GLAA Testifies on Proposal for Elected Attorney General for DCGay and Lesbian Activists Alliance Of Washington, DC
P.O. Box 75265
Washington, D.C. 20013
Testimony on Public Resolution PR14-34 Proposing the Creation of an Elected Attorney General for the District of Columbia
Committee of the Whole
Committee on the Judiciary
Subcommittee on Labor, Voting Rights, and Redistricting
Council of the District of Columbia
October 17, 2001
The Gay and Lesbian Activists Alliance of Washington (GLAA), the nation's oldest continuously active gay and lesbian rights organization, wishes to submit the following comments on Public Resolution PR14-34, proposing the creation of an elected Attorney General for the District of Columbia.
GLAA strongly supports efforts to expand home rule powers in the District of Columbia. PR14-34's goal of creating an elected Attorney General would be an important and significant advancement in the self-determination of the citizens of the District. However, while GLAA recognizes the benefits in consolidating prosecutorial authority in the District of Columbia in a single office responsible to the people of the District of Columbia, we believe the current proposal for an elected Attorney General perpetuates a damaging flaw of the current Corporation Counsel system.
As we stated in June of this year during oversight hearings on the Office of the Corporation Counsel, over the past several years, we have seen the Corporation Counsel make decision after decision to weaken the Human Rights Act. We believe that this is due to the Corporation Counsel's dual and conflicting roles in interpreting the Human Rights Act. They must simultaneously enforce the law and defend the District against claims of discrimination under the same law.
The Office of the Corporation Counsel (OCC) uses every legal means to aggressively defend its client, the District Government, against charges of violating the Human Rights Act. This was painfully clear in the Tyra Hunter case in which then Corporation Counsel Judge Ferren found some of the arguments forwarded by his office in the pre-trial brief legally invalid and-at GLAA's urging-he issued two praecipes to retract the most obnoxious claims. Unfortunately, OCC continues to enforce the Human Rights Act with a biased eye towards current and future defenses. The OCC interprets the Human Rights Act in the weakest and narrowest manner, giving undue latitude towards defendants.
Among the most recent examples that have come to our attention are the Corporation Counsel's persistence in making the specious argument that citizens may not sue the city under the Human Rights Act without first exhausting all administrative remedies. This argument was made and dismissed in the Tyra Hunter case, as well as in Jefferson v. DC, et al. and Freddy Ramirez et al. v. District of Columbia among others. The Corporation Counsel lost the argument in all of these cases. Despite being told by judge after judge that their interpretation is wrong, they continue to make the argument and defended it in a letter to GLAA dated March 6, 2001-9 months after our initial request was made to them on June 7, 2000. In a detailed response on May 4, 2001, we pointed out that they are confusing the words "complaint" and "action." "Complaint" in the Human Rights Act refers to claims filed with the Office of Human Rights and "action" refers to lawsuits filed in court. The Corporation Counsel simply rejected our response and analysis, despite the supporting case law, without offering any reason for their rejection.
The only reason to make the claim is to delay judgment for at least two years in the Office of Human Rights backlog so that only the victims with the most endurance and wealth can succeed.
The second example of the Corporation Counsel's conflict of interest in enforcing the Human Rights Act is the advice given to the Department of Fire and Emergency Medical Services on the grooming policy. The OCC has attempted to weaken the Human Rights Act by telling Chief Few that the grooming policy is not in violation of the "personal appearance" clause of the Human Rights Act because of its basis in safety.
GLAA completely agrees that safety is a valid and important reason to limit protections based on "personal appearance." However, the Department of Fire and Emergency Medical Services' policy is not based on objective safety tests, but rather on the appearance of safety. GLAA has previously detailed how the policy could be amended to comply with the Human Rights Act and the US Constitution by basing the policy on objective safety concerns. So far, as with our discussions on access to the courts by DC citizens, our suggestions have been completely ignored. The arrogance of the Corporation Counsel, the Fire Department and the Mayor's office are resulting in embarrassment for all of them and a costly lawsuit for the city which will be followed by more as administrative remedies are exhausted. Further, real safety issues in the Fire Department are being ignored in favor of the appearance of safety.
We were further disappointed to see the Office of the Corporation Counsel overstep its legal authority and usurp the responsibilities of the Office of Human Rights last May by approving an incomplete statement of non-discrimination in the "Notice of Proposed Rulemaking" from the Child and Family Services Agency, Department of Human Services, on "Licensing of Youth Shelters, Runaway Shelters, Emergency Care Facilities, and Youth Group Homes," printed in the May 11 issue of the DC Register (pages 4188-4258). Section 6203 (page 4192) is a "Statement of Residents' Rights and Responsibilities," designed to be posted prominently within each youth residential facility. The statement was clearly well intentioned, but it failed to simply follow the law and enumerate all of the categories of the Human Rights Act. Procedurally, the language should have been approved by the Office of Human Rights, as detailed in the Mayor's Executive Order 2000-131 from August 21, 2000. Paragraph number 3 states: "The Director of the D.C. Office of Human Rights, or the designee thereof, is authorized and directed to implement this Order and to monitor the compliance of executive departments and agencies with its directives." However, the OHR did not learn about this notice until GLAA brought it to their attention. OHR Director Charles Holman has since arranged for a correction by Deputy Mayor Carolyn Graham's Office.
The Office of the Corporation Council is not unaware of the Executive Order. They initially rejected the language drafted by Charles Holman and then-again after GLAA's intervention-admitted that they were wrong and that the original language was legally and procedurally correct.
GLAA reluctantly finds that the Corporation Counsel has a conflict of interest which cannot be internally resolved that has prevented them from appropriately enforcing the law, as well as giving the appearance of incompetence in interpreting the law. Because of this, we find also that the proposal for an Office of the Attorney General as currently envisioned will perpetuate this conflict of interest. Simply superseding the powers and authorities of the current Office of the Corporation Counsel, even with an elected Attorney General, merely moves the existing conflict of interest from one office to another. Placing an Attorney General in charge of all civil actions by and against the District puts the Attorney General in the same position as the current Corporation Counsel, with the same inherent conflicts.
We recognize that prosecutorial authority in the District, divided as it is currently between the U.S. Attorney, appointed by the President of the United States, and the Corporation Counsel, appointed by the District's Mayor, with no one person answerable to the people for enforcing all District laws, is an untenable situation. We agree that this system has greatly ignored certain crimes, such as local fraud, abuse, and corruption, and has led to lax enforcement of many laws. However, as we have demonstrated, divided prosecutorial authority is not the only source of these and related problems. The conflict of interest created by merging the function of defense counsel for the District from that of prosecutor for the District also contributes to these problems.
Only by severing the two functions of defense counsel and prosecutor can the District hope to have a vigorously enforced and strengthened Human Rights Law, as well as ensuring proper prosecution of other instances of fraud, abuse, and corruption. Certainly in the area of human rights, the Office of Human Rights cannot, with its limited budget and functions take over the prosecutorial role. The District does need a prosecutor-or an Attorney General as in the present proposal-who is neither beholden to the Federal government nor operating under a conflict of interest, in order to protect our rights and the integrity of our laws. Nevertheless, to avoid the perpetuation of the conflict of interest inherent in the merging of the defense and prosecutorial roles, we recommend that the Office of the Corporation Counsel, or an equivalent office, be maintained to serve the defense counsel function for the District.