the Attorney General empowers OAG to bring actions in the public interest to the extent consistent with applicable statutes, in order to protect the health, safety, and welfare of District residents.


OAG Responsibility to Advise ANCs

What are the Office of the Attorney General’s (“OAG”) statutory obligations to offer legal advice to Advisory Neighborhood Commissions (“ANCs”)?

OAG’s statutory obligation is to advise ANCs and their Commissioners about statutes and issues that relate to the functions and operations of ANCs.


Awards to Employees for Meeting Performance Goals

May the Child Support Services Division (“CSSD”) award gift cards or t-shirts to all employees as awards for meeting performance goals for the past five years?

CSSD may use appropriated funds to purchase and give away either $50 gift cards or T-shirts if it can meet the criteria for group incentive awards stated in 6 DCMR § 1906.


Mayoral Authority to Pardon

Does the Mayor have legal authority to pardon offenses against the District of Columbia?

The Mayor does not have such authority except with respect to a narrow set of minor offenses.


Applying Pay-to-Play Restrictions to PACs

Would it be constitutional to make contributors to political action committees in the District ineligible for District contracts valued at $100,000 or more?

This would be constitutional, as long as there is an exception for contributions to a PAC account that is not used to make campaign contributions.


Applicability of the Sunshine Act to ANCs

Does section 742 of the Home Rule Act apply to Advisory Neighborhood Commissions (“ANCs”), and if so, is an audio recording of an ANC meeting a sufficient substitute for a written transcript?

The answer to both questions is yes. Section 742 applies to ANCs on its own terms. In addition, ANCs may keep either written or audio transcriptions of their meetings.


Term Limits for Administrative Law Judges

Can newly legislated term limits be imposed on Administrative Law Judges (“ALJs”) who were appointed before new term limits were enacted?

ALJs appointed prior to the enactment of term limit changes are likely entitled to serve the entirety of the six-year term to which they were appointed. The ALJ Term Limit Act does not contain a specific retroactive application, and such laws are not presumed to apply retroactively.


Whether OAG May Use Appropriated Funds to Purchase and Distribute OAG T-Shirts

May the Office of the Attorney General (“OAG”) use appropriated funds to: (1) purchase t-shirts or polo shirts with the OAG logo for Community Outreach staff to wear at public events, and (2) distribute these shirts to the general public?

(1) Yes. A reasonable argument can be made that purchasing shirts for this purpose satisfies the “necessary expense” doctrine. (2) No. Appropriated funds may not be used for personal gifts for employees or the general public without specific statutory authorization.


Applicability of the Federal Privacy Act to the District

Does the federal Privacy Act of 1974 apply to the District government?

Generally, it does not, but it affects the District’s participation in certain federal programs.


Applicability of D.C. Official Code § 21-120 to Pre-Suit Settlements

Does D.C. Official Code § 21-120 require court approval of prelitigation settlements with minors?

No, the statute does not require court approval of prelitigation settlements with minors.


Jurisdiction of the Board of Ethics and Government Accountability over Office of Administrative Hearings employees

Does the Board of Ethics and Government Accountability (“BEGA”) have jurisdiction over allegations that Office of Administrative Hearings (“OAH”) Employees violated the District’s Conflict of Interest Statute or its Ethics Rules?

Yes, BEGA has jurisdiction over OAH employees. BEGA is authorized to enforce a Code of Conduct, which includes provisions in the District’s Code and regulations that apply to all District employees, including those who work for OAH.


Circumstances Under Which Public Funds May Be Used to Purchase Food for Government Employees

Under what circumstances may public funds be used to provide food for government employees?

Appropriated funds may not be used to provide food to government employees without specific statutory authorization. Donated funds may be used for this purpose under certain circumstances.


BEGA Obligations When Questioning Fraternal Order of Police Bargaining Unit Members

Is the Board of Ethics and Government Accountability (“BEGA”) required to extend special privileges when it questions members of the Fraternal Order of Police (“FOP”) bargaining unit?

No.  BEGA’s activities do not constitute a change in working conditions triggering any obligation to bargain; BEGA is not required to provide the same protection to bargaining unit members that the collective bargaining agreement requires the Metropolitan Police Department to provide; the Weingarten right to representation does not apply when BEGA questions a bargaining unit member in connection with its enforcement activities; and the FOP’s other requests are contrary to the Government Ethics Act and implementing regulations.