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OFFICE OF THE

GENERAL COUNSEL
LEGALESE


September 1996 Council of the District of Columbia Vol. 2, No. 1

||Charter Schools||Litigation||1997 Appropriations Act||Federal Bills pertaining to D.C.||End of Council Period XI||Council 2/3 Vote||D.C. Code Corrections||Editors||





OVERVIEW OF FEDERAL AND DISTRICT
PUBLIC CHARTER SCHOOL LEGISLATION


Two major laws effecting the District's public school system were recently passed. The District of Columbia School Reform Act of 1996 ("Reform Act"), contained within the 1996 Appropriations Act, and D.C. Law 11-135, the Public Charter Schools Act of 1996 ("Charter Schools Act") are the federal and District legislative enactments which authorize creation of the public charter school form of education in the District of Columbia.

To convert an independent or existing public school into a public charter school

the laws require the approval, in the form of a signed petition by two-thirds of the adult students and parents of minor students that attend the school, and the endorsement of a majority of the school's full-time teacher employees.

After approval by the effected parties, the petition must receive a chartering authority's approval. Information which the chartering authority obtains from public hearings will provide the basis for approving or denying the petition. The measures allow public hearings to occur only after stated notice and publication requirements are met. The Board of Education, the Public Charter School Board, or any one entity designated by the Council (through enactment of an act) may approve charters pursuant to the Reform Act. The Board of Education is the sole chartering authority that the Charter Schools Act authorizes.

The Reform Act limits a chartering authority's approval of petitions to no more than 10 for the 1996-1997 academic year and no more than 5 for the academic year 1997-1998 and thereafter. The Charter Schools Act limits the Board of Education to approving no more than 10 petitions in a calendar year. Petitions under the Charter Schools Act are effective for 5 years and are renewable for an unlimited number of 5 year periods.

Unlike the Reform Act, the Charter Schools Act provides for Council review of denials of petitions to establish, or applications to renew, charters. The Council's decision would be final and not subject to judicial review. The Reform Act requires the eligible chartering authority to specify in writing its reasons for denying a petition and to indicate how the applicant may revise the petition to satisfy the requirements for approval.

Both measures restrict the type of existing school that may convert to a public charter school. The Charter Schools Act provides that "a private or religious affiliated school shall not receive a charter." While prohibiting "sectarian private schools" from receiving charters, the Reform Act authorizes the chartering of existing non-sectarian and private schools. Charters may be revoked upon specific occurrences. The Reform Act gives the eligible granting authority that granted the charter the power to revoke it. Under the Charter Schools Act only the Board of Education may revoke a charter.

Educating children with disabilities is a requirement of both the federal and District laws. Federal law requires compliance with the Individuals with Disabilities Education Act and the Rehabilitation Act of 1973. District law provides that a public charter school may not limit enrollment based on physical or mental disability.

Pursuant to both laws, District of Columbia public school employees may become employees of a public charter school. An employee on unpaid leave from the D.C. public school system, but who works at a public charter school, may earn creditable service. The Reform Act gives these former D.C. public school employees the option of remaining in a District of Columbia government retirement system and continuing to receive creditable service as a charter school employee, or transferring into a retirement system established by the public charter school.

Except for emergencies, each measure requires Authority review, publication, and notification of contracts whose value equals or exceeds $10,000. The Reform Act also requires the Authority to, within 12 days of the date the school submits the contract, void those contracts it finds will threaten the economic viability of the public charter school.

The Reform Act and the Charter Schools Act prohibit public charter schools from charging tuition, fees, or mandatory charges for participation in any program, educational offering, or activity for students enrolled in any grade from kindergarten through 12th that is funded in whole or in part through an annual appropriation, except for nonresident students, field trips, or similar activities. An eligible chartering authority, pursuant to federal and District law, may charge an eligible applicant the following fees in connection with public charter schools: an application fee, not to exceed $150, for processing a petition to establish a public charter school and an administrative fee, not to exceed 1/2 of 1% of the annual budget of the school, to cover the costs of administrative, monitoring, assessment, and evaluation responsibilities.

The laws provide immunity from civil liability unless the act or omission constitutes gross negligence, is an intentional tort, or is criminal in nature. However, they do not abrogate any immunity that exists under common law.

The Reform Act requires the Superintendent, by December 1, 1996, to submit to the appropriate congressional committees, the Board of Education, the Mayor, the Consensus Commission, and the Council a report regarding the progress of the District of Columbia public schools toward achieving goals of the long-term reform plan. It also requires the Council to submit to the appropriate congressional committees, by April 1, 1997, a report describing legislative and other actions the District of Columbia Council has taken or will take to facilitate the implementation of the goals of the long-term reform plan.








LITIGATION


Council v. Rachel Clay

On June 24, 1996, a 3-judge panel of the D.C. Court of Appeals (Inez Reid, Frank Schwelb, and Chief Judge Annice Wagner) heard oral argument in the Rachel Clay case. Prior to January 1, 1991, Rachel Clay was the Director of the Legislative Services Unit in the Council. At the end of Council Period 8 as Chairman David Clarke prepared to depart the Council and John A. Wilson assented the Chairmanship, Ms. Clay was given her notice that as an excepted service employee her services were no longer needed. Ms. Clay challenged her separation on the ground that she was a career service employee, not in the excepted service, and therefore could only be separated for cause. Ms. Clay conceded that on December 31, 1979, she was in the excepted service. However, she argued that on January 1, 1980, when the Comprehensive Merit Personnel Act took effect, it automatically transferred her into the career service. During Ms. Clay's entire 19-year tenure with the Council (from 1972 to January 1991) her Form 1 personnel action form stated that "as a

member of the D.C. Council

Staff, Appointee serves at the will of the appointing authority and this appointment is subject to termination at the pleasure of the Council." In 1992 the OEA ruled for Ms. Clay finding that under an interpretation of law, after the Comprehensive Merit Personnel Act went into effect on January 1, 1980, Ms. Clay was automatically transferred from the excepted service into the career service. The Superior Court (Judge Cushenberry) summarily affirmed the OEA decision. The Council's appeal to the Court of Appeals is awaiting a decision. During the oral argument before the Court of Appeals, the judges questioned the OEA hearing examiner's examination of 3 key D.C. Code provisions -- D.C. Code 1-610.3(a) which places all employees of the Council except certain technical and clerical employees in the Office of the General Counsel and the Office of the Secretary into the excepted service; D.C. Code 1-610.7 which is the transition provision for persons employed with the Council on January 1, 1980, which mandated that employees Grades 10 and below were to be appointed to the career service; and D.C. Code 1-602.4(c) which is the provision that automatically transferred incumbent employees to certain classifications effective January 1, 1980. Judge Schwelb asked several questions which were at odds with the OEA decision. Namely, why did the OEA hearing examiner's decision fail to address the last sentence contained in D.C. Code 1-602.4(c) which limited any transferring to classification systems applicable to employees on December 31, 1979. It is undisputed that on December 31, 1979, Ms. Clay was in the excepted service. Moreover, Judge Schwelb in discussing the silence of D.C. Code 1-610.7 concerning employees above a Grade 10, suggested that by negative implication the silence implies that persons above Grade 10, such as Ms. Clay, would automatically be in the excepted service not the career service as Ms. Clay argued, otherwise the provision would be superfluous. Judge Wagner seemed to concur. Judge Reid's line of questions focused mainly on any retreat rights Ms. Clay may have. An appellate decision should come sometime this fall.

FOP v. District of Columbia This case involved the constitutionality of the Council's action unilaterally impairing union contracts by enacting legislation to reduce compensation of FOP union employees during a portion of Fiscal Year 1995 and to reduce other additional compensation, such as overtime and holiday pay in Fiscal Year 1996. The trial court held that the Council's action violated the Contract Clause of the U.S. Constitution, Art.1, 10. The Commerce Clause prohibits the States and the District of Columbia from impairing contracts unless the impairment is reasonable. The court found that the Council's action constituted a violation of the Commerce Clause because the modification of the FOP contract was not reasonable given the facts of the case.

The case was subsequently dismissed in District Court with prejudice as a result of Congressional action in enacting the District of Columbia Appropriations Act, 1996 (P.L 104-134) ("Appropriations Act"). The Appropriations Act affirmatively required wage reductions for all union employees in Fiscal Year 1996 "notwithstanding the provisions of any collective bargaining agreement" and specifically "ratified and approved" the wage rollback of 12% for Fiscal Year 1995 enacted by the Council in Fiscal Year 1995. As a result, the claim that the Council violated the Contract Clause no longer had any merit since the Congress was not bound by the Contract Clause (that provision of the Constitution only places a restriction on the States and the District of Columbia) and the Appropriations Act, which ratified and approved the Council's action, as an act of Congress is immune to a Contract Clause challenge.

Since the FOP no longer had a cause of action against the District, the FOP and the District entered into a stipulation to dismiss the lawsuit with prejudice.

Quammen v. Barry and Council of the District of Columbia

In April 1996, the Plaintiff, Mr. Quammen, filed a lawsuit against the Council and the Mayor seeking damages and declaratory and injunctive relief to enjoin the Defendants from maintaining and enforcing sections of the District of Columbia Code relating to landlord-landlord matters which the Plaintiff claimed fostered and aided criminal activity.

On June 14, 1996, the Superior Court denied Plaintiff's motion for preliminary injunction against the Defendants. While the case is currently pending, it probably will be disposed of on a summary basis because the relief sought by the Plaintiff cannot be granted by the court for a number of reasons. First, the Council cannot be required to enact legislation as the Plaintiff seeks because it would violate the Council's First Amendment rights. Additionally, it would be a violation of the doctrine of separation of powers for the court to require the District's legislative body to enact specific legislation. Finally, the public duty doctrine would bar any action against

the Council for failure to enact legislation which would protect the Plaintiff and the rest of the public.

McFarlin, et al. v. District of Columbia, et al.

On August 1, 1996, the D.C. Court of Appeals upheld the constitutionality of the Panhandling Control Act of 1993. This case involved 3 persons who were arrested for soliciting at a Metro subway station. One person stood within a foot or less of the Metro escalator where passengers were trying to step off the escalator from the interior of the subway station and asked whether someone could spare some change. He challenged the District's panhandling law on the ground that it violated his 5th Amendment rights and was unconstitutionally vague because the law failed "to describe with sufficient specificity the location at which panhandling is prohibited." The court rejected those arguments finding that although the District law failed to define the term "subway station or stop", the court found it reasonable to interpret this term in light of WMATA's regulation which defines subway station to include spaces within 15 feet of the subway escalator. The two other persons were musicians playing at a Metro subway station several feet from the top of the Metro escalators who placed a bucket on the ground to collect voluntary donations of coins and bills. Although these musicians never asked passersby for money the court found that they fell within the definition of "panhandling" because they were soliciting donations. Their convictions were reversed because there was no evidence that their actions were made within the prescribed 15 feet of the nearest Metro escalator nor had they acted in an "aggressive manner".

Kronheim & Co. v. D.C.

This case involes the Wholesale Liquor Industry Storage Act (D.C. Law 6-130; D.C. Code 25-114(f)) ("Act"). That Act prohibits holders of alcoholic beverage wholesaler's licenses from storing alcoholic beverages outside of the District of Columbia. The District Court held that the Act violated the Commerce Clause because it discriminated against interstate commerce and the purpose for the local storage requirement did not withstand the "strict scrutiny" review accorded facially discriminatory legislation. The District appealed the court's ruling.

The United States Court of Appeals for the District of Columbia Circuit reversed the decision of the District Court. The court held that the Act's local storage requirement "although facially inconsistent with the Commerce Clause is constitutional as a valid exercise of the District's core power under the Twenty-first Amendment to the Constitution."

The Twenty-first Amendment has been held by the U.S. Supreme Court to relieve the states of the limitations of the Commerce Clause on their powers over the transportation or importation into the state of intoxicating liquor. The Circuit Court, after determining that the District is to be considered as if it were a state under the Twenty-first Amendment, held that the Twenty-first Amendment provided the necessary protection to the District in order for it to enact the Act despite the Act's discriminatory impact on interstate commerce.

Stephanie A. Ford v. Secretary to the Council

A former employee of the Office of the Secretary, Stephanie Ford, filed a complaint alleging that she was subjected to differential treatment in terms and conditions of employment and terminated because of her sex and family responsibilities (daughter). Her complaint alleged that certain actions violated the District's Human Rights Act of 1977 and the federal discrimination laws. In June 1996, the U.S. Equal Employment Opportunity Commission concluded that the complaint filed by Stephanie Ford against the Secretary to the Council Phyllis Jones did "not establish a violation of the statute." This follows the December 18, 1995, determination by the D.C. Department of Human Rights and Minority Business Development which found no probable cause to believe that a violation of the D.C. Human Rights Act of 1977 had occurred.



IMPORTANT NEWS
FOR YOU!!



1997 APPROPRIATIONS ACT


On September 5, 1996, the Congress passed the District of Columbia Fiscal Year 1997 Appropriations Act, Pub. Law 104-194. The Congress made a number of revisions to the Fiscal Year 1997 Budget Request Act, D.C. Act 11-281, which was passed by the Council. One major change was a reduction in the amount of the budget deficit that the District would be permitted to have for the upcoming fiscal year. The Council's budget provided for a deficit of $99 million. However, Congress placed a ceiling on the maximum expenditures for Fiscal Year 1997 in an amount equal to the lesser of total revenues of the District plus $74 million or $5,108,913,000. As a result of that ceiling on expenditures, the budget deficit for Fiscal Year 1997 cannot exceed $74 million.

The approved budget provides for a number of special budget items. For example, the budget provides for $1 million to go to the control board so it can contract with a private entity to carry out a program to inspect, flush, and repair the District's drinking water distribution system. The budget also increased the control board's appropriation to $3.4 million. The budget provides $12,257,000 for employee training, administrative reforms, and executive compensation. With respect to the education budget line, $2.8 million is appropriated to public charter schools with a reversion to the general fund of any unallocated funds remaining after May 1, 1997, and $9.2 million being restricted to school repairs.

The budget also contains a number of special provisions or restrictions on the District which are highlighted as follows:

Restrictions and changes regarding spending
:

- $47.4 million in cost reduction initiatives and a 2,411 reduction in FTE positions.

- Prohibit the expenditure of funds for programs or functions for which a reorganization plan is required but has not been approved by the Council.

- Requirement that all expenditures comply with the Buy American Act.

- Provide loan forgiveness for funds loaned to the Housing Finance Agency for fiscal years 1980 through 1992.

Personnel changes:


- Continues the authorization for modified reduction-in-force procedures which also provides for the creation of lesser competitive areas within agencies and limits bumping rights of employees to 1 round of lateral competition.

- Amends the District of Columbia Financial Responsibility and Management Assistance Act to place all personnel of all executive offices pertaining to accounting, budget, and financial management under the control of the Chief Financial Officer as excepted service employees.

Changes affecting the District of Columbia Public Schools and UDC:


- Imposes monthly reporting requirement on the Board of Education and UDC regarding contracts, organizational changes, number of FTE positions, and other expenditures and requires the Board and UDC to submit a revised appropriated funds operating budget by October 1, 1996.

- Designates the evaluation of D.C. Public School employees as a non-negotiable item for collective bargaining purposes.

- Continues the authorization for modified reduction-in-force procedures.

- Places all D.C. Public School employees under the personnel authority of the Board of Education and places school-based personnel in a separate competitive area from nonschool-based personnel.

- Authorizes public charter schools to charge fees for certain programs, including adult education, field trips, and similar activities.

Waivers of Congressional Review: Congress waived the requirement for the 30-day period of Congressional review for the following acts:

- Real Property Tax Lien Assignment or Sale and Transfer Amendment Act of 1996

- Telecommunications Competition Act of 1996

- Mortgage Lenders and Brokers Act of 1996



FEDERAL BILLS PERTAINING TO THE DISTRICT


* H.R. 3244 -- A Bill To amend the Internal Revenue Code of 1986 to provide for individuals who are residents of the District of Columbia a maximum rate of tax of 15% on income from sources within the District of Columbia.

* H.R. 3389 -- A Bill To reduce the unfunded liability of the teachers', firefighters', police officers', and judges' pension funds of the District of Columbia by increasing and extending the contributions of the Federal Government to such funds, increasing employee contributions to such funds, and establishing a single annual cost-of-living adjustment for annuities paid from such funds, and for other purposes.

* H.R. 3663 -- District of Columbia Water and Sewer Authority Act of 1996. An Act To amend the District of Columbia Self-Government and Governmental Reorganization Act to permit the Council of the District of Columbia to authorize the issuance of revenue bonds with respect to water and sewer facilities, and for other purposes.

- Approved August 6, 1996, Pub. L. 104-184.

- Authorizes District to delegate its authority to issue revenue bonds to the Authority.

* H.R. 3664 -- A Bill To make miscellaneous and technical corrections to improve the operations of the government of the District of Columbia.

- Repeal the application of the Service Contract Act of 1967 to the District

- Authorize, for a 5-year period beginning October 1, 1996, agreements between the District and the Bureau of Prisons waiving cost to District prisoners in federal prisons

- Exempt from the Council's review of contracts in excess of $1 million

(a) Washington Convention Center

(b) Water and Sewer Authority, other than contracts for the sale or lease of Blue Plains Wastewater Treatment Plant

(c) At option of Council, any contract for a highway improvement project carried out under title 23, U.S. Code

- Waive residency requirement for certain employees in Office of Inspector General

- Rename the Self-Government Act to "District of Columbia Home Rule Act."

* H.R. 3845 -- District of Columbia Appropriations Act, 1997. An Act Making appropriations for the government of the District of Columbia and other activities chargeable in whole or in part against the revenues of said District for the fiscal year ending September 30, 1997, and for other purposes.

- Approved September 9, 1996, Pub. L. 104-194.

* H.R. 3918 -- A Bill To amend title 5, United States Code, to treat employees of the Government of the District of Columbia in the same manner as employees of State and local governments are treated for the purposes of the Hatch Act.

* Pub. L. 104-177 -- Federal Employee Representation Improvement Act of 1996.

- Approved August 6, 1996.

- Allows members of federal and District government employee associations to present their views before the U.S. government.

FYI

End of Council Period XI

Council Period XI will end on December 31, 1996. This means that any introduced legislation, other than temporary legislation, that has not received final Council approval prior to December 31, 1996, will lapse, subject to reintroduction in Council Period XII. Council Rule 449(a) prevents the lapse of any temporary legislation that has had first reading by December 31, 1996. Consequently, any bill or resolution that has not had final Council approval by the last legislative session in December 1996 will lapse except for a temporary bill that has had first reading. Any matter that has lapsed at the end of a Council period can be introduced in the new Council period, subject to Committee referral, Committee action, and Committee of the Whole and Council approval. However, legislative matters (resolutions, reprogramming requests, contracts in excess of $1 million, etc.) that have an unexpired Council review period at the end of Council Period XI will not lapse. Council Rule 449(a) prevents the lapsing of any matter that has been transmitted by the Mayor or an independent agency for a designated period of Council review. It allows such legislation that is pending at the end of a Council period to retain the same status in the new Council period as it had at the end of the prior Council period. This means that if a legislative measure required a 60-day period of Council review and Council Period XI ends on the 30th day of review, the first day of the new Council Period XII will be day 31, not day 1 of a 60-day Council review.

Council 2/3rds Vote

There has been some confusion about how to calculate the 2/3rds vote of the Council for purposes of an override of a Mayoral veto, suspension of the Council Rules, and the declaration of an emergency. Section 404(e) of the Home Rule Act provides that the Council can only override if there is a vote of 2/3rds of the members of the Council "present and voting". The 2/3rds vote is calculated as follows: 13=9, 12=8, 11=8, 10=7, 9=6, 8=6, 7=5. There are no fractions of votes and numbers are rounded off to the next highest number, not the lower number. This calculation is consistent with 43 of Robert's Rules of Order, Newly Revised (1981) at 340-341. This is the same method used for a suspension of the Council Rules. However, for purposes of an emergency, section 412(a) of the Home Rule Act requires a vote of 2/3rds of the Council. This is calculated by taking 2/3rds of the total members of the Council, not simply those present and voting. This means that if the Council consists of 13 members, as it currently does, it takes 9 members to declare the existence of an emergency for enacting emergency legislation. If there is a vacancy in the Council and the Council only consists of 12 members, then 2/3rds of the Council is 8 members.

WE THOUGHT YOU'D LIKE TO KNOW. . .

In the supplement to Volume 3, the publisher dropped some language to 2-4004. Subsection (h) was dropped and should read as follows:

"(h) Members of the Board not otherwise compensated by the District shall be compensated at a rate equal to the daily equivalent of the highest step of a grade 15 of the District schedule established pursuant to the District of Columbia Government Comprehensive Merit Personnel Act of 1978, effective March 3, 1979 (D.C. Law 2-139; D.C. Code 1-601.1 et seq.), while engaged in the actual performance of Board duties, not to exceed $10,000 per annum. A member of the Board who is also an officer or employee of the District or the United States shall serve without compensation. Members of the Board shall be reimbursed for all reasonable and necessary expenses incurred while engaged in official duties of the Commission.".

The publisher is correcting the problem and subsection (h) should appear in next year's supplement.

______

The correct effective day clauses, which are placed at the end of all Council bills, are available on the "V" drive. Drafters will no longer have to spend the time and effort, or risk the inevitable "typo", in typing in the appropriate effective date clause at the end of each piece of legislation. One of four effective date clauses should be used by the drafter depending on the type of legislation. Emergency legislation will have a "90-day" effective date clause, temporary legislation will have a "225-day" effective date clause, permanent legislation will have a "30-day" (Congressional review) effective date clause, and legislation amending titles 22, 23, or 24 will have a "60-day" (Congressional review) effective date clause. The files can be found at v:\effdate and are 90-day.wcm, 225-day.wcm, 30-day.wcm, and 60-day.wcm, respectively.

These files can easily be copied to your personal directory.

______

The entire D.C. Code is available on the network. Now you can search for any word or phrase in the code and find it in a matter of seconds. You can also copy any part of the code into WordPerfect and do with it as you like. Each Councilmember is licensed to have 1 terminal in the Councilmember's office from which to access the D.C. Code. If you do not presently have access to the code on-line, call Solomon in the Information Systems Office. If you have any questions concerning how to browse, search, or copy the code on-line, ask Karen Westbrook or Ben Bryant in the Office of the General Counsel.

District of Columbia court cases are also available on the network.

Editors:

Sheila Barfield and John McNeal

Contributors:

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

Editorial Assistants:

Karen Westbrook

Debra Brown