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LEGALESE


OFFICE OF THE GENERAL COUNSEL COUNCIL OF THE DISTRICT OF COLUMBIA 

VOL. 11, NO. 1

                                                           JANUARY 2005



|| D.C. Appropriations Act, 2005|| 2004 District of Columbia Omnibus Authorization Act || Litigation|| Council Period 16 Rule Changes||
|| Legislative Drafting Tips|| Counting Days for Council Review || D.C. Official Code Resources || Council 2/3rds Vote Requirement ||  OGC Attorney Assignments ||

 


 

                                     INSIDE THIS ISSUE

 


 

          FEDERAL LEGISLATION............................................................................................ 2

            District of Columbia Appropriations Act, 2005............................................................. 2

            2004 District of Columbia Omnibus Authorization Act................................................ 4

Miscellaneous ................................................................................................................... 5

          LITIGATION.................................................................................................................... 6

– U.S. District Court Enjoins Enforcement

Of AccessRx Disclosure Requirements............................................................... 6

– D.C. Court of Appeals En Banc Panel Hears Challenge

                        To Assault Weapon Manufacturing Strict Liability Act ..................................7                         – Superior Court Upholds Council’s Ward Redistricting.............................. 9

                        – U.S. District Court Enjoins Enforcement of Legislation Banning

                        Sales of Singles inTargeted Ward 4 Zone........................................................ 10

– Club Owner Alleges License Restrictions Violate Constitutional Rights... 11 – Suit Alleges District Discriminates in Funding of

                        Public Charter Schools ...................................................................................... 12

          FYI.................................................................................................................................... 13

                        Council Period 16 Rule Changes ..................................................................... 13

Legislative Drafting Tips................................................................................... 14

                        Counting Days for Council Review......................................................... ....... 18

                        D.C. Official Code: An Essential Resource .................................................... 22

                        Calculation of Requirements of 2/3rds Vote of the Council ........................ 22

 ■          OGC ATTORNEYASSIGNMENTS............................................................................ 23








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                                                   FEDERAL LEGISLATION







HIGHLIGHTS FROM DISTRICT OF COLUMBIA

 APPROPRIATIONS ACT, 2005



            The District of Columbia Appropriations Act, 2005, became law on October 18, 2004. According to the conference report, the Act provides federal funds for, among other things: $25.6 million for resident tuition support ($8.6 million more than appropriated in FY 2004); a contribution for capital development of $22.8 million ($20.1 million less than requested); a contribution of $40 million for D.C. Public Schools improvement (including $13 million to expand public charter schools); $1 million for the Family Literacy Program; $8 million for a new bioterrorism and forensics laboratory (with a direction for the District government to provide $2.3 million in local funds for this purpose); $15 million in reimbursements for emergency security costs; $6 million for public school library improvement; and $5 million for improvements to the foster care program.


            Congress appropriated $47.7 million less than requested by the Courts, the Defender Services, and Courts Services and Offender Supervision.


            The Act also includes a federal payment to the Chief Financial Officer of $32.5 million for a variety of local, community-based projects and an $11 million appropriation from the general fund balance for the old convention center demolition reserve.


            The Conference excluded a provision reported by the Senate that would have required the reporting of employee payroll information to various congressional committees and the Council.

The Conference continued the prohibition on the use of any funds in the Act for publicity or propaganda purposes or implementation of any policy including boycott designed to support or defeat legislation pending before Congress or any state legislature. The Senate bill would have allowed the use of local funds for this purpose. The Conference continued the allowance of the use of local funds to carry out lobbying activities on any matter except the promotion or support of any boycott, statehood, or voting representation for the District.


            The Conference also continued the ban on the use of any funds for needle exchange programs. The Senate bill would have allowed the use of local funds for this purpose.


            The Act provides for an increase of $15 million above the stated appropriation from unexpended general funds and sets certain criteria for the use of the funds.


            Congress made several amendments to current laws in the District.

 

            *          Title 11 of the D.C. Official Code to eliminate certain bonding requirements for court officers and to allow the Courts to take advantage of the federal program of discounted airfares.

 

            *          Section 450A of the Home Rule Act to change the current reserve requirement from 7% to 6% (2% emergency reserve and 4% contingency reserve) and, for Fiscal Year 2005, authorizes the shifting of funds between the emergency and contingency funds, and allows the transfer of surplus funds to the general fund.

 

            *          Section 6 of the Police and Firemen’s Retirement and Disability Amendments Act of 1957 to authorize expenses associated with the processing of retirement and disability payments.

 

            *          Public Law 108-11 to extend the authority that the CFO exercised with respect to personnel, procurement, and the preparation of fiscal impact statements during a control period until September 30, 2005.

 

            *          Section 106 of the District of Columbia Public Works Act of 1954 to eliminate certain federal agency reporting requirements relating to payments to the District of Columbia Water and Sewer authority.

 

            *          The District of Columbia School Reform Act of 1995 to:

 

                                    *          clarify that amounts in the Charter School Fund are available until expended and that unobligated, unexpended funds will not revert to the General Fund

 

                                    *          allow the Office of Charter School Financing and Support to use federal credit enhancement or direct loan funds to provide guarantees for charter schools (P.L. 106-522)

 

                                    *          further support and expand charter schools in the District by modifying the process for filing charter school petitions, encouraging public schools to convert to charter schools, and allowing public schools that convert to public charter schools to retain the facilities that they occupied as public schools (later repealed in part by P.L. 108-447 and amended to remove the 25% less than the fair market rate requirement on leases and acquisition of public school buildings by public charter schools)

 

                                    *          clarify the auditing procedures of the Public Charter School Board

 

                                    *          require the D.C. Board of Education Charter Schools Office to provide for an audit of the financial statements of the Office

 

                                    *          establish a process for the biennial evaluation of the chartering authorities

 

                                    *          clarify the operations of the Public Charter School Board relating to auditing and contracting and procurement (later modified by P.L. 108-447).



2004 DISTRICT OF COLUMBIA

 OMNIBUS AUTHORIZATION ACT


            On October 30, 2004, the President signed into law the 2004 District of Columbia Omnibus Authorization Act, Public Law 108-386, which essentially ratified most of the request made by the Council to the Congress in the Fiscal Year 2005 Budget Request Act for Congress to amend certain laws affecting the District and its employees that only the Congress could amend. These amendments include:

 

            *          the submission of a plan by the Board of Education for the allocation of funds under the Mayor’s proposed budget to the Council

 

            *          the establishment of the academic year as the fiscal year for the D.C. Public Schools

 

            *          the extension of the deadline for the Council to adopt the annual budget request to account for days of Council recess

 

            *          the exemption of District employees on compressed schedules from the federal overtime requirements

 

            *          the availability of enforced annual leave or enforced leave without pay as disciplinary actions for Office of the Attorney General attorneys

 

            *          amendments to the Federal Deposit Insurance Act regarding the regulation of D.C. banks by the FDIC.


            Congress also added a provision that authorizes the Courts to enter into multiyear contracts and leases.


 

District of Columbia Mental Health

 Civil Commitment Modernization Act of 2004


            The District of Columbia Mental Health Civil Commitment Modernization Act of 2004, approved December 10, 2004 (Pub. L. 108-450; 118 Stat. 3472), ratifies the amendments made by the Council to Title 21 of the D.C. Official Code by D.C. Law 14-283, the Mental Health Civil Commitment Act of 2002, concerning the Commission on Mental Health.




Tuition Assistance Program


            P.L. 108-457, An Act To amend the District of Columbia College Access Act of 1999 to reauthorize for two additional years the public school and private school tuition assistance programs established under the Act, approved December 17, 2004, extended the funding for the tuition assistance program for an additional two years.


 


DISTRICT OF COLUMBIA RETIREMENT

 PROTECTION IMPROVEMENT ACT OF 2004


            The District of Columbia Retirement Protection Improvement Act of 2004, P.L. 108-489, was approved on December 23, 2004. The Act amends the Balanced Budget Act of 1997 to improve the administration of federal pension benefit payments for District of Columbia teachers, police officers, and fire fighters.










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LITIGATION

 


 






U.S. District Court Enjoins Enforcement

 Of AccessRx Disclosure Requirements


Pharmaceutical Care Management Association v.

 District of Columbia, No. 04-1082 (RMU)


            The United States District Court for the District of Columbia has enjoined the District from enforcing Title II of the AccessRx Act of 2004, effective May 18, 2004 (D.C. Law 15-164; D.C. Official Code § 48-831 et seq.), which imposes fiduciary duties on pharmaceutical benefit management companies (“PBMs”) and requires that they disclose certain financial information. The court granted plaintiff’s motion for a preliminary injunction on December 21, 2004. The Office of the Attorney General is appealing the ruling.


            The plaintiff, a trade association representing PBMs, sought the preliminary injunction on three separate grounds: (1) Title II is pre-empted by ERISA and the Federal Employees Health Benefits Act; (2) Title II violates the Takings Clause of the Fifth Amendment; and (3) Title II violates the Commerce Clause of the United States Constitution. The court granted the preliminary injunction based on plaintiff’s argument that the law violates the Takings Clause, which prohibits the taking of private property by the government without just compensation. The court did not reach the issues of whether the law is pre-empted or violates the Commerce Clause.


            In determining that there was a substantial likelihood that plaintiff would succeed on the merits of its Takings Clause claim, the court evaluated (1) the economic impact of the regulation; (2) the regulation’s interference with a reasonable investment-backed expectation; and (3) the character of the government action. The court found that the terms of contracts between PBMs and drug companies are trade secrets under the District of Columbia’s Uniform Trade Secrets Act, and that the “broad scope” of Title II compels the disclosure of those trade secrets, thereby establishing the economic impact component. The court further found that, because the Uniform Trade Secrets Act specifically protects these trade secrets from disclosure, the PBMs did have a “reasonable investment-backed expectation” that the trade secrets would not be disclosed. Lastly, the court weighed the District’s interest in regulating the PBMs with the PBMs interest in protecting their trade secrets, and concluded that, for the purposes of deciding the preliminary injunction, “the potential benefit to the District of Columbia, if any, does not outweigh the destruction of the plaintiff’s trade secrets.” The court reached this conclusion based on the reasoning that, at this stage of the proceedings, before discovery, the District’s expectation that the disclosure would result in lower prescription drug costs was speculative, while the disclosure of the trade secrets would destroy their value.


            The court determined that the PBMs would suffer irreparable injury absent an order preliminarily enjoining the District from enforcing Title II even though the injuries to plaintiff would be purely economic. The court reasoned that the economic loss here would be “atypical” in that the value of a trade secret is extinguished upon disclosure, and, therefore, disclosure of the trade secret “is not a mere recoverable economic loss.”


            The court also concluded that the issuance of the preliminary injunction would not substantially injure other interested parties and would serve the public interest based on its reasoning that the impact of the legislation upon prescription drug costs, at this point of the proceedings, is speculative. The court explained that maintenance of the status quo is preferable until final resolution because of the possibility that enforcement of Title II would not result in making prescription drugs more affordable.


D.C. Court of Appeals En Banc Panel Hears Challenge

To Assault Weapon Manufacturing Strict Liability Act


District of Columbia v. Beretta, No. 03-CV-24, Lawson v. Beretta, No. 03-CV-38

            The constitutionality of the District’s Assault Weapon Manufacturing Strict Liability Act of 1990 was the subject of a hearing before an en banc panel of the D.C. Court of Appeals on January 11, 2005. A 3-judge panel upheld the law in a decision issued April 29, 2004.


            The challenge to the law is part of the defense of gun manufacturers to a lawsuit filed by the District and individual District citizens alleging that the gun manufacturers should be liable for damages resulting from injuries or deaths caused by the illegal use in the District of firearms that are manufactured by them. The District also alleges that the gun manufacturers are liable under theories of negligence and public nuisance because they know or should know that the guns they are distributing are being brought into the District and have done nothing to prevent that practice. The en banc panel also heard arguments pertaining to the negligence and public nuisance claims.


            The Assault Weapon Manufacturing Strict Liability Act of 1990 (D.C. Official Code § 7-2551.01 et seq.) (“SLA”) holds a manufacturer, importer, or dealer of an assault weapon or machine gun strictly liable, without regard to fault or proof of defect, for any injuries or deaths that result from the use of those weapons in the District. The gun manufacturers contend that this strict liability provision, codified at D.C. Official Code § 7-2551.02, violates the Commerce Clause and the Due Process Clause because it constitutes extraterritorial regulation of lawful conduct in other jurisdictions. The District counters that the provision is constitutional because it simply establishes a tort regime for a dangerous subset of firearms.

 

            The 3-judge panel held that the SLA did not violate the Commerce Clause because “(i)t does not regulate in any direct sense, but instead simply imposes liability for harm caused by an especially dangerous subset of firearms; and it limits that right of action to injuries incurred in the District of Columbia.” Although the panel acknowledged the SLA did have effects outside of the District, it stated that only required it to determine whether the SLA imposes a burden on interstate commerce that is clearly excessive in relation to the putative local benefits. After noting that regulation on subjects relating to health, life, and safety of citizens is entitled to special deference, and citing legislative findings made by the Council regarding the benefits of the SLA, the panel found that the legislation “addresses a pressing concern for public safety by giving innocent victims of gun violence in the District a cause of action against manufacturers or dealers for injuries caused by particularly lethal firearms whose destructiveness outweighs any legitimate utility they may have.” By contrast, the panel found the effect the SLA would have on interstate commerce to be incidental, far short of being clearly excessive in relation to the local benefits, stating that “defendants are hard put to explain how the SLA burdens interstate commerce any more than does the District’s longstanding comprehensive statutory ban on the possession, sale, or transfer of virtually all firearms, which we upheld against Commerce Clause attack in Mcintosh v. Washington, 395 A.2d 744, 756-757 (D.C. 1978).”


            The 3-judge panel also rejected defendants’ claim that the SLA violated Due Process by imposing the District’s policy choices as to gun regulation on other states where the manufacture of these firearms is lawful through economic sanctions, stating that “one looks in vain . . . for a suggestion that a state may not permissibly decide that certain products, whether manufactured within or outside a state, are so dangerous that their manufacturers should face strict liability in tort for injuries the products contribute to within the State.” Because of its finding that the injuries suffered by District residents resulting from the manufacture and distribution of the affected firearms far outweighs the utility of those weapons, the panel held that no due process issue was raised by the SLA.


            Members of the en banc panel, while acknowledging that, in most cases, there would be no effective defenses available to gun manufacturers under the SLA, questioned the defendants as to why this would be any different than any statute that imposes strict liability for the manufacture of inherently dangerous products that a legislature has found have little or no utility.


            The SLA does require that a plaintiff name a specific manufacturer of the weapon that caused the injury, something the District and the individual plaintiffs were unable to do in their pleadings. However, the plaintiffs argued that since the District is a notice pleading jurisdiction, they should be able to withstand a Rule 12(b)(6) motion to dismiss, and be allowed to proceed to discovery to see if they can ascertain those facts.

    Superior Court Upholds Council’s Ward Redistricting

Appeal Pending in D.C. Court of Appeals

Kingman Park Civic Ass’n v. District of Columbia, No. 04-CV-954

 

            A challenge to the District’s Ward Redistricting Amendment Act of 2001 under local law brought by the Kingman Park Civic Association and the Chevy Chase Civic Association was dismissed by Superior Court Judge Zoe Bush on July 2, 2004. An appeal of that decision is pending in the D.C. Court of Appeals.

 

            The primary contention of the plaintiffs during four years of litigation has been that the 2001 redrawing of the District’s eight election wards resulted in dilution of African-American voting strength citywide and, in particular, in the community of Kingman Park. On November 13, 2003, the United States Court of Appeals for the District of Columbia affirmed the August 14, 2002 ruling of Judge Gladys Kessler of the United States District Court for the District of Columbia dismissing a challenge to the redistricting under federal law. In the federal courts, the plaintiffs argued that the alleged dilution violated section 2 of the Voting Rights Act of 1965 and the 14th and 15th Amendments to the United States Constitution

 

            In their Superior Court complaint, plaintiffs argued that the alleged dilution violates D.C. Official Code § 1-1011.01(f). In addition, plaintiffs alleged that the District defendants violated D.C. Official Code § 1-1011.01 by drawing boundaries that cross natural geographic boundaries, divide neighborhoods, and split census tracts. Plaintiffs argued that Wards 4 and 7 are not compact and contiguous because Ward 4 crossed Rock Creek Park to enter what had been Ward 3, and Ward 7 crossed the Anacostia River to enter what had been Ward 6.

 

            The Council filed a motion to dismiss for failure to state a claim or, in the alternative, for summary judgment on February 27, 2004. In granting that motion on July 2, 2004, Judge Bush agreed with the Council that D.C. Official Code § 1-1011.01 required that plaintiffs prove that the redistricting plan enacted by the Council had the “purpose and effect” of diluting African-American voting strength, and held that plaintiffs had failed to prove the requisite racially discriminatory purpose. Judge Bush also held that Wards 4 and 7 were compact and contiguous because a ward resident could reasonably access all parts of each ward without leaving the ward, and that all 8 wards met the legal requirements for equality of population apportionment. She also agreed with the Council that there is no constitutional or statutory right for a neighborhood to be within any one ward, nor is there a requirement that neighborhoods must remain intact within a single ward. Additionally, Judge Bush held there was no absolute requirement that census tracts not be split, and that members of the Kingman Park Civic Association had no constitutional right to be appointed to an advisory Ward 6 Redistricting Task Force that was organized by Councilmember Ambrose.

            The parties are in the process of briefing the issues on appeal before the D.C. Court of Appeals.

 

U.S. DISTRICT COURT ENJOINS ENFORCEMENT

OF LEGISLATION BANNING SALES OF SINGLES

IN TARGETED WARD 4 ZONE

 

Decatur Liquors v. District of Columbia, No. 04-1971 (RMC)

 

            In the Omnibus Alcoholic Beverage Amendment Act of 2004, the Council enacted, in new D.C. Official Code § 25-341, a prohibition on sales of alcoholic beverages in individual containers in a “Targeted Ward 4 Moratorium Zone.” The provision was added by an amendment offered by Councilmember Fenty at second reading after a similar amendment covering all of Ward 4 failed at first reading. The provision was retained when the Council subsequently reconsidered the bill.

 

            Some of the licensees in the Targeted Ward 4 Moratorium Zone filed an action in United States District Court for the District of Columbia to enjoin the enforcement of the prohibition. The Court issued a temporary restraining order and, on December 21, 2004, held a hearing on the request for a preliminary injunction. The judge granted the preliminary injunction, delivering her decision from the bench. She stated that of plaintiff's arguments, there were two issues of concern.

            The first issue was whether the Fenty amendment constituted a substantial or material amendment. The court’s answer was in the affirmative, as evidenced by the first vote on the whole ward and the second vote on the targeted ban. If the bill had been signed by the Mayor after second reading, the judge believied it would have violated the District of Columbia Home Rule Act, which requires that an act “shall be read twice in substantially the same form.” This raised the question of whether the reconsideration qualified as an additional reading. The judge stated that she noticed a footnote in plaintiff's brief which assumed that it was a reading and so she found that it was an additional reading--but only for purposes of the preliminary injunction.

 

            The second issue was whether there was a violation of procedural due process. The judge stated that the question turned upon whether this was a law of general applicability. Although the District argued that it was a law of general applicability because it applied to all licensees in Ward 4 and was, in effect, a ward-wide ban, the court found that it was not because it targeted 77 businesses “by gerrymandering that puts Texas to shame.” Because it was not a law of general applicability, individualized due process--notice and an opportunity to be heard--was required before the property interest of the licensees in their licenses could be affected. Where the Council rejected a law of general applicability and adopt a targeted law, it is inappropriate for the District to argue that individualized due process is not relevant because it is a law of general applicability.

 

            In applying the standards for issuance of a preliminary injunction, the judge stated, among other factors, that the plaintiffs had a reasonable chance of success on the first issue and a greater than 50% likelihood of success on the second issue.

 

            The most significant portion of the decision from the point of view of the Council was that if the Fenty amendment had been adopted on second reading and signed by the Mayor, it would have violated the District of Columbia Home Rule Act. Because the ruling on the preliminary injunction was based upon the procedural due process issue, the question of compliance with the two-reading rule issue was left open. Based on her ruling, unless she changes her view of the law, the inquiry left for the full hearing on this issue was whether the amended bill had two readings, i.e., whether the reconsideration constituted another reading. In any event, if the court rules on the two-reading rule, it could have material adverse consequences for the manner in which the Council legislates. Even if there is a holding that the reconsideration constituted a separate reading, this would still have consequences for bills that are amended at second reading or which were reconsidered after second reading at a separate session less than 13 days apart.

            A full hearing on the plaintiffs’ request for permanent relief, based on briefs and a stipulated record, is expected to be held in late March, 2005.

 

Club Owner Alleges License Restrictions Violate Constitutional Rights

Clayton v. District of Columbia Government, et al.

 (Superior Court) Civil No. 1:-4CV02054, Judge Richard J. Leon

         In Clayton v. District of Columbia Government, the plaintiff, the owner of Demo’s Enterprises, also known as Club Rio, alleges that the Alcoholic Beverage Control Board ("ABC") has imposed restrictions on his retailer’s license that violate his First and Eighth Amendment rights. The plaintiff argues that ABC orders prohibiting him from playing specific types of music (Go Go and Hip Hop) violates his First Amendment right to freedom of expression and requiring that he provide security patrols up to 1000 feet beyond his establishment on public property violates his Eighth Amendment right of equal protection of the laws. He further alleges that the Mayor, the Council, and Chairman Cropp conspired with ABC, and others, to deny him his rights in that they failed to oversee ABC.

            On December 20, 2004, the General Counsel’s office, representing the Council as a whole and Chairman Cropp, named individually in her capacity as Chairman of the Council in plaintiff’s complaint, filed a motion to dismiss the Council and the Chairman from the lawsuit based on the plaintiff’s failure to articulate a cognizable claim against either. A hearing on the motion is scheduled for February 28, 2005.

            On January 12, 2005, after a hearing, the court denied plaintiff’s motion for a Temporary Restraining Order ("TRO") because the pro se plaintiff had failed to establish he had a likelihood of success at a trial on the merits, one of four factors that must be shown to be granted a TRO. Footnote

            We are confident that the judge will dismiss the Chairman and the Council from this lawsuit.

 

SUIT ALLEGES DISTRICT DISCRIMINATES

IN FUNDING OF PUBLIC CHARTER SCHOOLS

Save Our Schools Southeast and Northeast v.

District of Columbia Bd. of Education, No. 04-1500 (HHK)

 

            Save Our Schools Southeast and Northeast, a nonprofit community association formed by a group of parents, together with certain individual parents, filed an action in United States District Court for the District of Columbia against multiple defendants, including the Council and Councilmembers Chavous and Ambrose, as well as the District of Columbia Board of Education and certain of its members, Mayor Williams, former acting superintendent Robert Rice, the District of Columbia Public Charter School Board, Two Rivers Public Charter School, and Secretary of Education Rod Paige. Although the complaint of plaintiffs is an unfocused and disorganized 43-page document, containing 99 prolix paragraphs and six stated causes of actions evincing multiple claims within the stated causes of action, all of which are asserted indiscriminately against the multiple defendants, it appears to allege that DCPS students are being denied various constitutional and statutory rights because of the underfunding and mismanagement of the DCPS system. As to funding, it appears to assert that by overfunding and imposing lesser burdens on public charter schools, which allegedly enroll fewer black and poor students, the District has consigned minorities and the poor to inferior DCPS schools. The complaint also alleges that Two Rivers Public Charter School has engaged in discriminatory admission practices. In response to a motion filed on behalf of the Council and Councilmembers Chavous and Ambrose, the plaintiffs have been ordered to file an amended complaint.

 

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FYI:

 


 

 

                       COUNCIL PERIOD 16 RULE CHANGES

 

            The following are summaries of some of the changes in the Council rules for Council Period 16:

            Rule 226 - now requires committee rules to include a requirement that notice of the cancellation of a committee meeting be given to all Members of the Council at least 24 hours prior to a regularly scheduled meeting and at least 12 hours prior to an additional meeting, except where the reason for the cancellation precludes the provision of this notice in which case written notice must be given at least 2 hours prior to the scheduled meeting; in addition, the rule requires that committee rules include a procedure for recessing a committee meeting that is consistent with Council Rule 302(c).

            Rule 231 has expanded the jurisdiction of the Committee of the Whole to include regional, state, and national associations and organizations, federal grants management, Advisory Neighborhood Commissions.

            Rule 233 - expands the jurisdiction of the Committee on Economic Development to include energy and public utilities including the Office of Energy, the Public Service Commission, and the Office of the People’s Counsel.

            Rule 235 - expands the jurisdiction of the Committee on Finance and Revenue to include industrial revenue bonds.

            Rule 236 - expands the jurisdiction of the Committee on Government Operations to include employment and manpower development, labor, property management, including the declaration of government property as no longer required for public purposes, human rights and Latino Affairs – this means it has oversight over the Office of Property Management, Commission on Human Rights, Office of Human Rights, Office of Latino Affairs, Commission on Latino Community Development, Office of Asian and Pacific Islanders Affairs, the Department of Employment Services, and the Apprenticeship Council.

            Rule 237 - the Committee on Human Services no longer includes health issues because of the creation of the Committee on Health.

 

            Rule 239 - is now the Committee on Health which has oversight over several health-related boards as well as the Department of Health and the Department of Mental Health.

            Rule 240 - expands the jurisdiction of the Committee on Public Works and the Environment to include regional public transportation issues which means it has oversight of WMATA and the Washington metropolitan Area Transit Commission.

            Rule 322 - extends to the public a decorum rule to expressly prohibit members of the public from engaging in conduct that would distract the attention of the Council from the business before it.

            Rule 345 is a new rule that clarifies the policy of the Council to allow the mover of a motion to simultaneously move a friendly amendment.

            Rule 346 is a new rule that requires a notice of an intent to move an amendment in the nature of a substitute to be circulated no later than 5:00 p.m. the business day prior to the scheduled legislative meeting and that the amendment contain certain editorial marks to reflect language to be stricken or added to the prior version of the legislation.

            Rule 354 limits to one, the times a member may vote “pass” on an amendment or bill in its entirety.

            Rule 428 - requires the filing of a committee report in the Office of the Secretary prior to the filing of a request to waive Rule 231(c).

            Rule 429 - clarifies the policy of the Council to allow ceremonial resolutions to be presented at a Committee of the Whole meeting.

            Rule 443(d) - requires the Budget Director to file quarterly reports reflecting the bills adopted by the Council which are subject to inclusion in the financial plan and budget or subject to appropriations.

            Rule 444 - expands the opportunity to request an addendum to committee reports to include a committee chairperson and requires that the addendum be voted on by a committee before it may be filed in the Office of the Secretary.

 

LEGISLATIVE DRAFTING TIPS

(General rules and citations of Council bills and resolutions)

 

            The Office of the General Counsel periodically provides drafting tips in Legalese. The following tips cover some of the fundamentals of drafting legislation, as well as instructions on how to cite legislation that is prepared for consideration by the Council:

 

 

 

General Rules

 

(a) Introductory language - all bills and resolutions should include, prior to the long title, standard introductory language. For bills introduced by a Member of the Council, the standard introductory language is: "Councilmember ______________(first and last names), introduced the following bill, which was referred to the Committee on _____________." The standard introductory language for legislation drafted by the Mayor is: "Chairman Linda W. Cropp, at the request of the Mayor, introduced the following bill, which was referred to the Committee on __________."

(b) Line Numbering - Introductions and committee prints should contain line numbers, running the right side of the page. Line numbers on the left side of the page are also acceptable. [Engrossed bills also contain line numbers, but only the OGC engrosses legislation]. Line numbers can be placed on documents as follows:

        (1) In Word Perfect click Layout, Line, Numbering; mark a check in the "Turn Line Numbering on" box; remove the check from the "count blank lines" box (we do not need to count blank lines); set the "position of numbers" box, which is generally set at "0.600," to "7.80." Once you have performed all of these functions, press the "ok" key.

        (2) In Word, at the beginning of the document, click on "File"; go to "Page Setup", click on "Layout"; click on line numbers, put a check mark in the "add line numbering" box, click "ok" and "ok". In Word every line is counted, including blank lines. If anyone knows how to delete the line numbers on blank lines, we welcome your comment.

(c) Definitions - The standard lead-in language for definitions that will be codified in an unenacted title of the D.C. Official Code is: "For the purposes of this act, the term:" The lead-in language for definitions that will be codified in an enacted title is: "For the purposes of this chapter, the term:" Defined terms should be in alphabetical order.

(d) Enacted titles - there are 13 1/2 enacted titles of the D.C. Official Code -- Titles 11-21, 23, 25, 28, and those portions of Title 47 which are not part of the Charter. Title 25 was the last title to be enacted by the Council. Remember, drafting rules depend upon whether the legislation will be codified in an enacted or an unenacted title of the D.C. Official Code.

(e) References to "chapter" - this word should never be used when referring to a law contained in an unenacted title of the D.C. Official Code.

(f) References to "of this act" - this phrase should never be used when referring to another section of the same act. It is sufficient to say "section 5". Never say: "section 5 of this act."

(g) Capitalization of "act" - this word should never be capitalized when referring to an act of the Council except when used in the short title of legislation. D.C. Official Code § 1-301.47(4).

(h) Headings - only the first word of a heading is to be capitalized, unless the other word is a proper noun. Headings are reserved for the names of sections, but are not used in subsections, paragraphs, subparagraphs, and any other sub-unit of numbering. A heading should end with a period. Example: "Sec. 7. Wedding gifts."

 

(i) Home Rule Act - the 1997 Revitalization Act officially changed the name of the "District of Columbia Self-Government and Governmental Reorganization Act" to the "District of Columbia Home Rule Act." Remember to use the correct title in the fiscal impact statement and effective date sections of a bill.

(j) Double-spacing of legislation - always double-space legislation, beginning with the enacting clause. Example:

"BE IT ENACTED BY THE COUNCIL OF THE DISTRICT OF COLUMBIA, That this act may be cited as the "Wedding Gift Act of 2001".

"Sec. 2. Wedding gift exchange etiquette.".

(k) Proposed Resolutions - The caption for all proposed resolutions should state:

"A Proposed Resolution" not "A Resolution". The proposed resolution caption is changed to "A Resolution" caption during the enrollment process by the Office of the General Counsel.

(l) Enacting clause for resolution - The standard enacting clause language for a resolution is: "RESOLVED, BY THE COUNCIL OF THE DISTRICT OF COLUMBIA, That . . ." Note that there is a comma after the word "RESOLVED" and that the "T" in the word "That" is capitalized.

(m) Use of quotation marks for references to legislation - Quotation marks should be used for references to legislation only in short titles. Quotation marks should not be used when referring to legislation in any other context. Right: "The Council of the District of Columbia determines that the circumstances enumerated in section 2 constitute emergency circumstances making it necessary that the Drafting Tips Congressional Review Emergency Act of 2001 be adopted after a single reading." Wrong: "The Council of the District of Columbia determines that the circumstances enumerated in section 2 constitute emergency circumstances making it necessary that the "Drafting Tips Congressional Review Emergency Act of 2001" be adopted after a single reading."

Citation Forms for Council Legislation

 

            The Council’s Legislative Drafting Manual (which is available from the Office of the General Counsel) sets forth in detail the different ways to cite federal and District of Columbia laws, bills, and resolutions. The following summarizes the most often used citations, beginning with introductory legislation and including bills that have been vetoed by the Mayor and overridden by the Council. Please consult the Legislative Drafting Manual for citation forms that are not reproduced.

 

         (1) Citations for Introduced legislation

                        (A) Citation to a Council bill as introduced - The ABC Act of 2005, as introduced on January 5, 2005 (D.C. Bill 16-29)

                        (B) Citation to a Council resolution as introduced - The Right Resolution of 2005, introduced on January 5, 2005 (Res. 16-7)

 

         (2) Citations of bill and resolutions reported by committees -

                        (A) Citation to a Council bill reported out of a committee - The ABC Act of 2005, as approved by the Committee on Consumer and Regulatory Affairs on February 9, 2005 (Committee print of Bill 16-29).

                        (B) Citation to a Council resolution reported out of a committee - The Right Resolution of 2005, approved by the Committee on the Judiciary on January 4, 2005 (Committee print of Res. 16-7).

         (3) Citation of bills that have been vetoed by the Mayor and overriden by the Council.

         The Confirmation Amendment Act of 1998, vetoed by the Mayor on December 29, 1998, and overriden by the Council on January 5, 1999 (D.C. Act 12-622; 46 DCR 123),

         (4) Citation of bills that have been passed on an emergency basis that have not been signed by the Mayor.

         The Confirmation Emergency Amendment Act of 2005, passed on emergency basis on January 7, 2005 (Enrolled version of Bill 16-00).

         (5) Citation to an emergency act

         Section 4 of the Emergency Act of 2001, effective October 22, 2001 (D.C. Act 14-666; 48 DCR 4450).

         (6) Citations of laws within bills

                        (A) Citing to an unenacted title within an unenacted title. When citing to an unenacted title within an unenacted title, the organic act should be cited. Example: An applicant shall comply with the requirements of section 2(a) of the Outstanding Employee Act of 2005, effective January 1, 2005 (D.C. Law 16-00; D.C. Official Code § 1-101(a)).

                        (B) Citing to an enacted title within an enacted title. When citing to an enacted title within an enacted title, the D.C. Official Code should be cited directly without reference to the phrase "D.C. Official Code". Example: An applicant shall comply with the requirements of § 1-101(a)).

                        (C) Citing to an enacted title within an unenacted title. When citing to an enacted title within an unenacted title, the D.C. Official Code should be cited directly, with a reference to the phrase "D.C. Official Code". Example: An applicant shall comply with the requirements of D.C. Official Code § 1-101(a)).

                        (D) Citing to an unenacted title within an enacted title. When citing to an unenacted title within an enacted title, the D.C. Official Code should be cited directly without reference to the phrase "D.C. Official Code". Example: An applicant shall comply with the requirements of § 1-101(a)).

 

 

COUNTING DAYS FOR COUNCIL REVIEW

        This article contains an update on how to calculate the amount of time various statutes and rules provide for Council review of confirmations (subordinate agency head nominees, boards and commission nominees), employee compensation changes, multiyear and million dollar contracts, vacant and abandoned property dispositions, reorganization plans, and reprogrammings.

         The first day counted for most purposes will be the day after the matter has been formally introduced at a COW or legislative session. Council Rule 402(b) provides that "unless specifically provided otherwise by law, no matter transmitted for a period of Council review prior to its taking effect shall be deemed transmitted to the Council or the Chairman, and no time period for the Council review shall begin to run until the matter has been formally introduced by the Chairman at a legislative session or work session of the Committee of the Whole." Some exceptions to when the first counting day begins are: reprogramming requests and reorganization plans (count begins the day after the Chairman receives the request or plan), and review of contracts (count begins the first business day following its receipt by the Office of the Secretary-- see Council Rule 309(a)).  

 

CONFIRMATIONS (D.C. Official Code § 1-523.01)

Executive Service (Subordinate Agency Heads) (D. C. Official Code § 1-523.01(a))

      Mayor submits to the Council nominee to head subordinate agency (defined in D.C. Official Code §1-603.01(17))

      Deemed approved on 91st day if no approval or disapproval by the 90th day

      Days of Council recess are not counted

      Count Saturdays, Sundays, and holidays

Boards and Commissions (D. C. Official Code § 1-523.01(e)(f))

– Active (D.C. Official Code § 1-523.01(e)):

      Mayor submits to the Council

       Deemed disapproved on 91st day if no approval by the 90th day

       Days of Council recess are not counted

       Count Saturdays, Sundays, and holidays

– Passive (D.C. Official Code § 1-523.01(f)):

       Mayor submits to the Council

       Deemed approved on 46th day if no introduction of disapproval by the 45th day

       If resolution of disapproval introduced within 45-day period, the Council shall have additional 45 days of review

       Deemed approved on 91st day from submission if no disapproval within additional 45 days of review

       Days of Council recess are not counted

         Note: Pursuant to D.C. Official Code § 1-523.01(g), the Mayor makes direct appointments to boards and commissions that subsections 1-523.01(e) and (f) do not reference. Therefore, the statute that established the entity should be consulted to determine the Council period of review, if any.

 

COMPENSATION CHANGES (D.C. Official Code §§ 1-611.06, 1-617.17).

Career and Excepted Service Compensation Changes (for employees not covered by collective bargaining) (D.C. Official Code § 1-611.06)

       Mayor submits to Council

       If the Council approves the compensation change, without revision, the schedule for the change shall become effective on the date specified in the schedule submitted by the Mayor

       If the Council fails to take action within 60 calendar days of the submission, the compensation change is deemed approved on 61st day

       Days of Council recess are not counted             

       Count Saturdays, Sundays, and holidays

 

Compensation Settlements (including arbitration awards)

(D.C. Official Code § 1-617.17)

       Mayor must submit all settlements to the Council with a budget request act, a supplemental budget request act, a budget amendment act, or a reprogramming (collectively "submissions"), whichever is appropriate, which fully funds the settlement; if a settlement has been fully funded by one of the above submissions already enacted, the Mayor shall submit a certification to this effect

       Settlement takes effect on 30th calendar day after Mayor and Council enact one of the above submissions, unless the Council accepts or rejects the settlement by resolution prior to the 30th day

       If a settlement has been fully funded by one of the above submissions, the settlement takes effect on the 30th calendar day after the Mayor's transmission of the settlement, unless the Council accepts or rejects the settlement by resolution prior to the 30th day

       Days of Council recess are not counted

       Count Saturdays, Sundays, and holidays

 

 

– Executive Service Compensation Changes (D.C. Official Code § 1-610.52)

       Mayor submits to Council

       If the Council fails to take action on the initial salary range within 60 legislative days of the submission, the compensation change is deemed approved on 61st day

       Changes to the initial ranges are subject to a 15-day period of review. If the Council does not act on the proposed changes within the 15-day period, the changes are deemed approved on the 16th day    

       Saturdays, Sundays, holidays, and days of Council recess are not counted      

 

CONTRACTS (D.C. Official Code §§ 1-204.51, 2-301.05a(b))

Contracts - in excess of $1 million (D.C. Official Code §§ 1-204.51(b), 2-301.05a(b)(2))

       Mayor submits contract to the Council

       First counting day is first business day following receipt by the Office of the Secretary

       Deemed approved on 11th day if no introduction of an approval or disapproval resolution within 10-day period of review

       If resolution is introduced within 10 days, deemed approved on 46th day if no disapproval of contract within 45 days of introduction of contract

       Count Saturdays, Sundays, and legal holidays

       Pursuant to Council Rule 308(b)(1), contract may be transmitted to the Office of the Secretary for the Council during the 30-day period prior to the end of the summer recess of the Council

 

Contracts - Multiyear Contracts (D.C. Official Code §§ 1-204.51(a), (c), 2-301.05a(b)(1))

       Mayor must submit contract to the Council

       First counting day is first business day following receipt by the Office of the Secretary

       For a contract to be more than 5 years, the Council must authorize by a 2/3rds vote of members present and voting

       Deemed disapproved if the Council fails to approve within 45 calendar days of submission

       Count Saturdays, Sundays, and legal holidays

       Pursuant to Council Rule 308(b)(1), contract may be transmitted to the Office of the Secretary for the Council during the 30-day period prior to the end of the summer recess of the Council.

 

 

DISPOSITION OF VACANT AND ABANDONED PROPERTIES ( D.C. Official Code § 10-831)

       Mayor submits proposed resolution of disposition to Council

       Deemed approved on 6th day if no introduction of a disapproval resolution within 5 days

       If resolution of disapproval introduced by at least 3 Councilmembers within 5-day period, Council review period is 45 days from date of Mayor’s submission

       Deemed approved on the 46th day if Council does not approve the disapproval resolution

within 45-day period

       Days of Council recess are not counted

       Count Saturdays, Sundays, and holidays

 

REORGANIZATION PLANS (D.C. Official Code § 1-315.04)

       Mayor submits plan to the Council

       Deemed approved on 61st day if Council does not disapprove

       Days of Council recess are counted

       Saturdays, Sundays, and holidays are not counted

 

REPROGRAMMINGS (D.C. Official Code § 47-363)

      Mayor submits request to the Chairman

       Chairman is to immediately circulate request to the members

       First counting day is the day after the Chairman's receipt of request

       Deemed approved on 15th calendar day if no notice of disapproval within 14 days

       If notice of disapproval filed within 14 days, deemed approved on 31st day if no approval or disapproval within 30 days of Chairman’s receipt of request

       Days of Council recess are not counted (Mayor cannot submit during recess)

       Count Saturdays, Sundays, and holidays

 

 

 

 

 

The D.C. Official Code: An Essential Resource and Tool

 

         The D.C. Official Code, 2001 Edition, represents the culmination of the District’s legislative process and presents the law as determined by the Council to the public at large. It is an essential resource and tool for the legislator to understand the current law in the District, draft new laws, and revise existing laws.

         The Council, in addition to providing 510 copies of the Official Code to the Courts, the Office of the Attorney General, the public libraries, the U.S. Senate, the House of Representatives, the President, and the vast majority of the agencies of the Executive Branch of the District government, provides each Councilmember and each Council committee with a set of the D.C. Official Code and the supplements thereto. Each Councilmember should have one complete set in her or his office and each Committee of the Council should have one set available in its offices.

         One set of the D.C. Official Code consists of 23 volumes (23 separate books) plus a current annual index. If you are missing a volume, please contact the Office of the General Counsel to inquire whether a replacement to your missing volume is available. Also, if you find that you have two sets or any extra volumes in your office, please contact this office so that we may retrieve the extra copies and distribute them to other offices that need them.

 

 

Calculation of Requirement of 2/3rds Vote of the Council

 

         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. For purposes of overriding a Mayoral veto, 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 (of people) are rounded off to the next highest number, not the lower number.

         This calculation is consistent with section 44 of Robert's Rules of Order, Newly Revised (10th Edition) at p. 388-389. This is the same method used for the suspension of the Council Rules, or approval of multiyear contracts. 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.

 

 

 


 

OFFICE OF THE GENERAL COUNSEL

ATTORNEY ASSIGNMENTS


 

Benjamin Bryant, Jr.

Codification Counsel

Contracts

Human Services, excluding Youth Rehabilitation Services (Fenty)

Federal legislation impacting the District

Manual: OGC Home Rule Act

 

Brian K. Flowers

Legislative Counsel

OGC Ethics Counsel

OGC Training & Professional Development Counsel

OGC FOIA Counsel

Manual: Legislative Drafting

Inquiries about Initiatives

 

John Hoellen

Committee on Education, Libraries, and Recreation (Patterson)

Judiciary (Mendelson)

Youth Rehabilitation Services legislation (Fenty)

Councilmember Brown

OAG Litigation Liaison Counsel

Editor, Legalese


Donald Kaufman

Finance & Revenue (Evans)

Consumer & Regulatory Affairs (Graham)

Public utilities legislation (Ambrose)

Councilmember Barry

 

Alyssa Talanker

Government Operations (Orange)

Economic Development, excluding public utilities (Ambrose)

Councilmember Vincent Gray

Manual: OGC Operating Manual

 

Kay Westcott

Committee on the Whole (Cropp)

Public Works & the Environment (Schwartz)

Committee on Health (Catania)

Inquiries about District Appropriations Act

Manual: Boards & Commissions

 

Editor:

   John Hoellen

Contributors:

   Charlotte Brookins-Hudson, Brian K. Flowers,

   Benjamin Bryant, Donald Kaufman, and Katherine Westcott

Editorial Assistant:

   Karen R. Barbour