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).
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.
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."
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
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.
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.
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)).
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