District leaders pondered an unprecedented act of defiance Tuesday, threatening to keep the city government open even if congressional leaders are unable to avert a federal government shutdown next week.
The District is unique among local jurisdictions in the United States in requiring a federal appropriation to spend its budget, even though it is largely funded by locally raised taxes and fees. Should Congress fail to extend spending authorization beyond the current limit of Sept. 30, the city government would be legally bound to curtail all but essential services.
Police and firefighters would report to work, and public schools would remain open. But libraries and recreation centers would close. The DMV would go dark, potholes would go unfilled and no parking tickets would be issued. Trash would pile up for a week before haulers could be called in.
But new frustrations over the city’s lack of autonomy emerged at a John A. Wilson Building breakfast meeting between Mayor Vincent C. Gray (D) and members of the D.C. Council, who pressed the mayor to confront Congress.
By late Tuesday, a person close to Gray’s deliberations said the mayor was considering informing the federal Office of Management and Budget, which coordinates shutdown preparations, that he intends to keep all of the city’s roughly 32,000 employees on the job, setting up an unusual confrontation.
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“Enough is enough when it comes to our money,” said David Grosso (I-At Large) at the morning meeting. “We should keep this government open.”
“Let’s do what the rest of this country is doing with respect to Congress: Ignore it,” said David A. Catania (I-At Large).
Within an hour, an afternoon news conference to discuss shutdown contingency plans had been canceled, and Council Chairman Phil Mendelson (D) said he would draw up legislation declaring all city employees essential and thus eligible to work through a shutdown. Most council members expressed support for such a bill, even as the city’s top lawyer warned against it.
Gray — who was among 41 District voting-rights activists arrested in a 2011 protest amid the last shutdown threat — at first appeared resigned to a shutdown and dismissive of the suggestions to keep the city open. But he ended up entertaining 45 minutes of debate over what would become the city’s most significant act of defiance toward Congress since 1997, when then-Mayor Marion Barry clashed repeatedly with a congressionally appointed financial control board.
“Isn’t this how the country was founded?” Gray said, growing visibly emboldened by the idea.
The District government closed for six days during a November 1995 federal shutdown, though it was exempted by Congress from a second, longer shutdown that took place a month later. During occasional bouts of congressional brinksmanship since then, city officials have been forced to depart from their normal routines to revisit shutdown contingency plans.
In April 2011, a shutdown was averted about an hour before it was set to begin. Among the provisions of the deal negotiated between the White House and congressional Republicans was the restoration of a restriction preventing the city from spending locally raised funds on abortions for low-income women. Two days later, Gray led a protest on Constitution Avenue, where he was among those arrested for unlawful assembly.
Last year, city voters endorsed a referendum granting the city budgetary autonomy from Congress — a measure that advocates said would exempt the District from federal shutdowns. But the referendum has been called illegal by some and does not take effect until Jan. 1.
The major obstacle to the city government continuing in full effect is the federal Anti-Deficiency Act, which prohibits agencies and officials from obligating or spending funds not properly appropriated. District Attorney General Irvin B. Nathan, who attended Tuesday’s meeting, warned of “significant adverse consequences” from violating the law, including stiff fines and potential criminal prosecution of defiant officials.
In addition to raising the prospect that defiance could lead to criminal prosecution, Nathan also warned that Congress could reassert control over the city government, suspending officials who subvert a shutdown or even removing the mayor from office. “We have to follow the law, and I think it’s very important for the District to follow the law,” he said.
But several members questioned whether criminal prosecutions of Anti-Deficiency Act violations were a credible possibility. While administrative sanctions are regularly levied against federal employees for unauthorized spending, there are no documented cases of criminal prosecutions under the act.
Ellen Canale, a Justice Department spokeswoman, declined to comment on whether city officials or employees are at risk of prosecution should they remain on the job during a shutdown.
Vincent B. Orange (D-At Large) suggested that the council might pass emergency legislation when it meets again Oct. 1 — the day the federal shutdown could take effect — declaring all city employees essential. “If we ever wanted to make a stand, this would be the opportune time,” he said.
But by then the legislation could be moot. The city is required to submit shutdown plans in coming days to the Office of Management and Budget, under whose rules only employees in key financial positions or engaged in activities “bearing a reasonable relationship to the safety of human life or the protection of property” may remain on the job.
It is unclear how the office might react should Gray submit a plan seeking to keep all city employees on the job; calls and e-mails to the agency’s communications office went unreturned.
Aides who spoke on the condition of anonymity because they were not authorized to comment publicly said Gray is prepared to undertake an act of defiance, but several important questions remain unanswered: Will city employees face potential prosecution? If employees are ordered to work during a federal shutdown, will they have to refrain from some of their duties? And if they work, when and how will they be paid?
The District has control of cash accounts that could fund ongoing operations during a shutdown, including a contingency reserve fund that a mayor may tap for “unforeseen needs.”
But it remained unclear whether Chief Financial Officer Natwar M. Gandhi would comply with actions that could violate appropriations law. “It would be illegal and improper for me to pay” employees and contracts outside of a congressional appropriation, he said during the breakfast meeting.
Later in the session, however, he said he would “leave it up to the mayor and the council” and said he was not concerned about being prosecuted. “We Gandhis are used to going to jail,” he said.
Aaron C. Davis contributed to this report.