Did the Council have to approve contracts over one million dollars for the Washington Convention Center Authority and other DC independent agencies, or only contracts run through the Mayor's office?

Plain-English summary

In 1995 Congress added a new subsection (b) to § 451 of the DC Home Rule Charter as part of the Financial Responsibility and Management Assistance Act (FRMA), the law that created the federal "control board" during the city's fiscal crisis. That new charter language says that "no contract involving expenditures in excess of $1,000,000 during a 12-month period may be made unless the Mayor submits the contract to the Council for its approval." The Council then has a 10-day window for any member to introduce an approval or disapproval resolution, plus a 45-day overall window before deemed approval.

Did this Council-review requirement apply to executive independent agencies like the Washington Convention Center Authority (WCCA), or only to contracts run by the Mayor and Mayoral subordinates? The Council's general counsel and the WCCA's general counsel disagreed sharply. WCCA pointed out that § 451(b) literally references "the Mayor" and not the broader phrase "Mayor or the appropriate officer or agent of the District government" used in the related § 203(b)(1). WCCA's argument: Congress drew a deliberate distinction.

The Corporation Counsel disagreed. He concluded the FRMA Act extended Council review to every covered contract by any "District government" entity, independent agencies included. Three textual moves did the work. First, § 451 sits in Title IV-D of the charter, the title governing all government-wide fiscal authority, not in a Mayor-only subsection. Second, § 449(b) of the charter (preserved by FRMA) gives the Mayor express power to examine and approve every District government contract, which means even an "independent agency" contract has to pass through the Mayor on its way to the Council. Third, the FRMA Act's stated purpose to "provide for full review of the financial impact of activities of the District government" would be hollow if the District's roughly twenty independent agencies (a substantial slice of the budget) were exempt.

The opinion also disposes of a procedural argument that the Council had not yet adopted the criteria § 451(b) requires. The Council had in fact adopted them, in D.C. Law 11-88, even though the criteria were placed in the Procurement Practices Act rather than as a freestanding § 451(b) instrument.

Currency note

This opinion was issued in 1996. 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. The FRMA control-board regime expired by its own terms once the District achieved four consecutive balanced budgets, and the Council's contract-review thresholds and procedures have been amended several times since 1996.

Historical context

Before 1995 the Council's claim to review District contracts had a rocky path. In Wilson v. Kelly, 615 A.2d 229 (D.C. 1992), the DC Court of Appeals struck down a Council law that purported to give the Council resolution-power approval over all million-dollar contracts. The court held that contracting was traditionally a Mayoral executive function, and the Council could not unilaterally assume approval authority by ordinary resolution.

FRMA changed the calculus. Because § 451(b) is a Charter amendment enacted by Congress, it operates above the Council-versus-Mayor separation-of-powers line that defeated the Council in Wilson. The Mayor's executive prerogatives could not be limited by Council ordinance, but they could be limited by an act of Congress amending the Charter itself.

Inside that new framework, the live fight was over which DC entities counted as "the Mayor" for purposes of § 451(b). The Convention Center Authority's lawyer argued that an entity authorized to contract under its own organic statute (D.C. Law 10-188) operated outside the Mayoral chain and therefore outside § 451(b). The Council's lawyer argued the opposite. The Corporation Counsel sided with the Council but on different reasoning: the Mayor's residual authority under § 449(b) to "examine and approve all contracts" of the District government was preserved by FRMA and meant that no DC contract escaped Mayoral involvement (and therefore none escaped Council review under § 451(b)).

What this meant at the time for independent-agency boards

Boards like WCCA, the Sports Commission, and the Lottery had to route covered contracts through the Mayor for transmission to the Council. The board's own contracting authority remained intact, but it could not produce an enforceable obligation against the District for a million-dollar-plus contract until the Council had its window.

What this meant for the Mayor's office

The Mayor's contract-approval authority became, in practice, a transmission mechanism for independent-agency contracts as well as Mayor-controlled contracts.

What this meant for the federal Authority (control board)

The Authority's review under § 203(b)(1) of FRMA followed Council approval, not preceded it. The Mayor submitted to the Council first, then to the Authority.

What this meant for the Council

The Council had to maintain published review criteria. D.C. Law 11-88 (the Council Contract Approval Modification Temporary Amendment Act) supplied them, and although the criteria sat in the PPA, the opinion confirmed they validly served as the § 451(b) implementing rules.

Common questions

Q: Why did Congress care which DC entities the Council reviewed?
A: Because FRMA's job was to repair the District's finances, and the Council was Congress's chosen elected body for fiscal oversight inside DC. Carving out 20 independent agencies would have left a large slice of the budget without elected-body review.

Q: What about leases?
A: A separate 1998 opinion (1998-07-08 Contracts and Leases) confirmed that "contract" in § 451(b) includes large leases. That conclusion was foreshadowed here.

Q: Did the Mayor's office have to "approve" every independent-agency contract personally?
A: No. The Mayor could delegate examination authority to subordinate staff. The opinion's footnote 11 reads § 203(b)(1)'s parenthetical phrase ("or the appropriate officer or agent of the District government") as accommodating that delegation, not as creating a Mayor-only exception.

Q: Could the Council shorten its 45-day review window?
A: Yes, but only by internal rule (forbearance), not by act. Section 451(b) sets the maximum window, and approval is deemed earlier if no member introduces a resolution within 10 days. A separate 1998 opinion treats this in more detail.

Citations

Statutes
- Self-Government Act §§ 412(a), 422(6), 449(b), 451(a)-(b)
- FRMA Act §§ 203(b)(1), 203(b)(4), 304(a), 305(5)
- Washington Convention Center Authority Act, D.C. Law 10-188
- DC Procurement Practices Act § 105A, D.C. Code § 1-1181.5a
- Acquisition of Space Needs Act, D.C. Law 8-257
- Council Contract Approval Modification Temporary Amendment Act, D.C. Law 11-88

Cases
- Wilson v. Kelly, 615 A.2d 229 (D.C. 1992) (Council cannot, by resolution alone, claim approval authority over Mayoral contracts)
- RPP Development Corp. v. District of Columbia, 645 A.2d 1078 (D.C. 1994) (lease as contract for charter purposes)
- Hazel v. Barry, 580 A.2d 110 (D.C. 1990) (independent agency not free of executive control)
- Buckley v. Valeo, 424 U.S. 1 (1976) (independent agency status under tripartite government)

Source

• Index page: https://oag.dc.gov/about-oag/our-structure-divisions/legal-counsel-division/opinions-attorney-general
• Original PDF: https://oag.dc.gov/sites/default/files/2018-02/Opinion-July-2014-Independent-Agency-Contracts.pdf

Source

• Index page: https://oag.dc.gov/about-oag/our-structure-divisions/legal-counsel-division/opinions-attorney-general
• Original PDF: https://oag.dc.gov/sites/default/files/2018-02/Opinion-July-2014-Independent-Agency-Contracts.pdf

License

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Original opinion text

<&outtnment of tlte IIi1itrirt of Qtolumbiu
OFFICE OF THE CORPORATION COUNSEL
.JUDICIARY SQUARE
441 FOU"TH ST.. N.W.
WASHINGTON. D. C.

20001

IN REPLY REFER TO:

May 10,·1996

I

OLC:WCW:pmw

OPINION OF THE CORPORATION COUNSEL
SUBJECT:

Is Council review required for proposed contracts
of independent agencies in excess of one million
dollars during a 12-month period?

Charlotte Brookins-Hudson
General Counsel
Council of the District of Columbia
John A. Wilson Building
1350 Pennsylvania Avenue, N.W.
Washington, D.C. 20004
Dear Ms. Brookins-Hudson:
This responds to your April 23, 1996 memorandum to me
requesting an opinion addressing the above-noted question.
Your April 23, 1996 memorandum states.that section 451(b) of
the District of Columbia Self-Government and Governmental
Reorganization Act (itSelf-Government Actlt), approved December 24,
1973, Pub.L. 93-198, 87 Stat. 803, as added by section 304(a) of
the District of Columbia Financial Responsibility and Management
Assistance Act of 1995 (ltFRMA Act lt ), approved April 17, 1995,
Pub.; L. 104-8, 109 Stat. 97, to be codified at D.C. Code § 11130(b), reasonably can be construed as requiring Council review
for all contracts, including those for executive independent .
agencies, that exceed one million dollars over a 12-month

'. ,

2

period. 1 You also have provided us with an April 16, 1996 letter
to Councilmember Jarvis from John Hill, Executive Director of the
Financial Responsibility and Management Assistance Authority
("Authority"). Turner Madden, General Counsel of the Washington
Convention Center Authority ("WCCA") provided us with memoranda
dated April 26 and April 30, 1996. These additional documents
take the contrary position, i.e., that such contracts by
executive independent agencies are not subject to Council review.
After weighing the various arguments and considering the
language of the Self-Government and FRMA Acts, their purpose,
structure, and legislative history, I conclude that Congress
intended that the Council review the proposed contracts of all
District government entities, including executive inpependent
agencies like WCCA, that exceed one million dollars during a 12month period (hereafter "covered contracts").
ARGUMENTS

Your April 23, 1996 memorandum argues that the term "Mayor"
in the new section 451(b) is ambiguous and, thus, that the rule
of construction against implying an exception to a statutory
requirement should be applied to bar an implied exception to the
requirement for Council review of covered contracts of executive
1

section 451(b) provides:
"(b) contracts Exceeding certain Amount. -

"(1) In General. -

No contract involving expenditures in
excess of $ 1,000,000 during a 12-month
period may be made unless the Mayor
submits the contract to the council for
its approval and the Council approves
the contract (in accordance with
criteria established by act of the
Council).

I' (2) Deemed Approval. - For purposes of paragraph (1), the
II

(A)

II

(B)

Council shall be deemed "to approve a
contract if during the 10-day period beginning on the date
the Mayor submits the contract to the Council,
no member of the Council introduces a
resolution approving or disapproving the
contract; or
during the 45-calendar day period beginning on
the date the Mayor submits the contr~ct to the
Council, the council does not disapprove the
contract."

3

independent agencies. Your April 23, 1996 memorandum also argues
in favor of such review based on the placement by Congress of the
requirement for Council review in part D of title IV of the SelfGovernment Act -- which governs all District government agencies
-- and, more particularly, in section 451 of the Self-Government
Act -- which "prior to [the FRMA Act] clearly pertained to all
contracts, including those by independent agencies." See page 2
of your April 23, 1996 memorandum.
On the other hand, the April 16, 1996 letter to
councilmember Jarvis from Mr. Hill argues that section 451(b)
excludes Council review of covered contracts of executive
independent agencies because section 451(b) IIby its terms is
limited to contracts proposed to be awarded by authqrity of the
Mayor" and the WCCA, which has express authority to enter into
contracts pursuant to section 203 of the Washington Convention
Center Authority Act of 1994, effective September 28, 1994, D.C.
Law 10-188, D.C. Code § 9-804 (1995), "is not within that PQrtion
of the District government which operates by authority delegated
by the Mayor." The same letter also argues, alternatively, that
even if the Council has the authority under section 451(b) to
review covered contracts of executive independent agencies, it
cannot now do so because it has failed to adopt the criteria
which section 451(b) requires for such review.
The memoranda from Mr. Madden offer different arguments
against Council review. The first memorandum argues that the
predecessor statutes seeking to make certain proposed contracts
in excess of one million dollars subject to Council review
expressly applied only to contracts proposed by the Mayor and
officials subordinate to the Mayor. 1 The same memorandum argues
that the legislative history of the FRMA Act reflects a
2 These laws are the Acquisition of Space Needs for District
Government Officers and Employees Act of 1990, effective March 8,
1991, D.C. Law 8-257, and the D.C. Procurement Practices Act of
1985 Council Contract Approval Procedures Amendment Act of 1992,
effective July 28, 1992, D.C. Law 9-136. section 3 of D.C. Law
8-257 added a new section 105(a) to the D.C. Procurement
Practices Act of 1985 ("PPA"), effective February 21, 1986, D.C.
Law 6-85, D.C. Code § 1-1181.5a, to require Council review, and
to authorize Council disapproval by resolution, of contracts over
one million dollars made by the Mayor or his subordinates. In
Wilson v. Kelly, 615 A.2d 229 (D.C. 1992), the D.C. Court of
Appeals struck down the emergency version of this law as beyond
the Council's resolution powers under section 412(a) of the Se~fGovernment Act. Section 2 of D.C. Law 9-136 substituted a new
section 105(a) of the PPA requiring the same Council review, but
authorizing Council disapproval by act as well as resolution.
This provision was not addressed by the decision in Wilson v.
Kelly.

· ,

4

congressional intent to limit Council review under section 4S1(b)
to contracts proposed by the Mayor and Mayoral subordinates. 3
The second memorandum argues that Congress drew an important
distinction between the use of "Mayor" alone in section 451(b),
and the use of "Mayor (or the appropriate officer or agent of the
District government)" in section 203(b) (1) of the FRMA Act, to be
codified at D.C. Code § 47-392.03(b) (1), which establishes the
general requirement for the Authority's review of all pollective
bargaining agreements and any other kind of contract, including a
lease, as specified by the Authority.4 In other words, since
3 The only comment in any committee report citeQ by Mr.
Madden to support this proposition simply states, "Certain
enhancements to the power of the Council in relation to the Mayor
are also included in the [FRMA] Act." See page 4 of the March
30, 1995 House Report 104-96 on H.R. 1345, the bill that beqame
the FRMA Act. However, the same committee report, on page 49,
cites section 304 of the FRMA Act as providing that "no contract
involving expenditures in excess of $1,000,000 during a 12 month
period may be made unless the Mayor submits the contract to the
Council for its approval and the Council approves the contract,"
without any suggestion that this requirement is limited to
Mayoral contracts. The only other legislative history cited in
Mr. Madden's April 26, 1996 memorandum is Delegate Norton's
statement, in the context of the Board of Education's budget
process, railing against "political influence in the operation of
the schools or in matters such as the awarding of contracts."
See 141 Congo Rec. H 4422 (April 7, 1995). However, the value of
this statement is undermined by the final version of the FRMA
Act, section 202(g) of which amends section 452 of the SelfGovernment Act to allow the Council and Mayor to specify the
purposes for which Board of Education funds may be spent during a
control. year.

4 Section 203(b) (1) provides:
"(b) Effect of Approved Financial Plan and Budget on
contracts and Leases. "(1)

Mandatory Prior Approval for certain Contracts
and Leases. "(A)

In General - In the case of a contract
or lease described in subparagraph
(B) which is proposed to be entered .
into by the District government during a
control year, the Mayor (or the
appropriate officer or agency of the
District government) shall submit the
proposed contract or lease to the

.,

-

5

"District government" is defined in section 305(5) of the FRMA
Act to include an executive independent agency, while "Mayor" is
not, and since Congress easily could also have included the
parenthetical phrase "or the appropriate officer or agent of the
District government" in the new section 45l(b) of the SelfGovernment Act, its failure to do so raises the necessary
inference that it intended section 45l(b) to be less expansive
than section 203(b) (l) of the FRMA Act and to exempt contracts
proposed by executive independent agencies from Counci~ review.
Finally, the second memorandum argues that the distinction
intended by Congress in this respect is buttressed by section
203(b) (4) of the FRMA Act, to be codified at D.C. Code § 47392.03(b)(4), which supplies the statutory mechanism for
submission of a Council-approved covered contract t~ the
Authority and references "Mayor" without using the above-quoted
parenthetical phrase. s
Authority for review under paragraph (1)
(and the Authority shall review the
contract or lease pursuant to paragraph
(2», and may not enter into the
contract or lease unless the Authority
determines that the proposed contract or
lease is consistent with the financial
plan and budget for the fiscal year.
"(B)

Contracts and Leases Described. - A
contract or lease described in this
subparagraph is "(i) a labor contract entered into
through collective bargaining; or
"(ii) such other type of contract or
lease as the Authority may specify for
purposes of this subparagraph."

5

section 203(b) (4) provides:
il(b)

Effect of Approved Financial Plan and Budget on
Contracts and Leases. "(4)

Special Rule for Contracts
Subject to
Council Approval. - In the case of a
contract which is required to be submitted
to the Authority under this SUbsection and
which is subject to approval by:the Council
under the laws of the District of Columbia,
the Mayor shall submit such contract to the
Authority only after the council has
approved the contract."

6

ANALYSIS

Although for reasons other than those set out in your letter
of April 23, 1996, I agree that covered contracts by independent
agencies must be submitted to the Council for its review. I
disagree with your argument that the word "Mayor" as used in
section 451(b) is ambiguous; this term is expressly defined in
section 103(6) of the Self-Government Act, D.C. Code § 1-202(6),
to mean Mayor as provided in Title IV of that act. Nor is the
term "contract" in that section unclear, given the coUrts' use of
it to cover any binding exchange of promises, including a lease,
in the context of the Mayor's contracting powers under the SelfGovernment Act. See ~., RPP Development Corporation v.
District of Columbia, 645 A.2d 1078, 1082 (D.C. 199~).
However, contrary to the arguments of Mr. Hill and Mr.
Madden, the scope of sedtion 451(b) is not limited in any way and
plainly applies to every covered contract by an entity of the
"District government," which includes the District's executive
independent agencies. 6 This express coverage must be construed as
admitting of no exceptions unless the FRMA Act elsewhere clearly
so provides. See, ~., 2A Sutherland Statutory Construction §
47.11 (5th ed. 1992). A governmental entity enjoys no inherent
freedom from executive or legislative control in particular
areas, such as budgeting or contracting, solely because of its
status as an independent agency. See, ~., Hazel v. Barry, 580
A.2d 110, 113-114 (D.C. 1990) (upholding the Mayor's fiscal
control over, and unilateral authority to reduce the budget for,
a statutory independent agency).7 See also H.R. Subcommittee on
6 Mr. Hill and Mr. Madden concede that WCCA and similar
agencies, while "independent", remain part of the District
government. Any independent agency, like WCCA, that administers
a l~w in a tripartite governmental system is an executive
independent agency. See, ~., Buckley v. Valeo, 424 U.S. 1,
135-141 (1976) (per curiam). Even if WCCA is viewed as having
less connection with the District government than the typical
independent agency, the fact that its statutory charter
authorizes it to accept money from the Dis~rict, D.C.
Code § 9-804(7), and that section 305(5) of the FRMA Act defines
"District government" to include any entity authorized by statute
to receive money from the District, leave no doubt that WCCA is
part of the District government for purposes of section 451(b).

: 7 section 2 of the D.C. Emergency Deficit Reduction Act of
1991, approved August 17, 1991, Pub. L. 102-106, 105 Stat. 539 J
. added section 453 to the Self-Government Act, D.C. Code § 47"';
304.1 (1995 Supp.), to require joint Council and Mayoral approval
of any reduction in the appropriated budget of a District
independent agency. This amendment, however, does not affect the
proposition that an independent agency of the District government

7

District of Columbia Government operations, Markup Session for
Subcommittee Discussion Draft No.2, 93rd Cong., 1st Sess. 612
and 618 (June 13, 1973), set forth in Home Rule for the District
of Columbia (December 31, 1974) (remarks of Chairman Brock Adams
recognizing that even the independent agencies under title IV-F
of the Self-Government Act are not completely free of control by
the Council and the Mayor). Hence, the observation by Mr. Hill
that WCCA's contracting authority arises from Council legislation
rather than from Mayoral delegation is irrelevant to ~he present
issue. 8
The view that section 451(b) encompasses independent
agencies is supported by its inclusion in title IV-D of the SelfGovernment Act, which grants the Executive Branch gqvernment-wide
fiscal and planning authority, in accordance with the strong
executive form of government envisioned by the drafters of the
Self-Government Act. See, ~., H.R. Subcommittee on District of
Columbia Government operations, Full committee Markup SessiC?n,
93rd Cong., 1st Sess. 1049 (July 17, 1973), set forth in Home
Rule for the District of Columbia (December 31, 1974) (remarks of
Chairman Adams). The amendment of section 451 to include the
Council review authority must be considered as especially
significant, because, before the FRMA Act, section 451 contained
a provision, now designated as sUbsection (a), which clearly

may remain subject to control by the councilor the Mayor in
particular areas.
8 Local courts considering the scope of the power of the
former Commissioners (now the Mayor) under the comparable
provisions in section 2 of An Act To grant additional powers to
the commissioners of the District of Columbia, and for other
purposes, approved December 20, 1944, 58 Stat. 821, D.C. Code §
1-339 (1992), have recognized a distinetion between a government
contracting officer's making a contract that is enforceable
against a private party without the requisite Mayoral approval,
on the one hahd, and the need for Mayoral ~pproval to create an
enforceable obligation under the contract against the government,
on the other. See, ~., Singleton v. District of Columbia, 198
F.2d 945, 947-948 (D.C. Cir. 1952), cited approvingly in District
of Columbia v. McGregor Properties, 479 A.2d 1270, 1273 (D.C.
1984). Thus, there is no neeessary conflict between the
Council's grant of contracting authority to the WCCA and
Congress's requirement that certain of the WCCA's one-million-.
plus contracts be approved by the Council before the:Mayor
submits them to the Authority. In any event, Congress's law
would "trump" the Council's law if they were in conflict on this
point. See, ~., District of Columbia v. A.F.G.E., 619 A.2d
77,85 (D.C. 1993).

8

authorized Council review of multi-year contracts for all
District government entities, including independent-agencies. 9
The view that section 4S1(b) encompasses council review of
covered contracts of independent agencies is further supported by
the following: (1) the FRMA Act preserves the Mayor's express
authority under section 449(b) of the Self-Government Act, D.C.
Code § 47-312(b) (1990), to "examine and approve all contracts,
orders and other documents by which the District government
incurs financial obligations" 10; and (2) section 451(b) requires
a Mayoral decision to submit such a contract to the Council
before it can become effective by virtue of approval by the
Council and, in turn, approval by the Authority. Removing the
Council from this contract-approval process also wo~ld have the
effect of removing the Mayor from it, contrary to the Mayor's
eXpressly preserved role under section 449(b) of the SelfGovernment Act and the rule of statutory construction that two
statutes relating to the same thing should be construed in .
harmony so as to give effect to every provision in them. See,
~., Morton v. Mancari, 417 U.S. 535, 549-551 (1974); District
of Columbia Police Department v. Perry, 638 A.2d 1138, 1144 (D.C.
1994); 2B Sutherland Statutory Construction,_ § 51.02, p. 122 (5th
ed. 1992).

9

section 451(a) provides:
"No contract involving expenditures out of an
appropriation which is available for more
than one year shall be made for a period of
more than five years unless, with respect to
a particular contract, the Council, by a twothirds vote of its members present and
vot-ing, authorizes the extension of such
period for such contract. Such contracts
shall be made pursuant to criteria
established by act of the Council."

The legislative history of the this provision shows that it is
intended to cover "all contracts entered into by the city." See
H.R. Report No. 93-482, 93rd Cong., 1st Sess. 30 (September 11,
1973). . 10 In section 302 (a)
of the FRMA Act, Congress amended the
Sel-f-Government Act to transfer to the new Chief Financial Officer,
during a control year, certain of the Mayor's fiscal powers under
section 449 of the Self-Government Act, including the certification
of invoices for payment and the performance of internal accounting
audits. But Congress deliberately left intact -the Mayor's power to
examine and approve all District government contracts under
subsection;(b) of section 449.

9

An interpretation of section 451(b) that includes a role for
the Council, as well as the Mayor, in the review process for
covered contracts of independent agencies also would be in
harmony with other relevant provisions of the FRMA Act, including
section 203(b) (1), to be codified as D.C. Code § 47-392.03(b) (1)
(establishing the general right of the Authority to review
contracts) and section 203(b) (4), to be codified as D.C. Code §
47-392.03(b) (4) (establishing the rule for Mayoral submission of
Council-approved contracts to the Authority). It woul4 accord,
as well, with the statement in the legislative history that
n[c]ertain enhancements to the power of the Council in relation
to the Mayor are also included in the [FRMA] Act." See H.R.
Report ~o. 104-96, 104th Cong; 1st Sess. 4 (March 31, 1995).
Such an interpretation also is essential to one of tpe FRMA Act's
stated purposes, namely, to provide for full review of the
financial impact of activities of the District government before
such activities are implemented, section 2(b)(8), to be codified
as D.C. Code § 7-134a.01(b) (8). Otherwise, large contract.
expenditures by the District's approximately 20 independent"
agencies -- a significant part of the District's annual budget -would entirely escape such review by the District's elected
leadership. As described above, the plain language, purpose,
structure and legislative history of the FRMA Act, taken together
with the Self-Government Act, proscribe such an inexplicable
result.

Mr. Madden nonetheless contends that, in the FRMA Act: (1)
Congress intended only to give its approval to the previous
council laws requiring council review of covered contracts
proposed by the Mayor or Mayoral subordinates; and (2) Congress
necessarily intended an important distinction when it used the
parenthetical phrase "or the appropriate officer or agent of the
District government" in section 203 (b) (1) (involving the
Authority's general right to review District government
contracts) but not in section 203(b) (4) (involving Mayoral
sUbmiss"ion of Council-approved contracts to the Authority) or
section 4S1(b) of the Self-Government Act. Neither of these
contentions has merit.
There is no evidence, in the language.of the FRMA Act or in
its legislative history, that Congress intended the effect of
section 4S1(b) to be as narrow as the previous Council laws,
which merely amended the PPA -- a statute applicable only to the
Mayor and subordinate agencies. Had such a narrow result
actually been intended, Congress could have achieved it simply by
enacting the Council's amendments to the PPA that the D.C. Court
of Appeals struck down in wilson v. Kelly, 61S A.2d 229 (D.C. .
1992). Instead, Congress chose to add to the Distriot's Charter
which already gives the Council government-wide contract-approval
authority. Nor does Mr. Madden mention that section 4S1(b)
covers Council approval of District government leases, which
previously had been subject to Council approval where the lease

10

involved any building for the District government, or any
building to house a program funded by the District government,
and exceeded one million dollars. See section 2(b) of the
Acquisition of Space Needs For District Government Officers and
Employees Act of 1990, effective March 8, 1991, D.C. Law 8-257,
D.C. Code § 1-336(c) (1992). These considerations support, rather
than undermine, the broader Congressional aim under section
4S1(b) as identified here.
The additional contention by Mr. Madden that Congress
necessarily intended an important distinction when it used "or
the appropriate officer or agent of the District government" in
section 203(b) (1) of the FRMA Act, but not in section 203 (b) (4)
or section 451(b) of the Self-Government Act as addep by the FRMA
Act, is similarly flawed. Given the other indicia of
Congressional intent already discussed, the only reasonable
interpretation of the quoted phrase is that contracts in an
amount less than one million dollars during a 12-month period
that are proposed by an independent or subordinate agency may be
submitted directly to the Authority, without Council review, by
the Mayor or the appropriate staff of the agency (~., where the
Mayor has delegated his contract-approval authority to
appropriate staff of the agency). Mr. Madden's interpretation of
the quoted phrase-- which is only a parenthetical expression -would unnecessarily convert it into a major exception, contrary
to the rules of statutory construction described earlier. ll
The remaining arguments made by Mr. Hill and Mr. Madden -i.e., that the Council has failed to enact the contract review
criteria required by section 4S1(b) and, consequently, that it
currently lacks authority to review any proposed 12-month
11 The incongruity of Mr. Madden's interpretation of section
203 (b) (1) is highlighted by the fact that, if the Mayor were to
delegate all his contract-approval authority to executive
subordinate agencies, the latter·-- like the executive independent
agencies under Mr. Madden's theory -- then would be "appropriate"
.entities to submit proposed 12-month contracts exceeding one
. million dollars directly to the Authority ut:lder section 203 (b) (1) ,
which is not limited to independent agencies, thereby bypassing the
Council review which the WCCA General Counsel concedes is required
for such contracts pursuant to section 451(b).
The only
distinction Congress drew concerning contracts subject to Council
review is in section 4S1(b), which differentiates on the basis of
size, not source. Indeed, to the extent the parenthetical phrase
"or the appropriate officer or agent of the District government" :in
.section 203 (b) (1) connotes a person with contracting authority
delegated from the Mayor, Congress did not need to use the same
phrase in section 451(b), given the Mayor's existing right to
delegate such authority under section 422 (6) of the Self-Government
Act.

· .. ...
.

...

-'

11

\

contract in excess of one million dollars -- may be disposed of
easily. The Council, in fact, has adopted such criteria.
See,
~., the Council Contract Approval Modification Temporary
Amendment Act of 1995, effective February 13, 1996, D.C. Law 1188. While these criteria are expressed as an amendment to the
PPA, the reference in D.C. Law 11-88 to a "lease worth over
$1,000,000 for a 12-month p'eriod" shows the Council's intent to
cover contracts beyond those within the scope of the PPA.
In any
event, section 451(b) does not bar the Council from enacting
contract review criteria as part of the PPA and then using such
criteria to review contracts proposed by independent agencies.
The interpretation of D.C. Law 11-88 advocated by Mr. Hill and
Mr. Madden would unnecessarily halt further review of any
proposed 12-month one-million-dollar-plus contracts by the
Authority, whose right to review such contracts, under section
203(b) (4) of the FRMA Act, is conditioned on their prior approval
by the Council.

Sincerely,

?6-~ f(uiJ

Charles F.C. Ruff

Corporation Counsel

cc: John W. Hill, Jr.
Executive Director
District of Columbia Financial Responsibility
and Management Assistance Authority
Turner D. Madden
General Counsel
Washington Convention Center Authority