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October 2001 Council of the District of Columbia Vol. 7, No. 2
|| Post-Control Board Changes || Federal CFO legislation || Local CFO legislation|| Subordinate Agencies|| Federal Tax Legislation|| The New D.C. Official
Code ||
|| Litigation||Drafting
Changes || New Effective Date Clauses || Attorney Assignments || Welcome Aboard|| New Address
||
FINAL WORD ON THE FINANCIAL AUTHORITY
SIGNIFICANT FEDERAL LEGISLATION
D.C. OFFICIAL CODE
DRAFTING LEGISLATION
OFFICE OF THE GENERAL COUNSEL CHANGES
MESSAGE FROM GENERAL COUNSEL
CHARLOTTE BROOKINS-HUDSON
If you have any issues that you would like to see addressed in this newsletter, please let us
know and we will include a discussion in one of our future editions.
HERE ARE THE POST-CONTROL BOARD CHANGES
This list has been prepared in response to the many inquiries received by this office as to the changes
precipitated by the Financial Authority becoming dormant on October 1, 2001. The list does not include
any changes with respect to the Chief Financial Officer since those changes are reflected in the Council's
adoption of Bill 14-254, the Independence of the Chief Financial Officer Establishment Act of 2001, which
is discussed in another article in this issue.
SIGNIFICANT FEDERAL LEGISLATION IMPACTING
EXCLUSIVELY ON THE DISTRICT OF COLUMBIA
Legislation Introduced by Rep. Morella
to Put into Effect the Independence of the
Chief Financial Officer Establishment Act of 2001
On October 2, 2001, Congresswoman Connie
Morella introduced in the House of
Representatives the District of Columbia Fiscal
Integrity Act of 2001 (H.R. 2995), which would
make effective the Independence of the Chief
Financial Officer Establishment Act of 2001,
passed on second reading by the Council on July
10, 2001 (D.C. Act 14-89). D.C. Act 14-89
cannot become law without Congressional action
to repeal section 424 of the Home Rule Act
(establishing the Office the Chief Financial
Officer) and repeal any provisions of sections
448 (Financial duties of the Mayor) and 449
(Accounting supervision and control) that would
conflict with the provisions of the duties of the
CFO established by D.C. Act 14-89. The
Morella legislation would make these necessary
amendments to the Home Rule Act. In addition,
the bill would provide certain temporary
personnel and budget authority to the CFO and
certain temporary budget authority to the
Inspector General, eliminate Council approval of
million-dollar contracts, and increase the budget
autonomy of the District government as a whole.
Enactment of section 101 of the Morella bill
would allow D.C. Act 14-89 to become effective.
Subsection (a) repeals section 424 of the Home
Rule Act. Subsection (b) removes certain
financial and accounting supervision duties from
the Mayor, but leaves the interpretation of
possible conflicting provisions of the Mayor's
authority and the CFO's authority to District
officials. Subsection (c), which does not seem to
be immediately relevant to the enactment of the
CFO bill, eliminates the requirement that the
Mayor include an issue analysis statement in his
annual budget submission.
Section 102 of the Morella bill provides that
certain personnel, including employees of the
Lottery Board, shall serve at the pleasure of the
CFO. This personnel authority would expire on
July 13, 2003, and would make applicable the
"serve at the pleasure of" provision of section
2(d) of D.C. Act 14-89.
Section 103 exempts procurements of the CFO
from the District's procurement laws and from
review by the Mayor and the Council until July
13, 2003.
Section 104 provides that for fiscal years 2002
and 2003, the CFO, as well as the Inspector
General, shall submit their budgets to the Mayor,
who shall submit these budgets without revision
by the Mayor, along with the budget for the
District, to the Council. This provision does not
prevent the Council from modifying the budgets
of the CFO and IG. As the District's Fiscal Year
2002 budget has already been submitted to the
Congress, this provision would seem to only be
relevant for Fiscal Year 2003.
Section 201 of the Morella bill amends the
Home Rule Act by adding a new section that
requires CFO approval of all reprogramming
requests during fiscal years that are not control
years. The Council may consider the
reprogramming request only after the CFO has
received a request from the Mayor, approved the
request, and transmitted an analysis of the effect
of the reprogramming on the financial plan and
budget. The CFO has 10 days to consider the
Mayor's reprogramming request before the Section 202 repeals the requirement that contracts over $1,000,000 be submitted to the Council for
review.
Section 301 requires the CFO to develop, within 30 days of the effective date of the Morella bill, a
system for reporting the occurrence of events that the CFO determines will result in the initiation of a
control period if the District does not take immediate steps to prevent them. If the Mayor receives
notification from the CFO that such event or events have occurred, the Mayor must develop an action plan
within 15 days of receiving the notification.
The Morella bill also provides for increased budget autonomy for the District. Section 401 removes the
requirement from the Home Rule Act that budgets adopted by the Council be submitted to the President for
transmission to the Congress for Congressional approval. Instead, District budgets would take effect upon
the transmittal of the budget to the Congress. All of the budget related items in sections 446 and 447 of the
Home Rule Act that were triggered by Congressional action would be triggered by Council action. [BFB]
On July 10, 2001, the Council had final
reading on Bill 14-254, the Independence of the
Chief Financial Officer Establishment Act of
2001. The effective date of the act is contingent
upon Congressional action that repeals section
424 of the District Charter and repeals and
makes changes to sections 448 and 449 of the
District Charter. Once Bill 14-254 goes into
effect:
As of the printing of this newsletter, there has
been no Congressional enactment to repeal
Charter sections 424 and the appropriation
portions of 448 and 449. Consequently, Bill 14-254 has not become law. However, on October
2, 2001, the District of Columbia Fiscal
Integrity Act of 2001 (H.R. 2995) was
introduced, which, upon enactment, will repeal
section 424 of the Home Rule Act. [CB-H].
WHAT ARE THE DIFFERENCES?
The Council employs three different vehicles to
carry out its legislative direction: subordinate
agencies, independent agencies, and
instrumentalities.
Subordinate agencies act under the supervision
and control of the Mayor. (1) They are subject to
all personnel and procurement rules governing
District of Columbia government operations. All
real property of subordinate agencies is owned
and titled in the name of the District of
Columbia.
Independent agencies act under the supervision
and control of an administrator (or board of
directors (2)) appointed by the Mayor (and
generally confirmed by the Council). After
appointment, the agency administrator does not
act under the supervision and control of the
Mayor and can only be removed by the Mayor
for cause. (3)
Whether an independent agency is
subject to personnel or procurement rules
governing District of Columbia government
operations depends upon the specific provisions
of the legislation which created the agency. All
real property of independent agencies is owned
and titled in the name of the District of
Columbia.
Instrumentalities are public corporations
established to carry on proprietary functions in
order to effect public policy initiatives. While
they are organized as separate organizations, they
are nevertheless bound by some of the limitations
applicable to government because they are still
instrumentalities of the government. The
establishment of certain enterprises as separate
corporate bodies is employed to aid and enhance
the accomplishment of the purposes of these
corporations. As the functions of the corporation
are proprietary, a separate existence insulates
government from liability. While these objectives
may be addressed by statute, the creation of the
corporation enhances their attainment and does
not rely on interpretation of provisions in
derogation of common or statutory law. Title to
real property of an instrumentality is held in its
own name, not the District of Columbia.
While instrumentalities have been employed by
governments for many years, the nature of their
existence has been given varying interpretations
from jurisdiction to jurisdiction and, therefore,
their specific statutory charter and authority will
predominantly define their existence and powers.
Accordingly, their nature, in large part, is a
matter of legislative prerogative.
As a separate corporation, an instrumentality
may maintain its funds separate from the general
funds of the government and is designed to
divorce the corporations from the appropriations
process, so that it may budget and function on its
own. However, the District of Columbia has not
availed itself of these theoretical advantages. It
should be noted that the instrumentalities
chartered by the Council have held their funds
not as part of the corporation, but in a separate
fund created by the authorizing legislation.
Although there has not been a judicial
interpretation given on the matter, ostensibly the
funds are the property of the District of
Columbia government, not the corporation. This,
then, requires that these instrumentalities be part
of the appropriations process as these District of
Columbia funds must be authorized for
expenditure. Notwithstanding current practice,
the authorizing legislation may provide that the
instrumentality retain and maintain its own funds.
Nonetheless, while in other jurisdictions the
instrumentality will be divorced from the
appropriations process, in the District of
Columbia, its funds must be authorized for
expenditure.
The separate corporate existence of an
instrumentality is also employed to facilitate the
creation of separate procurement and personnel
procedures. This, however, is a matter of
legislative discretion and the instrumentality may
be made subject to some or all of such
procedures.
While the differences between these entities,
especially the differences between subordinate
and independent agencies, are set forth as general
principles, in practice, the permutations in
authorizing legislation can be as varied as the
colors in the hairstyles of punk rockers. For
instance, the Department of Mental Health and
the Child and Family Services Agency are
subordinate agencies which, more characteristic
of independent agencies, have their own
personnel and procurement authority. However,
their authorizing legislation did not exempt them
from, but made them subject to, the personnel
and procurement rules to which subordinate
agencies are subject. A more striking example is
the District of Columbia Taxicab Commission.
It was established as a subordinate agency,
whose members are appointed by the Mayor, but
the Mayor may only remove the members for
cause. [DSK]
The Economic Growth and Tax Relief
Reconciliation Act
The recent major federal tax legislation signed
by President Bush on June 7, will have an impact
on the collection of District of Columbia revenue
as well as federal revenue. In the District of
Columbia, as well as other states, the income tax
is determined based on federal adjusted gross
income, which includes not only income as
computed for federal purposes, but certain
deductions as well. Therefore, certain provisions
in the federal legislation that increase deductions,
such as increased contributions to individual
retirement accounts, will affect District of
Columbia revenue. However, the most
measurable impact will arise from the repeal of
the federal estate tax.
The District of Columbia, as well as 38 other
states, impose a so-called "pick-up" tax, which
taxes estates in an amount equal to the credit
allowed against the federal estate tax. Under the
pick-up tax, the estate's liability is not increased--the District of Columbia merely "picks up" the
estate taxes which would otherwise be paid to the
federal government. The federal legislation not
only phases out the estate tax over 10 years, but
eliminates the state credit over 4 years, beginning
in 2002.
Accordingly, the District of Columbia will face
the loss of revenue from this source. In 1998,
the District of Columbia collected approximately
$27 million in estate taxes. Unless a substitute
tax is enacted, the District of Columbia will
forego this revenue. However, unlike the current
estate tax, which claims revenue which would be
collected by the federal government, a substitute
tax would increase the tax burden of the estate.
[DSK]
CHICAGO'S APPROACH TO
RELIEF FROM RISING
PROPERTY VALUES
In conjunction with the phaseout of the
triennial system of real property tax assessment,
the Council adopted a one-time cap on real
property tax increases to ameliorate the effect of
rising real property values. The incidence of
rising real property values is not a problem
unique to the District of Columbia. Because of
similar concerns, the Chicago City Council
approved a loan program to give relief to low-income homeowners. In communities where real
property values have risen significantly faster
than the average Chicago property, qualifying
homeowners may delay the payment of a portion
of their taxes until they sell their home or the title
is transferred.
Under the program, the City of Chicago will
pay the portion of the real property taxes that
represents an amount greater than 150% of the
city average increase in real property values. The
City may be repaid at any time, but must be
repaid when property is sold or transferred. The
payment will bear interest at 3% per annum.
Homeowners are eligible if they owned and
occupied their home by January 1, 1999, have
household income not greater than 80% of the
area median, and their property has been
reassessed at least 150% of the City's average
increase. [DSK]
THE NEW DISTRICT OF COLUMBIA
The laws passed by the Council that became
law prior to December 31, 2000 (and Law 13-298, which enacted the alcoholic beverages
provisions, effective May 3, 2001) have finally
been codified (organized, cumulated, and printed)
in "the District of Columbia Official Code." The
odyssey to publish the current laws of the
District began in October 1998, when the
Council requested that the Office of Contracting
and Procurement prepare a Request for
Proposals. Two years and 10 months later (after
expiration of the prior contract, two bidder
protests, a demand by one bidder that the right to
reproduce the codified laws of the District be
taken away from the District, the assumption of
the procurement from OCP by the Council, and a
decision to recodify the entire Code) the Council
and the other government agencies that rely on
the Code (including the Courts, Congress, and
the President of the United States) received the
new Official Code. By mid-August, 2001, all 23
volumes and index of the 2001 Edition were
delivered to the District.
The 2001 Edition of the District of Columbia
Official Code marks the eighth time that a
compilation of the laws of the District of
Columbia has been published by, or under the
authority of, the government of the District of
Columbia or that of the United States. The time
between the publication of the Seventh Edition
(1981) and this edition represents the longest
period, by almost a decade, that the District of
Columbia Code has gone unrevised in its 72-year
history.
In the process of codification, the Office of the
General Counsel has interpreted any
discrepancies in the drafting of the laws using commonly recognized rules of statutory
construction. No other entity is authorized by
law to make these determinations. As set forth
by federal law and recognized by the courts of
the District of Columbia, this Code establishes
prima facie evidence of the laws in force in the
District of Columbia. It is this continuity of
authority, from enactment to codification to
judicial review, that gives this Code its
authenticity as the content of the laws of the
District of Columbia.
The 2001 Edition represents a recodification of
the 1981 Edition in that it contains a
reorganization of the presentation of the laws,
inclusion of some previously omitted legal
provisions, and the omission of non-substantive,
extraneous provisions. The theory behind the
recodification is to purify the organization of the
Code, which over many decades has seen the
haphazard mixing of original ("organic")
provisions of laws throughout the Code. In the
2001 Edition, we have established a system of
codification that follows the legislative drafting
principles established over many years in the
Council's Office of the General Counsel. In this
recodification, we have separated the organic
laws into discrete divisions and topical
categories. As much as is possible, we have
followed a rule that requires that all organic law
remain intact: closely following the layout of the
originating act. We have retained notes to
repealed sections to aid in legal research and
preserved the numbering style that was first
introduced in the Second Edition (1940),
although we have renumbered several individual
sections.
The Code is organized into eight Divisions of
practical law: government organization; judicial
organization; decedent estates; criminal law;
business law; education; property; and general
laws. Each division is subdivided by subject
matter, called Titles, organic laws, called
Chapters and Subchapters, and finally,
individual Sections representing the individual
sections of the organic law. Occasionally,
Subtitles are used to organize chapters of
organic law, Units to organize subchapters, and
Parts and Subparts to organize the additional
divisions within the organic law. One important
change that the user will notice, and hopefully
appreciate, is that the District's Charter, the
Home Rule Act, is codified in its entirety in one
location (Chapter 2 of Title 1) so that the
framework of the current District government can
be readily found. The section numbering of the
Charter found in the Official Code corresponds
to the sections of the organic Home Rule Act; for
instance, section 401 of the HRA is codified at §
1-204.01 and section 718 is codified at § 1-207.18.
The D.C. Official Code now contains 51 titles,
up from 49 in prior editions. The two additional
titles were created as a result of dividing old Title
1, "Administration", into two titles, "Government
Organization" and "Government Administration",
and dividing old Title 6, "Health and Safety",
into two titles, "Human Health Care and Safety"
and "Environmental and Animal Control and
Protection." The enacted titles, Titles 11 through
21, 23, 25(new), 28, and 47, have retained the
same section numbering, except that all section
numbers with single digits following a decimal
now will have at least two digits (i.e., § 13-302.1
is now § 13-302.01). This stylistic change will
conform the appearance of the enacted sections
with the sections of the unenacted titles. Again,
for example, section 401 of the HRA is codified
at § 1-204.01.
The D.C. Official Code is available online via
the Council's website. A note of caution:
currently, the online version is not the version
approved by the Office of the General Counsel.
The publisher of the Official Code and
maintainer of the online code failed to make
several corrections to the text of the online code
that the OGC required them to make in the
Official Code. Until the online text is updated to
match exactly the bound Official Code, you
should compare any text from the online code
upon which you are relying with the bound
Official Code.
Also, the proper citation to this code is "D.C.
Official Code." Please disregard the citation
directive found in the preliminary pages of each
volume of the Official Code as that directive was
erroneously added by the publisher without
permission and is not the proper citation.
Access to the Official Code on disk will be
available in November for the Council so that
large segments of the Code may be downloaded
at one time.
Save for D.C. Law 13-298, which enacted and
amended Title 25, none of the laws enacted by
the Council during Council Period 13 that
became law in 2001 are currently codified in the
D.C. Official Code. Those laws did not complete
Congressional review in time to be included in
the printing of this edition. However, we plan to
print the first supplement to the 2001 Edition this
fall. It should be available by the end of
November and will contain all
Council Period 13 laws that became effective this
year. The D.C. Official Code Update Chart,
which describes where in the Official Code the
Council Period 13 laws will be codified, is
currently available on the V drive and will soon
be available on the Council's web page.
The Office of the General Council will continue
to supply supplements to the Official Code to
offices that initially received Official Codes from
the office. Any office or individual that desires
additional Official Code sets, individual volumes,
or supplements may purchase them directly from
the publisher, West Group, by calling 1-800-228-2180. [BFB]
Citation to the District of Columbia
Official Code, 2001 Edition
The proper citation to the new code is "D.C.
Official Code." The correct citation to section
401 of the District of Columbia Home Rule Act,
for example, is "section 401 of the District of
Columbia Home Rule Act, approved December
24, 1973 (87 Stat. 785; D.C. Official Code § 1-204.01)." Please disregard the citation directive
found in the preliminary pages of each volume of
the Official Code as that directive was
erroneously added by the publisher without
permission and is not the proper citation.
District of Columbia Official Code
The D.C. Official Code , 2001 Edition, Update
Chart is currently available on the V drive, was
published in the September 28th edition of the
District of Columbia Register, and will soon be
available on the Council's website. This chart
contains the codification of all laws from Council
Period 13 that became effective in Calendar Year
2001 that currently do not appear in the current
D.C. Official Code. The text of the amendments
made by the laws that are listed in the Update
Chart will appear in the Supplement to the D.C.
Official Code that will be published this fall.
DRAFTING TIPS
BOARDS AND COMMISSIONS MANUAL UPDATE
The Boards and Commissions Manual issued by this office has been updated. This is a style manual
consisting of sample resolutions for appointments to District of Columbia boards and commissions and
certain independent and subordinate agencies. Please discard the October 1999 edition of the Manual. The
October 2001 edition is available for pickup in this office and contains changes mandated by laws passed
during Council Periods 13 and 14. If you are reviewing confirmation resolutions, please check the Boards
and Commissions Manual to ensure that the resolution is in the appropriate form. This edition is current
through October 2001 and will be updated periodically as boards and commissions are established or
abolished. The new edition reflects citations to the D.C. Official Code, and the following changes:
Additions
Deletions
* Reflects change in name only.
LEGISLATIVE DRAFTING
The Legislative Drafting Manual issued by this
Office dated February 1999 has been updated.
Please discard that edition, as well as all previous
editions, and replace them with the October 2001
edition of the Manual. The October 2001 edition
is available for pickup in this office and contains
all the changes to effective date clauses, other
matters affected by Control Board review,
committee reports, fiscal impact statements, and
other Council Period 14 Rule changes, along with
several new sample documents. We hope that it
will be as widely distributed and utilized as the
1999 version of the Legislative Drafting Manual.
Copies will be distributed to each Council
office, the Office of Intergovernmental Relations,
and to the Office of the Corporation Counsel,
Office of Legal Counsel. Should you have any
questions regarding the revisions to the manual,
please feel free to contact this office. We hope
that you find that it has been worth the wait.
[BKF]
If you have not attended a Legislative Drafting
Seminar and you are involved in drafting
legislation, please contact this office and place
your name on a list of persons who are interested
in attending the next session. It is important that
everyone who engages in drafting legislation
attend a training session to become more familiar
with the drafting convention used by the Council.
The next legislative drafting seminar will be in
two parts, from 9:30 a.m. to 12:30 p.m. on
Thursday October 18 and Friday, October 19,
2001, in Suite 4, John A. Wilson Building, 1350
Pennsylvania Avenue, N.W. Please contact Ada
Arrington or Karen Barbour at 724-8026 to sign
up for the training. [CB-H]
As of October 1, 2001, based on the sunset of the Financial Authority, all emergency,
temporary, and permanent legislation should contain new effective date clauses as follows:
Permanent act (30-day clause)
Sec. ___. This act shall take effect following
approval by the Mayor (or in the event of veto by the Mayor, action by the Council to override the veto), a 30-day period of Congressional review as provided in section 602(c)(1) of the District of Columbia Home Rule Act, approved December
24, 1973 (87 Stat. 813; D.C. Official Code §§ 1-206.02(c)(1)), and publication in the District of Columbia Register.
Temporary act (225-day clause)
Sec. ___. (a) This act shall take effect
following approval by the Mayor (or in the event of veto by the Mayor, action by the Council to override the veto), a 30-day period of Congressional review as provided in section 602(c)(1) of the District of Columbia Home Rule Act, approved December 24, 1973 (87 Stat. 813; D.C. Official Code §§ 1-206.02(c)(1)), and publication in the District of Columbia Register.
(b) This act shall expire after 225 days of its
having taken effect .
Emergency act (90-day clause)
Sec. ___. This act shall take effect following
approval by the Mayor (or in the event of veto by the Mayor, action by the Council to override the veto), and shall remain in effect for no longer than 90 days, as provided for emergency acts of the Council of the District of Columbia in section
412(a) of the District of Columbia Home Rule Act, approved December 24, 1973 (87 Stat. 788; D.C. Official Code § 1-204.12(a)).
HOME RULE ACT
UPDATED VERSION AVAILABLE
The Office of the General Counsel has revised
and updated its compilation of the District of Columbia Home Rule Act. The revision includes cross-references to the parallel citations in the new District of Columbia Official Code and incorporates amendments made in recent Congressional acts, including the District of Columbia Appropriations Act, 2001 (Pub. L. No. 106-522; 114 Stat. 2440), and the District of Columbia Appropriations Act, 2000 (Pub. L. No. 106-113). Copies are available for Councilmembers and staff.
The revision does not reflect the changes to the
Home Rule Act proposed by the District of Columbia Fiscal Integrity Act of 2001 (H.R. 2995). This bill was recently introduced in Congress by Rep. Connie Morella. A summary of that legislation is contained in this newsletter.
The Office of the General Counsel continues to
monitor all District laws enacted, or proposed for enactment for the District, by Congress. Please check this newsletter for information on additional updates to the Home Rule Act.
[DSK].
LITIGATION
U.S. DISTRICT COURT STRIKES DOWN NOTIFICATION PROVISIONS
The United States District Court for the
District of Columbia last month issued a decision
striking down as unconstitutional the community
notification provisions of the Sex Offender and
Registration Act ("SORA"), effective July 11,
2000 (D.C. Law 13-137; D.C. Official Code §
22-4001 et seq.). The Office of the Corporation
Counsel has filed a notice of appeal.
In her 34-page Memorandum Opinion and
Order issued in John Doe #1 v. Anthony
Williams, No. 01-00407 (ESH), District Court
Judge Huvelle held that the community
notification provisions, contained in D.C. Official
Code § 22-4011, violate the procedural due
process protections of the Fifth Amendment.
Judge Huvelle also held that the SORA did not
apply to persons convicted under the Youth
Rehabilitation Act whose offenses occurred
before August 5, 2000.
After determining that "the public notification
provisions of the SORA implicate liberty
interests protected by procedural due process,"
Judge Huvelle ruled "the District's SORA must
be invalidated because it provides no opportunity
to be heard on whether, and to what extent,
public notification of a sex offender's registry
information is necessary to protect the public."
The decision left intact the registration
requirements for sex offenders. Under the court's
order, the District is only enjoined from
implementing the public notification provisions
and applying the act to offenders sentenced under
the Youth Rehabilitation Act for offenses
committed before August 5, 2000.
The District had argued that due process
procedures were not required because the
registration and notification provisions did not
infringe upon protected liberty interests. Judge
Huvelle agreed that the registration requirements
did not implicate liberty interests because they
did not inflict "public stigma" on sex offenders.
She stated, however, that there is "no doubt" that
the public notification provisions do subject sex
offenders to a stigma.
Judge Huvelle found that procedural due
process was triggered because the public
notification of plaintiffs' registry information
subjected them not only to a stigma, but also to a
"fundamental change" in their legal status,
thereby satisfying the "stigma-plus" test. She
held that the obligations imposed on the plaintiffs
by the SORA and the attendant penalties for
failing to comply with the SORA constituted a
change in legal status. In particular, Judge
Huvelle noted that the failure to comply with the
registration requirements constituted a separate
criminal offense, the registration requirements
were mandatory conditions of the sex offender's
conditions of supervised release, and the duration
of supervised release could be extended anywhere
from 10 years to life.
Having determined that liberty interests were
implicated, the Court determined that sufficient
procedural safeguards were not provided because
the statute did not provide any opportunity for a
sex offender to be heard on whether the public
notification of the sex offender's registry
information is necessary to protect the public.
Although the SORA does contain a dispute
resolution process for the sex offender to
challenge his registration classification, the Court
found that "(t)here is no procedure under the
statute for an offender to challenge the nature and
extent of notification permitted under
the statute once the offender has been classified,
or to challenge the supposition that he poses a
risk of recidivism and therefore should be subject
to public notification."
Judge Huvelle categorized the SORA as an
"offense-based system," in which sex offenders
are categorized by the type of offense committed.
Under this system, Judge Huvelle stated, "the
nature of the offense serves as the only basis for
determining risk of recidivism. The sex offender's
offense and the corresponding risk group
determine the nature and extent of public
notification." By contrast, under an "offender-
thebased system," the Court noted that the nature
and extent of public notification "are graduated
according to an individual risk assessment
analysis."
The fact that the SORA permits public
notification by posting registry information on
the Internet seemed to especially trouble Judge
Huvelle. She stated: "(T)he Court is struck by
the extent of notification provided . . . (e)very
registrant is subject to some form of public
notification, and the vast majority are subject to
unlimited public dissemination via the Internet,
event though there has been no individualized
assessment that the offender poses a risk of
future harm."
Board of Trustees of the University of Alabama v. Garrett
On February 21, 2001, the U.S. Supreme
Court in Board of Trustees of the University of
Alabama v. Garrett, held that state employees
may not sue the state for money damages under
Title I of the Americans with Disabilities Act
("ADA"). ADA prohibits certain employers,
including state governments, from discriminating
against a qualified individual in several respects,
including the job application process, hiring, and
job advancement, because of a disability. The act
also requires covered employers to make
reasonable accommodations for the known
disability of job applicants and employees.
Respondents Garrett and Ash were Alabama
state employees with disabilities. After the state's
failure to make reasonable accommodations in
the workplace to accommodate their disabilities,
the employees sued in U.S. District Court,
alleging violations of Title I of the ADA and
seeking money damages. The U.S. District Court
held that ADA exceeds Congress' authority to
abrogate the state's Eleventh Amendment
immunity. The Eleventh Circuit vacated that
decision.
In reversing the Eleventh Circuit's decision, the
Supreme Court held that: (1) Congress may
abrogate a State's Eleventh Amendment
immunity when it both unequivocally intends to
do so and acts pursuant to a valid grant of
constitutional authority; (2) while Congress
expressly abrogated the State's Eleventh
Amendment immunity in enacting ADA, section
5 of the Fourteenth Amendment does not provide
Congress the valid grant of authority to abrogate
that immunity in cases of employment
discrimination by states against persons with
disabilities; and (3) even where Congress acts
pursuant to a valid grant of constitutional
authority to abrogate the States' Eleventh
Amendment immunity, there must be a pattern of
illegal discrimination, which violates the
Fourteenth Amendment, and the legislative
remedy which Congress enacts pursuant to § 5
must be consistent with and in proportion to the
violation. The Court's review of the legislative
history of the ADA did not indicate that one of
the areas which Congress sought to remedy was
a pattern of past discrimination by the states
against persons with disabilities.
The Court also clarified that its holding does
not mean that persons with disabilities have no
recourse under Title I of the ADA. The
standards prescribed by Title I of the ADA for
the states can be enforced by the United States in
actions for money damages, or by private
individuals in actions for injunctive relief.
Individuals may also seek legal redress under
state laws which provide remedies for persons
with disabilities who experience discrimination in
employment. D.C. Official Code § 7-1005
prohibits discrimination against persons with
disabilities by District government and employers
in the District, exclusive of the federal
government.[JB]
We have returned to the Wilson Building! The
location of the Office of the General Counsel
remains on the ground floor of the building. Our
new office is Suite 4, which is located on the
southwest corner of the ground floor. Our main
entrance is in the rear of the building, on the 14th
Street side. The general office and facsimile
numbers are the same: (202) 724-8026 (office)
and (202) 724-8129 (facsimile). Our new mailing address is: 1350 Pennsylvania Avenue, N.W., Suite 4; Washington, D.C. 20004
On August 27, 2001, Katherine ("Kay")
Westcott joined the Office of the General
Counsel as an Assistant General Counsel. Kay
is a resident of the Mount Pleasant section of
Ward 1. She comes to this office with extensive
experience reviewing and analyzing case law,
statutes, and regulations, and preparing and
conducting bench and jury trials.
Kay received a Bachelor of Arts degree in
Political Science from the Florida International
University in Miami, Florida, where she
graduated with honors. She received a Doctor of
Jurisprudence degree from the University of
Florida School of Law, where she received the
Book Award in Legal Drafting. She is a member
of the bars of Florida and the District of
Columbia.
Prior to attending law school, Mrs. Westcott
worked for Eastern Airlines as a flight attendant.
Upon graduating from law school, Mrs. Westcott
worked as an associate attorney for the law firm
of Loewinger and Brand, where she litigated
landlord and tenant lawsuits, real estate and
probate matters, wrongful death actions, small
claims matters, and she engaged in mediation.
After leaving Loewinger and Brand, Mrs.
Westcott worked at several major law firms,
where she provided litigation support in civil
litigation cases and reviewed contracts,
agreements, SEC filings, business plans, and
analyzed other complex legal documents.
Kay will now utilize her document review,
research, and litigation experience, as well as her
interpersonal experience, which she honed during
her years of service as a flight attendant, as she
works with Councilmembers and staff to assist in
producing legislation for the District of
Columbia.
Her assignment will include coverage of the
Committee of the Whole, Committee on
Economic Development, and the Committee on
Public Service. She will also be involved with
litigation matters and drafting legal opinions.
Welcome aboard, Kay! [CB-H]
Donald Kaufman
Katherine ("Kay") Westcott
Johnnie Barton
Donald Kaufman
Johnnie Barton
John Hoellen
John Hoellen
Katherine ("Kay") Westcott
Johnnie Barton
Katherine ("Kay") Westcott
John Hoellen
Donald Kaufman
In addition to the above, Ben Bryant serves as
the Council Codification Counsel and Brian K.
Flowers serves as the Council Legislative
Counsel. Inquiries from Councilmember Adrian
M. Fenty will be referred to Johnnie Barton.
Benjamin Bryant will advise on contracts.
Editor:
John Hoellen
Contributors:
Charlotte Brookins-Hudson, Brian K. Flowers,
John Doe #1, et al. v. Anthony Williams, et al
U.S. District Court, D.C. C.A. No. 01-00407 (Judge Huvelle) . . .. . . . . . . . . . . . . . .13
Board of Trustees of the University of Alabama v. Garrett, U.S. Supreme Court . . 15
This issue of Legalese is primarily devoted to articles about changes -- to our governance
structure, to our official publication for District laws, to the legislative drafting style manuals for
the Council, to the staff of the Office of the General Counsel, and to our location. It is
appropriate that at this time of year, as we undergo a change of season, that we should write
about changes. I hope that the articles in this newsletter address some of your questions about
the changes that have occurred.
OFFICIAL CODE
2001 Edition, Update Chart
MANUAL UPDATE
OF SEX OFFENDER AND REGISTRATION ACT
IN FEDERAL COURT FOR MONEY DAMAGES UNDER ADA
ATTORNEY COMMITTEE ASSIGNMENTS