When does the DC Mayor have to follow notice-and-comment rulemaking, and when can the Mayor just issue an internal directive?
Plain-English summary
In late 1985, Mayor Marion Barry issued Mayor's Order 85-127, which set procedures DC employees had to follow when soliciting or accepting monetary donations to the District for governmental purposes. The Office of Documents (which publishes DC's official register and codifies regulations) refused to publish the order. Its position: the order tries "to do what must be done by rulemaking" under the DC Administrative Procedure Act. Without notice-and-comment rulemaking, the Office of Documents said, the order had to be rescinded.
Deputy Mayor for Financial Management Alphonse Hill asked the Corporation Counsel to weigh in. Acting Corporation Counsel H. Suda concluded that the Office of Documents was wrong. Mayor's Order 85-127 was not subject to rulemaking, was legally valid in all other respects, and did not need to be rescinded.
The reasoning rests on a structural distinction in the DC APA. A "rule" under D.C. Code § 1-1502(6) is "any Mayor's or agency's statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or to describe the organization, procedure, or practice requirements of the Mayor or of any agency." That covers a lot, but the DC Court of Appeals has read it as referring to quasi-legislative action, not internal management.
Five questions distinguish quasi-legislative rulemaking from internal management (the Office of Documents' own Rulemaking Handbook lists them):
- Does it affect the general public?
- Does it affect a particular group or segment of the public?
- Does it affect employees of the District government outside the issuing agency?
- Does the public or a part of the public have to follow it to receive a right, benefit, service, payment, or license?
- Will a person be subject to a penalty, fine, loss of service or benefit, or other sanction if it is not followed?
If the answer to all five is no, the directive is internal management, not rulemaking. Mayor's Order 85-127 was about how DC officers and employees handle donations to DC. It told DC staff what procedures to follow internally. It did not affect the public, did not condition any benefit, did not impose sanctions, and applied only to employees of the issuing executive. So it was not a rule.
The Mayor's authority for the order came from § 448(a)(1) of the Self-Government Act (D.C. Code § 47-310(1)), which makes the Mayor responsible for supervising District financial transactions to ensure adequate control of revenues and resources. That is a managerial authority, not a quasi-legislative one.
What this means for you
If you are a DC executive branch attorney or general counsel
This opinion is the canonical statement of the internal-management exception to DC APA rulemaking. Use it when you draft Mayor's Orders, agency directives, or internal procedures. Walk through the five-question test in the Rulemaking Handbook before you decide whether to publish in the DC Register and notice for comment. If the answers are all no (no public effect, no agency-spanning effect, no public-facing benefits or sanctions), you can issue as a Mayor's Order without rulemaking.
If the answer to even one question is yes, default to rulemaking. The cost of unnecessary rulemaking is low; the cost of issuing what should have been a rule and getting reversed is high.
If you are a DC Office of Documents staff member
This opinion clarifies that Office of Documents has authority to scrutinize whether something is a rule for publication purposes, but its determination is not the last word. The Corporation Counsel (now AG) is the legal authority on the question. If a Mayor's Order is sent to you and you doubt it should be a rule, raise the question; do not unilaterally refuse publication. Coordinate with Mayor's counsel.
The 1983 Rulemaking Handbook's five-question test in § 1.5 is good guidance and remains the operational test under DC law.
If you are a DC employee subject to a Mayor's Order
If the order applies only to you and other DC employees in the performance of your duties, and is grounded in the Mayor's general supervisory authority, it is binding on you even without rulemaking. Wolston v. District of Columbia, 291 A.2d 85 (D.C. 1972), confirms that internal directives do not need APA rulemaking to bind employees.
If you are a journalist or member of the public
This opinion limits when the Mayor must publish notice and accept public comments before issuing an executive directive. Internal management directives (covering things like how DC employees process donations, internal travel rules, document retention) generally do not go through the DC Register process. Public-facing rules (licensing requirements, fee schedules, eligibility criteria for benefits, penalties for noncompliance) do.
If you are a DC Council oversight staff member
The Council's tools for oversight of internal Mayor's Orders are different from its tools for rule oversight. Rules go through 30-day Council review under the Legislative Review Act process; Mayor's Orders do not. To affect an internal Mayor's Order, the Council needs to legislate (statute) or use the appropriations and confirmation process. This opinion does not change Council oversight authority; it just clarifies the procedural box a directive falls into.
If you are an administrative-law professor or student
This is a clean case of the quasi-legislative / managerial distinction in administrative law. The DC framework tracks federal APA's distinction between "rules" subject to § 553 notice-and-comment and "interpretive rules" or "general statements of policy" exempted under § 553(b)(A). DC's APA does not have a verbatim equivalent exemption, but the courts and the Corporation Counsel read in the same distinction through the requirement that a rule be quasi-legislative in nature.
Common questions
Q: How do I tell if my proposed directive is a "rule" requiring DC APA rulemaking?
A: Apply the Rulemaking Handbook's five questions: (1) does it affect the general public? (2) a particular segment of the public? (3) DC employees outside the issuing agency? (4) does the public have to follow it to receive a benefit? (5) does noncompliance trigger sanctions? If yes to any, treat it as a rule and follow notice-and-comment.
Q: Can the Mayor issue a Mayor's Order that affects another agency?
A: Yes, when grounded in the Mayor's supervisory authority over the executive branch. The opinion notes that question 3 (affecting employees outside the issuing agency) cuts toward rulemaking, but a Mayor's Order to all executive-branch employees can still be internal management if it is genuinely about how DC employees do their jobs and does not have public effects. The case-by-case test is whether the directive is quasi-legislative.
Q: What is the consequence of issuing what should have been a rule as a Mayor's Order?
A: The order is potentially unenforceable as to the public. District of Columbia v. North Washington Neighbors establishes that without DC APA compliance, a quasi-legislative determination cannot bind the public. So if a court agrees the directive should have been a rule, it can refuse to enforce.
Q: Does this analysis apply to agency heads issuing internal directives?
A: Yes, in principle. The DC APA defines "rule" to cover both Mayor's and agency statements. The five-question test from the Rulemaking Handbook applies to both. An agency head can issue an internal management directive without rulemaking if it does not have public effect.
Q: What about "interpretive" Mayor's Orders that explain how DC reads a statute?
A: A Mayor's Order interpreting a statute could be a rule under § 1-1502(6) ("designed to implement, interpret, or prescribe law"), but federal APA distinguishes interpretive rules from legislative ones. DC has not always followed the same distinction, and you should treat any interpretive directive that affects the public as a rule unless you can fit it into the internal-management exception.
Q: Is this opinion still good in 2026?
A: Yes. The DC APA framework is unchanged. The Rulemaking Handbook's five-question test continues to be the operative guide. Mayor's Orders affecting only DC employees in their official duties still bypass formal rulemaking.
Background and statutory framework
The DC Administrative Procedure Act (DCAPA, D.C. Code § 1-1501 et seq.) governs how DC government agencies adopt rules and conduct adjudications. Section 6 (§ 1-1506) establishes the procedural requirements for adopting any "rule": publication in the DC Register, public notice, opportunity for public comment, and a 30-day delay before effectiveness, plus Council review under the Legislative Review Act.
Section 3(6) (§ 1-1502(6)) defines "rule" broadly: "the whole or any part of any Mayor's or agency's statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or to describe the organization, procedure, or practice requirements of the Mayor or of any agency."
Read literally, that definition could swallow internal management directives. The DC Court of Appeals avoided that result in District of Columbia v. North Washington Neighbors, Inc., 367 A.2d 143, 147 (D.C.), cert. denied, 434 U.S. 823 (1976), by characterizing rulemaking as a "quasi-legislative process." A directive that is not quasi-legislative does not need rulemaking.
The Mayor's authority for general administrative orders comes from § 448(a)(1) of the Self-Government Act (D.C. Code § 47-310(1)), which gives the Mayor responsibility "to supervise and be responsible for all financial transactions to insure adequate control of revenues and resources." That is a supervisory/managerial authority. Directives flowing from it to subordinates are not quasi-legislative.
The Corporation Counsel's office had previously addressed the same distinction in 3 Op. C.C. 181 (June 29, 1978) and 3 Op. C.C. 95 (May 26, 1978), citing an unpublished opinion from November 24, 1970, all concluding that internal-government requirements are not subject to rulemaking. Wolston v. District of Columbia, 291 A.2d 85 (D.C. 1972), is in accord.
The Office of Documents' own 1983 Rulemaking Handbook adopts the same test, asking five questions to distinguish a rule from a non-rule. Mayor's Order 85-127 fails all five (no public effect, no segment-of-public effect, no inter-agency effect, no public-benefit conditioning, no public sanctions). It is therefore not a rule and not subject to DCAPA § 6.
The closing flourish in the opinion is also worth noting. "It should not be necessary to state that the opinions of the Corporation Counsel are guiding statements of law to be followed by all District officers and employees in the performance of their official duties," citing Reorganization Order No. 50 (June 26, 1953). Translation: the Office of Documents must follow the Corporation Counsel's legal determination on this question, not the other way around.
Citations and references
Statutes and regulations:
- DC Administrative Procedure Act, D.C. Code §§ 1-1501 et seq.; §§ 1-1502(6), 1-1506
- DC Self-Government Act § 448(a)(1), D.C. Code § 47-310(1)
- DC Office of Documents Rulemaking Handbook § 1.5 (1983)
- Reorganization Order No. 50 (1953)
Cases:
- District of Columbia v. North Washington Neighbors, Inc., 367 A.2d 143 (D.C. 1976), DCAPA rulemaking is quasi-legislative
- Wolston v. District of Columbia, 291 A.2d 85 (D.C. 1972), internal directives do not require rulemaking
License
This opinion is published by the Office of the Attorney General for the District of Columbia. Per the DC.gov terms of use, content is licensed under Creative Commons Attribution 3.0, which permits commercial use, redistribution, and modification with attribution.
Source
- Original PDF: https://oag.dc.gov/sites/default/files/2018-02/Opinion-July-2014-Employees-Handle-Funds.pdf
Original opinion text
..
~nntrumtut nf t~e ihrtrirt nf Ctrnlumhtn
OFFICE OF THE CORPORATION COUNSEL
DISTRICT BUILDING
WASHINGTON.
D. C.
20004
IN REPLY REFER TO:
LCD:L&O:KLC:TFB:mbb
(86-009)
February 24, 1986
OPINION OF THE CORPORATION COUNSEL
SUBJECT: Mayor'a Order on How Employees
Must Handle District Funds is not
Rulemaking.
Mr. Alphonse G. Hill
Deputy Mayor for Financial Management
District Building
Room 423
Washington, D.C.
20004
Dear Mr. Hill:
This is in response to your request that this Office review
a memorandum, dated January 8, 1986, to you from the Secretary of
the District of Columbia. That memorandum states that the Office
of Documents refuses to publish Mayor's Order 85-127, on the
ground that the order attempts "to do what must be done by
rulemaking." Therefore, the memorandum concludes, "Mayor's Order
85-l27 ••• must be rescinded." Mayor's Order 85-127 establishes
procedures which all officers and employees of the District must
follow in soliciting and accepting monetary donations to the
District for governmental purposes.
I have reexamined Mayor's
Order 85-127 (which was drafted by you and the Corporation
Counsel) in light of the Secretary's memorandum, and I am of the
opinion that: (1) Mayor's Order 85-127 is not subject to the
rulemaking requirements of the D.C. Administrative Procedure Act;
(2) Mayor's Order 85-127 is in all other respects legally valid;
and (3) there is no legal requirement that Mayor's Order 85-127
be rescinded.
Section 6 of the District of Columbia Administrative Procedure Act (DCAPA) D.C. Code § 1-1506 (1981) establishes requirements for "the adoption of any rule." Section 3(6) of the DCAPA
D.C. Code § 1-1502(6), defines a "rule" as "the whole or any part
of any Mayor's or agency's statement of general or particular
applicability and future effect designed to implement, interpret,
- 2 -
or prescribe law or policy or to describe the organization,
procedure, or practice requirements of the Mayor or of any
agency."
The District of Columbia Court of Appeals has stated
that "The DCAPA envisioned rulemaking as a quasi-legislative
process •••• " District of Columbia v. North Washington Neighbors,
Inc., 367 A.2d 143, 147, cert. denied 434 u.s. 823 (1976). As
the chief executive officer of the District, the Mayor has the
Charter duty "to supervise and be responsible for all financial transactions to insure adequate control of revenues and
resources." Sec. 448(a)(1) of the Self-Government Act, D.C.
Code § 47-310(1). Simple directives of the Mayor's to his
subordinates in the discharge of this duty are not quasilegislative: they do not apply directly to the public or
any segment of the publici they affect only subordinates
of the Mayor; they neither bestow nor deny rights, benefits,
services, or licenses on the publici they do not impose any
sanctions. The D.C. Office of Documents Rulemaking Handbook
§ 1.5 (1983) is consistent with this analysis.
It states:
DECIDING WHETHER A STATEMENT IS A RULE
.. . .
If there is ••• some doubt whether a particular
"statement" (or any part .or parts of a statement)
is a rule, ask these questions:
Does it affect the general public?
Does it affect a particular group or
segment of the public?
Does it affect employees of the
District government outside your
own agency?
Does the public or a part of the
public have to follow it in order
to receive a right, benefit, service,
payment, or license?
will a person be ~ubject to a penalty,
fine, loss of service or benefit, or
some other sanction or disadvantage
if it is not followed or if it is violated?
•
.
.
-
3 -
The Corporation Counsel has repeatedly opined that requirements that are wholly internal to the District government are
not subject to rulemaking.
See,~, 3 Ope C.C. 181 (June 29,
1978); and 3 Ope C.C. 95 (May 26, 1978), citing unpublished
opinion dated November 24, 1970. Accord: Wolston v. District of
Columbia, 291 A.2d 85 (D.C. 1972).
It should not be necessary to
state that the opinions of the Corporation Counsel are guiding
statements of law to be followed by all District officers and
employees in the performance of their official duties. See
Reorg. Ord. No. 50 (June 26, 1953), D.C. Code, Title lApp.
(1973).
Mayor's Order 85-127 is within the Mayor's authority (cited
above), and is valid in all other respects. Consequently, it
need not be rescinded.
Sincerely,
rU:/
)'/ffo_____
~:~
H. Suda
Acting Corporation Counsel, D.C.
cc: Avis Hawkins
Clifton Smith