Photo by KCIvey.

Most Americans were appalled by former President George W. Bush’s disregard for the law. On wiretapping, torture, secrecy and more, his administration asserted that the President was, in essence, above the law. Even many Republicans found his repudiation of the republican form of government abhorrent.

Mayor Fenty, however, seems to be pushing a similar “unitary executive” philosophy here in DC. At a recent appearance before the Kalorama Citizens’ Association, he was completely unconcerned about ignoring at least one of the laws of the land.

Fenty seemed to repudiate the rule of law while discussing inclusionary zoning. This policy, which gives developers some extra density in exchange for a requirement to include a small amount of slightly more affordable housing, is the law. And the DC Council has made that absolutely, positively, unequivocally clear:

  1. In December of 2006, the Council passed a law “requiring the Mayor to promulgate rulemaking” implementing regulations approved by the Zoning Commission. Councilmember Adrian Fenty voted for the bill.
  2. In February of 2008, the Council passed another law requiring “that regulations … be submitted to the Council by a time certain,” in that case April 4, 2008. Mayor Fenty signed the bill.
  3. The Council reiterated their position the following month by upgrading the previous “emergency” bill to a “temporary”[1] one. Mayor Fenty signed this as well.
  4. The administration published draft regulations, which say that “final rulemaking action shall be taken in not less than sixty (60) days from the date of publication of this notice.” It’s been much, much more than sixty days.
  5. After months passed with no action, the Council passed another law in October 2008 requiring “that final rulemaking to implement inclusionary zoning … be published by” December 5th. Mayor Fenty signed it.
  6. The Council then amended the law in November to give the Mayor some more time, until February 6th, and followed up that “emergency” bill by passing a “temporary”[1] version in December. The Mayor signed both bills.
  7. Congress wasn’t in session long enough in the winter for the required review period before the emergency expired[2], so on February 3rd, they passed a “Congressional Review Emergency” act to extend the deadline. It did not require the Mayor’s signature.
  8. On February 5th, the Mayor became in direct violation of the law. As far as I can tell, he will continue to be in violation through at least May 5th (the last day of a 90-day period beginning February 5th). Assuming the temporary retains the force of law[3], he’ll stay in violation for many months beyond that as well.

Sources inside the Mayor’s office told affordable housing advocates that they were just finishing up regulations, and would publish them on Friday, April 10. They didn’t. We hear the Mayor is sitting on the regulations.

Now, it sounds like Mayor Fenty doesn’t actually intend to publish them. Last Thursday, he spoke to the Kalorama Citizens’ Association, where someone asked him about IZ. According to resident and ANC 1C04 Commissioner Mindy Moretti, whose ANC has passed a resolution in support of the policy,

The Mayor gave no indication when IZ would be implemented and also said that because the economy is different now than when IZ was first introduced that we may not need it in the form that it was approved. … In my opinion, his answer was outrageous and unacceptable.

The Mayor is violating the clear, explicit law. The Council has made it abundantly clear, through numerous resolutions and bills, that it expects the Mayor to follow this policy. Yet he’s flouting it today, and telling residents that he doesn’t have any particular plans to implement it.

He’s entitled to hold an opinion that the law is unnecessary or inappropriate, though we disagree. But he’s not entitled to ignore properly passed laws. This isn’t the Bush administration, and the Mayor can’t decide which laws to follow and which to ignore. This isn’t the only law the administration is ignoring. We’ve written twice about specific ways DDOT isn’t following the performance parking law. Those are much more minor, but the overall principle remains the same: the law is the law.

Of course there is some room for interpretation, and often the executive writes specific regulations, but it must follow the law. If the Council passes a stupid law, then the Council should fix it. It’s not appropriate for the Mayor or any executive agency to decide that obeying the law is too annoying or not worthwhile.

We already knew Mayor Fenty was imperious and disinclined to work with others. In some ways, that has been positive, as he broke through bureaucratic logjams in the administration of DC Public Schools. That’s been generally popular, though some disagree with his approach. Sometimes, it’s less heartening, like the Mayor’s recent firing of DC Parks and Recreation Director Clark Ray, whom many residents thought was doing a terrific job. And sometimes, it’s embarrassing, as with the Mayor’s withholding of Nationals tickets from the Council. Kwame Brown introduced legislation today to auction off the Mayor’s and Council’s tickets.

I don’t know about the law regarding the tickets, but all accounts emphasized how the Mayor had every right to fire Ray. It’s one thing for the Mayor to act brash or even stupid. There’s no law against having a certain leadership style. He’s within his right to fire people, whether for good reasons or bad. But ignoring a clear law is another matter. The administration’s refusal to let officials testify before the Council on issues such as the recent fire truck flap is similarly troubling.

Apparently some developers have been arguing to Mayor Fenty and Deputy Mayor Neil Albert that the law will discourage development. Of course, builders will likely argue that whether or not it’s true. It’s appropriate for our elected representatives, who certainly don’t ignore the development industry, to strike that balance through public hearings and an open process. Our representatives have spoken. The Mayor should follow the law and implement the policy.

As long as this policy goes unimplemented, projects are getting approved that should include affordable housing, but won’t. Numerous projects have won approval after IZ was supposed to go into effect, but didn’t. Those now won’t be providing more affordable units, even though in many cases the actual construction will wait until the economy recovers.

For its part, the Council should not take lightly this affront to their authority. If the Mayor can ignore a law that’s about as clear as can be with impunity, he may well do so more frequently in the future. The DC Council should avoid the mistakes of the U.S. Congress through both Republican and Democratic control during the Bush years, when their inability to stand up for themselves emaciated the institution at great peril for our democracy. Mayor Fenty is not a dictator and we still live in a republic. The Council needs to make that abundantly clear.

1 An “emergency” bill only lasts for 90 days. The Council must first pass an “emergency declaration resolution” by a two-thirds supermajority, and can then pass a bill which becomes law immediately after the Mayor signs it. Congress doesn’t have to review emergency acts. The Council can then pass a “temporary” act, which doesn’t require committee hearings, but still goes to Congress, and can only last 225 days. More here. When the Council wants to pass permanent legislation but needs it to go into effect quickly, they will pass an emergency act which will begin right away, then a temporary to extend the clock, and use the temporary time period to hold full hearings and pass a regular, permanent bill.

2 Congress gets 30 days to disapprove any bill in DC except for emergency acts. If they’re not in session for 30 days out of the 90 during the emergency period to approve the temporary, then the law could expire. When this happens, Council can pass a special type of emergency bill, a “Congressional Review emergency,” to bridge the gap.

3 There’s some question about whether resolutions containing deadlines stay lawful if the deadline passes before that resolution formally goes into effect. In this case, the temporary act didn’t take effect until March 20, 2009, because Congress wasn’t in session for the 30 days until then. That’s after the original deadline. However, the deadline at least retained the force of law through the two emergency acts. If the temporary is not valid for some reason, it’s an extremely narrow reading of the law that makes it so, and doesn’t change the fact that the Mayor was and still is in violation of the letter, and will remain in violation of the spirit as long as he doesn’t publish regulations.