Why the election for DC attorney general matters: Our Q&A with a former OAG attorney

by Marlene Berlin

In 2014, Karl Racine became the District’s first elected attorney general. He was reelected in 2018, but is not running for a third term. Four Democrats are vying for the chance to become the District’s second elected attorney general. They are: Ryan Jones, Ward 5 Council member Kenyan McDuffie, Brian Schwalb and Bruce Spiva. Racine has endorsed Brian Schwalb.

During a recent meet-and-greet for one of the candidates, I took notice of the questions posed by one of the other attendees. Sondra Mills impressed upon us the importance of this office, and she has a unique perspective.

A DC resident since 1979, Mills has witnessed the Office of the Attorney General’s evolution from the Office of the Corporation Counsel, which was led by mayoral appointees. Mills has also served as a trial attorney at the Federal Trade Commission, and then, at the Justice Department, where she specialized in civil and criminal cases to protect consumers and whistleblowers. And from 2017 to 2019, she worked at the OAG – under Karl Racine.

We asked her, among other things, why she left her federal job to work for Racine.

Sondra Mills: During my work on the financial crisis cases at DOJ in 2015, I met Karl Racine, then the newly elected attorney general for the District of Columbia. He brought OAG to join with DOJ and other state AGs to hold the credit rating agencies and banks responsible for their role in the financial crisis.

I was really impressed by him and decided to leave DOJ in 2017 to join the consumer protection office at the DC attorney general’s office. I was eager to join Racine’s efforts to build OAG as an independent office and to use the District’s strong consumer protection laws to address many problems in DC.

FHC: How did the attorney general become an elected office?

SM: This is a complicated story, but here it is:

In a referendum in 2010, DC voters overwhelmingly decided, by 76% to 24%, that the attorney general should be an elected office, rather than one appointed by the Mayor. The DC Code was amended and gave the AG the power to “uphold the public interest.” But in July 2012, the DC Council voted to postpone the election to 2018, following disagreements over what powers and responsibilities the attorney general should have.

In September 2013, a prospective candidate filed suit claiming any delay would violate the District’s charter – which had been amended through the 2010 ballot question to provide for the election of DC’s attorney general.

In February 2014, a DC Superior Court judge ruled that ballots for the April 1 primary elections could be printed without the attorney general race. However, in June, the DC Court of Appeals overturned that decision, ruling that the attorney general referendum had made it appear to voters that the election would take place in 2014. Because the primary election had already been held, the election took place without a primary race, and Karl Racine won in the general election in November 2014.

FHC: How has Karl Racine changed the role the attorney general has played in the District?

SM: Racine has worked to secure the independence of the Office of attorney general from both the executive and legislative branches of DC government. Instead of only defending decisions made by DC agencies – which, by the way, OAG has done very well – he has brought cases to advance the overall public interest. During his tenure, OAG has filed cases to protect residents from false and misleading representations and omissions. For example, OAG has successfully challenged empty promises made by slumlords to repair buildings, sued funeral homes that failed to provide the services paid for by bereaved families, and stopped shady employers from failing to pay wages.

Under Racine’s leadership, OAG has also partnered with other state AG’s and the federal government in pursuing justice against big national companies, like the manufacturers and distributors of opioids, hotel chains, banks, rating agencies, and even Facebook and Google.

In many cases, OAG has been able to get money back to consumers, both through litigation as well as through a consumer complaint hotline that can help residents negotiate disputes with companies. OAG has also won millions of dollars in civil penalties from big companies who have violated the law.

Another important role of the AG is the authority over offenses committed by juveniles. Racine has worked to mediate and rehabilitate, where possible, youth offenders, not simply to punish them.

FHC: How would you describe the relationship between the attorney general, the mayor and the DC Council?

SM: I think that Racine has worked to build a collaborative relationship with the mayor and the Council, but it has not been an easy road to carve out a new, independent role for the AG. For example, shortly after Racine was sworn in, Mayor Bowser introduced legislation that would have essentially moved DC’s lawyers into agencies controlled by the mayor and limited the AG’s role to advising the executive and legislative branches. While the mayor failed for the most part, it is safe to say that tension has persisted between the AG and the mayor.

FHC: Why is the role of attorney general important to residents of the city?

SM: The attorney general has the authority to address the full range of injustices and inequities experienced by DC residents. She or he can target problems through the kinds of cases the AG’s office brings and, beyond that, to engage in public advocacy for reforms – even if the Council and the mayor are not in full agreement with these actions. In effect, the attorney general can provide independent checks and balances on the other parts of DC government by offering residents other avenues to express their concerns.

FHC: As a specific example, explain how Racine has developed a new advocacy role for the OAG in zoning.

SM: Last December, AG Racine announced that his office was expanding its scope to push for housing affordability. He proposed several changes to the zoning code that he believe will help more low-income residents access housing. In his announcement, he said that in the past, his office was solely required to provide legal counsel on land use development to the Zoning Commission and Board of Zoning Adjustment, two bodies within the city’s Office of Zoning and largely controlled by the mayor. Racine explained that this new focus is aimed at “advocating for the public interest” in zoning and development cases.

FHC: And the OAG has taken on landlords over the practice of rent concessions. Could you provide some background on that, and explain how the the next attorney general can advance the work?

SM: During my time at OAG, I filed a case against Equity Residential, which manages the large apartment complex at 3003 Van Ness, for making false and misleading representations about the so-called “rent concessions” – or reductions in the amount of rent – that it gave to tenants. We alleged that Equity failed to disclose that the concessions were only very temporary, and that in fact it was reporting a higher amount to DC’s rent control authorities. As a result, Equity based its increases under DC’s rent control laws on the higher amount before the concessions, hitting tenants with large rent increases. Fortunately, the court agreed that this scheme was illegal.

Many rent-controlled apartments – like the more than 13,000 units in Ward 3 – are home to seniors on fixed incomes who are seeking lower, predictable rent increases. The OAG can bring cases challenging misrepresentations made to current and prospective tenants, such as about the rent they will be charged, the security of the premises, and repairs that will be made. The AG could advocate for stronger rent control laws and for expanding the application of rent control to newer apartment buildings (the current law only applies to buildings that existed in 1975 and earlier). But fixing DC’s rent control laws are probably beyond what the attorney general can do alone. The Council will likely need to pass new legislation, something it has not taken up to date.

FHC: What are the weaknesses of the OAG that a new attorney general should address?

SM: The next attorney general will have big shoes to fill when Karl Racine leaves the office. Attracting and retaining top lawyers to the office will be essential, but this is challenging. DC’s pay scale and benefits are overall lower than what lawyers in the federal government receive and much lower than what most private firms provide. Increasing the compensation paid to OAG lawyers would help attract applicants.

But there is already considerable talent in the office that can be given additional training and opportunities for professional development. Building a strong culture of collegiality and excellence should be a top priority for the new attorney general.

FHC: In general, what should the residents of DC be looking for in an AG?

SM: DC’s next attorney general must be a lawyer of outstanding legal reputation and tenacity. The courts and the legal community will be looking for someone with superior litigation, advocacy, and management skills to represent the city and strengthen an independent OAG. Above all, the attorney general must exhibit not only toughness but a love for the city, coupled with compassion for its most vulnerable residents and a commitment to fighting for their welfare.

Sondra Mills now works in private practice and is involved in advocacy for fair and affordable housing. A former Forest Hills resident, she enjoys spending time with her family at the Forest Hills Park.