By Tim Craig and Nikita Stewart
Washington Post Staff Writer
Sunday, October 25, 2009; C01
D.C. Mayor Adrian M. Fenty has escalated a bitter feud with council members by renaming an interim head of the Department of Parks and Recreation, three weeks after the council rejected the nominee as unsuitable for the position.
Fenty's decision sets up a confrontation between the mayor and the council, and the fighting represents a major test of Home Rule as council members accuse Fenty of ignoring their role in the legislating and governing processes.
Several council members said they want Ximena Hartsock, whom they rejected 7 to 5 on Oct. 6, to leave the position immediately. One plans to ask the chief financial officer to withhold her salary. But Fenty administration officials said Hartsock will remain in charge until they find a suitable replacement.
Fenty reappointed Hartsock as interim director Friday, a day after it was revealed that $82 million in contracts to build parks, ballfields and recreation centers were awarded illegally without council approval. Most of the work went to firms with political or personal ties to Fenty.
"It's almost becoming a lawless administration," said council member Mary M. Cheh (D-Ward 3). "They seem to have no limits or restraint on what they are willing to do."
Attorney General Peter Nickles, who often speaks on behalf of the administration, said Cheh "has no idea what she's talking about."
"For her to make comments like that, it's stupid," he said. "She's an angry woman."
The controversy comes in a year in which Fenty and the council have squabbled over who gets baseball tickets, appointments to boards and commissions, and whether administration officials have to abide by council subpoenas. Fenty also regularly refuses to send representatives to council hearings.
Ed Lazere, executive director of the D.C. Fiscal Policy Institute, has watched the relationship between the administration and council. "The mayor may think he needs to use his powers as aggressively as he can, but when you alienate people who pass legislation, it may not serve you well," he said.
Fenty and Hartsock did not respond to requests to comment through their spokesmen.
Hartsock has been serving as interim director of the agency since April, but the council voted not to confirm her, saying the former principal of Ross Elementary School was not qualified to lead the agency.
Members also accused Hartsock of violating the law by following through with Fenty's plans to privatize day-care services.
According to D.C. law, a mayoral appointee to lead an agency can serve up to 180 days while awaiting confirmation. With Hartsock's interim appointment expiring next week, Fenty's order Friday appoints her for up to six more months.
Nickles said Fenty decided to keep Hartsock in her position while he searches for another nominee to present to the council. Nickles said the law allows Fenty to reappoint Hartsock for "a reasonable time period to assure government continuity."
"The mayor and his colleagues will be seeking to name a new acting director as soon as we find someone," Nickles said.
But council member Harry Thomas Jr. (D-Ward 5), chairman of the Committee on Libraries, Parks and Recreation, accused Fenty of having a "blatant disrespect for the laws of the District of Columbia."
"This is truly government at its worse," Thomas said. "What would make the mayor believe his judgment is better than a whole body that reviewed this and decided [Hartsock] is incompetent?"'Clearly it's legal'
Thomas led the fight against Hartsock's confirmation and said he will ask the chief financial officer to withhold Hartsock's pay. Thomas is also considering emergency legislation to remove Hartsock.
In battling over the legality of Fenty's decision, Nickles and Thomas appear to be leaning on different sections of the Confirmation Act of 1978.
Aides to Thomas note that the code says, "No person shall serve in an acting capacity in a position that is required by law to be filled by Mayoral appointment without the advice and consent of the Council."
However, another section of the code cited by Hartsock supporters suggests she can remain in a "holdover position" for up to 180 days after the expiration of her term.
"Clearly it's legal," Nickels said.Housing Authority
Adding to the controversy, Thomas said Hartsock shares the blame in the decision to direct the park projects to the Housing Authority. By law, the council must approve contracts that exceed $1 million
Clark E. Ray, who was fired by Fenty and replaced with Hartsock, said he used the Housing Authority's Construction Services Administration to complete some projects before he left his post. But he said all of the expensive jobs went through the council. "We made sure we did everything by the book," he said. "Everything that went over $1 million went before the council."
On Friday, Nickles said the contracts in question must be submitted to the council. But he said the council should be wary of rejecting the contracts, which he said, were competitively bid. "If they reject them . . . they'll have to answer to the voters," said Nickles, noting that several projects have broken ground.
Fenty is up for reelection next year, and at least two council members are considering running against him. Few expect the tension to subside.
"We all need to find a way to repair this," said council member Jim Graham (D-Ward 1). "The current course is not the route, but I am not sure what is. This is an ever escalating situation."