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OFFICE OF THE

GENERAL COUNSEL
LEGALESE


May 1996 Council of the District of Columbia Vol. 1, No. 3

||D.C. Appropriations Act, 1996||Litigation||Welcome Aboard||Election Mailings||Deadline for 1996 Acts||New Emergency Effective Date Clause||Message from the General Counsel||Editors||







DISTRICT OF COLUMBIA APPROPRIATIONS ACT

1996




On April 25, 1996, Congress passed HR 3019, the District of Columbia Appropriations Act, 1996. The President signed the bill on April 26, 1996. This act contains most of the provisions passed by the Council last summer with certain exceptions. Some of the highlights are as follows:

Requires that the District government enter into negotiations with Gallaudet University to transfer, at a fair market value rate, Hamilton School from the District to Gallaudet University with the proceeds to be deposited into the General Fund for use to improve "public school facilities in the same ward as the Hamilton School." (6th Street and Brentwood Parkway, N.E.)

Authorizes MPD to make small purchases in any amount less than $500,000 without any approval from the Mayor or restrictions of the procurement review process.

Ratifies the Council's 1995 wage rollback, as applied to collective bargaining units.

Authorizes the CFO to adjust expenditures and the number of FTE positions in accordance with the direction of the Authority to reach a net reduction of $150,907,000 in appropriations.

Prohibits the use of any appropriated dollars (District and Federal) for abortions (except under certain circumstances)

Prohibits use of any funds to implement or enforce domestic partnership act.

Adds a new section 451(c) to the District Charter allowing the District to (i) execute multiyear contracts for goods or services; (ii) pay damages for cancellation or termination of contract where monies are not available in future years to be paid out of appropriated monies; and (iii) require Council affirmative action on all such contracts within 45 days, and if not, contracts are deemed disapproved.

Imposes reporting requirements on the Board of Education, that include monthly reporting to the Mayor and Council on budgetary information on number of current FTE, comparison of actual current spending versus budgeted spending, and list of all contracts in excess of $10,000.

Imposes same requirements as section 138 (above) on UDC.

Imposes annual reporting requirements on UDC and Board of Education to submit reports to Congress, Mayor, and the Council.

Gives UDC and Board of Education 15 days after enactment of this Appropriations Act to submit to Congressional committees, the Mayor, the Council, and the Authority a revised appropriated funds operating budget.

Requires UDC, Board of Education, Board of Library Trustees and the Board of Governors of D.C. School of Law to vote on and approve their annual or revised budgets prior to submitting them to the Mayor or the Council for budgetary consideration.

Designates the evaluation process and instruments for evaluating Public School employees as a non-negotiable item for collective bargaining purpose.

Prohibits all agencies, including independent agencies, from filling a position funded by appropriations which is vacant on October 1, 1995, or becomes vacant between October 1, 1995, and September 30, 1996, unless the Mayor or independent agency submits a proposed resolution of intent to fill the vacant position to the Council. Council is required to take affirmative action on the Mayor's resolution within 30 legislative days, if Council does not take action, the resolution is deemed disapproved. Gives Control Board veto power over reduction in FTE or RIFs due to privatization or contracting out. Allows the filling of vacancies with employee currently occupying a position that is funded with appropriated funds. Exempts school-based teachers, school-based officers, school-based teachers' aides, or court personnel covered by title 11 of the D.C. Code.

Ratifies the modified RIF procedures approved by Council for the Board of Education which prohibits school administrators and nonschool-based personnel from being assigned or reassigned to the same competitive level as classroom teachers.

Ratifies the reclassification of all employees of the D.C. Public Schools as educational service employees under the personnel authority of the Board of Education and requires that school-based personnel constitute a searate competitive area from nonschool-based personnel.

Prohibits the use of any appropriated funds on the renovation of the Eastern Market.

Contains the modified RIF procedures allowing the establishment of lesser competitive areas within an agency; allows abolishment of positions regardless of collective bargaining agreements, applies to all employees regardless of date of hire to allow them to be separated without competition or assignment rights, except as provided by the act.; allows 1 round of bumping for employees whose positions are scheduled to be abolished who would have had an entitlement to multiple rounds of bumping; and for RIF purposes, gives D.C. residents 5 additional years of creditable service; requires 30 days notice prior to separation by RIF.

Contains a cap of $4,994,999.99 on appropriations for operating expenses for D.C. for FY 96 ; Federal or private grants not included in ceiling; requires that CFO submit a report on the grants and the Control Board approves the acceptance and expenditure of such grant; prohibits the spending of grant money in anticipation of approval or receipt; CFO to submit monthly reports on grants to Council.

Gives CFO the power to appoint the heads and personnel of all executive branch offices involved in accounting, budget, and financial management, including the Treasurer, Controller, Budget, Financial Information Services, DFR, and these persons shall serve at his pleasure (and act under the direction and control of the CFO). These same persons are subject to removal by the Control Board, but only for cause, after consulting with Mayor and CFO. It treats the budget of CFO same as Charter treats court budget -- must be submitted by Mayor to Council without revisions, but subject to recommendations.

Amends FRMAA to enhance benefits and authority of Control Board:

(1) Mandates that GSA provide support services to Authority.

(2) Allows any federal employee hired by Authority, who has less than 3 days break in service, to continue to be treated as a federal employee for purposes of health, life, and participation in federal thrift savings program, leave accrual and retirement as if person was with the federal government.

(3) Exempts Authority employees from liability for claims for Authority actions.

(4) Strikes section 203(a)(3) of FRMAA that exempts emergency legislation from Control Board review. Thus, Control Board will have 7 or 14 days to review all emergency legislation passed by the Council, after the Mayor has signed legislation. It does not require that emergency legislation be accompanied by a fiscal impact statement.

Provides for the establishment of an exclusive account for Blue Plains, entitled the "Operation and Maintenance Account," within the Water and Sewer Enterprise Fund consisting of all monies attributable to user charges, "paid by users jurisdictions for the operation and maintenance of the Blue Plains Wastewater Treatment Facility and related waste water treatment works," and appropriated or otherwise provided for the operation and maintenance of the Blue Plains Wastewater Treatment Facility.

Exempts up to 50 police offices and up to 50 Fire and Emergency Medical Services members with less than 20 years services from the current cap on disability retirements without triggering the penalty provision assessable against the District federal payment. This section is not effective until 15 days after the Mayor transmits an actuarial report to the Retirement Board.

Requires that not less than 30 days after the effective date of Act (April 26, 1996) that the District will convey, without consideration, the deed to all property known as "D.C. Village" to the Architect of the Capitol. (This is pursuant to an agreement signed by the District in 1984, to provide this land to be used for completion of the last portion of the Green Metro Rail Line).

LITIGATION


FOP v. District of Columbia - This case involves the constitutionality of the Council's action unilaterally impairing union contracts by enacting legislation to rollback wages of FOP union employees by 12% during a portion of fiscal year 1995 and the elimination of the 4.2% retention allowance, modification of method for overtime and holiday payment and other benefits for 1996. Approximately $16 million was projected in savings as a result of this action. In order to survive a constitutional challenge to a unilateral contract impairment, the government must show that the action was "reasonable and necessary" to achieve an important public purpose. To be reasonable, case law dictates that the modification to the contract must be required because circumstances have changed in kind, not degree, from the time the contract was approved by the Council. The contract at issue, covering fiscal years 1993 through 1995, was approved by the Council in June 1993. FOP argues that because the District's own multi--year plans and budgets in FY 93 and FY 94 projected substantial deficits in those years and beyond, it cannot claim that the FY 95 fiscal situation was unforeseen or that it was different in kind from that expected when the contract was approved. The District's position is that the 95 deficit was different in kind from what had been projected in earlier multi-year plans and budgets primarily because of the restrictions imposed in the FY 95 Appropriations limiting expenditures to actual revenues, the Congressionally imposed cut of $140 million from our budget, the penalty for overspending, and the inability of the District to acquire money through borrowing on the open market or the Treasury. These different events made the wage rollback legislation necessary. The trial judge (Richey, J.) had earlier found that the record precluded a finding of reasonableness to justify the Council's action. Since that time, discovery has been conducted on the issue of reasonableness. Now the cross-motions for summary judgments are pending in the United States District Court for the District of Columbia (Richey, J.).

AFGE v. D.C. - This case involves a 12% wage rollback to AFGE union employees for the period April 2 through April 30, 1995, as a result of the Council's enactment of the Budget Implementation Emergency and Temporary Act of 1995 and the Omnibus Budget Support Emergency Act of 1995. The union is challenging the constitutionality of the Council's action unilaterally impairing union contracts by enacting legislation to rollback wages of AFGE union employees by 12% during a 4-week period in fiscal year 1995. This action was projected to save approximately $1 million. This action is in the discovery stage in the Superior Court of the District of Columbia (Hevelle, J.).

National Black Police Assn v. D.C. Board of Elections - On April 19, 1996, the U.S. District Court (Hogan, J.) issued an Order enjoining the enforcement of Initiative 41 (D.C. Code 1-1441.1) on the grounds that it impermissibly infringes upon the free speech rights of candidates and the free association rights of contributors in violation of the First Amendment. Initiative 41 had sought to impose lower campaign contribution amounts on contributors to candidates for Mayoral, Council, Board of Education, and political party seats. The court held that Initiative 41 violated candidates' First Amendment right to freedom of speech because it had such "a severe impact on political dialogue . . . it prevented candidates from amassing the resources necessary for effective advocacy . . . without advancing a sufficiently important government interest by closely drawn means." It further concluded that it "impermissibly burden contributors' First Amendment right to freedom of association."

Dominion Cogen v. D.C. - Beginning in 1993, the Council enacted several bills (emergency, temporary, and permanent) to require that when a utility company plans to install, reactivate, or enhance any transmitter or wires which will transmit 69,0000 volts or more of electricity, there be an environmental impact study performed to assess the impact on the public health and safety prior to any approval of such action by the Public Service Commission and legislation imposing a moratorium on the issuance of permits for such facilities until the Council has approved a comprehensive energy and environmental protection plan developed by the Mayor or PSC for cogeneration facilities in the District. Plaintiffs allege that the Council's action amounts to an unconstitutional impairment of contract because it makes the plaintiffs unable to construct a cogeneration facility on the campus of Georgetown University and carryout the terms of contracts they had which were based on their ability to commence construction of the Georgetown cogeneration facility. During the pendency of the litigation, the United States District Court (Lamberth, J.) has dismissed claims against several Councilmembers who were named individually, leaving the District of Columbia as the sole defendant. The District has moved for partial summary judgment. Plaintiffs have opposed the District's motion. These pleadings are currently pending before Judge Lamberth.

COURT OF APPEALS REVERSES COURT ORDER


On January 19, 1996, the D.C. Court of Appeals, in District of Columbia v. The Sierra Club, held that the Mayor has discretionary authority to decide if funds are available to continue the curbside collection of recyclables. The Sierra Club sought injunctive relief based on the District's alleged failure to properly implement the curbside recycling program and after the Mayor's decision to suspend curbside recycling. The Court of Appeals decision vacated three orders of the Superior Court that had granted injunctive relief to the Sierra Club.

In deciding that the Mayor has discretionary authority to implement the recycling act, the Court of Appeals noted the following: (1) the financial crisis surrounding enactment of section 504 of the Omnibus Budget Support Emergency Act of 1995; (2) the Mayor's initial request that the Council enact legislation to end the recycling program; and (3) language in the support act's long title that limited the operation of the recycling program on the availability of funds. In addition, the Court explained that, "the use of the term 'only' in section 504 of the support act establishes that the Mayor is not authorized or required to fund the recycling program with funds which the District does not have." The Court added, "the Sierra Club's interpretation of the support act amounts to a request for the Court to manage part of the District's budget, an inappropriate interference in the business of other branches of government violating the separation of powers doctrine."

WELCOME ABOARD

Johnnie Barton has joined the Office of the General Counsel. He is very familiar to us here at the Council since he has worked in the Office of Councilmember John Ray for the past 2 years. His academic achievements include receiving a B.S. degree from Southwestern College in Texas, a Juris Doctor degree from the District of Columbia School of Law, and completing his first year requirements towards a Master of Divinity degree from Howard University. He is a member of the District of Columbia Bar and Pennsylvania Bar. During law school, he was employed as a legislative intern in the Office of Councilmember John Ray for approximately 9 months. His legal experience includes being an associate at the personal injury law firm of Williams & Harper for over a year, a staff attorney for the Neighborhood Legal Services Program, and a staff attorney for the Washington Legal Clinic for the Homeless. From January 1994 until March 15, 1996, he was employed continuously in the Council as Counsel to the Committee on Consumer & Regulatory Affairs under Councilmember Ray where he had been involved in drafting legislation and committee reports, conducting legal research, and making recommendations to the committee. During his tenure with the Council, Mr. Barton has demonstrated that he has the requisite knowledge of District legislative drafting procedures, the role of the Council and its rules and procedures, and District laws and regulations to be a valuable asset to the Office of the General Counsel. His assignments will include coverage of the Committees on Government Operations, Public Works and the Environment, and Education and Libraries, participation in litigation, and drafting legal opinions. Welcome aboard.



REMINDERS

Election

With the election season upon us, the General Counsel's Office would like to remind everyone of the Council's rules regarding official mail and mailing deadlines. According to Council Rule 805, a Councilmember who is a candidate for office may not mail, as official mail at public expense, a mass mailing within the 90-day period immediately preceding a primary, general, or special election.

"Official mail" is defined in Council Rule 801(3) as correspondence pertaining directly or indirectly to the legislative process or a legislative function, to the official duties of a Councilmember, or to other matters of public concern or public service. "Mass mailing", according to Council Rule 801(1), is the transmission through the mails of more than 100 substantially identical newsletters, news releases, or similar material during any 30-day period.

The District's Board of Elections and Ethics has scheduled the primary election for Tuesday, September 10, 1996, and the general election for Tuesday, November 5, 1996. Accordingly, the last days for any Councilmember seeking re-election to have a mass mailing of official mail is June 11, 1996, and August 6, 1996, which are the 90-day periods immediately preceding the primary and general elections, respectively. As usual, the Office of the General Counsel is available to answer any questions you may have regarding this matter and to review any material to determine if it qualifies as official mail.

Deadline for 1996 Acts

Congress is scheduled to adjourn sine die with a target date of October 4, 1996. Legislation which has not completed Congressional review prior to that time will have to be resubmitted at the beginning of the new Congress and will not become law until, at the earliest, February or March 1997.

It will be difficult for matters having final reading by the Council on July 2nd to complete a 30-day Congressional review cycle prior to October 4, 1996, if all parties (the Mayor and the Control Board) take their full 10 business days or 7/14 calendar day review period, respectively. During the month of July, Congress is scheduled to be out from July 1 - July 5, leaving 18-review days from July 8 through July 30. Congress is scheduled to be on recess all but 2 days during the month of August through September 3rd, and on September 23rd. This means that we will only have 2 review days in August, 18 review days during the month of September, and maybe 3 or 4 days in October to complete Congressional review prior to their scheduled adjournment date. By this schedule, absent a waiver of the 30-day review period by Congress, matters would have to have been reviewed by the Mayor and the Control Board and submitted to Congress for the commencement of the 30-day review period sometime around July 22nd.

In light of these facts, if enactment of an act in 1996 is a goal, to the extent possible, plan for the submission of your legislation in time for the legislation to undergo two readings and complete Congressional review prior to the October 4th Congressional target date.

NEW EMERGENCY EFFECTIVE DATE CLAUSE


Section 153(d) of the District of Columbia Appropriations Act, 1996 eliminated the FRMAA provision which exempted emergency acts from the Authority's review. Accordingly, effective April 26, 1996, all emergency acts passed by the Council will be subject to the approval of the Authority prior to enactment. This means that after an emergency act is passed by the Council, the Mayor signs or vetoes the legislation, and the Council considers the veto override, the emergency act will be submitted to the Authority for a 7 or 14 day review before it can become effective. All emergency acts should contain the new effective date clause as follows:

Sec. ___. This act shall take effect upon its enactment (approval by the Mayor, or in the event of veto by the Mayor, override of the veto by the Council, and approval by the Financial Responsibility and Management Assistance Authority as provided in section 203(a) of the District of Columbia Financial Responsibility and Management Assistance Authority Act of 1995, approved April 17, 1995 (109 Stat. 116; D.C. Code 47-392.3(a)), 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 Self-Government and Governmental Reorganization Act, approved December 24, 1973 (87 Stat. 788; D.C. Code 1-229(a)).

FROM THE DESK OF THE GENERAL COUNSEL


I hope that you find the information useful on the District's appropriations act for FY 96, status of litigation involving the Council or Council enactments, information concerning the last date for using official mail during this Council election year, the deadlines for the enactment of legislation this year, and the new effective date clause for emergency acts. In the next issue we will address the District of Columbia School Reform Act of 1996 as enacted by Congress, respond to some recurring questions on the status of legislation at the end of a Council Period, offer tips on how to use the CD-Rom D.C. Code information, provide an updated review of Congressional legislation relating to the District, and other issues that may arise between now and July 1996.

Editors: Sheila Barfield and John McNeal

Contributors: Charlotte Brookins-Hudson, Benjamin Bryant, Stephen Taylor, and Johnnie Barton

Editorial Assistant: Karen Westbrook