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D.C. parks contracts are legal after all, city official says

By Nikita Stewart
Washington Post Staff Writer
Tuesday, October 27, 2009; B01

D.C. Attorney General Peter Nickles said Monday that any past and current contracts awarded without the approval of the D.C. Council are "legal and binding," three days after he had said the D.C. Housing Authority broke city law by awarding $82 million worth of such contracts, most of them to firms with personal and political ties to Mayor Adrian M. Fenty (D).

The apparent reversal enraged council members already angered by what they see as the Fenty administration's continued disregard for the council's role in legislating and overseeing city agencies. Council members also criticized Nickles's judgment as the city's top legal official.

"That's classic Peter Nickles. This is just bad government 101," said council member Kwame R. Brown (D-At Large), who said the council could be forced to sue the Fenty administration to block the contracts.

Nickles's latest opinion came in a letter to the interim executive director of the D.C. Housing Authority, the agency that recently awarded a dozen contracts for the construction of parks, recreation centers and ballfields. The Fenty administration used the housing agency as a development vehicle for the projects.

City law requires that any contract in excess of $1 million be approved by the council. Officials with the housing authority, which is independent of the city government, did not think that law applied to its procurement process. The attorney general told housing authority officials Friday that the law did apply and that they should submit the contracts to the council.

But in an interview Monday, Nickles said his opinion should apply to "future contracts." He cited legal problems with nullifying past and current agreements and said the authority had a long-standing practice of awarding contracts without council approval. "They did not understand until the law was made clear to them," he said Monday.

Council member Harry Thomas Jr. (D-Ward 5), chairman of the Committee on Libraries, Parks and Recreation, dismissed Nickles's explanation.

"What he's doing is backpedaling on his opinion Friday. They're trying to protect the people who have already received the contracts," Thomas said. "I guess we're just going to have to go to court."

Council Chairman Vincent C. Gray (D), who consulted the council's general counsel, said he was "perplexed" and "puzzled" by Nickles's opinion. "For the attorney general to give a carte blanche green light to these questionable contracts, even before council hearings or any legislative action, is inappropriate and not in compliance with my reading of the law. If they are required to be submitted, we make no distinction between the past and the future. We expect to receive these contracts," he said.

Nickles said his opinion Monday "clarified" his opinion Friday. "They're perfectly consistent," he said. "The mayor's not happy. The council's not happy, but I'm following the law. This is not an easy job. I call them how I see them."

Four council members, including Brown and Thomas, are holding a public meeting Friday and have requested that City Administrator Neil O. Albert, Chief Financial Officer Natwar M. Gandhi and other members of the administration appear to explain how the contracts were awarded.

Banneker Ventures, owned by Omar Karim, Fenty's fraternity brother, was named construction manager on all 12 projects. His firm partnered with Regan Associates, a major contributor to the mayor's reelection campaign.

Nickles and officials at the Housing Authority said the contracts were competitively bid.

Privately, Fenty supporters questioned whether Nickles hastily issued his opinion Friday and erred in his statements about the contracts.

The city could have a major legal problem on its hands, said experts in procurement law. They said the contracts can be considered "void ab initio," meaning they are voided because they violated city law.

The city has faced the issue previously, said Keith D. Coleman, a former legal adviser in the city's Office of Contracting and Procurement. He said the city could void the contracts and pay vendors for services rendered. The vendors "didn't know the District government didn't follow procedure," Coleman said. "They're innocent bystanders, so to speak."

Coleman, a lawyer at Reed Smith, said he recommends ratification, a process in which the contracts get approval after they were already awarded.

Gray said he was aware of the practice, which he said quashes Nickles's opinion that the Housing Authority contracts do not have to go before the council.

The controversy over the contracts comes as Fenty has clashed with local lawmakers by reappointing acting parks director Ximena Hartsock, whom the council rejected in a 7 to 5 vote Oct. 6. Fenty signed an executive order Friday that will keep Hartsock in place for 180 days while he looks for a replacement. Nickles upheld the mayor's order, although some council members said it was illegal.

The council is asking Gandhi to withhold Hartsock's salary. Thomas said he will probably ask Gandhi to also withhold money from the Housing Authority to pay the awarded contracts.

In his first public appearance with Hartsock since he signed the executive order, Fenty took questions from reporters Monday after an announcement about a city program to open recreation centers to public school students who will be out of school Thursday and Friday.

"It's going to be tough to find someone who has her energy, her skill set and her ability to get things done," Fenty said in an interview, hours before Nickles issued his second opinion on the contracts.

The mayor declined to discuss the "ins and outs" of the contracts. When asked about the tension with his colleagues in the legislative branch, Fenty, a former Ward 4 council member said, "This is the best council we've ever had."

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