- The Washington Times - Friday, September 23, 2011

Lawyers for the District of Columbia argued in federal court Friday that backroom discussions between elected officials and the city’s chief financial officer are privileged and, as a result, they should not have to testify in a civil lawsuit accusing them of improperly steering the D.C. lottery contract.

Mayor Vincent C. Gray and CFO Natwar M. Gandhi should not have to give depositions in a wrongful termination case against the District by a former procurement official who said they cajoled him into dumping a local lottery contract partner they did not like, said Assistant Attorney General Sarah L. Knapp.

“It’s suspicion built on hearsay,” Ms. Knapp said, referring to sworn statements and tape recordings made by the former procurement official, Eric Payne, which describe Mr. Gandhi’s and Mr Gray’s efforts to manipulate the outcome of the competitively bid, multimillion-dollar D.C. lottery contract.

“We don’t have an obligation to speak to it,” she said, conceding that conversations took place, but insisting the District wants the mayor “to govern, not sit in depositions.”

V. David Zvenyach, lawyer for the D.C. Council, argued on behalf of Council members Jack Evans and Jim Graham, saying their communications with Mr. Gandhi and others are off-limits in the employment case because of a legislative privilege that applies to “information gathering” about the contract.

In court papers, Mr. Payne quotes Mr. Evans as asking him why they could not simply “get rid of” the local partner to Greek gaming giant Intralot who had won the contract award but was out of favor with the council. He then quotes Mr. Gandhi as chiming in, “Yeah, why not?”

Mr. Graham is depicted in court papers as attempting to intimidate Mr. Payne, who stated in a recent court filing that he also received a complaint from Intralot’s local partner that an advisory neighborhood commissioner offered to deliver Mr. Graham’s approval vote in exchange for a job, car and other perks for herself.

A transcript of a taped conversation between Mr. Payne and Angell Jacobs, now the chief of staff to Mr Gandhi, quotes her as saying that, “Jim Graham is on a personal vendetta here. For Gray and Graham, this is all personal. This is about their friends, or who is not their friends for Graham.”

The court papers state that a complaint by Mr. Payne in 2008 prompted an undue influence/fraud investigation by the D.C. Inspector General. That investigation, however, has yet to yield any findings or a report. Mr. Payne was demoted and then fired from his job. The contract was re-bid, and Intralot added a different local partner to gain council approval. Inspector General Charles N. Willoughby has said he is investigating that process as well.

But while District officials grapple with the complexities and controversies swirling around the $38 million contract — including an effort to become the first in the nation to launch online gambling — Mr. Payne’s lawsuit has provided the public with a glimpse into the inner workings of D.C. business and politics.

“The plaintiff may not like the nature of the communications, but information within the legislative sphere is protected,” Mr. Zvenyach argued on Friday. “That’s the end of the matter.”

Asked after the hearing to explain what type of “information gathering” was taking place in the various discussions between council members and Mr. Gandhi and his staff, Mr. Zvenyach said, “No comment,” as he rushed for the elevator.

Donald Temple, attorney for Mr. Payne, accused D.C.’s lawyers of “distorting the facts and disguising the law.” Pointing to U.S. Supreme Court precedent, he argued that attempts by a legislator to cajole the executive branch or manipulate a competitively bid contract cannot be protected communications.

Mr. Payne, his lawyer argued, “would not do what the council wanted him to do, which was to avoid granting the contract, and ultimately he lost his job.

“God forbid, if legislatures across the country could go to the executive after a contract was awarded and try to affect the outcome it would turn democracy on its head,” Mr. Temple said. “These communications do not involve the substance of the contract, they are about altering it. They are political in nature, not legislative.”

U.S. District Magistrate Judge Deborah A. Robinson said she would review the matter and issue a ruling. She did not specify any time frame for her decision.

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