- The Washington Times - Sunday, September 4, 2011

Mayor Vincent C. Gray should not have to testify this month about the D.C. Lottery contract because it is “unduly burdensome” and his legislative activities as council chairman are shielded by law, according to papers filed by D.C. Attorney General Irv Nathan.

The motion filed in U.S. District Court is in response to an Aug. 23 subpoena that requests Mr. Gray’s deposition Sept. 15 in the matter of Eric Payne v. the District of Columbia.

Mr. Payne, a former contract manager for the office of the D.C. chief financial officer, filed a five-count lawsuit against the city, accusing Chief Financial Officer Natwar M. Gandhi of retaliating against him when he claimed that elected officials, including Mr. Gray as council chairman, improperly intervened to thwart the selection of a vendor to run the city’s lottery contract in 2008.

After making the complaints, Mr. Payne was reassigned to lesser duties and ultimately fired in 2009. The lottery contract was rebid and was the subject of a bitter and protracted dispute.

Now attorneys working on Mr. Gray’s behalf say Mr. Payne and his legal team have not justified their request to hear from the mayor.

“The court should not allow plaintiff to burden Mayor Gray, a high-ranking city official, because plaintiff cannot show that the mayor has personal knowledge that could not be obtained from another source,” the motion states.

It also states that Mr. Gray has “absolute legislative immunity in connection with his legislative activities when he served on the council cannot be compelled to testify about them.”

Mr. Payne says that Mr. Gray and other officials scuttled the initial award to D.C. businessman and former club owner Warren C. Williams Jr. and the Greece-based company Intralot.

This prompted a new round of negotiations that removed Mr. Williams - labeled a crony of then-Mayor Adrian M. Fenty - and installed Maryland businessman Emmanuel Bailey as the local partner with Intralot.

Mr. Payne also has subpoenaed Mr. Gandhi and council members Jack Evans, Ward 2 Democrat, and Jim Graham, Ward 1 Democrat, arguing that they were privy to key conversations concerning the lottery contract.

Mr. Evans is chairman of the council’s Committee on Finance and Revenue, which has oversight of the lottery and the chief financial officer’s office.

David Zvenyach, the general counsel for the D.C. Council, declined to comment when asked about the status of subpoenas or efforts to quash them.

Since the information sought from Mr. Gray is related to his days on the 13-member legislature, the attorney general’s office is confident that he is protected by immunity inherent to the “legislative sphere.”

“Thus,” the motion states, “even plaintiff’s veiled allegation of impropriety in the D.C. Council’s contract approval process does not justify a fishing expedition in the legislative pond.”

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