Failure to Move Spurs Legal Debate
Council Members Seek to Close Apparent Loophole in Residency Law

By Yolanda Woodlee
Washington Post Staff Writer
Sunday, September 2, 2007

D.C. Council members are upset that Mayor Adrian M. Fenty's top legal adviser does not plan to move into the city, setting up a possible confrontation over the District's residency law.

Some council members said that Peter Nickles, the mayor's general counsel, appears to be taking advantage of a loophole in the law by declining to move into the District from Great Falls, where he has lived for 44 years. Fenty (D) has defended Nickles's decision, saying the general counsel's position is not covered by the residency requirement.

Council Chairman Vincent C. Gray (D) said he respects Nickles, a veteran corporate lawyer with a long record of public service. But, Gray emphasized, Nickles's choice of residence is "symbolic and makes a powerful statement."

"This is not about one's legal skills," Gray said. "This is a question about whether people in leadership positions should live in the District. Once it starts, where does it stop?"

The dispute marks the latest flare-up in what has been a hot issue in the District, particularly during the past decade when two bills have been introduced to compel D.C. employees to live in the city. As a council member, Fenty supported both laws, including one that covers "excepted and executive service" employees.

The council tightened the residency law in 2002, when Inspector General Charles C. Maddox was accused of violating it.

The issue arose again in June when the council voted to give an employment advantage -- preference points -- to District residents searching for D.C. government jobs. And now they say they plan to close what some describe as a loophole that may allow Nickles to maintain his longtime address in Northern Virginia, a home he does not want to give up.

Nickles was among the first appointments Fenty made after his election as mayor. In addition to his experience as a partner at Covington & Burling LLP, Nickles had done much pro bono work on behalf of the homeless, the mentally retarded, juvenile offenders and D.C. prisoners. In that advocacy role, he often found himself fighting the District in court. Fenty viewed him as an ideal choice to spur reforms.

The mayor said Nickles, whose annual salary is $160,000, is exempted from the residency law because he is a lawyer in excepted service.

"Excepted-service attorneys, by statute, do not have a residency requirement," Fenty said in an e-mailed response to questions on the issue. Excepted-service employees are political appointees who serve at the mayor's behest.

Several council members said they believe the law makes it clear that residency is a must for the mayor's Cabinet. Nickles, like Attorney General Linda Singer, is not exempt, they said. Singer lives in Northwest Washington. Although council members said they recognize Nickles's legal ability and his close ties to the mayor, some were against giving him a waiver.

"When one gets an exception, everybody wants an exception. Where do you draw the line?" said council member Yvette M. Alexander (D-Ward 7).

Council member Marion Barry (D-Ward 8) said he would fight any request for a waiver "to the death." He said Nickles had told him he planned to move into the city.

When he accepted the job, Nickles said he intended to move. Top officials typically have 180 days after taking office to establish a D.C. residence, and Nickles did not initially claim any exceptions. For Nickles, who took over at the start of the Fenty administration, the deadline appeared to be the end of June. He said he was granted a 90-day extension, until Sept. 30.

But after further discussions with his wife, Nickles said, he decided not to abandon the home he has lived in since 1963. And he said he does not want to rent an apartment for the sake of setting up a residence in the city.

"I could not in good faith, given the fact that I have for 44 years lived in one place, go through the facade of renting an apartment and pretending that I live in the District," Nickles said. "I wasn't going to be party to the attempt to fake residency."

Nickles said he asked council member Carol Schwartz (R-At Large), whose committee has oversight over the mayor's office, about getting a waiver.

Schwartz said she turned down the request. "I said, 'Peter, I'm not going to give you a waiver. There's no reason you can't get an apartment in the city and pay your taxes in the city. Being in such a top-level position, it is very important that you set an example,' " Schwartz said.

Soon after, Nickles said, the D.C. attorney general's office informed him of a law pertaining to "excepted-service attorneys" that doesn't require a D.C. address.

Nickles went back to Schwartz, who did not back down. This time, Schwartz said, she told him that he needed to set the right tone by moving to the District. "Just because you can -- because there's some fluke in the law -- doesn't mean you should," Schwartz recalled saying.

"This law has to be clarified, and if there's a loophole, it has to be closed," Schwartz said last week.

In the past, most Cabinet members, including senior advisers and agency heads, have lived in or moved into the city.

Years ago, Chief Financial Officer Natwar M. Gandhi bought a condominium near the University of the District of Columbia while his wife stayed in their family home in Silver Spring. More recently, Police Chief Cathy L. Lanier moved from Anne Arundel County to Northeast.

The law was strengthened five years ago after council members accused Maddox, then the inspector general, of spending more time at home with his wife in Prince George's County than at his Logan Circle apartment. Maddox said he spent two nights a week in the District with his adult son in a family-owned condominium.

As a result of Maddox's claims, then-council member Vincent B. Orange Sr. (D-Ward 5) introduced a bill that required excepted and executive-service employees to make the District "their principal place of residence."

The law calls for officials to show certain documents, such as a driver's license and voter registration card. But it does not specify how much time officials must spend there. At the time, many mayoral appointees were maintaining part-time residences in the city and primary homes in the suburbs.