As the Council begins Council Period XII, the staff of the Office of the General Counsel looks forward to working with all the new and returning members. This office is available to provide whatever legal assistance you may need. Our Legislative Counsel, John McNeal, is available for consultation on questions concerning drafting styles for legislation. The Codification Counsel, Benjamin Bryant, is available to address any codification questions concerning the D.C. Code and where pending legislation will ultimately be codified in the D.C. Code. During the next two weeks, I will complete the task of assigning an attorney from this office to provide legal and drafting assistance to all the Council committees.

I want to take this opportunity to stress the importance of this office being notified as soon as any member of the Council or staff is served with a summons and complaint, deposition notice, subpoena, or any other legal document that concerns official activities at the Council. This is necessary so that we may provide the proper representation for the Council and do so in a timely manner, as well as preserve the Council's legal defenses.

I would also like to make a few friendly reminders concerning the placement of legislation to be considered by the Council on the Council's LAN system. It is imperative as we seek to timely enroll and engross legislation following a legislative session that Council staff place all emergency and temporary legislation on the Council's "v" drive prior to legislative sessions. This will ensure the integrity and efficiency of processing Council legislation following the legislative session. I look forward to working with everyone to effectively deliver legal and legislative services during Council Period XII.

The District's speech or debate clause provides members of the Council with legislative immunity for actions taken in the exercise of their legislative duties. D.C. Code 1-222(b) defines "legislative duties" to "include the responsibilities of each member of the Council in the exercise of such member's function as a legislative representative, including but not limited to: Everything said, written or done during legislative sessions, meetings, or investigations of the Council or any committee of the Council, and everything said, written or done in the process of drafting and publishing legislation and legislative reports." Additionally, the legislative history of D.C. Code 1-222 states that the term was broadly defined so as to include genuine legislative functions which are exercised beyond the mere confines of the Council Chambers or a committee meeting place.

In simplified terms, members of the Council will have the necessary protection of legislative immunity for all actions which are an "integral part of the deliberative and communicative process by which the members of the Council participate." Legislative immunity would not extend to actions by members of the Council to influence the administration of law by the Mayor or to administrative actions taken by Councilmembers. However, members of the Council would have the protections where they are engaging in their factfinding role since it is within the scope of legislative activity. Eastland v. United States Servicemen's Fund, 421 U.S. 491 (1975). See also Government of the Virgin Islands v. Lee, 775 F.2d 514, 521 (1985) ("factfinding, information gathering, and investigative activities are essential prerequisites to the drafting of bills and the enlightened debate over proposed legislation" and justifies the protection of legislative immunity). Additionally, actions taken by Councilmembers in their oversight authority would also be protected by the District's speech or debate clause as such actions constitute legislative activity. Sims v. City of New London, 738 F. Supp. 638, 644 (D. Conn. 1990). Thus, in that case, the court held that the Council of the City of New London was empowered to "inquire into the conduct of any department or office of the City and to make investigations as to the city affairs." The court further noted that the United States Supreme Court has stated that "[i]nvestigations . . . are an established part of representative government, and it is the proper duty of a representative body to look diligently into every affair of government and to talk about what it sees." Id. (quoting Tenney v. Brandhove, 341 U.S. 367, 377 & n. 6 (1951)) (emphasis added).

The District's speech or debate clause grants legislative immunity against claims under 42 U.S.C. 1983 to defendants as members of the Council of the District of Columbia. Gross v. Winter, 876 F.2d 165 (D.C. Cir. 1989). In Gross, the Court of Appeals for the District of Columbia Circuit stated that "District councilmembers may invoke the same immunities as their state counterparts" since the Council was authorized to exercise the combined powers of a state and a municipal legislature. Id. at 169. However, the court made clear that when a council member acts to discharge a member of their staff, they are acting in their administrative, not legislative capacity, and thus would not be covered by legislative immunity for this type of action.

This legislative immunity extends to legislative staff "insofar as the conduct of the latter would be a protected legislative act if performed by the Member himself." Gravel v. United States, 408 U.S. 606, 618. Any question as to whether actions by a Councilmember or staff is covered by this doctrine should be directed to the Office of the General Counsel.

WITHDRAWAL OF LEGISLATION

Most nominations for boards and commissions are submitted to the Council by the executive branch. When the nominations are received, the Council usually has a finite time within which to approve or disapprove, by resolution, the nomination. Generally these nominations will take effect automatically by operation of law if the Council does not act.

There have been times when the Council has sought to withdraw a nomination, submitted by the executive branch, from its consideration. Council Rule 407, which was amended this Council period, governs the withdrawal of legislation. Subsection (a) of that rule states that "[w]henever a . . . resolution is proposed . . . by an entity other than the Council and is required by law to be approved, disapproved, or reviewed by the Council and would take effect automatically by operation of law, the proposal may be withdrawn formally by the proposer prior to final Council action or, if the Council takes no action, prior to any time limit imposed by law." Therefore, according to Council Rule 407(a), the Council cannot unilaterally withdraw a nomination if it was submitted by the executive branch, was required by law to be approved, disapproved, or reviewed by the Council prior to its taking effect, and would become effective automatically by operation of law. In such cases only the proposer may formally request withdrawal of the nomination and, even then, only if the Council has not taken final action or the time for Council consideration has not expired.

The special election for the Office of Ward 6 Member of the Council is April 29, 1997.

Recently it has been brought to the Office's attention that essential language contained in the Human Rights Act of 1977 was dropped from the District of Columbia Code, 1981 Edition, 1992 Replacement. The Human Rights Act of 1977, as passed by the Council, is published in the District of Columbia Statutes-at-Large, 1977 Compilation, at page 461, and in the District of Columbia Register, Volume 24, at page 6038. In both these publications, section 211(a) of the Human Rights Act of 1977 contains the following five headings: "General."; "By an employer."; "By an employment agency."; "By a labor organization."; and "By an employer, employment agency or labor organization." All five headings appear in the 1973 edition of the Code, as codified in the 1978 supplement, at section 6-2221(a), published by the United States Government Printing Office.

In the 1981 edition of the Code, the year the Michie Company began publishing the Code, only the heading "General" was included as codified at section 1-2512(a); the other four headings were dropped. Normally, in the course of drafting legislation, headings would not be included if the headings were not of substantive value to the subsequent provisions. In the case of section 211(a) of the Human Rights Act of 1977, however, the headings are substantively important to the meaning of the subsequent text because they define the scope of the provisions. Without the headings, the scope of the provisions is unclear. These headings should not have been dropped.

The above referenced headings will appear in the 1997 supplement to Volume 2A of the Code. Until that time, since District law requires the courts to take judicial notice of acts published in the Statutes-at-Large, then the law as published in the Statutes-at-Large is the "official" version of the law. To the extent that the law published in the D.C. Register is consistent with the law published in the Statutes-at-Large, it also is the "official" version of the law.

On December 3, 1996, the Council passed on final reading Bill 11-865, the Title 47 D.C. Code Enactment Act of 1996. The legislation enacts Title 47 of the D.C. Code and makes several technical amendments. Title 47 contains the District's tax laws which date back to the turn of the century. It has been quite cumbersome to amend the organic acts for the tax laws because of the myriad amendments made to the numerous organic tax acts during the past century. The need for the enactment of Title 47 is further mandated to prevent the proliferation of errors caused in the drafting of amendments to Title 47.

Any amendments in the bill to the existing text are purely technical -- needed to correct erroneous cross-references and grammatical errors and to add amendments to Title 47 recently passed by the Council and the Congress that were not included in the 1996 supplement to the D.C. Code. Currently, only 13 of the 49 titles contained in the D.C. Code have been enacted. The addition of Title 47 to the list of enacted bills will make it easier to draft amendments to that title and will reduce the risk of making serious errors to the District's codified tax code. Once Bill 11-865 becomes law, changes to the non-Charter provisions of Title 47 can be made directly to the pertinent code sections.

Pursuant to section 412(a) of the Home Rule Charter, the Council may only use resolutions "(1) to express simple determinations, decisions or directions of the Council of a special or temporary charter; and (2) to approve or disapprove proposed actions of a kind historically or traditionally transmitted by the Mayor . . . to the Council pursuant to an act. Such resolutions must be specifically authorized by that act and must be designed to implement that act. " (Emphasis added). Thus the only action that the Council can take upon receipt of a resolution introduced at the request of the Mayor is to approve or disapprove the proposed action and not to modify the proposed action. The only exception is that the Council may condition its approval upon the occurrence of subsequent events.

Also, if the resolution is not "specifically authorized by an act or is not designed to implement the act" then the matter is not properly before the Council and must be returned to the Mayor as improperly submitted. See Rule 401(b) of the Rules Resolution for the Council of the District of Columbia, Council Period XII Resolution of 1997, effective January 2, 1997 (Resolution 12-1; 44 DCR ___). Thus, when a Council committee prepares to markup a resolution from the Mayor, it may not substantively change the resolution even if the resolution is deficient due to a drafting error of the Mayor. If the Mayor has made a substantive error to the resolution, it will be returned to the Mayor for modification.

It is with great sadness that we bid farewell to Stephen C. Taylor. He began his career here at the Council over 3 years ago. He worked in this office as an Assistant General Counsel from May 24, 1993, through March 1994, left for a brief sojourn to be Legal Counsel to Councilmember Jack Evans until October 1994, and worked continuously in this office from October 10, 1994 until December 6, 1996. As an Assistant General Counsel he worked with several Council committees -- the Committee of the Whole, Labor and Human Rights, and Education. When Mayor Marion Barry was Councilmember Barry, he and Stephen spent countless hours on various revisions to drafts of the Displaced Workers Act. He was temporarily disappointed when the United States District Court for the District of Columbia struck down that law under the preemption doctrine. However, his spirits were revived when the United States Court of Appeals for the District of Columbia upheld the District's Displaced Worker Act (54 F.3d 811 (1995)).

Stephen loved being assigned legislation relating to the reform of the District's tax and pension laws. Anyone in the Council knew that when it came to legislation relating to budget matters, taxes, pension, or employee benefits that Stephen Taylor was the person to see in this office. Stephen not only worked with legislation, but he was actively involved in litigation pertaining to the Council. He spent many hours during the day and night involved in briefing death penalty issues for appeal and drafting pleadings in the Georgetown Cogeneration proceedings.

He has left the Council to join the legal team of the Chief Financial Officer of the District of Columbia. We know that when he gets involved in analyzing the District's pension plans, tax structure, and employee benefits that he will spend several hours reviewing other state and federal legislation to ensure that any proposed changes to the District's scheme will be legally and technically sufficient. Having worked on drafting legislation for the past 3 years, we know that any legislation he may draft on behalf of the CFO will be in proper legislative drafting form.

He has invested the past 2 years broadening his legal knowledge by attending Georgetown University Law Center to work on his master's degree in tax. He was awarded the LLM in Tax from Georgetown in May. The time has come for that advanced law degree to pay some dividends and for his commitment to the District to be utilized in another way. We know that the District will be better because Stephen C. Taylor is taking his training, knowledge, skill, drive, and determination where his professional talents can be more fully utilized for the benefit of the District and its residents.

January 2, 1997, marked the beginning of Council Period XII. As usual, the Council held an organizational meeting and voted on rules for this Council period. The new rules contain a few changes from the rules in Council Period XI. The changes include the following:

* Rule 213 - the Council has added an additional executive officer -- a Vice Chairman Pro Tempore who will serve in the absence or recusal of the Chairman Pro Tempore. No one has currently been nominated by the Chairman for this position.

* Rule 302 - has deleted the reference to every 4th regularly scheduled legislative meeting as a 6:30 p.m. legislative meeting; there are no regularly scheduled evening legislative meetings for Council Period XII.

* Rule 308 - allows for the submission of contracts during a limited period during the Council's summer recess. Now during the 30-day period prior to the end of the summer recess, such contracts may be submitted and Council members may introduce resolutions of approvals or disapprovals of contracts during this time period.

* Rule 309 - allows the time on Council review of contracts to begin to run on the first business day following its receipt by the Office of the Secretary. Contracts still must initially be transmitted to the Chairman prior to its receipt by the Secretary.

* Rule 407 - allows a member who has introduced legislation to withdraw that legislation at any time prior to the taking of any official action by the committee to which it has been referred.

* Rule 426 - requires that a draft copy of all emergency and temporary legislation be circulated to all Council members and the Secretary at least 24 hours prior to the scheduled legislative meeting. If there are exigent circumstances which prevent making the 24-hour circulation period, the draft legislation must be circulated to all members and the Secretary at least 1 hour prior to the scheduled legislative meeting.

* Rule 443 - requires that a fiscal impact statement for all bills be contained in the text of the bill, in the committee report, or in a separate document presented to the Council at the time of its consideration of the bill.

Editors:

Sheila Barfield and John McNeal

Contributors:

Charlotte Brookins-Hudson, Benjamin Bryant, and Johnnie Barton

Editorial Assistants:

Karen Westbrook

Debra Brown