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OFFICE OF THE

GENERAL COUNSEL
LEGALESE


April 1997 Council of the District of Columbia Vol. 3, No. 2

||Chairman Clarke||Post Employment Conflict of Interest||Litigation||Congressional Legislation||D.C. Code Info||New Council Procedures||1997 Enactment of Legislation||Editors||



TRIBUTE TO
CHAIRMAN DAVID ALLEN CLARKE

Charlotte Brookins-Hudson, General Counsel


On the occasion of the death of Chairman David A. Clarke we take this opportunity to pay tribute to him for the role he played in shaping District law. David Clarke loved the law. He believed that the law was a social tool that could make a positive difference in the everyday lives of citizens. While he believed that the law could be used as a social tool he also believed that the law, in the hands of certain persons, could be misused to trample on the rights of citizens. He devoted his entire life to ensuring that the law was not used in an abusive way. His fight took him into the courtrooms of the courts of the District of Columbia as he fought against the death penalty initiative in the District. Clarke believed that the death penalty amounted to cruel and unusual punishment and that it bore an enormous cost to the government with no proven ability to act as a deterrent to other criminal conduct.

As a private citizen, during the time he unsuccessfully sought the Mayoral office, he fought successfully in the D.C. Court of Appeals to reinstate, through a referendum, the weapons strict liability law. The strict liability law was passed by the Council during Clarke's second term as Chairman, to hold manufacturers, importers, and dealers of assault weapons and machine guns strictly liable in tort, without regard to fault or proof of defect, for all direct and consequential damages that arise from bodily injury or death resulting from the discharge of the assault weapon or machine gun in the District of Columbia.

David A. Clarke led the Council in filing a lawsuit in the U.S. District Court for the District of Columbia against the Congress of the United States to challenge an amendment added by Senator William L. Armstrong to the District's appropriation bill for Fiscal Year 1989 seeking to force the Council to vote a certain way or risk losing vital appropriations for the District. That amendment provided that if the Council did not amend its Human Rights Act by a certain date to permit educational institutions affiliated with a religious institution to discriminate against persons or groups who promote, encourage, or condone homosexual acts, lifestyles, or beliefs, the authority to spend funds for the remainder of Fiscal Year 1989 for the operation of the District government would cease. David Clarke led the Council's challenge to this amendment on the grounds that in requiring them to vote in a particular way, that the Armstrong Amendment violated their right to Freedom of Speech as guaranteed by the First Amendment. Mr. Clarke's challenge was sustained by the U.S. District Court and the appellate court. The Court of Appeals held that the "'the right to vote freely on issues as they arise' falls within the broad First Amendment protection afforded legislators." The case of David A. Clarke v. United States, 705 F. Supp. 605 (D.D.C. 1989), aff'd on appeal 886 F.2d 404, vacated on other grounds, 915 F.2d 699 (D.C. Cir. 1990) (en banc) is still being cited as good law today.

During his almost 12-years as Chairman, David Clarke helped to shepherd many legislative initiatives which were beneficial to the citizens of the District. While he frequently lamented about the restrictions on the legislative powers of the Council, he was able to make some important legislative gains for the citizens of the District of Columbia. His legislative accomplishments included banning handguns in the District. He authored pension reform legislation to keep the District government from drowning in the sea of debt inherited from the federal government when it transferred a huge unfunded pension liability to the District. He introduced legislation to merge UDC and the D.C. School of Law, as a way to save the law school, an institution he believed served to help empower the citizens of the District. He authored the housing linkage legislation, including housing production requirements within the comprehensive plan. As he saw the District development increase downtown while the existence of affordable housing decrease, he offered a plan, now in existence, that requires that developers provide assistance in ensuring the continuation of the availability of housing for low- and moderate-income persons.

He, like former Chairman John A. Wilson, loved the "District Building" and was saddened at its physical deterioration. In an effort to restore the historic "District Building" to its original splendor, at a time when the need to do so was the greatest while the money was the shortest, he helped oversee the Council approval of the plans to renovate the old "District Building" at no expense to the District residents. This project is expected to be completed in 1998.

Those who knew David Clarke well knew that his dedication to certain principles was most intense and his passion for certain ideas the rawest during the budget season at the Council. He considered himself the Budget Engineer. He felt it was his job as Chairman to build a budget that was acceptable to many. Sometimes he was successful, sometimes he missed the mark. However, his dedication to having a responsible budget was clear to anyone who observed him during budget time. Chairman Clarke spent many days and nights in the District/Wilson Building plowing over budget documents as he prepared various versions of budgets for presentation to the Council for consideration and vote. His staff knew all too well about those round-the-clock hours during the budget season. In some ways this was the time that Chairman Clarke loved being Chairman the most. Now it is the month of April and the Council is in the middle of the budget season on the Fiscal Year 1998 budget. It is at this time that his absence is felt the most by those who worked closely with Chairman Clarke. Chairman David A. Clarke will be missed but not forgotten. The body of law that he has helped to create will continue to speak for him for many years to come.



POST- EMPLOYMENT CONFLICT
OF INTEREST LIMITATIONS


Many questions have arisen concerning the conflict of interest limitations placed on former Councilmembers and former Council employees once they have left the Council.

Simply stated a former District government employee or officer cannot knowingly appear as an agent, attorney, or representative for a person or make, with the intent to influence, any oral or written communication for a person, in any particular matter involving a specific party in which the District is also currently a party and in which matter the former employee participated personally and substantially when employed by the District government. This provision is intended to prevent a former employee from "switching sides" by representing another person on a matter in which the former employee participated while employed by the District government. The prohibition is limited to 2 years if a particular matter for which the former employee had official responsibility was pending before the District government for a 1-year period before the employee's termination. If the particular matter had actually been considered by, as opposed to pending before, the District government, the prohibition is permanent. The phrase "particular matter involving a specific party" refers to the former government employee's prior participation in, or responsibility for, such matters as a "judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest, or other particular matter involving a specific party . . ." in which the District government continues to be a party or have a direct or substantial interest. An employee has "official responsibility" for those areas which have been assigned to him or her whether by statute, regulation, job description, or delegation of authority and a matter is "actually pending" when it has in fact been referred to or is under consideration by persons within the employee's area of responsibility.

Not every post-employment act that a former employee or officer engages in is considered a violation of the federal conflict of interest law. For example, an appearance or communication does not occur when a former employee or officer, acting as an attorney, asks for information concerning the status of a particular matter or when a former employee, not in connection with an adversarial proceeding, imparts purely factual information to a current employee. Matters involving rulemaking, legislation, the formulation of general policy, standards, or objectives are not considered a "particular matter involving a specific party or parties." Such matters are viewed as too general to qualify as a "particular matter."

Clearly, each possible conflict of interest case will contain its own unique set of facts and must be scrutinized in light of the federal law, its implementing regulations, and the regulations found in the District Personnel Manual. Thus this article cannot address every conceivable situation giving rise to a possible conflict. Therefore, any suspected conflict of interest case should be brought to the attention of the Office of the General Counsel so that a determination can be made on a case-by-case basis.

LITIGATION UPDATE



Milton S. Kronheim & Co., Inc. v. District of Columbia


This case, involving the Wholesale Liquor Industry Storage Act (D.C. Law 6-130; D.C. Code 25-114(f)) ("Act"), is currently under appeal to the U.S. Supreme Court by the Kronheim Company. 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 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 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.

Council v. Rachel Clay


On October 31, 1996, the D.C. Court of Appeals reversed the decision of the Office of Employee Appeals and the trial court (Cushenberry, J.) and found that Rachel L. Clay was a Career Service employee, not an Excepted Service employee, at the time she was terminated from the Council in December 1990. Ms. Clay was formerly the Director of the Council's Legislative Services Division, Office of the Secretary, until Chairman David A. Clarke, at the end of Council Period 8, gave 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. However, the Court of Appeals adopted Chairman Clarke's position that she had been in the excepted service at the time of her separation.

Dominion Cogen v. District of Columbia

This case has been ongoing since October 1993. Plaintiffs in this case sued the District and 3 named members of the Council (Nathanson, Ray and Evans) as a result of the denial by the Department of Consumer and Regulatory Affairs of a permit for their cogeneration facilities in Georgetown. Plaintiffs allege that the Council's actions, enactment of legislation pertaining to environmental impact statements for transmission lines of 69,000 volts and over and contacts with the BZA and the DCRA, 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 their private 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 the claims against the Councilmembers who were named individually, leaving the District of Columbia as the sole defendant. On March 4, 1997, the Court issued an order which allows the plaintiffs to file another amended complaint to allege the Council's enactments contained in the Public Utility Environmental Impact Statement Electrical Emergency Declaration Resolution of 1993, Resolution 10-51, effective June 1, 1993, the Public Utility Environmental Impact Statement Electrical Emergency Amendment Act of 1993, Act 10-42 (Bill 10-286), and the accompanying temporary act, D.C. Law 10-23 (Bill 10-291), effective September 30, 1993, as the basis for their contract claim. The court denied plaintiffs the opportunity to amend their complaints to allege a violations of the Standards Act or any Council enactments that occurred after the October 1993 initiation of the original complaint. The court found that the EIS emergency legislation could be utilized by the plaintiffs to support their contracts claim because it is "a change in the law".



D.C. Lottery Board v. D.C. Financial

Responsibility and Management

Assistance Authority


On January 17, 1997, the United States District Court for the District of Columbia issued a Memorandum and Order in D.C. Lottery Board, et al. v. D.C. Financial Responsibility and Management Assistance Authority, et al., Civil Action No. 96-2273. The Court (Judge James Robertson) granted the Council's motion to dismiss the claims against the Council. It also dismissed all the claims against the Authority except the First Amendment claim involving the Authority's order directing the Lottery Board members to vote to reinstate the Executive Director Frederick King. The latter claim is still pending in the court. The case is now on appeal in the United States Court of Appeals for the District of Columbia Circuit.

Hutchins v. District of Columbia


On October 29, 1996, the Juvenile Curfew Act of 1995 was found unconstitutional by Judge Sullivan in the United States District Court for the District of Columbia on the grounds that it violated minors' Fifth Amendment equal protection and due process rights to free movement, parents' due process rights, and is not "narrowly tailored to further the compelling interests of the District in protecting District residents." The Court's decision relies primarily on the absence of sufficient empirical data to show that "the District's minors are more likely than adults to be victims or perpetrators of criminal acts." Although such evidence was presented to the trial court, the court found that there was no evidence that "this statistical data was ever submitted to or considered by the City Council prior to its enactment of the curfew law." The Court found the statistical evidence on juvenile crime that was considered by the Council to be "woefully deficient." The Court seemed to place great emphasis on the fact that the identity of the author of the statistical evidence was unknown. Finally, the Court found that the curfew hours were not narrowly drawn to address a specific time when crime is more prevalent in the District. In fact, the Court found that the evidence showed that the Council had no statistical basis for specifying the selected hours for a curfew. Lacking this statistical information, the Court concluded that the Juvenile Curfew Act of 1995 was constitutionally deficient. The Office of the Corporation Counsel has appealed this decision to the United States Court of Appeals for the D.C. Circuit.

CONGRESSIONAL LEGISLATION


S. 294, Officer Brian Gibson District of Columbia Police Protection Act, amends chapter 51 of title 18, United States Code, to establish Federal penalties for the killing or attempted killing of a law enforcement officer of the District of Columbia.

H.R. 889, District of Columbia Tax Revenue Nondiscrimination Act of 1997, to repeal various Congressionally imposed tax exemptions provided to entities in the District of Columbia.

H.R. 549, District of Columbia Economic Recovery Act, 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 percent on income from sources within the District of Columbia.

H.R. 831, District of Columbia Retrocession Act, to provide for the retrocession of the District of Columbia to the State of Maryland.

H.R. 514, District of Columbia Inspector General Improvement Act of 1997, to permit the waiver of District of Columbia residency requirements for certain employees of the Office of the Inspector General of the District of Columbia.

H.R. 513, District of Columbia Council Contract Review Reform Act of 1997, to exempt certain contracts entered into by the government of the District of Columbia from review by the Council of the District of Columbia.

S. 418, Lorton Correctional Complex Closure Act, to close the Lorton Correctional Complex, to prohibit the incarceration of individuals convicted of felonies under the laws of the District of Columbia in facilities of the District of Columbia Department of Corrections.

105 H.R. 497, An Act To repeal the Federal charter of Group Hospitalization and Medical
Services, Inc., and for other purposes.


105 H.R. 827, Nuclear Disarmament and Economic Conversion Act, provides for nuclear disarmament and economic conversion in accordance with District of Columbia Initiative Measure Number 37 of 1993.

105 H.R. 1046, A BILL To allow each Member of the House of Representatives to hire one additional employee, if the employee is hired from the welfare rolls, and to provide that, if such employment is in the District of Columbia, the jurisdiction represented by the Member may count the employment toward its

welfare participation rate requirement.



PLEASE MAKE A NOTE . . .



D.C. CODE INFORMATION

Subsection (c)(2)(B) of D.C. Code 23-1323 as currently codified contains an error. The conjunctive "and" which, when read in the context of the statute, requires the collective inclusion of three factors by a judicial officer in finding that an addict should be detained in custody under medical supervision. Acts 11-436 and 11-431, the Zero Tolerance for Guns Congressional Adjournment Emergency Amendment Act of 1996 and the Zero Tolerance for Guns Amendment Act of 1996 (projected to become law April 12, 1997), respectively, corrected this error by changing "and" to the disjunctive "or". Although 23-1323 is part of an enacted title of the Code (1996 replacement volume 5A) and thus is recognized as the literal law, Acts 11-436 and 11-431 amend 23-1323. The amendatory language of Acts 11-436 and 11-431 will appear in the 1997 codification of this section.

D.C. Code replacement volumes 5, 7A, and 10, and the supplements to the remaining volumes, will be ready for distribution in June. Included in the materials available for pickup will be copies of the 1997 Advance Legislative Service (Listing all Acts of the District) and copies of the D.C. Code Update chart listing acts passed and laws enacted since the publication of the replacement volumes and supplements.

The update chart is published quarterly in the District of Columbia Register. The most recent update chart can be found in the January 17th publication of the D.C. Register at 44 DCR 262. The final publication before the arrival of the new D.C. Codes and supplements, will be upcoming this month.

NEW COUNCIL PROCEDURES


Chairperson Pro Tempore Charlene Drew Jarvis has introduced a proposed resolution to amend the Council Rules by adding a provision which would establish procedures for processing the Council's response to recommendations made by the Authority. The proposed resolution would also require the Council's Budget Director to determine the sufficiency of fiscal impact statements included in legislation.

Once a recommendation is received, the Council has a 90-day period within which to respond. The 90 days will begin to run after the recommendation is read at the next Legislative Session or Committee of the Whole meeting. To comply with that time constraint, the Office of the Secretary will assign the recommendation a number, circulate it to the Councilmembers, and send a record of receipt to the Authority. All recommendations will be retained by the Council and referred to the appropriate standing committee for comments.

The Office of the General Counsel will review each recommendation and provide comments to the appropriate committees. Comments of a committee are to be issued within 60 days of introduction of the recommendation and are to be contained within a committee report. The Office of the Secretary will circulate the committee report to each Councilmember.

Thereafter, the committee report will be considered at the next Committee of the Whole work session. Once that is done, the Committee of the Whole will file a report, as adopted by the Council, with the Office of the Secretary. The Office of the Secretary will then transmit the report to the Authority. Any legislation needed to implement a recommendation will be done according to the normal legislative process.

As stated, this whole process must be accomplished within the 90-day response period. If the committee to which a recommendation has been referred fails to act within the 60-day period, it is the responsibility of the Office of the General Counsel to make that fact known to the Chairman.

Other changes to the Rules for Council Period XII are as follows: a provision designating the Council Budget Director as an officer of the Council and an amendment clarifying that all matters pertaining to the PERB should be referred to the Committee on Government Operations.

1997 ENACTMENT OF LEGISLATION


There are only 3 regularly scheduled legislative sessions left prior to the commencement of the Council July 15th summer recess. These sessions will be held on May 6, June 3 and July 1, 1997. This means that if enactment during this year is an objective, permanent legislation should be scheduled for committee markup no later than May 1st for consideration at the May 20th Committee of the Whole session so that it may have first and second reading in June and July, and conclude its Mayoral, Authority, and Congressional review. Currently, Congress has scheduled its recesses as follows: May 23-31, June 2, June 27 and June 30, July 1-4, and July 7, August 4-29, (only 1 day in August would count), September 1 and 2, October 2 and 3, 10, 13, and November 10, 11, 1997. This means that based on the worst case scenario, that is the Mayor taking his full 10-business days to review legislation and the Authority taking a maximum 21-calendar days to review legislation, legislation receiving second reading on July 1, 1997, would not become effective until approximately October 20, 1997. Legislation receiving first reading at the October 7th Legislative Session is not likely to become law until sometime in 1998.

TECHNICAL AMENDMENTS BILL


The Legislative Counsel is presently gathering information for a technical amendments bill to be introduced prior to the summer recess. Anyone aware of errors in District laws or enacted titles of the D.C. Code, please contact John McNeal at

724-8026 before June 15. 1997.

Editors:

Sheila Barfield and John McNeal

Contributors:

Charlotte Brookins-Hudson, Benjamin Bryant, and Johnnie Barton

Editorial Assistants:

Karen Westbrook and Debra Brown