DISTRICT OF COLUMBIA APPROPRIATIONS ACT
On October 21, 1998, the President signed the District of Columbia Appropriations Act ("Act"), 1999,
P.L. 105-277. In addition to appropriating funds for the District Fiscal Year 1999 budget, the Act contains
several funding and substantive provisions affecting the District.
The Act provides for the following federal
payments: General Provisions (Differences from 1998 Appropriations Act) Section 105 allows the Chairman of the
Council to authorize expenses, concerning the
work of the Council, for travel and for payment
of dues to organizations. Section 116 modifies the traditional
reprogramming language requiring conformity
with the advance approval procedure of the Joint
Explanatory Statement of the Committee of
Conference (House Report No. 96-443). The
new language requires that Congressional
appropriations committees be notified 30 days in
advance of any reprogramming if the
The Act provides for the following federal payments:
(Differences from 1998 Appropriations Act)
Section 105 allows the Chairman of the Council to authorize expenses, concerning the work of the Council, for travel and for payment of dues to organizations.
Section 116 modifies the traditional
reprogramming language requiring conformity
with the advance approval procedure of the Joint
Explanatory Statement of the Committee of
Conference (House Report No. 96-443). The
new language requires that Congressional
appropriations committees be notified 30 days in
advance of any reprogramming if the
Section 122 substitutes the "Director of the Office of Property Manager" for the "Director of the Department of Administrative Services" in allowing the Director to make certain payments without regard to section 322 of the Economy Act of 1932.
Section 128(b) requires the Mayor, the Authority, and the Council to provide the Congress, by February 1, 2000, a summary, analysis, and recommendations on the information provided in the monthly report prepared by the University of the District of Columbia pursuant to subsection (a) of this section.
Section 130 prohibits the payment of attorney fees in actions brought against D.C. Public Schools under the Individuals with Disabilities Education Act if the hourly compensation rate of the attorney exceeds $50 per hour or $1,300 per case, unless special compensation is approved by the Superior Court or District of Columbia Court of Appeals.
Section 132 allows any entity of the District government to request services from the U.S. Army Corps of Engineers for the repair and improvement of D.C. Public Schools facilities.
Section 136 substitutes the "Superintendent of the District of Columbia Public Schools" for the "Emergency Transitional Educational Board of Trustees" as the entity responsible for submitting a revised appropriated funds operating budget.
Section 138(a)(1)(B)(ii) requires notification to the Council before total operating expenses may be increased where additional expenditures will produce additional revenues of at least 200% of the additional expenditures.
Section 138(d) requires that excess local revenues be applied first to the elimination of the general fund accumulated deficit; then to a reserve account, not to exceed $250,000,000, to finance seasonal cash needs; then to accelerated repayment of cash borrowed from the Water and Sewer Fund; and finally to the reduction of the outstanding long-term debt.
Section 139 amends D.C. Code § 31-140 to allow funds appropriated in lieu of donation of public lands to be invested in equity-based securities if approved by the CFO.
Section 143(a)(1) substitutes language in the clause prohibiting the use of official vehicles by government employees containing an exception for "an officer or employee of the Metropolitan Police Department who resides in the District of Columbia or is otherwise designated by the Chief of the Department" for "a police officer who resides in the District of Columbia."
Paragraph (2) allows certain officers wounded in the line of duty to take home vehicles and allows the Chief of Police to donate vehicles to such officers.
Section 145 requires the D.C. Board of Education, within 120 days after the date that a student is referred for evaluation or assessment, to assess or evaluate students who may have disabilities and who may require special education services and place the students in appropriate special education programs.
Section 148 prohibits the District from conducting an annual independent audit unless the audit is conducted by the Inspector General of the District of Columbia and the audit includes a comparison of actual year-end results with revenues submitted in the budget and the appropriations.
Section 151 prohibits the Corporation Counsel or any other entity of the District government from providing assistance for any petition drive or civil action which seeks to require voting representation in Congress for the District of Columbia.
Section 153 repeals the Residency Requirement Reinstatement Amendment Act of 1998, effective July 24, 1998 (D.C. Law 12-138), which required all newly hired District employees in the Career Service, Excepted Service and Educational Service to maintain residency in the District of Columbia and to allow the Mayor to exempt hard to fill positions.
Section 154 prohibits the transfer or confinement of inmates classified above medium security level to the federal correctional center in Youngstown after April 1, 1999.
Section 155 amends section 202 of the District of Columbia Financial Responsibility and Management Assistance Act of 1995 to require that beginning with FY 2000, the plan and budget submitted to Congress contain a $150,000,000 reserve.
Section 156 amends D.C. Code § 37-105 to authorize the Board of Trustees of the District of Columbia Public Library to hire a fund raiser and to raise funds for the benefit of the Public Library with prior approval by the CFO and Authority.
Section 157 establishes a program for listing and tracking abused and neglected children who are in the custody of the District of Columbia.
Section 158 clarifies and completes the transfer of legal authority and responsibility for adult offender supervision from the Social Services Division of the D.C. Superior Court to the new Offender Supervision Agency.
Section 159 allows the Authority to employ a Chief Management Officer and ratifies the employment contract between the CMO, Camille Barnett, and the Authority.
Section 160 increases from 3 to 5 years the time limit on contracts between an independent auditor and the District government for the District's annual financial audit.
Section 161 allows funds previously appropriated for management reform initiatives to remain available for such purposes through FY 99.
Section 162 amends section 3901 of Title 31 of the United States Code to require the District of Columbia Courts to pay interest to individuals who do not receive prompt payment for goods provided and services rendered to the courts.
Section 164 amends section 101(b) of the District of Columbia Financial Responsibility and Management Assistance Act of 1995 to allow a member of the Authority to continue to serve until a successor has been appointed.
Section 165 amends section 456(d)(2) of the District of Columbia Home Rule Act by requiring the Chief Financial Officer to submit in the CFO's quarterly financial reports the balance and description of activity of each account held by the District of Columbia Financial Responsibility and Management Assistance Authority.
Section 169 accelerates the effective date of the Oyster Elementary School Construction and Revenue Bond Act of 1998 (Act 12-421) to the effective date of this Act (October 21, 1998).
Section 170 prohibits the District from establishing a public program for the distribution of sterile needles or syringes associated with illegal drug use.
Section 171 prohibits the District from conducting any ballot initiative which seeks to legalize or otherwise reduce penalties associated with the possession, use, or distribution of certain controlled drugs, including for medical purposes. [BB]
On Wednesday, January 20, 1999, the United States Court of Appeals for the District of Columbia Circuit en banc heard oral arguments on the District's appeal in Hutchins, et al. v. District of Columbia (No. 96-7239). The 11-judges consisted of the original 3-judge panel that initially struck down the juvenile curfew law and enjoined its enforcement - Judges Judith W. Rogers (former D.C. Corporation Counsel), Laurence H. Silberman, and David S. Tatel, and 8 additional judges - Chief Judge Harry Edwards, and Judges Patricia Wald, Randolph, Garland, Sentelle, Henderson, Williams, and Douglas Ginsberg. The ACLU argued on behalf of the appellees against the juvenile curfew law. Steve Rosenbaum of Covington and Burling, acting pro bono, argued the appeal on behalf of the District of Columbia.
When counsel for the District argued that the District's law is similar to other juvenile curfew laws that have been sustained by other courts, Judge Rogers questioned whether those other laws also covered 17-year old persons as was provided in the District's law. In response, Attorney Rosenbaum clarified that the District's law did not include 17-year-olds, but only applied to persons under 17 years of age. Judge Wald questioned whether it was reasonable for the District's law to cover all nighttime hours when the study submitted in support of the law indicated that the majority of juvenile crimes occurred between certain limited hours and asked why the curfew was not specifically targeted to those hours. Attorney Rosenbaum cited a United States Supreme Court case holding that a legislative body is free to address only part of a problem in its enactments.
The questioning by Chief Judge Edwards seemed to indicate that he found many flaws in the law. He asked about the right of parents to raise their children unimpeded by government restrictions and the statistical showing that this law would benefit any specific child. When counsel for the District argued that one of the purposes of the law was to prevent even innocent juveniles from becoming "victims," Judge Tatel responded that even under the exception, when being accompanied by an adult that a child could still be "victimized."
The judges asked many questions about the application of the law in hypothetical situations. Judge Tatel asked about a situation where a juvenile has a need to go over to a neighbor's home to do homework, to walk the family dog late at night, or simply to visit a friend without accompanying adult supervision as required by the law, and whether this law deprived parents of the right to make these type of decisions.
Judge Sentelle asked one of the more interesting questions when he asked at what age it is permissible for the government to impose a curfew. Judge Sentelle asked, what about the 5-year old who is out at night wandering the public streets, or the 6-year old, and stated that under Judge Tatel's theory, if a parent allowed the child to do so, it should be okay for the government not to attempt to protect that child.
Judge Garland asked whether the District had picked too old of an age for the curfew and whether it would be constitutional if it was limited to persons 12 years of age and younger. The opposing side responded that the rights of persons was not dependent on age, but on the ability of the child to make appropriate decisions under certain circumstances. Some of the judges quickly pointed out that the weakness in the ACLU's argument to eliminate age in the curfew and to solely rely on the level of maturity of children, is that it would be impossible to ascertain the level of maturity of children except on an individual basis, making the law so unenforceable as to be meaningless. Judge Randolph made clear that age is not an inappropriate measure of maturity.
Judge Rogers stated that over the course of the litigation of this case, while there has been an injunction on the law's applicability in the District, the crime rate has declined, even in the absence of the juvenile curfew and questioned the continuing need for a juvenile curfew in the District. The District responded by stating that the crime could have been even further reduced with the enforcement of the juvenile curfew law. Judge Williams asked whether the District had any statistical evidence to show that for cities that had a juvenile curfew law in effect and had a decline in their crime rates, a faster decline occurred in their crime rates because of the imposition of their juvenile curfew laws. No evidence was offered. Judge Garland in repeating the fact that half of the crimes occur at certain times during the night, that this means that only half occur during the daytime, would this support an all day curfew? Judge Ginsberg stated that there are many things weighing against a daytime curfew.
The ACLU argued against the juvenile curfew on the grounds that it would allow the police to question anyone who looks under age and to take that person into custody if the person cannot show proof of age, even when the person is not engaged in unlawful behavior. The ACLU further argued that the data submitted to the Council contained many inaccurate statements. Moreover, the ACLU argued that there was no specific breakdown of the crimes to show that juveniles were engaged in a certain percentage of the crimes committed during the curfew hours outlined in the law.
The United States appeared as an amicus curiae in support of the juvenile curfew law stating that the curfew would be an important tool in combating crime.
When the Court issues its opinion, a summary of the decision will be published in this column. [CB-H]
U.S. Court of Appeals for the D.C. Circuit
No. 98-7024, Consolidated with 98-7025
On December 22, 1998, the United States Court of Appeals for the District of Columbia Circuit (Edwards, C.J.), affirmed the opinion of the U.S. District Court for the District of Columbia which held that the D.C. Financial Responsibility and Management Assistance Authority ("Authority") had exceeded its statutory authority in ordering the Board of Trustees of UDC to repudiate provisions of the University's collective bargaining agreement with the Faculty Association. The collective bargaining agreement provided faculty members with certain rights in the event a reduction in force occurred, including: seniority rights, entitlement to one year's severance pay, and the maintenance of retirement contributions of existing faculty.
The Court, in its opinion, made clear that the Authority's powers are limited to those specifically enumerated in its enabling act and subsequent legislation, and that those powers did not include those exercised in this case. The D.C. Circuit Court remanded the case to the District Court to determine whether the Faculty's contract claim should be submitted to arbitration in accordance with the collective bargaining agreement. [BKF]
This was an appeal from the United States District Court's decision that upheld the Chief Financial Officer's termination of approximately 165 financial management employees. The U.S. Court of Appeals affirmed in part, and reversed in part, the District Court's decision with respect to the CFO's authority to fire the employees based on a 1996 Budget Act passed by Congress. The Court found that the Congressional action was inconsistent with the "for cause" provisions in the Comprehensive Merit Personnel Act, and that since the Congressional action was later in time, it was controlling.
The D.C. Circuit Court then determined that the employees had properly been converted to "at will" employees, but reversed the District Court with respect to the scope of the qualified immunity enjoyed by the CFO against the claim of certain employees that they had been discharged for their union activities which were protected by the First Amendment. The Court ordered that the District Court decide which of the plaintiffs had spoken on matters of public concern or participated in associational activity so as to have relevant First Amendment claims. That issue is now pending. The next hearing is set for March 1999. [BKF]
The use of official mail is governed by Article VIII of the Council Rules and the Official Correspondence Regulations codified at D.C. Code § 1-1701 et seq. These provisions provide guidelines for the type of correspondence that may be mailed as official mail at public expense. The guidelines for official mail include restrictions on the size of photographs used in newsletters, a requirement that the text of the article relate to the included photograph, the number of times a member of the Council's photograph and name can appear in a newsletter, prohibitions on partisan references, a requirement that the articles relate to the official duties of the member as a legislator, and prohibitions on references to fundraising events. All persons who use the franking privilege of the Council should be familiar with these guidelines. Where there is a need to have documents reviewed, Council Rule 810 requires that the General Counsel be available to members of the Council and their staff to review "materials intended to be mailed as official mail to ensure that the materials comply with the laws and rules governing official mail." Because our law tracks Congressional standards in this regard, this office has traditionally relied upon Congressional guidelines to determine questions of the applicability of the rule and law to specific situations. Where the newsletter cannot be mailed as official mail as drafted, this office will offer suggestions for revising the newsletter to conform to the official mail legal requirements. This article cannot address all the possible questions regarding the proper use of official mail. As required by the rules of the Council, this office is available to respond to any requests to review proposed official mail.
This office frequently receives inquiries about the proper use of constituent funds. Constituent services funds are authorized pursuant to D.C. Code § 1-1443 and may be used for "citizen-service programs." Regulations have been promulgated by the Board of Elections and Ethics to implement D.C. Code § 1-1443 at 3 DCMR 3010 and 3014. The Office of Campaign Finance is the office responsible for enforcing constituent services fund laws. Because there is a need to address some recurring issues regarding the proper uses of constituent funds, the next issue of this column in the Legalese will include some guidance from the Office of Campaign Finance on the proper uses of constituent services funds. Stay tuned. [CB-H]
Any discussion on the proper use of resolution
must begin with the Court's decision in Wilson v.
Kelly, 615 A.2d 229 (D.C. 1992) and section
412(a) of the Home Rule Act. Section 412(a) of
the District of Columbia Home Rule Act
("Charter") grants the Council limited power
through the use of resolutions to express simple
determinations and to approve or disapprove
certain proposed actions of the Mayor and other
District governmental entities. Specifically, §
412(a) of the Charter provides that resolutions
shall be used: (1) to express simple
determinations, decisions, or directions of the
Council of a special or temporary character; and
(2) to approve or disapprove proposed actions of
a kind historically or traditionally transmitted by
the Mayor, the Board of Elections, Public
Service Commission, Armory Board, Board of
Education, the Board of Trustees of the
University of the District of Columbia, or the
Convention Center Board of Directors to the
Council pursuant to an act. Moreover, such
resolutions must be specifically authorized by
that act and must be designed to implement that
The use of resolutions to approve or disapprove proposed actions must be consistent with the "historically or traditionally" standard specified in section 412(a)(2) of the Home Rule Act. In light of the language of the charter amendment and its accompanying legislative history, the court in Wilson v. Kelly stated the test for determining the propriety of an act purporting to authorize the Council to use its resolution power to review the Mayor's decision. There the court found that a statute is "'of a kind' with one on the list [of 32 statutes]" that has been historically and traditionally transmitted to the Council by the Mayor if it operates "in a significantly analogous way in the same discrete field of District governance." Id. at 233. The list of 32 statutes is as follows:
This office frequently receives telephone
inquiries about legislation that has passed the
Council. In this column we will address
frequently asked questions about legislation that
has been recently adopted by the Council. It
should be noted that the courts have interpreted
D.C. Code § 1-361 to give great weight to the
opinions of the Corporation Counsel in the
interpretation of the D.C. Code, and that all
executive agencies are bound by opinions of the
Corporation Counsel. So to the extent that the
opinions in this column differ from that of the
Corporation Counsel, the opinions of the
Corporation Counsel will control for executive
agencies. See Techworld Development v. D.C.
Preservation League, 648 F. Supp. 106, 121
(D.D.C. 1986). With this caveat in mind, the
following represents this office's responses to
frequently asked questions about the Legal
Services Amendment Act of 1998, the Workers'
Compensation Amendment Act of 1998, and the
Confirmation Amendment Act of 1998.
Q: Does the Legal Services Establishment Amendment Act of 1998 apply to all attorneys employed by the District government?
A: The Legal Services Establishment Amendment Act of 1998 only applies to attorney positions classified as part of "Series 905." These include positions where the attorney does traditional legal duties. ALJs and administrative hearing officers and attorneys employed by the following entities are excluded: Superior Court or Court of Appeals; District of Columbia Financial Responsibility and Management Assistance Authority; Board of Parole; Health and Hospitals Benefit Corporation; Pretrial Services Agency; WASA; Washington Convention Center Authority; and any agency or part of an agency that is not covered by the District of Columbia Government Comprehensive Merit Personnel Act and that is covered by court order. When the District is no longer in a control period, the act will apply to attorneys in the Office of the Chief Financial Officer.
Q: What is the Legal Service?
A: The Legal Services Establishment Amendment Act of 1998 created a new service, called the Legal Service, to which all attorneys covered by the act belong. Within the Legal Service is the Senior Executive Attorney Service that consists of senior level attorneys that supervise or have managerial duties of other Legal Service attorneys.
Q: Are attorneys in the subordinate agencies and independent agencies under the supervision of the Corporation Counsel?
A: The Corporation Counsel is authorized to exercise authority over attorneys in subordinate agencies or may delegate the supervision to the agency head. The Corporation Counsel does, however, retain the right to withdraw this delegation in the future. Attorneys in independent agencies are to act under the direction, supervision, and control of their respective agency heads.
Q: Does the Worker's Compensation Amendment Act of 1998 apply to District government employees injured on the job?
A: The Worker's Compensation Amendment Act of 1988 only applies to private sector employees who are injured on the job. District government employees, who are injured while working, will continue to be covered by the District's Disability Compensation program, found at D.C. Code § 1-624.1 et seq.
Q: What periods of review of mayoral nominees does the Confirmation Amendment Act of 1998 provide?
A: The Confirmation Amendment Act of 1998 provides for active and passive confirmation by the Council of Mayoral nominees to several boards and commissions. Where the Council must affirmatively act on the nomination, by resolution within a 90-day period of review (excluding days of Council recess) or the nomination is disapproved, the resolution is said to require active review by the Council. A nomination for which the Council has 45 days of review, or the resolution is deemed approved, constitutes passive review. [JB]
The 1996 edition of the Legislative Drafting
Manual contains some minor stylistic errors and
outdated information in the sample bills and the
listing of the effective date clauses that refer to
the District of Columbia Self-Government and
Governmental Reorganization Act. In 1997, the
District of Columbia Revitalization Act changed
the name of the District of Columbia Self-Government and Governmental Reorganization
Act to the Home Rule Act. The 1999 edition of
the Legislative Drafting Manual, scheduled to be
issued by this office in February, will contain
corrections to the effective date clauses and
correct the stylistic errors. In the meantime, if
you have the 1996 Legislative Drafting Manual,
please remember to substitute the "District of
Columbia Home Rule Act" wherever you see a
reference to the "District of Columbia Self-Government and Governmental Reorganization
The 1999 edition will also contain some drafting policy changes. Although the current drafting Rule 26(j) requires the use of Arabic numbers for numerals, with certain exceptions, it has become necessary to change this policy. The publisher of the D.C. Code has advised that the practice of using Arabic numbers for numerals has sometimes caused difficulty in ascertaining when the number "1" is being used as a number and when it is being used as a noun. To avoid this confusion, this rule is being changed to require that the number "1" always be spelled out. In addition, there are references throughout the Legislative Drafting Manual to enacted titles of the D.C. Code with a lower case "t" (Rule 19(b)). The new edition of the Legislative Drafting Manual will now require the capitalization of Titles when referring to a specific "Title ___ of the District of Columbia Code." When referring to a title within a title, however, the reference should remain lower-cased.
With respect to Rule 23, pertaining to when to use "which" and "that," specific examples will be included of the proper and improper uses for these words. Also, instead of merely repeating the rule as currently drafted, a plain language explanation of the rule will be made. A comprehensive list containing all the changes will be circulated when the 1999 edition of the Legislative Drafting Manual is issued by this office.
If you are aware of any errors in the Legislative Drafting Manual, please alert Britta Farahati or Brian K. Flowers of this office immediately so that the corrections can be incorporated in the 1999 edition of the Legislative Drafting Manual. [CB-H]
In order to improve your legislative drafting
skills, a new article is being included in the
Legalese entitled "Legislative Drafting Tips."
Each issue of the Legalese will contain tips for
more effective drafting. The tips for this issue
are as follows:
This is to notify all Council staff who were
unable to attend the Legislative Drafting Seminar
held on January 21 - January 22, 1999, that
another Legislative Drafting Seminar will be
conducted by the General Counsel for executive
agencies. The two-day seminar will be held on
February 26, 1999 from 9:00 a.m. to 1:00 p.m.
and on March 5, 1999 from 9:00 a.m. to 1:00
p.m. If you wish to attend, please submit your
name to Karen Westbrook of this office no later
than February 18, 1999. She may be reached at:
Copies of the District of Columbia Home Rule Act, as amended and prepared by this Office, are available for all Council offices and committees. Please see Ada Arrington of this office if you do not have a copy but wish to receive one.
Section 165 of the District of Columbia Appropriations Act, 1999, approved October 21, 1998 (P.L. 105-277; 112 Stat. ____), amended section 456(d)(2) of the District of Columbia Home Rule Act by requiring the Chief Financial Officer to submit with the CFO's quarterly financial reports the balance and description of activity of each account held by the District of Columbia Financial Responsibility and Management Assistance Authority. Updated replacement pages of the amended Home Rule Act, as prepared by this Office, are available in the office. [BB]
All amendments to the D.C. Code since the most recent publication of the replacement volumes and "pocket parts," including amendments made by Congress, are printed quarterly in the District of Columbia Register. The most recent printing is in the January 29, 1999, issue Volume 46, page 745. [BB]
This year we will replace volumes 2 and 2A of the D.C. Code, and possibly Volume 11. If anyone has any suggestions or corrections that need to be included in these volumes please contact Ben Bryant, Codification Counsel, immediately. [BB]
ATTORNEY COMMITTEE ASSIGNMENTS
In addition to the above, Ben Bryant serves as the Council Codification Counsel and Brian K. Flowers serves as the Council Legislative Counsel. For the members who do not chair committees: Britta Farahati is assigned to inquiries from Councilmembers Phil Mendelson and Jim Graham and Johnnie Barton is assigned to inquiries from Councilmember Vincent Orange. In addition, Benjamin Bryant will advise on contracts issues and Britta Farahati will advise on ethics issues. The general office number is: 724-8026. The Secretary is Ada Arrington and the Codification Assistant is Karen Westbrook. [CB-H]
On December 7, 1998, Christine Dennis LeFlore joined the staff of the Office of the General Counsel to become an Assistant General Counsel to fill the vacancy created by the departure of Sheila Barfield. She was formerly a part of the District government when she served as the General Counsel to the former Civilian Complaint Review Board where she provided advice to members of the Board on complaints filed by citizens alleging police misconduct. Ms. LeFlore has held several legal positions which have further honed her legal skills. After graduation from law school, she served as staff attorney with the Law Reform Unit of the Neighborhood Legal Services Program. She served as an Assistant General Counsel for Legislation and Economic Development at the United Planning Organization where she monitored legislation that affected community action agencies. For approximately 10 years, Ms. LeFlore was an attorney in private practice with the firm of Walls & Walls where her practice consisted of personal injury, traffic defense, rent control, landlord-tenant, workers' compensation, employment, and general civil litigation before the local courts of the District of Columbia. Her recent employment included being a solo practitioner specializing in the field of Bankruptcy.
Ms. LeFlore has quite a distinguished academic background. Her achievements include receiving an LL.M. from the Yale Law School; a Juris Doctor degree from Howard Law School, where she was an editor of the Howard Law Journal and an associate editor of The Barrister, the Howard Law School newspaper; and a Bachelor of Arts degree from Howard University.
Ms. LeFlore will be following the work of the Council Committees on the Judiciary, Consumer and Regulatory Affairs, and Human Services. While these are all major committees of the Council, Ms. LeFlore has the training, skill, and determination to provide the highest caliber of legal assistance to these Council committees. In addition, she will be assigned other duties in the Office of the General Counsel, such as compiling an office employee manual. Welcome aboard Chris! [CB-H]