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[JGR/Chadha re: District of Columbia] (4 of 12)
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John Roberts' Subject Files
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Ronald Reagan Presidential Library
Digital Library Collections
This is a PDF of a folder from our textual collections.
Collection: Roberts, John G.: Files
Folder Title: [JGR/Chadha re: District of Columbia] (4)
Box: 9
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40 Box 9 - [JGR/Chadha re: District of Columbia] (4) - Roberts, John
G.: Files SERIES I: Subject File
Memorandum
Subject
Date
Dymally Proposal to Transfer Prosecutive
October 19, 1983
Authority from the United States Attorney for
the District of Columbia to a Local Prosecutor
To
From
WILLIAM P. TYSON, Director
STANLEY S. HARRIS
SSH
Executive Office for
United States Attorney
U.S. Attorneys
District of Columbia
On September 1, 1983, the Honorable Mervyn M. Dymally, Chairman,
Subcommittee on Judiciary and Education, Committee on the District of
Columbia, U.S. House of Representatives, transmitted a "discussion draft" of
the District of Columbia Judicial and Criminal Justice Reform Act. The
proposed bill contemplates changes in the administration of the criminal
justice system in the District of Columbia which would:
1) transfer prosecutive authority for all D.C. Code crimes currently
prosecuted in the Superior Court from the United States Attorney for the
District of Columbia to a new entity, the Attorney General for the District
of Columbia;
2) establish the Office of the D.C. Marshal and transfer of all
functions that the U.S. Marshal currently performs in Superior Court to the
D.C. Marshal;
3) enable the citizens of the District of Columbia to vote by referendum
whether to give authority to the Mayor to appoint D.C. Judges (in lieu of the
President) or select judges by popular election;
4) enable the citizens of D.C. to vote by referendum whether to give the
Mayor authority to appoint the D.C. Attorney General or select the Attorney
General by popular election.
The discussion draft was forwarded to the Office of Legislative Affairs
(OLA), Department of Justice, which in turn asked me as United States
Attorney for the District of Columbia to comment upon the proposal.
I strongly oppose all aspects of the Dymally proposal. In particular,
as it relates to the transfer of the prosecutive authority in Superior Court
from this office to the Attorney General for the District of Columbia, I join
my predecessors, Earl J. Silbert, Esq., and Carl S. Rauh, Esq., in urging
that the Department of Justice and the Administration oppose such a plan.
1/*
The present system, whereby the U.S. Attorney is vested with prosecutive
authority in the U.S. District Court and the D.C. Superior Court and is the
chief law enforcement officer in the nation's capital, has served the
*
Footnotes at end of Memorandum.]
2
citizens of the District of Columbia and the interests of the federal
government well. The U.S. Attorney's Office is nationally and locally
respected as a unique and innovative office adequately funded and staffed by
a corps of professional prosecutors who daily earn the respect and esteem of
the citizens of the District of Columba whom they so ably serve. This fact
was recognized by former Attorney General Griffin B. Bell, who urged former
President Carter in 1978 to reject a proposal by the Office of Management and
Budget to transfer prosecutive jurisdiction from the United States Attorney
to the D.C. Government (see Appendix 1, Bell Opposition attachment 17).
Former U.S. Attorney Silbert vigorously opposed the Dymally
predecessors, H.R. 9788 and H.R. 1253, mainly on the basis that law
enforcement would deteriorate due to the inevitable conflict caused by
splitting prosecutive authority in a city with unique federal concerns. (See
Appendix 2, Silbert Opposition.) Mr. Silbert was joined in opposition to the
bills by the Board of Judges of the Superior Court, who opposed them on the
grounds "that it would seriously degrade and disrupt the criminal justice
system in Superior Court." 3/ The Board of Judges reached the following
conclusion as stated in their resolution of June 20, 1979 (see Appendix 4):
In conclusion, it is the position of the Board
of Judges that there should be no changes made in
the organic structure and basic method of operation
of the Superior Court of the District of Columbia
such as those proposed by the Mayor in his 1979
Legislative Program unless and until it is first
demonstrated to us by detailed legal and fiscal
plans that the proposed changes will improve and
not adversely affect the present administration
of justice in the District of Columbia.
The judges' collective fears that the new political prosecutor's office would
be mismanaged, underfunded, understaffed, and unable to attract the quality
lawyers typically drawn to the Office of the U.S. Attorney was founded upon
the courts' daily contact with the D.C. Corporation Counsel's Office, which
historically has been underfunded and understaffed, thereby reducing its
overall competency and, specifically, causing its failure to effectively
prosecute juvenile cases in the Superior Court.
Past and present experience by this Office with the Office of the
Corporation Counsel, which processes juvenile, traffic, and minor misdemeanor
matters, offers little hope that the transfer would do anything but further
reduce the quality and quantity of prosecutorial services provided. Over the
past decade, the resources made available to the Corporation Counsel by the
Mayor and the Council to handle juvenile offenses have been woefully
inadequate. A 1978 memorandum by the Executive Office for U.S. Attorneys
offers the following example:
While nearly one-half of burglary arrests and
over one-third of robbery arrests in the District
in 1976 involved juvenile offenders, the
Corporation Counsel was afforded roughly one-
eighth of the resources allocated to this office
for comparable adult prosecutions.
3
The District of Columbia's own Criminal Justice Coordinating Board observed
in its 1978 Comprehensive Criminal Justice Plan (pages III-76-77):
[M] anpower shortages in the juvenile section
have resulted in an annual no paper rate in excess
of 30% of all cases. Over 50% of all youth who
come in contact with the juvenile justice system
are not even referred to the prosecution; only
the most serious cases are referred by the police.
Therefore, it is safe to assume that of the
35% of the cases dismissed by the prosecutor
at least a substantial number involved youth
with serious delinquency problems who have
probably had repeated prior contact with the
police--often for major crimes. At the present
time, there is no coordinated mechanism for
systematically determining which cases should
be fully prosecuted, which cases are appropri-
ate for diversion programs, and which should be
dismissed from the juvenile justice system
altogether. In addition, there is no sufficient
knowledge of available community resources that
could be used for diverted delinquent youth nor
are there sufficient resources to follow up on
treatment plans for diverted youth or services
provided to them. The result of this lack of
comprehensive screening and service delivery is
that many youth coming in contact with the
juvenile justice system, often for the third,
fourth, fifth time or more, are simply dismissed
with no service and no sanction. While data
is not currently available, it is assumed that
many of these youth continue to commit delin-
quent offenses and eventually return to court
for serious offenses which are prosecuted.
With this demonstrated inability to provide adequate resources for the most
important juvenile prosecutions, and with the reduced funding of the
Corporation Counsel's Office during a period when its caseload and
responsibility were increasing, it is highly unlikely that a local
prosecutor, even with some additional resources, would be able to match the
performance of the United States Attorney's Office in efficiency, effective-
ness, and responsiveness to its constituents.
Underfunding of the Corporation Counsel is not the only problem. The
Superior Court budget has been underfunded in excess of 2 million dollars in
1981-1983, which has contributed to court delay as reported in the media.
Retired Superior Court judges who assist that court by working after their
retirement have no staff support. File rooms are understaffed and the court
has no bailiffs. Thus, those of us who predict a significant decrease in the
quality of law enforcement and prosecution if the Dymally transfer proposal
is adopted can point to the public record for support for our conviction that
the D.C. Government cannot and will not devote sufficient resources to fund
adequately the transfer of the prosecutive function.
4
Mr. Silbert's and the Superior Court judges' forecast that the quality
of law enforcement would decline as a result of the prosecution transfer is
based in part upon the D.C. Government's failure to adequately fund law
enforcement-related functions in the post-home rule era. On October 3, 1983,
I testified before the D.C. City Council and opposed the City's proposal to
solve the jail overcrowding problem by releasing felons early. The City
needs to build more jails but refuses to allocate funds for jail expansion
(see Appendix 5). In fiscal 1983, Senator D'Amato's committee had to
appropriate in excess of 4 million dollars to hire a sufficient number of
Metropolitan Police Department officers to ensure basic law enforcement in
the City. Thus, it is clear that the D.C. Government has always underfunded
law enforcement programs in this community.
Although the Congress during the 1970's has granted the District of
Columbia greater independence and self-determination, neither the Court
Reorganization Act of 1970 nor the D.C. Self-Government Act of 1973 gave
serious misdemeanor or felony prosecutive authority in Superior Court to the
local authorities. The underlying reason for Congress' decision not to
disturb the prosecutive role of the U.S. Attorney is the recognition that
Congress and the federal government have a presence in the District of
Columbia unlike any other city in the United States.
Any proposal, therefore, which would effect such fundamental change
should have at its base not merely superficially appealing form but quickly
achieveable constructive results. This is especially SO when, as here, a
delicate system is presently and increasingly heavily burdened with severe
problems of volume, efficiency, space and solvency. To fragment
responsibility for this system--to create on this record two chief
prosecutors for the ten-mile square seat of our national government, as the
Dymally proposal would do--is to engage in an indefensible risk-taking which
pays hollow tribute, indeed, to the lofty goals proffered by its proponents.
The Dymally proposal's stated purpose is to relieve the federal
government of the burden of what it deems to be "essentially local" District
responsibilities. (See Dymally proposal Title I, Sec. 102.) Under the
Constitution, Congress has the exclusive power to legislate for the District
of Columbia, Article I, § 8, cl. 17. While the Congress has chosen to
delegate part of its authority in regard to the nation's capital, it cannot
under the Constitution as it now stands, relinquish its responsi-bilities to
protect the federal interest. Advocates for restricting the jurisdiction of
the United States Attorney tend to define this interest in rather narrow
terms. Beguiled by the symmetry of two separate criminal justice systems,
they fail to perceive the inextricable and proper intertwinement of the
national and local interests of this, the only federal city.
The District of Columbia simply is not a state, and state-federal
analogies are not helpful to proponents of preempting the local jurisdiction
of the United States Attorney. The federal government owns approximately 41%
(12,348 acres) of all land within the District of Columbia. There are over
200 buildings either owned or leased by the federal government within the
District of Columbia and well over 400 such buildings in the entire
Washington metropolitan area. There are over 445,000 federal employees who
live and work in the Washington metropolitan area. Thousands of others in
private business daily commute in and out of this city. Millions of tourists
visit here each year. Because crime affects them all, the criminal justice
5
system must be responsive to their interests. Victims, witnesses and
defendants in criminal cases hail from all parts of the country --often from
the very suburbs of this city. Crime itself, of course, pays little heed to
our local boundaries and its commission routinely involves more than one
jurisdiction.
Further, the size of the diplomatic community here provides a continuing
need for a unitary federal prosecutorial system due to the sensitivity of
matters affecting this corps. This is particularly so when diplomats are not
merely victims of crime, but are the subjects of criminal probes which
involve invocations of diplomatic immunity and other attendant negotiations
with the Department of State and embassies. That federal law enforcement
jurisdiction must be equal to its federal responsibilities is clear from the
need to care for the more than 50,000 foreign nationals in the District of
Columbia as accredited diplomats, members of the many international
organizations, and support personnel and families, who are part of the fabric
of city life in the nation's capital.
The Dymally proposal would stand the uniqueness of the District of
Columbia on its head. While it would reduce the jurisdiction of the United
States Attorney below that of any other chief federal prosecutor throughout
the country, it also without justification would give, through its allowance
of an expanded subpoena power, more power to the chief local prosecutor and
local judges than any similarly situated local prosecutor or judge in the
country. This anomaly itself amounts to an inadvertent concession that
"local" crime within the District of Columbia not uncommonly has
extra-jurisdictional dimensions.
Federal interest as a term of art, therefore, contemplates a breadth of
circumstances far broader than the locus of the crime within the District of
Columbia or the local addresses of the involved parties. Its dimensions are a
function of the unique nature of the city as the seat of government and
center of international diplomacy and commerce and the corresponding
enactments of Congress which, in the words of former Attorney General Bell,
have always "recognized the fact that the government cannot afford the risk
of having a local prosecutor in the District of Columbia without
responsibility or accountability to the President, and the Congress, and the
national as opposed to the local interests." (See Appendix I, attachment 17,
p. 1, Bell opposition.) The proposed change to local control is simply not
in harmony with the breadth of the federal interests involved in law
enforcement within the District of Columbia
Proponents proclaim, however, that citizens of the District of Columbia
would gain a greater degree of self-determination--a concept cherished by all
Americans--with the installment of a local prosecutor. It is true, of course,
that a quantitative increase in self-determination would occur in the event
of an elected District Attorney, a possibility under the Dymally proposal. 4/
However, whatever speciousness is achieved by such reasoning cannot withstand
analysis of the practical costs for this conceptual benefit. There is no
free lunch. In the event that the Dymally proposal became law, the societal
costs that would be borne by the ordinary citizens of the District of
Columbia and others who come here would make any such conceptual "gain" a
mere Pyrrhic victory. They would be measured not only by the decrease in
money and manpower as discussed, supra, but also in the consequent increase
in human misery fostered by a crippled criminal justice system unable to
6
respond to its ever-increasing needs. 5/ Ironically, both federal and local
interests would then be left insufficiently protected. Such costs being both
unnecessary and unwise, their assessment on those who live or come to our
city is unsupportable.
Moreover, even if the local District Attorney were elected and the
problem of excessive concentration of power met, there is still too great a
potential for impairment of the ability of the federal government through the
President, the Attorney General, and the Department of Justice to provide for
public safety in the nation's capital. "An independently elected District
Attorney could refuse for any personal or political reason or whim to
cooperate and indeed take action that would jeopardize the ability of the
federal government to assure peace and good order in the District of
Columbia." (See Appendix 2, Silbert opposition at 6.) The Constitution and
the Congress have made clear that the national interest must, in the final
analysis, be preeminent in this, the national seat of government. Thus, the
ultimate authority of whether to prosecute and its complementary duty of
coordinating all law enforcement efforts must continue to be reposed in one
chief law enforcement officer.
In a purported attempt to satisfy the national (federal) interests in
law enforcement in the national capital, the Dymally proposal offers the same
process of "certification" as its two predecessor bills. Under the proposal,
the United States Attorney could prosecute no violations of the District of
Columbia code without permission of the Attorney General of the District of
Columbia except:
(d) (1) Where the United States Attorney
General finds that a particular matter or case
involves a legitimate and compelling federal
interest, which justifies the exercise of
exclusive federal jurisdiction, and such
exercise of federal jurisdiction is in the
public interest, he may file with the Clerk of
the Superior Court of the District of Columbia
a certification to that effect. The Attorney
General may request that such certification be
filed under seal if he deems it necessary to
protect the integrity of an ongoing or contem-
plated investigation or the privacy of an
individual, provided that the certification may
not be filed under seal to the extent that it
relates to an indictment or information previously
filed in either court. Timely notice of any
certification shall be given in writing to the
Attorney General of the District of Columbia.
Unless the United States Attorney General invoked the certification process,
written consent of the D.C. Attorney General would be required to join D.C.
Code offenses to federal code indictments in U.S. District Court. Similarly,
consolidation for trial in the U.S. District Court of indictments or
informations brought in the name of the Attorney General of the District of
Columbia could occur without such certification only by permission of the
Attorney General of the District of Columbia.
7
At its base, certification, as does the Dymally proposal itself, rests
on a facile notion of the neat divisibility of federal and local interests
which is both inconsistent with past experience and incompatible with the
national interest. Former U.S. Attorney Rauh has detailed the fatal flaws in
such a concept (see Appendix 6, Rauh opposition to transfer):
It seems to us unlikely that the drafters
of this portion of the plan fully appreciated
the serious problems that would be presented by
implementation of the Certification Proposal.
In essence, the procedure would withhold from
the United States Attorney for the District of
Columbia the authority to prosecute all vio-
lations of federal statutes committed in the
District of Columbia--authority possessed by
federal prosecutors in every other federal
district in the Nation--where the federal
violation could be deemed to involve criminal
conduct "essentially local in character,"
unless there were a special certification
by the Attorney General or the Deputy Attorney
General indicating that federal prosecution
of the case would satisfy vague federal prior-
ities and would be "more efficient" than local
prosecution.
This proposed certification procedure,
reducing the authority of the federal prose-
cutor below that of all other United States
Attorneys in a jurisdiction which is the seat
of the national government, which is not a
state and in which there are special federal
interests that do not exist in the individual
states, is, we think, absurd on its face. It
would unwisely circumscribe the authority of
the United States Attorney in the District of
Columbia to prosecute violations of federal
statutes by placing upon that federal official
constraints over his jurisdiction that exist
in no other federal district. See 28 U.S.C.
$547 (United States Attorneys are empowered
to "prosecute for all offenses against the
United States"). It is unworkable because
the concepts of "essentially local" criminal
conduct, "national law enforcement or crim-
inal justice priorities," and "efficiency" of
local versus federal prosecution which must be
determined in order to utilize the procedure are
hopelessly vague. And the proposed certifi-
fication procedure is unnecessary because the
existing statutory procedure has proven to be
a workable means in the past for discriminating
between those offenses which merit prosecution
in the federal courts and those which should
8
be prosecuted in the local courts. Moreover,
the existing procedure is probably the only
procedure which would avoid double jeopardy
problems that would be presented in the event
that a local district prosecutor were to enjoy
dual jurisdiction to prosecute the local aspects
of a criminal transaction at the same time a
federal prosecutor could prosecute the federal
offenses involved in such a transaction.
It is our view that the proposed certifi-
cation procedure would unwisely place limits
upon the jurisdiction of the United States
Attorney for the District of Columbia to prose-
cute violations of federal statutes--limitations
that are placed upon no other United States
Attorney in the federal system. Moreover,
such a certification procedure is unnecessary,
since the existing law, permitting the United
States Attorney to prosecute in federal court
offenses which involve both federal and local
statutory offenses, has proven workable and
effective. Finally, any procedure other than
the present one would be likely to invite double
jeopardy bars to prosecutions of cases involving
both federal and local offenses, presenting
insurmountable barriers to the effective prose-
cution of many serious criminal offenses.
With its present authority, the Office of the United States Attorney
also is able to vindicate its federal interest when criminal conduct may
technically violate only local statutes but involves a national (federal)
interest. The 1977 Hanafi takeover of the District Building, B'nai Brith,
and the Islamic Center by Hamaas Abdul Khaalis and his followers is but one
example. Relatives of elected national figures or of members of Washington's
diplomatic community who are victims of, witnesses to, or charged with
"local" crimes provide others. Even more generally, the ability of the
United States Attorney to coordinate law enforcement efforts of the more than
38 law enforcement agencies in the District of Columbia, virtually all of
which are federal, would be obliterated by the Dymally proposal.
Former U.S. Attorney Silbert has made a succinct exposition of the
practical unworkability of certification (see Appendix 2, Silbert opposition
at p. 6):
The certification process has obvious drawbacks
of delay, inefficiency, creating ill-will,
resulting lack of cooperation from police officers
who are strangers to federal prosecutors, [and]
lack of expertise in the "federal" office for
D.C. Code crimes if transfer occurs.
Certification, it is clear, cannot sufficiently protect the federal
interest in the federal city.
9
In conclusion, we do not posit our view on this matter simply on our
pride in having performed so long and, as others have said, so well on behalf
of our broad constituency--both national and local--of this unique city, nor
upon a conceit that nobody could do it better (although we believe that to be
the case). To do so would be unnecessary, parochial, and patronizing. We
understand the "home rule" convictions of those who believe in the Dymally
proposal. Far outweighing that, however, is the overwhelming body of
evidence, comprised of both constitutional imperatives as well as our
intimate knowledge of the criminal justice system in the District of
Columbia, that compels us to act with the same vigor in opposing the Dymally
proposal as we do on behalf of our clients every day in both courts in this
city. There is a harmony in both tasks because in undertaking each we seek to
vindicate the combined interests of the federal city and its citizens. Thus,
we firmly are convinced that the United States Attorney's Office should
retain that "burden" from which the Dymally proposal seeks to deliver us,
because it is, beyond a reasonable doubt, properly ours to carry. The
proponents of the Dymally proposal do not, nor could they, advance reasons
soundly based either on the best interests of the nation's capital generally
or in the efficiency of our criminal justice process specifically in support
of their goals.
10
1/ I do not agree with the Dymally plan to transfer authority to nominate
local. judges from the President either to the Mayor or in the alternative to
have judges selected by voters in general elections. The Board of Judges of
the Superior Court opposed an identical proposal in a resolution dated June
20, 1979, which is attached as Appendix 4. Ideally, I would like to return
to the prior system under which the President had unfettered discretion in
the selection of local judges. However, the current system, whereby the
Judicial Nomination Commission screens judicial applicants and sends three
names to the President who nominates an individual for each judicial vacancy,
is clearly preferable to nomination of local judges by the Mayor or direct
election. The Congress in enacting the 1973 D.C. Self-Government Act
deliberately retained judicial appointment power in the President and
specifically denied giving the newly-created City Council any authority to
legislate in any manner affecting the courts. See Sec. 433, 434 and
602(a) (4) of the D.C. Self-Government Act. This power was withheld from the
D.C. Government because of the vital federal interest in maintaining an
independent and highly-qualified judiciary. I also disagree with the proposal
to withdraw the U.S. Marshals from Superior Court because of the detrimental
effect such a move would have on the federal interest as that concept is
defined in the body of this memorandum.
2/ As Appendix 1 indicates, the genesis for transfer of prosecutive
authority from the U.S. Attorney in Superior Court to D.C. authorities arose
out of a budget dispute between the D.C. City Council and the Department of
Justice during 1975-1977. On September 23, 1977, the Executive Office for
U.S. Attorneys recommended retention of prosecutive authority by the U.S.
Attorney in Superior Court (see Attachment 14, Appendix 7). Attorney General
Bell supported this position and opposed OMB's transfer proposal (see
Attachment 17, Appendix 1). In 1979 President Carter directed that the
Department of Justice and the D.C. Government set up a task force to explore
the issue of transfer which resulted in the introduction of bills H.R. 7988
on August 21, 1980, and H.R. 1253 on January 23, 1981. These bills are
identical to the Dymally bill except for the question of who will select the
D.C. Attorney General and local judges. This question would be answered by
the voters in a referendum.
3/ For a comprehensive analysis of the structure and operation of the D.C.
Courts, and the present role of the United States Attorney in the District of
Columbia, see Appendix 3, The Federal Role in the District of Columbia
Justice System.
4/ If the Mayor is given authority to appoint the local prosecutor, all the
potential conflicts and increased likelihood of chicanery enumerated by Mr.
Silbert in his opposition to such a manifestly unsatisfactory proposal would
obtain. (See Appendix 2, Silbert opposition.)
5/ Superior Court Board of Judges Resolution, Appendix 4.
6/ Rauh opposition at 2-3, Appendix 6.
DISTRICT OF COLUMBIA REIMBURSEMENT
FOR U.S. ATTORNEY AND MARSHAL SERVICES
Since 1939 the District of Columbia government has reimbursed the
Miscellaneous Receipts account of the General Fund of the U.S. Treasury
for the services provided by the Office of the U.S. Attorney and the
Office of the U.S. Marshal to the District of Columbia Superior Court.
This reimbursement arrangement was cited in the Department of Justice
Appropriations Acts through fiscal year 1975, even though the funds
reimbursed by the District were never actually returned to the Department.
The language in the General Provisions of the Department's Appropria-
tions Act for fiscal year 1975 stated, for example:
Section 203. Fifty-three per centum of the expendi-
tures for the offices of the United States Attorney
and the United States Marshal for the District of
Columbia from all appropriations in this title shall
be reimbursed to the United States from any funds in
the Treasury of the United States to the credit of the
the District of Columbia: Provided, That notwithstanding
the provisions of this section, not to exceed $1,159,800
from any funds in the Treasury of the United States to
the credit of the District of Columbia should be avail-
able for reimbursement to the United States pursuant
to this section.
The actual amount reimbursed to the U.S. Treasury by the D.C. gov-
ernment has not always conformed strictly to the percentages stipulated,
and the percentages themselves have varied over time. An April 17,
1974, letter from Comer S. Coppie, then Special Assistant to the D.C.
Mayor-Commissioner, to Glen E. Pommerening, Assistant Attorney General
for Administration, noted that the D.C. City Council refused to approve
the FY 1975 reimbursement amount as billed by the Department of Justice;
instead, the Council voted to "freeze the appropriation [reimbursement]
at the FY 1974 level", $892,500 less than billed by the Department
(Attachment 1). Even though this City Council action only meant that
one account of the Federal Treasury did not fully reimburse another
account of the Federal Treasury, it should be noted that the Department
has not forgotten this and similar incidents; it has remained concerned
over the difficulty of gaining D.C. government approval of the requisite
amounts of U.S. Attorney and Marshal operating funds to be reimbursed
and, by extension, any actual payment of funds by the City.
On December 13, 1974, Gilbert M. Leigh, Deputy Director, Management
Programs and Budget Staff of the Justice Department's Office of Management
and Finance, met with Donald Smith, OMB Examiner for the Department's
budget, Bill Leonard, OMB Examiner for the D.C. budget and Comer Coppie,
- 1 -
APPENDIX 1
Budget Director for D.C. The meeting was called by the OMB examiners,
reportedly at Mr. Coppie's request. Under provisions of the D.C. "Home
Rule Act" (P.L. 93-198, District of Columbia Self-Government and Govern-
mental Reorganization Act, Sec. 731 (Attachment 2)), the District re-
quested that Section 203 be eliminated from the Department's Appropria-
tion Act, thereby eliminating the requirement for D.C. to reimburse the
U.S. Treasury for U.S. Attorney and Marshal services.
In a December 19, 1974, letter from Assistant Attorney General for
Administration Pommerening to David M. Bray, OMB Deputy Associate Direc-
tor for Economics and General Government, the Department formally stated
its position on the City's request: it neither endorsed nor opposed the
elimination of the reimbursement requirement. Since the Department
received neither credit for nor use of the funds, the elimination of the
City's reimbursement requirement would have no effect upon the Department's
budget (Attachment 3).
A February 24, 1975, letter to Deputy Attorney General Silberman
from Paul H. O'Neill, Deputy Director, Office of Management and Budget,
noted that OMB had previously instructed the Department to eliminate
in FY 1976 the appropriation language requiring the District to reimburse
the Treasury (Attachment 4, p. 48). This decision was made "to reflect
the intent of Section 731 of the District of Columbia Self-Government
and Governmental Reorganization Act which authorizes the District
to contract with Federal agencies for the provision of services." The
Department followed these instructions (Attachment 5). The OMB letter
then went on to request the Department to formulate procedures which
would result in a negotiated contract between the District of Columbia
and the Department. The ultimate agreement, per provisions of the
District of Columbia "Home Rule Act", would be subject to approval by
OMB.
An internal Department memorandum dated September 20, 1976, noted
as background that this OMB instruction to negotiate a reimbursable
agreement with the District "had not been part of the Department's origi-
nal understanding of what would happen" after the Section 203 reimburse-
ment provision was removed from the Department's appropriation language
(Attachment 6). The March 11, 1975, testimony of Assistant Attorney
General for Administration Pommerening, given during the 1976 appropria-
tions hearings, confirmed that the Department "took a neutral position"
on the OMB decision to delete the reimbursement provision because it had
no effect on the Department's operating funds. He noted in further
testimony that the negotiation process between the District government
and the Department "will be difficult", implying that such negotiations
had not yet begun (Attachment 4, P. 47). The Congress accepted the
Department's proposed appropriation language changes and eliminated the
Section 203 provision from the Department's 1976 Appropriations Act.
- 2 -
The negotiations between the Department and the City were delayed
because legal issues were raised regarding the OMB directive to seek a
reimbursement contract. An April 24, 1975, letter from Assistant Attor-
ney General for Administration Pommerening to OMB Associate Director
Walter Scott raised two issues which the Department asked OMB to review
"prior to the initiation of any conversations [between the Department
and the District government] to set a framework for negotiating a reim-
bursement agreement." (Attachment 7). Those issues were raised by the
U.S. Attorney's Office and were also considered applicable to the U.S.
Marshal. They were: (1) Section 731 of P.L. 93-198 does not apply to
the U.S. Attorney and U.S. Marshal because that Section excludes activi-
ties required under other statutes, i.e., the activities of the U.S.
Attorney and Marshal are performed under other legislative provisions
(see citations in Attachments 9 and 14); and (2) the U.S. Attorney's
and Marshal's responsibilities which are so required should be allowed
to be justified in the resource request documents submitted through the
Department rather than those of the D.C. government.
In a May 16, 1975, letter to Assistant Attorney General for Adminis-
tration Pommerening, OMB Associate Director Scott responded to the issues
raised (Attachment 8). His letter disagreed with the Department's view
that Section 731 of P.L. 93-198 excluded the services of the U.S. Attor-
ney and Marshal due to the fact that Section 731 (a) states that the
"terms and conditions governing the performance of such services" must
be otherwise prescribed in law. While conceding that other statutory
provisions require the performance of U.S. Attorney services in the
District, "there is no express or implied limitation that [OMB is] aware
of that governs the "terms and conditions' of furnishing these services."
Without the Department's citation of such terms and conditions, OMB
considered the exclusionary provision inapplicable to the U.S. Attorney's
and Marshal's services.
Regarding the second issue, OMB concluded that the inclusion of the
local U.S. Attorney's and Marshal's budget requests in the D.C. government's
budget request would be preferable to those requests being part of the
Department's budget request, since the services are provided to the
District. The letter closed by suggesting that frequent disagreements
between the Department and the District over the computation, documenta-
tion and justification of costs might be resolved through the completion
of negotiations (see also Attachment 1, p. 2).
On June 6, 1975, officials of the Executive Office for U.S. Attor-
neys, U.S. Attorney Earl Silbert (District of Columbia) and his Principal
Assistant U.S. Attorney took the initiative to meet with OMB staff members
Smith and Leonard (Attachments 9 and 10). The points raised in the pre-
vious exchange of letters were expanded upon. The U.S. Attorney argued
that the local prosecution services of the U.S. Attorney are mandated by
the Congress (28 U.S.C. $101); their provision is not discretionary on
the part of the U.S. Attorney. He concluded that Section 731(a) of the
D.C. Self-Government Act covers those services which may or may not be
- 3 -
furnished, i.e., those that are left to the discretion of the contracting
agencies. He argued further that the "terms and conditions" of the U.S.
Attorney's and Marshal's services are, in fact, specified in other legis-
lative acts, e.g., $173(a) (2) of the D.C. Court Reform Act of 1970 which
provides that the District of Columbia shall reimburse to the U.S. the
amount necessary "to cover seventy-five per centum of the costs of oper-
ation, maintenance, and repair of space used by the United States Attorney
and the United States Marshal for the District of Columbia."
The U.S. Attorney expressed his concern that the D.C. government
would control the U.S. Attorney's resources under a contractual agreement,
yet it would be the U.S. Attorney who would be held responsible by the
Congress, OMB and the Department for performance. In that regard he
cited the possibility, then carried in the local press, that the city
government was reducing local law enforcement by cutting 1,000 police
department positions as an example of the precariousness of local
funding for law enforcement.
The result of these arguments was that OMB officials Smith and
Leonard stated they would not press for a negotiated agreement between
the Department and the District government. This position seems to
reflect only the views of these two OMB officials and was not necessar-
ily the official position of OMB at the time.
On June 10, 1975, Gilbert Leigh discussed the matter with James
Purcell, Chief, Treasury/Justice Branch, OMB. After his discussion with
OMB Examiner Leonard, Mr. Purcell said he would reopen the issue. Before
this could be done, Don Smith left OMB (Attachment 6, page 2). Subse-
quent informal conversations between Messrs. Leigh and Purcell resulted
in a verbal directive to the Department to let the negotiation of the
agreement "die a natural death". This was never transmitted in writing
by OMB; it was accepted as fact by the Department, however.
In the fiscal year 1977 budget hearings before the House Appropria-
tions Subcommittee, Assistant Attorney General for Administration
Pommerening testified on February 19, 1976, that the reimbursement con-
tract between the District and the Department was "not yet negotiated."
(Attachment 11). A subsequent status report submitted for the record
noted:
Prior to and following the Department's [fiscal year 1976]
testimony, there were exchanges of views on the subject among
the Office of Management and Budget, the Department and the
U.S. Attorneys [the Executive Office for U.S. Attorneys and
the U.S. Attorney for the District of Columbia]. These ex-
changes have raised issues which have not been resolved;
hence there is no reimbursement agreement in force.
The status report stated that the Department intended to renew its
efforts to clarify and resolve the issues and "reach cloture on the
matter". It seems that while the Executive Branch had at least informally
agreed to drop the matter, a question from a Congressman some eight
- 4 -
months later caused the Department to stipulate that the matter would be
reopened. No action appears to have been taken, however.
A September 20, 1976, internal memorandum outlines alternatives to
be pursued other than the reimbursement arrangement (Attachment 6). A
handwritten note dated September 27, 1976, states that Gilbert Leigh had
apparently reached an informal understanding with John Komoroske, a new
OMB Examiner for the Justice Department (Attachment 12). This understand-
ing was that a reenactment of the previous Section 203 provisions (D.C.
reimbursement to the U.S. Treasury) might be sought by OMB if Mr. Komoroske
could interest his superior, Joseph Mullinix, the new Chief, Justice/Treas-
ury Branch. This gambit was considered unlikely even in the memo propos-
ing it; no action was taken by OMB or the Department.
The matter appears to have remained dormant until the spring of 1977.
In a March 16, 1977, letter from W. Bowman Cutter, OMB Executive Associate
Director for Budget, to Associate Deputy Attorney General William B. Gray,
OMB resurrected the matter of the reimbursement negotiations (Attachment
13). In this letter, OMB asked the Department to conduct a study of
three major topics, to be completed by September 1, 1977, before the
preparation of the FY 1979 budget:
The status quo. [At the time of the writing and also at
present, the status quo is that no reimbursement is made
to any Federal fund by the D.C. government.]
Reinstitution of reimbursement system. [Reimbursement per
se could have two options: reimbursement by D.C. to the U.S.
Treasury (old Section 203 of the Justice Department appropria-
tion) or reimbursement by D.C. to the Department under a con-
tract to be negotiated.]
Transfer prosecution authority to the D.C. government as an
expansion of "Home Rule". [This alternative was new to all
discussions. Even though proposed often by the D.C. govern-
ment, e.g., as in Attachment 1, p.2, this grant of authority
had not been made by the Congress when it enacted the Self-
Government Act of 1973.]
The study, prepared by the Executive Office for U.S. Attorneys and
the U.S. Attorney's Office for the District of Columbia, was transmitted
to OMB on September 23, 1977 (Attachment 14). It opposed both the reim-
bursement arrangement between the City and the Department and the trans-
fer of prosecution authority to the D.C. government. It recommended the
retention of local prosecution authority in the Office of the U.S. Attor-
ney, funded by the Federal government. Again the matter seems to have
been dropped by OMB, at least for the FY 1979 budget.
- 5 .
During the finalization of the Department's FY 1980 budget, however,
OMB advised in its budget allowance handout of November 15, 1978, that
the U.S. Attorney's and U.S. Marshal's services to the District should
be transferred to the District government in FY 1980 (Attachment 15).
This would require the Congress to consider legislation (to be prepared
by the Justice Department, per instructions by OMB, as companion proposals
to the appropriations request) to grant local prosecution authority to
the District government.
The Department opposed this transfer in its appeal letter of
November 20, 1978, from the Attorney General to the Director of OMB
(Attachment 16, p. 3). The letter indicated that further study of the
District's entire criminal justice system would be needed, as was done
by the Congress in 1971 and 1973 while considering "Home Rule", rather
than immediate action to transfer the responsibilities for prosecution
and litigation which are critical to law enforcement.
OMB declined to reconsider its position; the Attorney General ap-
pealed in writing to the President on December 13, 1978 (Attachment 17).
The issue was resolved between OMB and the Attorney General, apparently
without Presidential intervention, such that the transfer of the U.S.
Attorney's local prosecution responsibilities would not be requested in
FY 1980, although the termination of the U.S. Marshal's local services to
the D.C. Superior Court would be requested. Such an action will cause
the USMS FY 1980 budget to be reduced by $2,818,000 and 85 positions
(Attachment 18) if Congress accepts the Department's budget request.
The status at present is that legislation will be transmitted by
the Department for Congressional action to transfer the U.S. Marshal's
Superior Court responsibilities to the D.C. government. The U.S. Attor-
ney's local prosecutive role is unchanged for FY 1980. No reimbursement
arrangement exists between the D.C. government and any Federal fund. The
U.S. government's unique interest in D.C. law enforcement and litigation
continues to be discharged as mandated by law and as funded by the Depart-
ment.
In its official allowance letter on the FY 1980 budget, dated
February 2, 1979, OMB is requiring that the Department transfer the
local prosecution authority of the U.S. Attorney to the D.C. govern-
ment beginning in FY 1981. OMB has requested that a formal transfer
plan be submitted by March 30, 1979 (Attachment 19, p. 2).
- 6 -
LIST OF ATTACHMENTS
1. Letter from Comer S. Coppie, Special Assistant to the District of
Columbia Mayor-Commissioner, to Glen E. Pommerening, Assistant Attorney
General for Administration, April 17, 1974.
2. Public Law 93-198, District of Columbia Self-Government and Governmen-
tal Reorganization Act (December 24, 1973), Sec. 731, Agreements with
United States.
3. Letter from Mr. Pommerening to David M. Bray, OMB Deputy Associate
Director for Economics and General Government, December 19, 1974.
4. Report of the House Appropriations Subcommittee, Department of Justice
Hearings, FY 1976, pp. 47-48.
5. Department of Justice FY 1976 Congressional Budget, Proposed Language
Changes, pp. 22-23. Cited in the Report of the House Appropriations
Subcommittee, Department of Justice Hearings, FY 1976, pp. 23-24.
6. Memorandum from James F. Hoobler, Director, Management Programs and
Budget Staff, Office of Management and Finance, Justice Department,
to Mr. Pommerening, September 20, 1976.
7. Letter from Mr. Pommerening to OMB Associate Director Walter Scott,
April 24, 1975.
8. Letter from Mr. Scott to Mr. Pommerening, May 16, 1975.
9. Memorandum to Files from Carl S. Rauh, Principal Assistant United
States Attorney (District of Columbia), June 9, 1975.
10. Memorandum to Files from Francis X. Mallgrave, Executive Office for
United States Attorneys, June 18, 1975.
11. Report of the House Appropriations Subcommittee, Department of
Justice Hearings, FY 1977, pp. 399-400.
12. Handwritten note to Files from Gilbert M. Leigh, Deputy Director,
Management Programs and Budget Staff, September 27, 1976.
13. Letter from W. Bowman Cutter, OMB Executive Associate Director for
Budget, to William B. Gray, Associate Deputy Attorney General, March 16,
1977.
14. Letter from William P. Tyson, Acting Director, Executive Office for
United States Attorneys, to Mr. Cutter, September 23, 1977. Appended
is the 33-page Study of Prosecution Functions.
- 7 -
15. Budget Allowance Handw C from OMB given to Department budget offi-
cials on November 15, 1978.
16. FY 1980 Budget Appeal Letter from Attorney OMB, General November
Excerpt Griffin of B. the Bell to James T. McIntyre, Jr., Director,
20, 1978.
17. Undated Memorandum from the Attorney General to the President,
transmitted December 13, 1978.
18. Memorandum Administration, from Kevin to William D. Rooney, E. Hall, Assistant Director, Attorney United General States for Marshals
Service, January 9, 1979.
19. Letter from Mr. McIntyre to the Attorney General, February 2, 1979,
p. 2.
-
. 8 -
ATTACHMENT 1
File
GOVERNMENT OF THE DISTRICT OF COLUMBIA
EXECUTIVE OFFICE
OPECIAL ASSISTANT TO THE
REPLY TO:
MAYOR-COMMISSICNER
ROOM 423, DISTRICT BUILDING
DIRECTOR. OFFICE OF BUDGET AND
84TH & E STREETS. N. W.
FINANCIAL MANAGEMENT
WASHINGTON, D. C. 20004
Mr. Glen R. Pommerening
APR 17197
Assistant Attorney General
for Administration
Room 1111
GROM
Department of Justice
MAIL ROOM
Washington, D. C. 20530
DEPT.OF JUSTICE
Dear Mr. Pommerening:
This communication is to advise you of recent actions taken by the
District of Columbia government with respect to the District's reimburse-
ment for 53 percent of expenditures of the offices of the U. S. Attorney
and U. S. Marshal for the District of Columbia.
The City Council, in its review of the reimbursement request of
$6,625,000, noted in its budget report:
"The city is requested to reimburse the Treasury in FY 1975 for
costs totalling $6,625,000 at a rate of 53 percent. Thus the
total cost to which the formula was applied is $12,500,000.
The Public Safety Committee notes that the total cost of the
Department of Justice services in FY 1972 was $8,902,000 (the
city obligation using a 75 percent formula was $6,676,500).
Within three fiscal years the city, with little or no informa-
tion provided, is faced with a 50% increase in a program over
which it exercises no control.
In light of these facts the Public Safety Committee cannot
recommend approval of the request as submitted. Therefore,
the Committee recommends that the Council follow the lead of
the Congress and freeze the appropriation at the FY 1974 level.
The Committee recommends that a funding level of $5,732,500
(53% of the FY 1974 total cost - $10,816,000), $892,500 below
the amount requested, be approved.
While the Committee does not recommend approval of the reimburse-
ment as submitted, the ownittee's action is not based on
sfaction with the services provided by the U. S. Attorney
sand the U. S. Marshal. The Committee is fully aware of the
excellence of the two offices. Rather the Committee action is
predicated upon the lack of information before it and the total
APR 22 1974
lack of city control over the services which it is requested
to fund. Furthermore, the Committee believes that the District
0.0.0
of Columbia must have a local prosecutor's office, funded by the
OFFICE OF MGT. E:
2
city and subject to city goals and priorities, just as is
the situation in virtually every other jurisdiction. The
committee is hopeful that with the advent of Nome Rule this
will be accomplished."
The Mayor did not veto the action of the City Council, but did note that
a supplemental request might be required if the amount requested for the
reimbursement proved insufficient.
In the detailed budget justifications transmitted to the Congress, the
District has indicated that it will continue to work with the Department of
Justice in developing more refined program and financial information. The
detailed justifications include the workload data sent to my office on
February 6, 1974, by Mr. William D. Van Stavoren; hopefully that information,
and the audit report sent by you to my office on November 5, 1973, will serve
as a basis for continued development of the information required by the City
Council and the Congress.
I am, of course, available to furnish any additional information on
this matter you may desire. I will be in touch with your office on refin-
ing financial and program information after the conclusion of Congressional
hearings on the District's fiscal 1975 budget.
Sincerely
Colling
Comer S. Coppie
Special Assistant to
the Mayor-Commissioner
ATTACHMENT 2
December 24, 1973
- 49, -
Pub. Law 93-198
17 STAT. 822
(c) Subject to the limitations contained in section 603(b), there are Appropriation.
authorized to be appropriated such sums as may be necessary to make Anto 814,
loans under this section.
PART D-MISCELLANEOUS
AGREEMENTS WITH UNITED STATES
Sec. 731. (n) For the purpose of preventing duplication of effort or Federal govern-
for the purpose of otherwise promoting efficiency and economy. nuy ment services.
Federal officer or agency may furnish services to the District govern-
ment and any District officer or agency may furnish services to the
Federal Government. Except where the terms and conditions govern-
ing the furnishing of such services are pre-cribed by other provisions
of law, such services shall L.K. furnished pursuant to an agreement (1)
negotiated by the Federal and District authorities concerned. and (2)
approved by the Director of the Federal Office of Management and
Budget and by the Mayor. Each such agreement shall provide that
the cost of furnishing such services shall be borne in the manner pro-
vided in subsection (c) by the government to which such services are
furnished at rates or charges based on the actual cost of furnishing
such services.
(b) For the purpose of carrying out any agreement negotiated and Delegation of
approved pursuant to subsection (n), any District officer or agency functions.
may in the agreement delegate 8802.37 of his or its functions to any Fed-
eral officer or agency, and any Federal officer or agency may in the
agreement delegate any of his or its functions to any District officer
or agency. Any function SO delegated may be exercised in accordance
with the terms of the delegation.
(c) The cost to each Federal officer and agency in furnishing serv- Costs, pay-
ices to the District pursuant to any such agreement are authorized to ment.
be paid, in accordance with the terms of the agreement. out of appro-
priations available to the District officers and agencies to which
such services are furnished. The costs to each District officer and
agency in furnishing services to the Federal Government pursuant
to any such agreement are authorized to be paid, in accordance with
the terms of the agreement. out of appropriations made by the Con-
gress or other funds available to the Federal officers and agencies to
which such services are furnished. except that the Chief of the Metro- :. S. Secret
politan Police shall "nns = noureimbursable basis when requested by Service and
the Director of the United States Secret Service assist the Secret Serv- Executive Pro-
ice and the Executive Protection Service in the performance of their tective Serv-
respective protective duties under section 3056 of title IS of the ics.
United States Code and section 302 of title : of the United States Code.
Metropolitan
police assist-
anoc.
PERSONAL INTEREST IN CONTRACTS OR TRANSACTIONS
65 Stat. 122;
Skc. 732. Any officer or employee of the District who is convicted of
84 Stat. 1941.
a violation of section 20S of title 18, United States Code. shall forfeit 76 is Stat. Stat. 712. 1124.
his office or position.
COMPENSATION FROM MORE THAN ONE SOURCE
SEC. 783. (a) Except ns provided in this Act, no person shall 1⑉
ineligible to serve or to receive compensation as a member of the Board
of Elections because he occupies another office or position or because he
receives compensation (including retirement compensation) from
another source.
(b) The right to another office or position or to compensation from
another source otherwise secured to such R person under the laws of the
ATTACHMENT 3
GEP:JFH:G:L:dyb
12/16/74
DEC 19 1974
Mr. David M. Dray
Deputy Associate Director
Economics and General Government
Division
Office of Management and Dudget
Washington, D. C. 20503
Dear Mr. Cray:
On Deceder 13, 1974, Hr. Cilbert Leigh of my staff attanded a meeting at
the office of Mr. Donald Smith of the Office of Management and Budget which Was
also attended by Mr. COMPT Coppie, Budget Director for the District of Columbia.
At that meting, 112% Coupie proposed that Imaguage concerning a refubursement
by the District of Calimbia to U.S. Treasury for services of the u.s. Altorney
and U.S. Larsne) in the District OF Columbia le dropped. This letter expresses
the view of the Department regarding that proposal.
The language in question is to be found as Section 203 of the FY 75 General
Provisions for the Department of Justice. The reidwrsement has been in criect
since 1333 at varying rates. The Department acts as a Willing ament and funds
are transferred by the U.S. Treasury from the District of Columbia's accounts to
the General rund account. The transaction has no impact at. all on the hudnet of
the Department of Justice and there is no purceivable advantage or
to the Department in relaining or eliminating the language. 1.0 neither procese
nor oppose the elimination of the language for this reason.
From the way the reimbursement works, it is likely that elimination of the
language would have scae incect in reducing overall receipts in the Federal
treasury. We do not believe we are in a good position to assess this factor.
The Department of Justice defers to the Office of Hanagement and Budget ON
the question of whether or not the language should be retained.
Sincerely,
cc: Hoobler/file
Hoobler/reading
Loigh
Glon E. Pessarching
BAG
Assistant interney Feberal I
PHG I
for Administration
PMG II
PHG III
ATTACHMENT 4
47
POSITIONS AND VACANCIES
Mr. SLACK. How many permanent positions are presently authorized
for the Department of Justice?
Mr. POMMERENING. 50,596.
Mr. SLACK. How many of those are vacant?
Mr. POMMERENING. As of March 11. 1975. 1,069.
Mr. SLACK. How many additional positions are you requesting for
fiscal year 1976?
Mr. POMMERENING. 1,195, Mr. Chairman.
CHANGES IN GENERAL PROVISIONS
Mr. SLACK. I would like to refer now to page 171 of the committee
print with respect to general provisions.
As shown on page 171 of the committee print and on page 22 of your
justifications. you are requesting deletion of section 203, which deals
with reimbursement by the District of Columbia for a portion of the
cost of the U.S. attorneys and U.S. marshal's office in the District of
Columbia?
Mr. POMMERENING. That is correct.
Mr. SLACK. On page 23 of the justifications you state, and I quote:
It is no longer required to stipulate through language the percentage nt which
the District of Columbia must reimburse the Treasury of the United States for
expenditures of the office of the U.S. attorney and U.S. marshals.
What do you mean by that statement?
Mr. POMMERENING. Mr. Chairman. last year the Congress in its wis-
Jone and the President by his signature changed the relationship of the
District of Columbia to the Federal Government. Subsequent to that,
the District government requested of OMB that this provision be
deloted. OMB consulted with the Department.
As you well know. the impact of this provision has no effect upon
the Department. We took a neutral position. The funds, 53 percent of
the costs of these two offices. accrued to the general funds of the United
States. They do not affect our budget.
OMB in its negotiations with the District decided it was prudent
" remove this provision and to direct us. the Department of Justice,
in negotiate with the District of Columbia a reimbursable agreement
on that the funds or the actual costs of the services which we render
would accrue back to the United States.
Mr. SLACK. Is if a fact that the District of Columbia still reimburses
iss Federal Government for services by these offices?
Mr. POMMERENING. It is. Mr. Chairman. The problem may be that
process of negotiation will be a difficult one and whether it arrives
53 percent of the cost or not I don't know.
Mr. CEDERBERG. Why should it be difficult?
Mr. POMMERENING. I would presume. Mr. Coderberg, the District
onl not want to reimburse any more than they have to. We would
in get just as much of the costs as we could.
Mr. SLACK. Is there a requirement that the reimbursement be made ?.
Mr. POMMERENING. Yes.
Mr. SLACK. Would you cite that for the record?
48
OMB LETTER CONCERNING REIMBURSEMENT BY D.C. GOVERNMENT
Mr. POMMERENING. Certainly. I have n letter in my file which I will
insert in the record from the Office of Management and Budget. in-
structing us to negotiate and receive a reimbursable agreement with
the District.
[The letter referred to follows:]
FEBRUARY 24, 1975.
Mr. LAURENCE II. SILBERMAN,
Deputy Attorney General.
Department of Justice, Washington. D.C.
DEAR MR. SHAREMAN The President's budget for the fiscal year 1976 proposed
that the appropriation language requiring that the District of Columbia reim-
burse the Treasury of the United States for services provided by the U.S. aftor-
neys and marshals be eliminated.
This decision has been made at this time to reflect the intent of section 731 of
the District of Columbia Self-Government and Governmental Reorganization
Act, Public Law 03-198 which authorizes the District to contract with Federal
agencies for the provision of services, and authorizes Federal agencies to provide
such services.
This letter is to request that you formulate procedures for negotiating a con-
fractual arrangement for those services provided to the District of Columbia
by the Department of Justice.
The procedures established will serve as the basis for a reimbursable agree
ment between the Distriet of Columbia and the Department of Justice in the
future. As provided in section 737 of Public Law 13-198 studi an agreement would
be subject to approval by the Director of the Office of Management and Badges
My staff will be in contact with yours to begin initial discussions.
Sincerely,
(Signed) PAUL H. O'NEHL.
Deputy Dircctor.
Mr. SLACK. Do you know how long this provision has been carried
in your appropriations act?
Mr. POMMERENING. It has been for a long, long time. Mr. Chairman.
I can cite you that.
Mr. LEIGH. Since 1041. Mr. Chairman.
COMPENSATION OF LAND COMMISSIONERS
Mr. SLACK. On page 172 of the committee print. Mr. Pommerening
you show a request for a new general provision. namely section
Since this provision deals with a single appropriation item for ,In
tice, why don't you request it as a proviso in that item? Before
respond. the way it is written it would be my opinion that it is leg:
tion and subject to a point of order. It could be written as a limita:
and therefore not subject to a point of order.
Mr. POMMERENING. Mr. Chairman. the compensation of land
missioners who are appointed by the Federal judges is an area
is beyond the control of the Department. We have. as you know. h
heard our supplemental budget request. a problem in trying to a
ister this. I have discussed this problem with Mr. Kirks. the Di:
of the Administrative Office of the T.S. Courts. and he concurs
we should limit the compensation which the Federal judiciary
award to the land commissioners.
If you. Mr. Chairman, and the committee. have suggestions
wording of the limitation. we would be happy to amend it to
accomplish the goal that we suggest.
8.
if.
do 1P Insured : Mail :14 payable or aircraft 11. ,wiy may in Protect Never - metor of air refe partness f.t - - -
and 3. to Lawway eatablish is propered to Furst research Fer the naty of Illog.1 Invisemtion getterns and the development of remeilal rethodulation to CUPS Unre tatterie,
a to-year limitarion Account not to exceed $400,000.
8. New language is proposed to permit expenditure of $53,000,000 curing the transition period, July 1, 1976, through September 30, 1976.
Federal Prison Cystem
1. for Language replacement is proposed only. to decrease the number of passenger motor vehicles which can be purchased and increase the mumber of vehicles which can be the
2. Kew language is proposed to permit the expentiture of funds during the transition period for each Federal Prison System account.
obligation is proposed for deletion.
3. The provision allowing current year budget authority in the Support of United States Prizoners account to be available for payment of Fiscal Year 1978
Law Enforcement Assistance Ad-inistration
New larguage is proposed to permit expenditure of $195,000,000 during the tranition period, July 1, 1976, through September 30, 1976.
Drug Enforcement Administration
1. Increases are proposed for the limitations on passenger notor vehicles for both total authorized and replacement only.
2. New language is proposed to permit expenditure of $42,000,000 during the transition period, July 1, 1976, through September 30, 1976.
23
GUIJAL HIGHTSTONS
Justification of Prepared Language Charges
The 1976 budget estimates include proposed changes in appropriation Incourage listed and explained below, New language is underscored and deleted watter is
enclosed in brockets,
ATTACHMENT 5
GENERAL OF JUSTICE
Sec. 202. None of the funds appropriated by this title my be used to pay the compenation
or any person hereafter employed as an attorney (except foreign creeke) reployed in special
under the Inwo of a State, territory, or the District or Colirbia.
cases) unless such person shall be duly licensed and authorized to practice as an attorney
Eee. 203. per centise of the expensitures Dr the offices of the United States.
Attorney are UP United States mustal for the District of Columbia from all appropriations
in this Litle thall be relationned to the United States - my funk It. the Tretrury or the
United States Li, the credit of *In* District of Countries Invested, The notwithstmating the
prevision of this section, not to exced But The way fun to 11. the Treasury of the
United a item in the credit or 11. District of a burl-in shall be available for
to the United States purchased to U.I. section
22
This in proponed to delete Section 203, because it 1s no lorger required to stipulate through Incounce the percentare at which the District or
Columbia change can't relaburue the Treasury of the United States for experititures for the office of the United States Attorney and United States carshal.
fee. 203 Sec. 203. Appropriations and authorization made in this title which are avail-
able for experience of atterdance ut meting shall be expended for such purposes in accord-
are with regulations procerdined by the Attorney General.
This change would remaber Section 204 to Section 203.
INC. 205
fee, 204. Appropriations and authorizations rede in this title for salaries and
expenses, shall to available for services as authorized by 5 U.S.C. 3109.
This charges would number Section 205 to Dection 204.
200 Sue 205. Appropriations for the current fineal year] for "Salaries and expenses,
Fairmal expiristration," "Mildries and expenses, United States attorneys and merhald,"
"Calaries and expenses. Federal Bureau of Investigation, "Colaries and expenses, Imigration
and Naturalization Service", and "Cularies and expenses, Thereau or Prisect". shall to avail-
able for und forms was allowwees therefor as authorized for law (5 U.3.C. 5301-5902).
The first checks would recember Destion 206 to Section 205.
The civere deletes the restriction to the "current fiscal year" an incopropriate since identified accounts are arrual appropriations.
or Sec. insurance for notor whicles operated on official Government business in foreign countries.
207 Sec. 206, Appropriations time in this title shall be available for the purchase
This classe would renuster Section 207 to Section 206.
Sec. 207. for land contacterers covered under the meterpriation "Fers and
of without Le at is Hilly 1"1"." not to -xcess the equivatient unily rate of
Hall CARE 15 in Us' General
This provision would establish Mr. experiention Fest Jasel comminsioners at not - than the daily rate of a Grade 18 on the General Schedule, It is felt
that a willing world the established for there nervices.
5... :wn, Minori. Pirk's available for the period July 1, 1976 through Salember 30, 1276
shall 1... svatual :- For 11.00 RAMAGER THE redicted rmly) of m-forth of 132 meter or
expires 11.71 In Line is purrent of Murtice
A.L,
This number provision of motor vehicles authorized (For replacement purposes only) For each appropriation in the Department of Justice Appropriation Act, 1976. This
asked available approprintions during the transition period, July 1, 1976, through September 30, 1976. for the purchase of one-fourth or would the
a purchase level for the motor vehicles during this period, comparable to the restrictions included in the 1976 request.
Ere. 207. None of the received appropriated for % July 1, 19th, through Anternet 5. 1976,
shill be withh for 11.00 DEPARTMENT or MARCH THE ST *. TAX: bevin reated
THE to *****: 1.0 for too. of street wen THE certificate
or the AMOUNT lren " Gustle: Approvation Art,
This provision stipulates that none of the INVESTED appropriated two for sant the - transition to and period $50,000 will my be 10 used well for for explains the purchase of of strems, except " 1. not that - In -
entry authorization and upon Invel the for certificate Aircraft nervices of the result PML General an "1.2" $ 1.00
-
OPTIONAL FORM NO. 10
JULY 1073 EDITION
ATTACHMENT 6
GSA TPNE 141 CFRI 101.11.8
UNITED STATES GOVERNMENT
Memorandum
TO
:
Glen E. Pommerening
DATE: SEP 20 1976
Assistant Attorney General for Administration
FROM
James F. Hoobler, Director
Management Programs and Budget Staff
SUBJECT:
District of Columbia Reimbursement for Services of the U.S. Attorney and
U.S. Marshal in the District of Columbia
This is to recap and propose alternatives for resolving the problem
we have regarding reimbursements by the District of Columbia Government
for the costs of the U.S. Attorney's and U.S. Marshal's offices in the
District of Columbia (D.C.).
BACKGROUND.
Since about 1947. section 203 of the General Provisions of the
Department's appropriation act provided that the D.C. Government was to
reimburse the U.S. Treasury for a stipulated percentage of the costs of
the U.S. Attorney's and U.S. Marshal's offices in D.C. That provision
was inserted originally by our House Subcommittee on Appropriations.
Prior to the formulation of the FY 1976 budget, Don Smith, an OMB
examiner for the Department's budget, and Bill Leonard, OMB examiner for
the D.C. budget, asked Gilbert Leigh of the Department of Justice to
attend a meeting with them and Comer Coppie of the D.C. Government, to
discuss this reimbursement. The purpose of the meeting was to determine
the Department's reaction if section 203 were deleted. After the
meeting, the Department responded in writing that the proposal had no
financial or programatic impact on the Department since the Department
received neither credit nor use of the funds, that the Department
neither proposed nor opposed the suggestion, that it seemed to involve
Treasury fiscal balances more than anything else, and that the matter
was up to OMB OMB deleted the provision from the FY 1976 budget.
Subsequently, Paul O'Neill, OMB Deputy Director, instructed the
Department in writing to negotiate a true reimbursable agreement for
these services with the D.C. Government. This development had not been
part of the Department's original understanding of what would happen.
Nevertheless, we tried in writing to get negotiations initiated with the
U.S. Attorney and U.S. Marshal in the District.
Buy U.S. Savings Bonds Regularly on the Payroll Savings Plan
$010.110
-2-
The U.S. Attorney raised several major objections, some of which were
communicated to OMB in a letter to Walter D. Scott, OMB Associate Director
for Economics and Government, dated April 24, 1975. Mr. Scott replied on
May 16, 1975, in a letter to Glen E. Pommerening, Assistant Attorney
General for Administration, essentially directing the Department to proceed
with developing a reimbursable agreement.
On June 6, 1975, personnel from the D.C. U.S. Attorney's office and
the Executive Office for U.S. Attorneys met privately with Don Smith and
Bill Leonard to discuss the U.S. Attorney's reservations on the matter.
The U.S. Attorney and his principal assistant noted their impression of
the meeting as follows:
Don Smith and Bill Leonard seemed impressed
by our arguments and stated that they would not go
forward with their proposal at this time.
Finally, we suggested that if the proposal
came up again an Attorney General's legal opinion
on the meaning of Sec. 731(a) [of the D.C. Self-
Government Act of 1973] could be sought from the
Office of Legal Counsel.
On June 10, 1975, Gilbert Leigh discussed the item with James Purcell,
Chief of the Treasury/Justice Branch in OMB, who had not been apprised of
the meeting. He also discussed it with Bill Leonard, who had advised his
superior and said he would reopen the issue. Before this could be done,
Don Smith left OMB.
Mr. Leigh raised the matter several times in conversation with
Mr. Purcell in an effort to get a written clarification of OMB's position.
Mr. Purcell was not able to provide it in writing, but he advised Mr.
Leigh that there was no one left at 0:1B who knew or cared anything about
the agreement and that the Department should allow it to die a natural
death. Over the past year, Kr. Leigh had discussed it with OMB staff a
number of times, but no one there has focussed on whether or not the
Department is still expected to negotiate an agreement.
In the meantime, the Department was embarassed in its testimony on
the FY 1977 budget before the House Subcommittee when it had to say that
there is no reimbursable agreement. The Department made a commitment
to resolve the issue.
CURRENT SITUATION.
There has been no resolution to the issue and we are formulating the
FY 1978 budget. We can expect to be asked about the reimbursable agree-
-3-
ment by the House Subcommittee. Mr. Leigh has once again opened discussions
with OMB on the subject, but with so many new personnel, it may be some
time before 011B is really prepared to respond. However, we believe that
OMB should provide assistance and leadership in dissolving the impasse
because the change came from OMB and it was OMB's examiners who "muddied
the waters" of ONB's intent when they met with the U.S. Attorney.
OPTIONS.
1. Seek a legal opinion. We could raise the matter again with the
U.S. Attorney's office and, if they raise their old objections, suggest
that they act on their threat to seek a legal opinion from the Office of
Legal Counsel.
2. Negotiate an agreement. This is self-evident.
3. Keep the status quo. The situation could be left as it is now,
with OMB advising us in writing that an agreement with D.C. is no longer
required. This would forestall the problem of U.S. Attorney cooperation
and allow us to testify that OMB had let us off the hook. On the nega-
tive side, the District would continue to get a "free ride." [NOTE: The
"free ride" argument is inconsistent with the U.S. Attorney contention
that the Federal Government has a unique interest in D.C. law enforcement
and litigation, which they use to argue against the level of control that
a reimbursable agreement would give D.C. It is also to be noted that the
special interest argument is the position taken by the Department when
the D.C. Self-Government and Court Reorganization Acts were being done to
rationalize a greater Federal role than D.C. wanted us to have. If the
Federal role is in the Federal interest, then D.C. is not getting a "free
ride."]
4. Revert to the former arrangement. We could take the position that
OMB should reinstitute the old section 203. This would have no effect on
the Department; the House Subcommittee might find it amusing; the D.C.
Government undoubtedly would oppose it; and we are not certain now whether
or not OMB could manage it.
5. Compensate for the windfall. 0:18 could reduce the FY 1978 D.C.
budget base by the amount they would have had to reimburse the Treasury,
thereby eliminating the windfall of $6 million that D.C. got when section
203 was eliminated. The District would no longer be getting a "free ride"
in a sense, and the Department would be out of the transaction entirely.
However, D.C. would assuredly oppose such a solution vigorously.
How should we approach this problem?
GEP:JFH:CFL:ed
ATTACHMENT 7
DN TAPE:4/22/75
april 24,1975
Mr. Walter D. Scott
Associate Director for
Economics and Goverment
Office of Management and Budget
Washington, D.C. 20503
Dear Mr. Scott:
The FY 75 President's budget contains the deletion of Section 203
of the General Provisions, which provided fur reintursement DY the
District of Columbia to the United States Treasury of 53% of the costs
of U.S. Attorney's and U.S. Marshal's offices in the District of Columbia.
Mr. Paul G'Heill, Deputy Director of the office of anagement and Buuget
The Department naither opposed nor procosed this delation. Subsequently,
93-190, District of Columbia Sulf-Government and governmental Macrgani-
(CB). sent a letter to the department which cited Section 731 of P.L.
zation ACE, and instructed the Department to work with G3 and the
District of Columbia Government to establish a reinbursement arrangement
for services rendered.
The U.S. Attorney's office fcr the District of Columbia has raised
basic questions unich, I understand, also recresent the views of 731 the
some of the U.S. Marsnals Service. The first point raised is that Scation under
does not apply in this case because it excludes activities recuired and
other statutes, and the activities performed by the U.S. Attorney
second point raised is that the U.S. Attorney and the U.S. torstal
the U.S. Marsoal are performed under other legislative provisions. for The
the District of Columbia have extensive responsibilities which they are
required to perform, and they feel that they should have the authority to
justify their full resource needs to purform their responsibilities
through the Department.
He urga that these points be reviewed at 045 prior to the initiation
of any conversations to set a francwork for negotiating a reimbursement
agreement.
Sincerely,
CC:
Pormerening
Scott
Glen E.
Hoobler
Assistant Attorney Coneral
Leigh
for Administration
BMC
P.MG I
P.D II
PIG III
Reading
EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE OF MANAGEMENT AND BUDGET
WASHINGTON, D.C. 20503
liar 20 2 20
Admin. Counsel
MAY 16 1975
Information Systems
Internal Audit
Mr. Glen Pommerening
Library
Programs
£
Budget
Assistant Attorney General
for Administration
Operations
Personnel & Training
Department of Justice
Security & Admin. Services
Washington, D.C. 20530
Special Assistants
Publication Services
Dear Mr. Pommerening:
Thank you for your letter of April 24, 1975, expressing the
concerns of the U.S. Attorneys and Marshals of the District
of Columbia regarding establishment of a reimbursement
agreement between the District and the Department. At the
time the decision was made that reimbursement would be
preferable to the current procedure the issues surrounding
this relationship were fully discussed, and they are further
discussed below. In addition, there are several other
reasons why we continue to consider this an appropriate
course of action and these are also discussed.
Your letter states that Section 731 of P.L. 93-198 is
inapplicable to the U.S. Attorneys and Marshals because
other statutes require the performance of certain functions
by the U.S. Attorneys and Marshals in the District. The
interpretation that services required by law are excluded
from consideration as possible candidates for a reimbursable
arrangement would appear to be at variance with Section 731 (a)
Section 731 (a) specifies that the "terms and conditions
governing the furnishing of such services" must be otherwise
prescribed in law, not the requirement of performance of the
service. While we agree that other statutory provisions may
require performance of the service, there is no express or
implied limitation that we are aware of that governs the
"terms and conditions" of furnishing these services. If
you are able to provide references for such limitations,
we will review them.
9X21
The second issue raised in your letter is that the U.S. Attorneys
and Marshals have "extensive responsibilities which they are
required to perform" and, as such, "they should have the
authority to justify their full resource needs" through the
Department. We fully agree with the notion that requests for
For
CREDITIONS
Accounting Sec.
2
resources should be justified before the Congress. However,
we believe there is a distinction between the needs of the
District and the needs of the Federal Government which must
be recognized. While recognizing a certain degree of
fungibility in the utilization of manpower in the District,
we believe it desirable to establish, if only for budgeting
and accounting purposes, indicators of the resources devoted
to District as distinct from Federal activities. Such
indicators are essential to the management and operations
of the U.S. Attorney's and Marshal's offices and we would
expect them to be available regardless of the issue at hand.
It has concerned both the District and us for sometime that
there has been a lack of documented justification to support
the charges made to the District for services provided by
the Attorneys and Marshals. The inadequacy of supporting
data resulted, in fact, in a Congressional action reducing
the 1974 reimbursement from $10,125,000 to $7,821,700. Such
problems would be largely eliminated with the establishment
of a negotiated agreement requiring justification of service
levels, costs and performance. Further, this is consistent
with the policy guidance in the 1976 allowance letter directing
you to improve litigative data and management systems.
Finally, from the viewpoint of the Federal Government and its
relationship with the District of Columbia, we see the commence-
ment of negotiations between the Justice Department and the
District as an important, precedent setting action which will
guide future agreements.
We continue to support the change in appropriation language
proposed in the 1976 budget. My staff will be in touch with
yours shortly to begin discussions on this matter.
Sincerely,
Walter D. Scott
Associate Director for
Economics and Government
From
d-20-25)
UNITED STATES GOVERNMENT
DEPARTMENT OF JUSTICE
Memorandum
ATTACHMENT 9
TO
: Files
DATE: June 9, 1975
FROM : Carl S. Rauh
OR
Principal Assistant
United States Attorney
SUBJECT: OMB Proposal for U. S. Attorney to Contract with
D. C. Government for Reimbursement of Superior
Court Operations
On Friday morning, June 6, 1975, an hour long meeting
was held in my office to discuss the above-mentioned subject.
Present at the meeting, in addition to myself, were Don Smith
and Bill Leonard from OMB, Larry McWhorter and Frank Malgrave
from the Executive Office of U. S. Attorneys and U. S.
Attorney Earl Silbert.
The OMB proposal was based on $731 (a) of the D. C.
Self-Government Act of 1973, which provides that "For the
purpose of preventing duplication of effort or for the pur-
pose of otherwise promoting efficiency and economy, any
Federal officer or agency may furnish services to the District
Government
such services shall be furnished pursuant to
an agreement (1) negotiated by the Federal and District
authorities concerned
Mr. Silbert and I argued that this provision clearly
did not cover the U. S. Attorney's Office because the services
that we perform in prosecuting offenses against the United
States which are local in nature are mandated by acts of
Congress. 28 U.S.C. $547; 23 D.C. Code $101. We have no
discretion not to perform these functions. The section of
the D. C. Self-Government Act relied on by OMB covers those
services which may or may not be furnished and is left to
the discretion of the contracting. agencies. We argued further
that we prosecute D. C. Code offenses in the local D.C.
Article I courts because they are acts of Congress and not
for the purpose of "preventing duplication of effort" or
"promoting efficiency and economy."
-2-
We also pointed out that at least in part "terms
and conditions governing the furnishing of such services
are prescribed by other provisions of law" which brings
the U. S. Attorney's Office within the exception of $731 (a)
We referred to $173(a) (2) of the D. C. Court Reform Act of
1970 which provides that the District of C-lumbia shall
reimburse to the United States the amount necessary "to
cover seventy-five per centum of the costs of operation,
maintenance, and repair of space used by the United States
Attorney and the United States Marshal for the District of
Columbia."
With respect to the practical aspects of our con-
tracting with the D. C. Government, we expressed our concern
that D. C. would maintain control over our resources yet
we would be held responsible for our performance. In this
regard, we pointed out the recent newspaper articles that
the city government was cutting back the police department
by 1000 persons.
Frank Malgrave pointed out that the reimbursement
arrangement between the Federal and D. C. Government which
had been in effect for many years really didn't make a great
deal of sense since the Congress would appropriate monics to
D. C. which would be returned to the Federal treasury to
reimburse the Federal Government for services of the U. S.
Attorney.
Don Smith and Bill Leonard seemed impressed by our
arguments and stated that they would not go forward with
their proposal at this time.
Finally, we suggested that if the proposal came up
again an Attorney General's legal opinion on the meaning
of $731 (a) could be sought from the Office of Legal Counsel.
CC:
Mr. Silbert
Mr. Greene
Mr. Gill
Mr. Malgrave
Mr. McWhorter
ATTACHMENT 10
UNITED STATES DEPARTMENT OF JUSTICE
MEMORANDUM TO FILES
FRANCIS X. MALLGRAVE
FROM:
REGARDING:
PAGE 2
DAG
DIVISION:
EOUSA
OFFICE:
739-5021
PHONE #:
DATE:
STATEMENT:
As an offsetting entry and in compliance with Section 731,
PL93-198, they proposed that the D.C. government and the Justice
Department negotiate a reimbursement agreement.
Mr. Mallgrave questioned the rationale as to the
need for the original reimbursement arrangement between the D.C.
government and the U. S. Treasury. No one in the meeting seemed
to be able to account for, or justify the existence for such
an agreement.
Mr. Leonard pointed out the policy issue to be
resolved with regard to reimbursing the Treasury for the funds
that were previously taken care of by the D.C. government. If
the D.C. government is no longer required to make a reimbursement
to the Treasury, a reimbursement would have to be made from
another source or an offsetting adjustment would have to be made
from the outlays. It was agreed that the infinitesimal sum for
reimbursement to the Treasury was not a factor to be concerned
with at present.
Mr. Rach and Mr. Silbert both placed heavy emphasis
on the interpretation of Section 731, PL93-198. In the opinion
of Mr. Rauh, this language was not applicable to our situation.
The language stated that a contract would be negotiated for
services. It implied a discretionary provision for services
when, in fact, the U. S. Attorneys under both the D.C. Code
and U.S. Code are mandated to provide services. It is not a
negotiable matter, nor is there any discretion as to the
provision of legal services. Additionally, Mr. Rauh pointed
out that the D.C. Court Reform Act provided a condition with
respect to the U. S. Attorney's office which further precluded
that office from the provision of PL93-198.
Form DJ-226 (Ed 9-10-70)
OFFICIAL TILE COPY
UNITED STATES DEPARTMENT OF JUSTICE
MEMORANDUM TO FILES
FRANCIS X. MALLGRAVE
PAGE 3
FROM:
REGARDING:
DAG
DIVISION:
EOUSA
OFFICE:
739-5021
PHONE #:
DATE:
STATEMENT: The meeting reached a conclusionary point with
Mr. Smith and Mr. Loonard both indicating that they would take
no further action in pursuing the need for a contract for
services or a reimbursement agreement between the U.S. Attorneys
office and the D.C. government. They would leave the matter as
is, subject to the review of the D.C. budget by the House D.C.
Appropriations Committee and by the Senate D.C. Appropriations
Committee.
It was apparent that the issue was not entirely
resolved but merely dclayed at least for Fiscal Year 1976.
Mr. Smith further indicated that he would get back to the Justice
Department and advise them of this understanding. Also, this
would have to be worked out with the superiors of Messrs.
Smith and Leonard.
E
Form DJ-226 (Ed 9-10-70)
OFFICIAL FiLE COPY
ATTACHMENT 11
399
Mr. GRAY. Mr. Chairman, last year we had four trial advocacy
sessions and we plan six for this year. An average of 50 lawyers attend
as students in each of those seminars and additional lawyers attend
as instructors. but we feel that the instructors also gain instruction
RS they participate in the seminar. We also conducted several continu-
ing legal education and specialized conferences in the area of white-
collar crime, Indian affairs. and environmental law. In addition, we
plan to conduct two or three management conferences within this
year for key administrative personnel within the U.S. attorney's
office. Mr. SLACK. What is the total amount included in your budget for
this item?
Mr. GRAY. Mr. Chairman, for the Attorney General's Advocacy
Institute the total amount requested is $734,000.
DISTRICT OF COLUMBIA REIMBURSEMENT
Mr. SLACE. The fiscal year 1076 appropriation excluded the pro-
vision formerly carried in your bill which required the District of
Columbia to reimburse the Department for a percentage of the cost
of the U.S. attorney's and U.S. marshal's office for the District of
Columbia. As I understand it. there is an agreement between the De-
partment of Justice and the District of Columbia with respect to this
reimbursement. Is that correct?
Mr. MAILGRAVE. No, sir. nt this time there is no formal agreement
that has been worked out between the District of Columbia Govern-
ment and the offices of the U.S. attorneys. I don't know about the
Department of Justice.
Mr. POMMERENING. It is my understanding, Mr. Chairman. that
the reimbursement is pending further arrangements if any are to be
made.
Mr. SLACK. Is there any agreement in this area?
Mr. POMMERENING. I would have to check on that.
Mr. SLACK. If you have it, would you please submit it to me for
inclusion in the record.
Mr. POMMERENING. Yes.
[The following statement was supplied after the hearing:]
STATUS OF REIMBURSEMENT AGREEMENT WITH DISTRICT OF COLUMBIA
Prior to submission of the fiscal year 1976 budget. the Office of Manage-
ment and Budget requested the Department of Justice's views on a proposal to
delete that section of the general provisions which required the District of
Columbia to reiniburse the U.S. Treasury for a part of the COSTS of the offices
of the U.S. Attorney and the r.s. Marshal in the District. The Department took
neutral stance. ns the matter had IIN effect on Its hudget or program.
The provision was deleted in the 1976 President's budget and the Office of
Management and Budget advised the Department that it was necessary to open
discussions with the District of Columbia to reach a reimbursement agreement
between the Department and that government for these services. The Depart-
ment testified to that offect before the House Subcommittee on Appropriations
for the Department of Justice.
Prior in and following the Department's testimony, there were exchanges of
views on the subject among the Office of Management land Banket. the Depart-
ment and the U.S. attorneys. These exchanges have raised several issues which
have sint been resolved: hence. there is 110 reimbursement agreement in force.
The Department intends to renew its efforts to clarify and resolve the issues
and reach cloture on the matter.
400
Mr. SLACK. As I understand it, the reimbursement required in lises:
year 1975 was 53 percent of the expenditures of the office of U.S. at.
torneys and U.S. marshals for the District of Columbia.
Mr. POMMERENING. That is correct, Mr. Chairman.
Mr. SLACK. Can you tell us what that percentage might be for the
current fiscal year?
Mr. POMMERENING. I believe it would be the same, Mr. Chairman.
Mr. SLACK. The same.
Thank you very much, Mr. Gray and gentlemen.
Mr. GRAY. Thank you, Mr. Chairman.
THURSDAY, FEBRUARY 19, 1976.
UNITED STATES MARSHALS SERVICE
WITNESSES
WAYNE B. COLBURN, DIRECTOR
WILLIAM E. HALL, DEPUTY DIRECTOR
WILLIAM IL RUSSELL, ASSISTANT DIRECTOR FOR ADMINISTRA.
TION AND FINANCE
DONALD D. HILL, REGIONAL DIRECTOR. REGION V
LEO C. BADART. CHIEF. BUDGET AND ACCOUNTS DIVISION
GLEN E. POMMERENING, ASSISTANT ATTORNEY GENERAL for
EDWARD ADMINISTRATION W. SCOTT, JR., DEPUTY ASSISTANT ATTORNEY GENERAL
FOR ADMINISTRATION
JAMES F. HOODLER, DIRECTOR, MANAGEMENT PROGRAMS AND
BUDGET STAFF
ROBERT L. DENNIS. DIRECTOR. OPERATIONS SUPPORT STAFF
PHILIP B. STINESS, JR., CHIEF, MANAGEMENT AND BUDGET ST.C.
TION, OPERATIONS SUPPORT STAFF
Mr. SLACK. The next item to which we shall direct our attention.
is entitled "United States Marshals Service." The justifications are 10
be found beginning at page 3t of the justifications book, which 192°
we shall insert at this point in the record, together with pages
through 53.
[The justification pages follow
ATTACHMENT 12
ACTION
ROUTING AND TRANSMITTAL SLIP
I TO (Name. office symbol or location)
INITIALS
CIRCULATE
DATE
COORDINATION
Jin Hockler
2
INITIALS
FILE
Bil -
DATE
INFORMATION
INITIALS
NOTE AND
3
yes ONED this
RETURN
DATE
PERCON.
VERCATION
4
are flie
& certs un pat JJ. is
INITIALS
S.E ME
DATE
SIGNATURE
REMARKS
STATURREPORT
CEP's notes on memo indicate preference.
I've met with Komorowske (CMB) and
his brying to get someone interested in
optun & or some variation thereof. Me has
e copy of the memo for his information and
is optionalizing for Mulliniz and prying to
attract his attention.
Do NOT use this form as a RECORD of approvals, concurrences,
disapprovals, clearances, and similar actions.
FROM (Name, office system or location)
DATE
Grefrigh
9/27/76
PHONE
OPTIONAL FORM 41
OFD 013-10-61416-1 418-015
$041-101
AUGUST 1987
GSA FPMR (41CFR) 100.11.208
An,1209
EXECUTIVE OFFICE OF THE RESIDENT ATTACHMENT 13
OFFICE OF MANAGEMENT AND BUDGET
WASHINGTON, D.C. 20503
MAR 1G 1977
Mr. William B. Gray
Associate Deputy
Attorney General
Department of Justice
Washington, D.C. 20530
Dear Mr. Gray:
In February 1975, it was agreed that the Department of
Justice would negotiate a contractual agreement with the
District of Columbia government that would set the amount
to be paid by the District for the prosecution of the
D.C. Code performed by the U.S. Attorneys and Marchals.
It was intended that this agreement, negotiated under the
terms of the District of Columbia Self-Covernment and
Governmental Reorganization Act (P.L. 93-198), replace
appropriations language for this purpose carried prior
to that time in Departmental and District Appropriations
Acts. No agreement has been concluded on this matter to
date.
We believe this matter deserves more attention and that
11 should be resolved before the Federal and local
government budgets for FY 1979 are prepared. Therefore,
we ask that you prepare a study of the following alterna-
tives for the future provision of the prosecution function
in the District of Columbia for violations of the D.C.
Code: (1) maintenance of the status quo; (2) reinstitution
of a reimbursement system, and perhaps having the District
reimburse the Justice Department directly; and, (3) trans-
ferral of complete responsibility for prosecution to the
D.C. government. The study should be completed by
September 1, 1977. For each alternative, it should, at
a minimum, discuss the pros and cons, describe the
relationship between the Federal and District governments,
and detail the methods for implementation. You should
2
involve the District government as necessary and keep
appropriate District officials informed of your work
80 that they can take account of it in developing the
city budget for FY 1979. This study will serve as the
basis for determining how this issue should be treated
in FY 1979, and as a working document for future
discussion on the subject with the District of Columbia
government and the Congress.
Sincerely,
17. Borman Cutter
W. Bowman Cutter
Executive Associate
Director for Dudget
ATTACHMENT 14
United States Department of Justice
OFFICE OF THE DEPUTY ATTORNEY GENERAL
WASHINGTON, D.C. 20530
EXECUTIVE OFFICE FOR
UNITED STATES ATTORNEYS
9/23/77
Mr. W. Bowman Cutter
Executive Associate
Director for Budget
Office of Management and Budget
Washington, D.C. 20503
Dear Mr. Cutter:
We regret the delay in providing a study of prosecution
functions in the District of Columbia as requested in your
letter to Mr. Gray of Harch 16, 1977. In the attached study
we have addressed four alternatives for performing prosecution
functions in the District of Columbia: 1) creation of a
local prosecutor's office; 2) reimbursement by the District
of Columbia for costs incurred by the U.S. Attorney; 3)
negotiation of a contractual agreement between the D.C.
Government and the Department of Justice; and 4) retention
of full Federal Government responsibility. We have concluded
that the last alternative offers the most benefit for both
the District of Columbia and the Federal Government.
Three appendices are also provided with the study for
your further consideration. The appendices include a lengthy
memorandum from the U.S. Attorney to the Attorney Genewal on
the federal role in the District of Columbia criminal justice
process, a memorandum commenting on a report concerning the
U.S. Marshal's Office and an article written for the ABA
Journal by U.S. Attorney Silbert on the role of the prosecutor.
I hope that these materials will aid in your consideration
of the issues to which your March 16 letter refers.
Sincerely,
William P. Tyson
Acting Director
enclosures
A STUDY OF PROSECUTIONS
FUNCTIONS
Submitted by:
The Executive Office
for U.S. Attorneys
INTRODUCTION
Article One of the Constitution provides that Congress
shall have the power "to excrcise exclusive Legislation in
all Cases whatsoever, over such District, (not exceeding ten
miles square) as may, by Cession of particular States, and
Acceptance of Congress, become the Seat of the Government of
the United States" (Art. 1, Sec. 8 C1.17). In recent years
there has been debate over the degree of self-government
which should be allowed to the District. The trend has been
toward expanding the delegation of political authority to
the District Government as in the most recent home rule act,
the 1973 District of Columbia Self-Government and Governmental
Reorganization Act, P.L.93-198.
The District Government presently controls many of
those functions traditionally considered to be "local" in
nature--education, welfare, health housing, and fire and
police protection. Congress did not delegate any power over
the prosecution of criminal violations to the District of
Columbia Government. Responsibility for such prosecution
remains vested in the United States Attorney's Office for
the District of Columbia, part of the Department of Justice.
Thus, all felony offenses and serious misdemeanor offenses
in the District are prosecuted by the Federal Government.
The purpose of this study is to examine various options
for the provision of the prosecution function in the District
of Columbia for violations of the District of Columbia Code.
The study will consider the following options:
(1) the transfer of complete responsibility for
conducting criminal prosecutions to the District
of Columbia.
(2) the reinstitution of a reimbursement arrangement
wherein the District of Columbia Government would
pay the United States Treasury for costs incurred
in prosecuting D.C. Code offenses.
(3) the establishment of a contractual relationship in
which the Department of Justice would negotiate with
the District of Columbia for funds to finance the
United States Attorney's Office.
(4) the retention by the Federal Government of full
responsibility for providing resources and for
managing cases brought under the District of Columbia
Code.
Under current law the responsibility for prosecuting
District of Columbia Code offenses is assigned to the U.S.
Attorney for the District of Columbia. As long as the
Federal Government remains accountable for the performance
of the U.S. Attorney, it would seem inconsistent to place
any burden on the District Government for financing U.S.
Attorney operations. Left with a choice between a District
Government prosecutor or a Federal prosecutor, the well
established record of the U.S. Attorney's office for legal
competency, for intergovernmental cooperation and for community
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responsiveness suggests that there would be no substantive
benefit transferring prosecutorial responsibility to the
District of Columbia Government.
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