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District officials have been warned that bucking requirements to suspend nonessential services if the federal government shuts down could result in arrests or hefty fines, but prospects of federal prosecution or a punishment from Capitol Hill appear slim.
“The reality of how so-called shutdowns work are that, retroactively, we pay every federal employee, including the ones that stay home. So from a practical standpoint in these short-term shutdowns, there is no money being saved by sending people home,” said Rep. Darrell Issa, R-Calif. “I rather doubt that Congress would take punitive actions against the District of Columbia for keeping their personnel on.”
As chairman of the House Oversight and Government Reform Committee, Issa would likely take the lead on investigating any questionably legal activity by the District.
Sen. Thomas R. Carper, D-Del., chairman of the Senate Homeland Security and Governmental Affairs Committee, sympathized with the District and vowed to keep working on a legislative solution, with no mention of penal action.
“It is understandable that Mayor [Vincent] Gray and other District officials want to do everything they can to keep their city running,” Carper said in a statement. “I hope their efforts will be moot because we in Congress can come to a compromise and avoid a needless federal shutdown or, at a bare minimum, that we find a way to allow the District to continue to spend its local tax dollars in the event of a shutdown.”
Jennifer Hing, a spokeswoman for the majority on the House Appropriations Committee, said Wednesday that there had been “no discussion” among appropriators about Gray’s intent to maintain regular operations in the event that no spending deal is reached by Sept. 30. Hing said the committee is “not making contingency plans for the District because the goal is not to shut down.”
D.C. Attorney General Irvin B. Nathan warned of both congressional and criminal penalties when Gray and members of the D.C. Council began tossing back and forth plans to spend the money they’ve budgeted for fiscal 2014, which begins on Oct. 1, even if Congress hasn’t approved of their appropriation.
Aware of possible dangers, Gray sent the Office of Management and Budget, which is handling preparations for a shutdown, a letter notifying it that he intends to designate the entire District government as essential.
The District of Columbia’s budget for locally raised funds, unlike that of other localities, must be appropriated by Congress. Without approval, schools, police and fire departments stay open, but other public services including libraries, street sweeping and trash collection are cut back.
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.”