DC: Mayor’s General Counsel Wants Position; Does Not Want to Move to DC

[Note: Since this post was published, the link to the regulations cited below has changed. The new link is: http://dchr.dc.gov/dcop/cwp/view,a,1218,q,529343,dcopNav,|31658|.asp. (link)]

According to the Washington Post, Peter Nickels, General Counsel to Mayor Adrian Fenty, does not want to move to the District of Columbia from his current home in Virginia.

However, DC has a requirement that high-level DC government employees establish a domicile within DC.

Mayor Fenty argues that his position is exempt from the rules.

The mayor said Nickles, whose annual salary is $160,000, is exempted from the residency law because he is a lawyer in excepted service.

“Excepted-service attorneys, by statute, do not have a residency requirement,” Fenty said in an e-mailed response to questions on the issue. Excepted-service employees are political appointees who serve at the mayor’s behest.

After asking DC Councilmember Carol Schwartz (R-At-Large) for a waiver from the DC domicile rules, Mr. Nickles stated that the DC Attorney General’s Office informed him that there is an exception for “excepted-service attorneys.”
Mr. Nickles appears to argue that section 305.1 excludes his position from the residency rules.

Except as provided in §§ 305.8 and 305.9, any person who is appointed to a position in the Excepted Service, excluding attorneys in that service, or the Executive Service on or after October 1, 2002 shall meet one (1) of the following criteria:

(a) Be a domiciliary of the District of Columbia at the time of appointment and maintain such domicile for the duration of his or her employment; or

(b) Become a domiciliary of the District of Columbia within one hundred eighty (180) days of the date of his or her appointment and maintain such domicile for the duration of his or her employment.

Councilmembers Schwartz, Marion Barry, Yvette Alexander, and Council Chairman Vincent Gray do not feel that a waiver is proper, the Post reported.

However, according to section 305.3 of DC’s personnel rules, it appears that the residency rules do apply to position requiring DC Council confirmation.

Notwithstanding the provisions of §§ 305.1 and 305.2, a person nominated to serve in an acting or interim capacity in an Executive Service position or appointed to an Excepted Service position requiring confirmation by the Council shall not become subject to the domicile requirement until after confirmation by the Council and promulgation of a Mayor’s Order or a personnel action appointing him or her to the position. Specifically, such person shall become a domiciliary of the District of Columbia within one hundred eighty (180) days from the date specified in the Mayor’s Order as the date of appointment, or from the effective date of the personnel action processed after Council confirmation to appoint him or her to the position, whichever occurs first. The personnel authority shall inform each employee to whom this subsection applies, in writing, of the exact date by which he or she shall meet the domicile requirement.

Moreover, it seems like a General Counsel to the Mayor is more like an Executive Service position in DC.

It appears the law favors the view of the DC Councilmembers cited in the Post article. It will be interesting to see what the final decision will be on September 30, when Mr. Nickles’s waiver expires.