Six days ago, the D.C. Court of Appeals dropped its bombshell ruling putting the District back on track toward electing an attorney general for the first time as soon as November.
Much remains unsettled about when that first election might be settled and what shape it will take, but at least one new person is openly exploring seeking election as the city’s top legal officer — joining criminal defender Paul H. Zukerberg, whose lawsuit prompted last week’s ruling.
Andrew Fois, the District’s deputy attorney general for public safety, said Tuesday he is considering entering the race. In his post under the current appointed D.C. attorney general, Irvin B. Nathan, Fois oversees legal affairs for the District’s public safety agencies and also oversees the prosecution of certain misdemeanor offenses, including drunk driving.
Fois, 55, is a former federal prosecutor who served top counsel to a House criminal justice subcommittee and held high-level positions in the Clinton-era Justice Department. He was nominated to a Superior Court judgeship in 2000 but the Senate did not act on his nomination. Fois has served under Nathan since 2012.
Last year, as the D.C. Council was debating the duties of the attorney general’s office, Fois quietly explored a run but did not go public with his intentions before the council moved to delay the first election to 2018.
“I’m still interested, I’m still exploring, but there are still some obstacles,” he said Tuesday.
In terms of obstacles, there is one very big one: He would have to quit his job, or at least take an unpaid leave of absence, in order to mount a campaign under the current city law governing the political activities of government employees.
Fois said it would be a “hardship” to quit, and he plans to ask city lawyers to weigh in on whether he must quit outright or simply take a leave to run. He also said he is concerned by the potentially short timeline for the election — making it hard to hire staff and recruit volunteers, with potentially only days until the ballot petitions are made available.
“When I’ve got the answers I need, then I’ll make a decision,” he said. (If you’re wondering what Nathan thinks about one of his deputies running to replace him, note that Nathan has pledged not to run for the elected office and has spoken approvingly of the notion of his subordinates running for the post.)
The good news for Fois — and other lawyers within the city government who might be entertaining a run — is that a key D.C. Council member says the law could be changed to make it easier for city employees to seek partisan office. Kenyan McDuffie (D-Ward 5), chair of the Government Operations Committee overseeing electoral matters, said Friday the question of employee eligibility is “still unsettled at this point.”
But McDuffie said he was wary about changing the laws just for one office and one class of government workers. “I’m not sure if we should treat D.C. lawyers any different than other D.C. employees,” said McDuffie, who had to quit his job in Mayor Vincent C. Gray’s administration to pursue his council seat in 2012. Another caveat: McDuffie said, as of Friday, he’d not had any discussions with colleagues or other officials about pursuing any changes to the law.
Also very much unsettled: When the first attorney general election will appear on a ballot. Nathan is continuing to fight, filing Friday for a rehearing before the full appeals court. Zukerberg, meanwhile, wants the Board of Elections to make ballot petitions available to AG candidates Friday — the same day as the rest of the offices that will be on the Nov. 4 ballot.
It does not appear that the Board of Elections intends to make those petitions available Friday. The scheduling of the election is in the hands of Superior Court Judge Laura A. Cordero, who is charged with determining when it can be practicably held. A status hearing is now set for June 27; Zukerberg asked last week for the matter to be heard immediately.
Nathan and his deputies said in court papers filed this week that the earliest a hearing should be held is June 18, saying they “simply need more time to consult with their clients — an independent three-member board and a busy 13-member legislature — and determine their positions on this issue.”
Zukerberg said he believes that waiting until next week would foreclose on the possibility of a Nov. 4 election, thus necessitating the scheduling of at least one special election — a seven-figure taxpayer expense.
“I’m sick over it,” Zukerberg said Tuesday. “[Nathan]’s saying, because we don’t have a position, we’re going to have a special election. What everyone else is saying is, we have five months, we could put it on the November ballot. Instead of working diligently to resolve this, they’re going to take their time and later on go to the trouble and cost of a special election.”
In the court papers, Nathan et al. challenged that assumption: “There are ample legislative and judicial options to deal with signature petition timelines that could be implemented after June 13 that would still allow an election to take place in 2014.”