February 17, 2012

Those attempting to follow the D.C. Lottery contract brouhaha can be forgiven if they are confused by questions of who did what to whom and, equally important, what, if anything, was done wrong.

This column is an attempt to help sort out the players and to focus on what’s at stake.

Key names to remember:

●Eric W. Payne, a former director in the city’s Office of the Chief Financial Officer;

●Natwar M. Gandhi, the chief financial officer;

●D.C. Council members Jim Graham (D-Ward 1) and Jack Evans (D-Ward 2);

●D.C. Mayor Vincent C. Gray (D); and

●The 2008 lottery contract winner, Intralot, and its joint venture partner, W2 Tech (also known as W2I), a minority firm led by Warren C. Williams Jr.

There are other players in this slimy saga, but these are the major protagonists.

Payne was the CFO’s director of contracts from 2006 until January 2009, when he claims he was wrongfully terminated for reporting abuses of authority and for refusing to carry out an illegal order to terminate and rebid a lottery contract that had been awarded in January 2008 to Intralot and W2 Tech.

Payne sued the city and Gandhi, seeking judicial review of his termination. Payne also sought to depose Graham, Evans and Gray (who was chairman of the D.C. Council at the time of the contract award) regarding their communications with Gandhi about the lottery contract.

Why?

Payne contends, through a sworn affidavit filed in federal court, that Graham, Evans and Gray knew about his wrongful termination. Payne also said the three politicians had direct communications with Gandhi and himself regarding a change to the contract award.

Graham, Evans and Gray, through their D.C. government lawyers, have resisted giving depositions in the lawsuit on the grounds that council members have “an absolute legislative privilege from being compelled to testify about actions taken within the scope of their legislative duties.” They add that their legislative duties included “efforts to gather information, deliberations and votes related to the contract.”

Payne, through his lawyer Donald Temple, counters that the politicians were doing nothing of the sort. Temple said that the council members’ actions “were inappropriate attempts to influence or change the contract outcome.”

Gray, Graham and Evans have refused to respond to questions about this matter, citing the pending litigation and the advice of counsel.

There are, however, good reasons to hope that the federal judge hearing Payne’s suit will compel the three to be deposed under oath about their roles in the lottery contract award.

Payne’s affidavit states that after he met with Gandhi and others in Gray’s office in May 2008, “Gray asked Gandhi to remain behind and they met privately.”

Immediately after that meeting, the affidavit continues, Gandhi summoned Payne into a meeting with staff and “repeatedly cajoled and exhorted him to cancel the proposed lottery contract and reopen the process.”

Payne “resisted and advised the CFO that there was no legal basis upon which to do so and that the contract’s cancellation was legally impermissible,” the affidavit states, adding that Gandhi responded, “To continue with the proposed award would only antagonize the Chairman.”

In a court document filed on Gray’s behalf in opposition to a deposition, Gray said he didn’t have a “private meeting” with Gandhi and that any meeting with Gandhi was to determine how he would vote on the lottery contract. Gandhi, in a sworn deposition conducted in November, refuted Gray and said it was a “private meeting.”

And Evans?

Payne said in his affidavit that he was “repeatedly urged to re-bid” the lottery contract during an April 2008 meeting in Evans’s office with Gandhi and others. Evans, the affidavit states, said, “Everyone loves Intralot. It’s Warren Williams that people have a problem with.” He then asked: “Can’t we just get rid of Williams . . . and replace him with” the previous lottery contractor?

“Payne responded, ‘It was legally impermissible.’ Evans then angrily retorted, ‘Why not?,’ with Gandhi also questioning, ‘Yeah, why not?”

And Graham? The day after the meeting in Evans’s office, Graham publicly voiced during a council hearing his opposition to a lottery contract involving Williams. Payne stated under oath that, in a subsequent meeting with Graham, the council member said, “ ‘He had a bone to pick with [Payne]. Graham further stated, ‘I’ve discussed it with Gandhi and he’ll discuss it with you. Just know that I’m not happy.’ ”

District voters shouldn’t be happy, either, with the legislative-immunity dodge.

Whistleblower retaliation and inappropriate attempts to influence or change contract outcomes are serious allegations.

Beyond the allegation of improper influence in the lottery contract, Graham is also accused of using his influence on that contract to tilt the result of a competition for a multimillion-dollar Metro development contract. The Post editorial page has detailed Graham’s behavior at length. Let’s hope that the U.S. attorney for the District of Columbia reads this newspaper.

Gray, Graham and Evans should be compelled to testify under oath about what they did or didn’t do with respect to Eric Payne and the lottery contract.

The CFO awarded the contract to the Intralot and W2 Tech joint venture on Jan. 24, 2008. The D.C. Council, which has the final say on all contracts of $1 million or more, rejected it on Dec. 16, 2008. But what does the law mean among conniving pols?

kingc@washpost.com