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OFFICE OF THE GENERAL COUNSEL LEGALESE


February 2000 Council of the District of Columbia Vol. 5, No. 1


|| Federal Legislation Impacting D.C. || Counting Days for Expedited Contract Review || Litigation || D.C. Laws Scheduled to Expire (Sunset) ||
|| Deadline for Council Period XIII Acts ||Official Mail || End of Council Period XIII || Impact of Census on Election Wards ||
|| Attorney Assignments || Welcome Aboard ||


DISTRICT OF COLUMBIA APPROPRIATIONS ACT, 2000

Public Law 106-113

Title I, Division A -- An Act Making consolidated appropriations for the fiscal year ending September 30, 2000, and for other purposes.

FEDERAL FUNDS

Federal Payment for Residential Tuition Support

Federal Payment for Incentives for Adoption of Children

DISTRICT OF COLUMBIA FUNDS

Operating Expenses

Economic Development and Regulation

This heading contains a provision requiring that $15,000,000 collected by the District in the form of BID tax revenue be paid to the respective BIDs pursuant to law passed by the Council (D.C. Law 11-134).

Reserve

This provision requires the CFO and the Control Board to establish a reserve of $150,000,000 with payments from the fund to be made pursuant to section 148 of the Act (D.C. Code 47-392.2(j) & (k)).

Repayment of General Fund Recovery Debt

This provision appropriates $38,286,000 towards eliminating the $331,589,000 general fund accumulated deficit.

Productivity Bank, Productivity Bank Savings Reductions, and Procurement and Management Savings Reductions

These provisions direct the CFO, under the direction of the Mayor and the Control Board, to finance projects totaling $20,000,000 that result in cost savings or additional revenues of an equal amount, make reductions of $20,000,000 to the funded projects, and make additional reductions of $14,457,000 in general supply schedule savings and $7,000,000 in management reform savings to one or more of the appropriations headings.

District of Columbia Retirement Board

This provision amends D.C. Code 1-711(c)(1) to allow the Chairman of the Board and the Chairman of the Investment Committee of the Board to receive an amount of up to $7,500 as compensation for performance of duties vested in the Board. All other members of the Board may receive up to $5,000.

General Provisions

1) certify that existing real property available for the use of the District government (whether leased or owned by the District) is not suitable for the purposes intended;

2) make available for sale or lease all real property that the Mayor determines is surplus to the needs of the District government, unless the Council overrides the Mayor's determination within 30 days of the publication of the determination;

3) implement a program for the periodic survey of all District property to determine if it is surplus to the needs of the District government; and

4) file a report, by January 28, 2000, with Congress which provides a comprehensive plan for the management of District real property assets and implement the plan.

If, however, the District enacts legislation to reform the practices and procedures governing the execution of leases for the use of real property by the government and the disposition of surplus real property, the above requirement will cease to be effective. Legislation to accomplish this is currently pending before the Council in the form of Bill 13-408, the Omnibus Government Real Property Asset Management Reform Act of 2000, which is currently scheduled for first reading on March 7, 2000.

1) for severance payments to individuals separated from employment during FY2000;

2) for expanded contracting authority of the Mayor; and

3) for implementation of a system of managed competition among public and private providers of goods and services by and on behalf of the District.

The source of the $18,000,000 is limited to interest earned on accounts held by the Control Board on behalf of the District.


SIGNIFICANT FEDERAL LEGISLATION IMPACTING EXCLUSIVELY ON THE DISTRICT OF COLUMBIA


Public Law 106-98, the District of Columbia College Access Act of 1999

Public Law 106-98 establishes a program to enable District residents to pay in-State tuition at universities across the nation. The program allows the Mayor to pay institutions of higher learning an amount to offset the difference between the tuition and fees a student living in the state where the institution is located would pay and the tuition and fees an out-of-state student would pay.

For public institutions the payment is limited to $10,000 per student per year, with a lifetime maximum of $50,000 per student. The legislation restricts the institutions eligible for the payments to those located in Maryland and Virginia unless the Mayor determines, after consultation with the Congress, that a significant number of eligible students experience difficulty gaining admission in these two states.

For private institutions, the payment is limited to $2,500 per student per year, with a lifetime maximum of $12,500 per student. The legislation restricts the institutions eligible for the payments to those located in the District and certain counties of Maryland and Virginia, and historically Black institutions located anywhere in Maryland or Virginia.

The legislation also authorizes the Secretary of Education to award up to $1,500,000 to the University of the District of Columbia to carry out various activities authorized under the Higher Education Act. [BFB]


COUNTING DAYS


Council Streamlined Review of Contracts in excess of $1 million and Multiyear Contracts. (D.C. Code 1-1181.5a(j)) (District Charter 451(b)) (D. C. Law 13-38, effective October 20, 1999)


LITIGATION


Barwood v. District of Columbia (Taxicab Commission)

U.S. Court of Appeals, February 4, 2000

No. 99-7027

The United States Court of Appeals for the District of Columbia Circuit dismissed a lawsuit brought by Barwood Taxicab Company, various other suburban taxicab companies and some other drivers which alleged that the District of Columbia Taxicab Commission violated the constitutional rights of the plaintiffs. The rules (31 DCMR 828) limited the scope of taxicab reciprocity with neighboring jurisdictions and provided for penalties in the form of fines of up to $300 and imprisonment of up to 90 days. Plaintiffs claimed that these rules exceeded the authority of the Taxicab Commission because they altered an existing reciprocity agreement and imposed criminal sanctions on violators.

On July 31, 1998 the District Court entered a temporary restraining order, which was later expanded in response to allegations that it had been violated. On February 16, 1999 the District Court entered a preliminary injunction prohibiting the Commission from enforcing the regulations, from imposing any criminal sanctions for reciprocity violations, or from otherwise altering the pre-existing reciprocity arrangements. Barwood, Inc. v. District of Columbia, No. 98-1901 (D.D.C. Feb. 16, 1999). This appeal followed.

The Circuit Court held that because there were no allegations of federal constitutional violations independent of the purported violations of District of Columbia law (or at any rate no such allegations for which plaintiffs had standing), there was no subject matter jurisdiction. The court reasoned that plaintiffs' case involved a "state law claim in federal garb," and that if it were to treat every violation of state law as a violation of the Constitution, it would make the federal government the enforcer of state law. In response to the plaintiffs' allegation that an individual taxicab commissioner had improperly enforced the regulations, the court noted that the Council had transferred all taxicab enforcement to the Metropolitan Police Department. [BKF]

Davis, Martin and Childs v. Margaret Moore

D.C. Court of Appeals, March 16, 2000

No. 98-SP-1234

NOBLE RECONSIDERED

For the second time in three years the District of Columbia Court of Appeals, sitting en banc, will consider issues not settled in its ruling in U.S. Parole Commission v. Noble, 693 A.2d. 1084 (D.C. 1997). See Legalese, June 1998, Vol.4, No.2. This case considered the issue of "good time credits" for D.C. prisoners, and the resolution of two D.C. statutes that appear to be in conflict on this subject. In its April, 1997 decision, the Court held that D.C. Code 24-431(a), requiring that every person be given credit toward service of required imprisonment "for time served in custody or on parole", did not implicitly repeal the provisions of an earlier measure that expressly provides that if parole is revoked, a prisoner's time "on the street" cannot be credited towards service of required imprisonment, for time spent in custody or on parole. D.C. Code 24-206(a). The Court's opinion in this case is buttressed by the principal that statutory interpretation disfavors repeals by implication, Luck v. District of Columbia, 617 A.2d.509 (D.C. 1992), and its reliance on the general rule of statutory interpretation that requires two statutes on the same subject to be read together, if they are not irreconcilable.

The Court found that Corporation Counsel misinterpreted the Good Time Credit Act, D.C. Code 24-431(a), and that the required resolution of the two statutes did not support a finding of an "implicit repeal" of D.C. Code 24-206(a). As a result of this ruling, the D.C. Department of Corrections immediately began to extend the sentences of thousands of D.C. parole violators who were mistakenly given "street time credit". Three incarcerated individuals whose sentences where lengthened by the application of Noble petitioned the Superior Court for reconsideration. Appellant Maurice Davis was supposed to be released December 27, 1998 but the application of Noble changed his release date to Spring, 1999; Randall Martin was due for release in May 1998 but will be incarcerated until November, 2000, and Mark Childs would have finished his sentence in June 1998 but will not be released until 2001. Superior Court Senior Judge Iraline Green Barnes denied the three prisoners' request and allowed the increased sentences to stand. On appeal, counsel for the appellants argued that the Noble decision created a new rule of law and therefore could not be applied retroactively.

In December, 1999 the D.C. Court of Appeals upheld the decision of Judge Barnes and stated that the Noble decision did not announce a new rule of law thereby clearing the way for the holding in Noble to be applied retroactively. This matter has been placed on the Court's expedited calendar and is scheduled for hearing by the D.C. Court of Appeals, sitting en banc, Thursday, March 16, 2000 at 9:30 a.m. At that time the Court is expected to hear argument on the retroactive application of Noble. The Court's ruling in this rehearing of Noble will determine how prison sentences should be calculated for incarcerated individuals who have been paroled, violated parole, and were reincarcerated. [CR]


D.C. LAWS SCHEDULED TO EXPIRE (SUNSET)

THIS YEAR


Law 8-139, the Residential Drug-Related Evictions Amendment Act of 1990 (D.C. Code 45-2559.1 through 45-2559.9) (enacted for the purpose of preventing the use of residences as drug havens or bases of operations for drug dealers), will sunset on June 14, 2000.

Section 11722 of Public Law 105-33, the National Capital Revitalization and Self-Government Improvement Act of 1997 (D.C. Code 1-517) (pertaining to federal agencies providing technical assistance to the District government), will expire on August 6, 2000.

Law 12-212, the Anti-Drunk Driving Amendment Act of 1998 (D.C. Code 40-302 passim) (establishing that a person operating a motor vehicle with a blood alcohol level of .08% as under the influence of alcohol), will expire on September 30, 2000.

Subsection (j) of section 105a of the District of Columbia Procurement Practices Act of 1985 (D.C. Code 1-1181.5a(j)) (expedited Council review of contracts), will expire on December 31, 2000.

Law 6-10, the Rental Housing Act of 1985 (D.C. Code 45-2501 - 45-2594) (concerning all rental housing) except titles III and V (concerning the Tenant Assistance Program and evictions and retaliatory action), will expire on December 31, 2000. [BDF]

REMINDERS

Deadline for Council Period XIII Acts

Congress is scheduled to adjourn sine die with a target date of October 6. When the Congress adjourns sine die, any Council enacted legislation that has not concluded its 30 or 60-day Congressional review prior to the adjournment, will have to start a new count when the 107th Congress convenes sometime in January 2001. That legislation will not become law until, at the earliest, the end of February or March 2001.

If enactment in 2000 or Council Period XIII is a goal for legislation which must undergo a 30-day Congressional review, it should receive second reading by the Council no later than June 6, 2000. The deadline for final Council passage is March 30, 2000, for legislation which must undergo a 60-day period of Congressional review. This calculation is based on the worst case scenario, that is the Mayor taking his full 10 business days to review legislation and the Financial Authority taking its maximum 14 business days to review legislation. At the latest, legislation must be transmitted to Congress no later than July 17th to conclude its 30-day review period prior to the scheduled October 6th adjournment.

At this time, it is unclear when the July Legislative Session will be held, because the second Tuesday falls on the July 4 holiday. During the month of July, Congress is scheduled to be out from July 1 to July 9, and from July 29 to July 31, leaving 15 review days from July 10 to July 28. Congress is scheduled to be on recess the entire month of August through September 5, and on September 29th. This means that we will only have 0 review days in August, 17 review days in September, and maybe 5 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 Financial Authority and submitted to Congress for commencement of the 30-day review period sometime around July 17th. [CB-H/BKF]

End of Council Period XIII

Council Period XIII will end on December 31, 2000. This means that any introduced legislation, other than temporary legislation, that has not received final Council approval prior to December 31, 2000, will lapse, subject to reintroduction in Council Period XIV. Council Rule 449(a) prevents the lapse of any temporary legislation that has had first reading by December 31, 2000. Consequently, any bill or resolution that has not had final Council approval by the last legislative session in December 2000 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 XIII 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 XIII ends on the 30th day of review, the first day of the new Council Period XIV will be day 31, not day 1 of a 60-day Council review. [CB-H]

Upcoming Elections

With two elections fast approaching, 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 this year's primary election for Tuesday, September 12, 2000, and the general election for Tuesday, November 7, 2000. June 14, 2000, will be the last date to have a mass mailing of official mail for this year's primary election. August 9, 2000, will be the last date to have a mass mailing of official mail for this year's general election. 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. [JIB]

TECHNICAL AMENDMENTS BILL

The Office of the General Counsel is in the process of preparing the Technical Amendments bill for this year to be introduced following the summer recess. The types of matters typically included in a technical amendments bill include amendments needed to correct erroneous cross-references, grammatical errors, or amendments needed to conform legislative provisions to subsequent amendments passed by the Council or Congress. If you are aware of errors in any District laws or enacted titles of the D.C. Code, please contact Brian K. Flowers, the Legislative Counsel, no later than June 2, 2000 at 724-8026. [BKF]

UPDATE CHART

All amendments to the D.C. Code since the most recent publication of the replacement volumes and "pocket parts," including amendments made by Congress, are printed quarterly in the District of Columbia Register. The most recent printing is in the March 17, 2000, issue Volume 47, page 1868.  It contains amendments through March 6, 2000.  [BB]


IMPACT OF THE CENSUS ON ELECTION WARDS


Pursuant to D.C. Law 1-38, the Boundaries Act of 1975 (D.C. Code 1-1308), information in the federal decennial census report may result in boundary changes in the District's election wards if there have been significant ward population changes. Law 1-38 requires the Mayor to transmit the census report to the Council with specific information on the official population of the District, including the population of each election ward. The Council shall by act, after a public hearing, make necessary adjustments in the boundaries of election wards. The Council must act no later than 90 days after receiving the census report, or by July 14, 2000, whichever is later. Changes to the election ward boundaries must result in the 8 election wards being "approximately equal" in population size. Adjustments which are made less than 180 days prior to a regularly scheduled election are not in effect for that election. If the election is a primary election, the adjustments are not effective for the general election following the primary election held less than 180 days after the boundary changes.

The census is the "exclusive permissible" population data for apportionment of election wards. The Mayor and the Board of Elections and Ethics are required to provide the Council with technical and analytical services, including a statistical and demographic analysis of census data. [JIB]


OFFICE OF THE GENERAL COUNSEL

ATTORNEY COMMITTEE ASSIGNMENTS

The attorneys in the Office of the General Counsel have the following Council Committee assignments for Council Period XIII:
  • Consumer and Regulatory Affairs
    Donald Kaufman
  • Economic Development
    Cynthia Robertson
  • Education, Libraries, and Recreation
    Johnnie Barton
  • Finance and Revenue
    Donald Kaufman
  • Government Operations
    Johnnie Barton
 
  • Human Services
    Benjamin Bryant
    (until vacancy is filled)
  • Judiciary
    Brian K. Flowers
    (until vacancy is filled)
  • Local and Regional Affairs
    Cynthia Robertson
  • Public Works and the Environment
    Johnnie Barton
  • Committee of the Whole
    Cynthia Robertson

In addition to the above, Ben Bryant serves as the Council Codification Counsel and Brian K. Flowers serves as the Council Legislative Counsel. For the members who do not chair committees: Donald Kaufman is assigned to inquiries from Councilmember Graham, Cynthia Robertson is assigned to inquiries from Councilmember Phil Mendelson, and Johnnie Barton is assigned to inquiries from Councilmember Vincent Orange. In addition, Benjamin Bryant will advise on contracts.[CB-H]


WELCOME  ABOARD

CYNTHIA ROBERTSON

Assistant General Counsel

On December 6, 1999, Cynthia Robertson joined the staff of the Office of the General Counsel as an Assistant General Counsel to fill the vacancy created by the departure of Britta Farahati. She is a resident of the Columbia Heights community in Ward 1. Her academic accomplishments include receiving a Bachelor of Science degree in Political Science from the University of Maryland at College Park and a Juris Doctor degree from the Georgetown University Law Center. Ms. Robertson has held several legal positions which have further honed her legal writing, research, and analytical skills. Her recent employment included being a solo practitioner specializing in family law, probate, contracts, and some criminal matters. She has served as a consultant to a number of nonprofit community based organizations and small privately held corporations where she provided assistance in the development of business and marketing plans, the preparation of federal application forms, the writing of funding proposals, and the drafting of contracts. She has extensive technological experience utilizing data bases and various computer software and the Internet to provide assistance in legal research.

Ms. Robertson will be following the work of the Council Committees on Economic Development, Committee on Local and Regional Affairs, and the Committee of the Whole. While these are major committees of the Council, Ms. Robertson has the training, skill, and determination to provide the highest caliber of legal assistance to these Council committees. In addition, she will be assigned other duties in the Office of the General Counsel. Welcome aboard Cyndy! [CB-H]