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

Mayor's Order 85-127 set procedures District officers and employees had to follow when soliciting or accepting monetary donations to the District for governmental purposes. The Office of Documents refused to publish the order. Its position: the order tries "to do what must be done by rulemaking" under the DC Administrative Procedure Act. The Office of Documents said the order had to be rescinded.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 Mayor's Order 85-127 was not subject to rulemaking, was legally valid in all other respects, and did not need to be rescinded.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):

1. Does it affect the general public?
2. Does it affect a particular group or segment of the public?
3. Does it affect employees of the District government outside the issuing agency?
4. Does the public or a part of the public have to follow it to receive a right, benefit, service, payment, or license?
5. Will a person be subject to a penalty, fine, loss of service or benefit, or other sanction if it is not followed?

The opinion said these Handbook questions were consistent with its analysis; it did not turn them into a mechanical test or answer each one for Mayor's Order 85-127. The order directed all District officers and employees on soliciting and accepting monetary donations. The Corporation Counsel concluded it was not subject to rulemaking.

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.

Currency note

This opinion was issued in 1986. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: How do I tell if my proposed directive is a "rule" requiring DC APA rulemaking? A: The opinion distinguished quasi-legislative action from simple directives to the Mayor's subordinates and quoted five questions from the Office of Documents' Rulemaking Handbook as consistent with that distinction. It did not say that one "yes" answer automatically requires rulemaking.

Q: Can the Mayor issue a Mayor's Order that affects another agency? A: The order at issue applied to all District officers and employees. The Corporation Counsel concluded that it was an internal directive within the Mayor's financial-supervision authority and did not require rulemaking. The opinion did not separately decide the effect of the Handbook's question about employees outside the issuing agency.

Q: Did the opinion decide what happens if an order requiring rulemaking skips it? A: No. It concluded that Mayor's Order 85-127 did not require rulemaking and was otherwise legally valid. It cited District of Columbia v. North Washington Neighbors for describing rulemaking as a quasi-legislative process, not for a ruling on enforceability of this order.

Q: Does this analysis apply to agency heads issuing internal directives? A: The quoted DC APA definition covers a Mayor's or agency's statement. This opinion decided only whether Mayor's Order 85-127 required rulemaking; it did not decide the status of a particular agency directive.

Q: What about "interpretive" Mayor's Orders that explain how DC reads a statute? A: The opinion quoted the DC APA's definition of a rule, which includes statements designed to "implement, interpret, or prescribe law or policy." It did not decide the status of a specific interpretive order.

Q: Does the opinion establish when a Mayor's Order needs rulemaking today? A: No. It analyzed Mayor's Order 85-127 under the law as understood in 1986. It did not address later changes to the DC APA or the Handbook.

Background and statutory framework

Section 6 of the DC Administrative Procedure Act (DCAPA, D.C. Code § 1-1506) establishes requirements for adopting a rule. The opinion addressed whether Mayor's Order 85-127 was subject to those requirements.

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 opinion quoted five questions from the Office of Documents' 1983 Rulemaking Handbook and said they were consistent with its analysis. It did not answer all five for Mayor's Order 85-127. It concluded that the order did not require DCAPA § 6 rulemaking.

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 §§ 1-1502(6), 1-1506
• 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,

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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?

•

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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_____
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H. Suda
Acting Corporation Counsel, D.C.

cc: Avis Hawkins
Clifton Smith