Issa said he doubts Congress would take punitive action against D.C. for continuing to operate in the event of a federal government shutdown.
Under the federal Antideficiency Act, “an officer or employee of the United States Government or of the District of Columbia government” cannot continue regular, ongoing operations without an appropriation “except in cases of emergency involving the safety of human life or the protection.”
In terms of criminal penalties, those who “knowingly and willfully” violate certain provisions of the law risk fines of up to $5,000, up to two years in prison, or both.
However, according to the Government Accountability Office’s Red Book, a primer on principles of appropriations law, no officer or employee has ever been prosecuted, much less convicted, for a violation of the Antideficiency Act. More common are cases of administrative discipline, including removal or suspension from office. “Understandably, the provisions for fines and/or jail are intended to be reserved for particularly flagrant violations,” according to the Red Book.
OMB officials remained silent in response to Gray’s letter and did not respond to requests for comment.
Ellen Canale, a public affairs specialist for the Department of Justice, also declined to comment on potential penalties for the District.
Proponents of another option, proposed by the D.C. Appleseed Center for Law and Justice, believe another tool is available that would not run afoul of the Antideficiency Act. They believe D.C. could rely on its nearly $300 million of contingency and emergency funds and the city’s fiscal stabilization reserve account.
“Since this money comes from funds that have already been duly appropriated, using this money now to pay District employees and keep the District government running would be consistent with the law,” said Walter Smith, executive director of D.C. Appleseed.
“There would be no need to determine which employees are ‘essential,’ since the money from these funds can be used to pay all District employees, whether ‘essential’ or not. Furthermore, the funds can promptly be replenished whenever Congress finally enacts D.C.’s local budget,” Smith said, adding that he has received “positive feedback” from the offices of Gray and D.C. Council Chairman Phil Mendelson.
Gray and Mendelson had not weighed in with their opinions on that proposal by press time.
David Umansky, public affairs officer for the CFO, says lawyers have reviewed D.C. Appleseed’s proposal and come to “general agreement” that the $144 million contingency fund can be used if the government shuts down because it is a multi-year appropriation.
The money wouldn’t last long. The D.C. government’s 32,000-person workforce has a $98 million bi-weekly payroll.
In order for the contingency fund to be tapped, Gray has to write a letter requesting that the CFO do so. Umansky said the office has not yet received such a request.
DC Vote supports the alternative route, but is also holding fast behind Gray — despite the warnings of penal action.
“We are supportive of what DC Appleseed is looking at and would support any effort to keep the government open including the path that the mayor is on right now,” said James Jones, communications director for DC Vote. “We support that and we really praise the mayor for actually directly confronting a system that is unjust and archaic.”