Tuesday, November 3, 2009

D.C. Attorney General Peter J. Nickles said Monday that enforcement of a court order granting the city auditor unrestricted access to documents detailing real estate deals by a pair of defunct city-run developers is on hold pending an appeals court review.

Mr. Nickles’ remarks suggest that a legal struggle between D.C. Auditor Deborah K. Nichols and Mayor Adrian M. Fenty has no end in sight.

“This is a live controversy and an important one,” said Mr. Nickles, who contends he is protecting Mr. Fenty’s attorney-client and decision-making privileges in awarding development contracts. “The Supreme Court makes clear that whether it’s Congress or a city council, privileged documents have a special status unless the legislature makes a specific finding otherwise.”

Though the documents Ms. Nichols is seeking relate to projects initiated by Mr. Fenty’s predecessors, the audit could serve as a template to examine contracts and development projects either completed or still under way during the Fenty era, city officials said.

On Friday, D.C. Superior Court Senior Judge Eugene N. Hamilton ruled for a second time that Mr. Fenty may not thwart Ms. Nichols’ legal authority to audit city-funded real estate deals. Judge Hamilton also rejected arguments by the attorney general’s office that the auditor is an arm of the legislative branch - therefore prevented from auditing the executive branch - because she was appointed by D.C. Council Chairman Vincent C. Gray and approved by the council.

Since last year, Mr. Nickles has sought to block the auditor’s access to documents related to the Anacostia Waterfront Corp. and the National Capital Revitalization Corp., two independent entities formed by the District to eliminate slums and blight and spur economic growth. The entities folded under Mr. Fenty in 2007.

In May, Ms. Nichols exercised subpoena power for the first time, after negotiations with Valerie Santos, the deputy mayor for planning and economic development, bogged down. But in spite of the subpoena and two court orders in her favor, she still has not gained access to the documents.

“The refusal to grant access screams lack of transparency,” said former D.C. Attorney General Robert J. Spagnoletti, who is now in private practice and represents Ms. Nichols. “It’s been delay, delay, delay.”

The controversy now shifts to the D.C. Court of Appeals, where Mr. Spagnoletti plans to file a motion to lift a stay of Judge Hamilton’s order obtained by Mr. Nickles last month.

The attorney general’s remarks also drew reactions from the auditor.

“I would not be surprised if Mr. Nickles continues to fight in court,” Ms. Nichols said. “That’s his pattern.”

Asked where the legal fight might end, Mr. Spagnoletti said, “I hope it stops short of the U.S. Supreme Court. But the good thing is that it’s close by, if we have to go there.”

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