On August 5, 1997, the President of the
United States signed the Balanced Budget
Act of 1997, Public Law 105-33, Title XI of
which pertained to the financial revitalization
of the District of Columbia. The measure
impacted 8 major areas of District
government:
Miscellaneous--
Emergency Legislation
The Council often uses emergency legislation so that it can immediately address a concern affecting District citizens; however, we must always be mindful of the restrictions the District of Columbia Court of Appeals has placed on the use of emergency legislation.
In District of Columbia, et al. v. Washington Home Ownership Council, 415 A.2d 1349 (D.C. 1980) (en banc) ("WHOC"), the court considered the Council's action in passing three series of identical emergency acts imposing moratoriums on the conversion of rental housing to condominium and cooperative property and regulating the sale of converted units. At no time had the Council devised or passed permanent conversion legislation. The court held that the Council was without authority to pass a second substantially identical emergency because Congress had limited the effectiveness of emergency actions to no more than 90 days, absent adherence to the two-reading rule for legislation. To allow the Council to continuously use a succession of emergency actions could lead to "emergency acts extending over years." (Id. at 1354). The court ruled that Congress intended the Council's emergency power to be an exception to the fundamental legislative process requiring a second reading and congressional layover; it is not an alternative legislative track to be used repeatedly whenever the Council perceives an ongoing emergency. Id. at 1359. The Court recognized the difficulties imposed on the Council of developing a permanent legislative response during the 90 days' duration and suggested that the Council develop shortened legislative procedures for interim legislation which followed the regular legislative process of two readings and Congressional review. Id. at 1356-1357, notes 14, 15, and 16. As a result of these suggestions by the Court, the Council adopted a rule that allows for the passage of temporary legislation which has a limited duration of 225 days. See, United States v. Alston, 580 A.2d 587, 590-591 (D.C. 1990) and Council Rule 413. This process can only be utilized where it is approved on first reading at the same time as the emergency act and it is substantially identical to the emergency bill. The Alston case was the first case to be decided by a District court after Congress had increased from 30 to 60-days the period of review for all criminal acts passed by the Council. In light of the lengthy time for Congressional review of criminal laws, the court held that it was appropriate for the Council to consider gap closing emergencies to prevent an emergency bill from lapsing during the pendency of Congressional review of a temporary or permanent law.
WHOC has been interpreted to allow the
Council to pass an identical successive
emergency legislation as long as the Council
has had a final vote on a temporary or
permanent version which is pending
legislative review by the Authority or the
Congress, thereby preventing any
circumvention of Congress' power to review
Council legislation.[SB/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 a special election for
Tuesday, December 2, 1997, to fill the At-Large vacancy and next year's primary
election for Tuesday, September 15, 1998.
September 2, 1997, was the last date for any
Councilmember seeking election to the At-Large seat to have a mass mailing of official
mail for the special election. June 16, 1998,
will be the last date to have a mass mailing of
official mail for next year's primary 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. [SB]
D.C. Law 10-254, the Term Limits Initiative of 1995 ("Initiative"), applies to terms of office of the Mayor, Council Chairman, Council members, and members of the Board of Education that began after the Initiative's March 23, 1995, effective date. The Initiative limits the terms for the Mayor, the Chairman or Members of the Council, and Members of the Board of Education to no more than 2 consecutive 4-year terms. These term limitations would apply to terms served after the March 23, 1995, effective date. The Initiative counts service for more than of a term as a full term.
The Initiative seems to consider ward and
at-large seats as "the same office" for
purposes of applying the term limits. This
means that a person who has served one
term as a ward Councilmember and goes on
to serve a consecutive term as an at-large
Councilmember would be ineligible to be a
candidate for another ward or at-large
Council seat. However, the measure lists the
Office of the Chairman separately from
Councilmembers. The Initiative does not
appear to view the Office of the Chairman
and that of Councilmember as the same
office. Thus, the consecutive term
restrictions would be inapplicable for a
person going from ward or at-large status to
that of Council Chairman or vice-versa. [JB]
Conflict of Interest
Do the ethical practices of elected and appointed officials matter? It appears so. In this issue, the Office of the General Counsel will introduce a new column entitled "Ethics Matters" where we will highlight in each publication a variety of issues that may call into question the ethical practices of elected and appointed officials.
We think this will be a valuable column because, as we all know, the President, Vice President, and teamsters union President are all under scrutiny for possible ethical violations. In particular, campaign funding activities are being reviewed, which in turn has prompted the President, members of Congress, and the public to call for new legislation to reform the financing of national elections.
This office receives repeated requests regarding Council Rule 202 conflict of interest provisions. This article seeks to clarify the role of this office in applying the conflict of interest standards to members of the Council. While this office occasionally renders opinions on conflict of interest matters, the opinions always contain the caveat that, pursuant to D.C. Code 1-1435, the ultimate interpreter of the local conflict of interest laws for public officials is the D.C. Board of Elections and Ethics.
The District of Columbia Campaign Finance Reform and Conflict of Interest Act created the Office of Campaign Finance (under the Board of Elections and Ethics) with the requisite independence to perform unbiased enforcement of the District's conflict of interest prohibitions. In adopting Council Rule 202, the Council attempted to make clear that the one conflict of interest standard codified at D.C. Code 1-1461 et seq. applies to Councilmembers and other public officials equally. Under the law, the Office of Campaign Finance is the sole investigator of alleged conflict of interest violations.
While this office is not the official
interpreter of the District's conflict of interest
laws, we do offer opinions based on specific
requests from members and staff of the
Council. If you have any specific requests,
please direct them to this office. During the
next issue we will discuss gifts, who may
give them and who may receive them.
[BF/JB]
Attorney-Client Privilege
The Office of the General Counsel of the Council consists of 6 attorneys and 2 support persons. The formal duties of the nonpartisan office relate to publication of the D.C. Code, review and comments on proposed legislative measures, some bill drafting, the provision of advice to Council members on the Council's legislative authority and responsibilities under the Home Rule Act, U.S. Constitution, federal and District laws, and the Council's rules of procedure, and provision of general legal services as in-house counsel for the Council. In addition to the general duties, most of the attorneys are assigned to specific committees to provide advice and legislative drafting assistance. All attorneys in this office are licensed members of the District of Columbia Bar (most are members of more than one bar) and as such are required to adhere to stringent ethical rules in their relationship with individual members of the Council and the Council as an institutional client.
Rule 1.6(a) of the District of Columbia Bar Rules of Professional Conduct declares it to be professional misconduct for a lawyer to "(1) Reveal a confidence or secret of the lawyer's client; (2) Use a confidence or secret of the lawyer's client to the disadvantage of the client; (3) Use a confidence or secret of the lawyer's client for the advantage of the lawyer or of a third person." Bar Rule 1.6(b) defines "confidence" to refer to "information protected by the attorney-client privilege under applicable law" and "secret" to refer to "other information gained in the professional relationship that the client has requested be held inviolate, or the disclosure of which would be embarrassing, or would be likely to be detrimental, to the client." With respect to government lawyers, Bar Rule 1.6(d)(2)(B) allows the disclosure of a confidence or secret only "when permitted or authorized by law." This ethical obligation extends to the non-legal staff of this office. See Bar Rule 1.6(e).
This means that attorneys in this office must maintain the confidentiality of communications from and to members of the Council. Whenever requests for opinions are made of this office, attorneys are not free to disclose the contents of the opinion or even to confirm the existence of a request for an opinion. However, any member of the Council may authorize this office to disclose the contents of an opinion requested by that member.
In an effort to further comply with the Bar Rules on maintaining the confidentiality of information gained in the professional relationship as attorney-client, this office has a policy of requiring that all visitors to the office be announced at the front desk. It is necessary that this be done to avoid the accidental disclosure of confidential information that may be contained in a document in plain view on an attorney's desk or being discussed during a telephonic or live conversation that may be occurring at the time.
For these reasons, please do not be
offended when you are asked to stop at the
front desk to be announced or when an
attorney refuses to provide a copy of an
opinion that may have been authored for
another member of the Council. The failure
to adhere to the ethical rules on
confidentiality could result in disciplinary
action by the D.C. Bar ranging from a
temporary suspension to disbarment.
Remember, ethics matter. [CB-H]
In a recent landmark decision, the Supreme Court revisited the issue of what religious exercises are protected by the First Amendment. To ensure the free exercise of religion, Congress passed the Religious Freedom Restoration Act of 1993 ("RFRA"). RFRA's purpose was to prohibit government, at all levels, from placing any substantial burden on the free exercise of religion without a compelling government interest, and without the government's use of the least restrictive means to further that interest. RFRA was retroactive in effect, applying to "law, statutory or otherwise, adopted before or after its enactment."
In two prior decisions, the Supreme Court required that a state have a compelling reason before the state could infringe upon the free exercise of religion. Subsequently, the Court reversed itself and held that a state did not need a compelling interest to infringe upon religious practice where the state law was neutral and general in its application. This action prompted Congress to enact RFRA which again required a state to have a compelling interest to justify an infringement upon the free exercise of religion.
One of the first major challenges to test the validity of RFRA came in 1993 when a Boerne, Texas, church applied for a permit to expand its sanctuary. Boerne's Landmark Commission denied the church's application saying that the church was within a "historic district", where building alterations were not permissible. After exhausting its adminis-trative remedies, the church sued in federal court alleging that the city ordinance was unconstitutional and a violation of RFRA.
On March 15, 1995, the trial court held RFRA was unconstitutional based on a violation of separation of powers because Congress did not have the authority to change by legislation a precedent established by the Supreme Court. The Court of Appeals for the Fifth Circuit reversed the trial court's decision, finding RFRA constitutional and not an infringement of the Court's authority or a violation of the separation of powers.
The City of Boerne appealed the case to the Supreme Court arguing that the RFRA was unconstitutional because: (1) Congress may only enact legislation that either enforces existing constitutional rights or remedies constitutional violations, while RFRA creates extra constitutional rights; and (2) RFRA violates the First Amendment by giving religious practices special treatment. The government argued that Congress has the authority to create statutory rights which supplement constitutional protections.
On June 25, 1997, the Court issued a decision adopting the trial court's finding that RFRA was a violation of the separation of powers and Boerne's position that RFRA created "extra-constitutional rights." The Court found that Congress had exceeded its authority in adopting RFRA" by contradicting vital principles necessary to maintain the separation of powers; that RFRA appeared to attempt a substantive change in constitutional protections; and that it was Supreme Court precedent and not RFRA which was the controlling law.".
The invalidation of RFRA means neutral state laws of general applicability that burden free exercise, without a compelling interest, do not violate the First Amendment. Several members of Congress and supporters of RFRA are investigating ways to constitutionally restore the free exercise rights lost with the invalidation of RFRA. [JB]
Hutchins, et al. v. District of Columbia
On Monday, September 8, 1997, the United States Court of Appeals for the District of Columbia Circuit heard oral arguments on the District's appeal in Hutchins, et al. v. District of Columbia (No. 96-7239). The 3-judge panel consisted of Judges Judith W. Rogers (former D.C. Corporation Counsel), Laurence H. Silberman, and David S. Tatel. The judges asked several questions concerning the standard for review, and the need and effect of the Juvenile Curfew Act of 1995. Judge Tatel asked whether the Council would continue to include a provision in the law to require that the Mayor prepare and submit a report on the law's effectiveness in combating juvenile crime prior to the expiration of the law. Counsel for the District responded that this provision would no longer be needed since there would be no expiration date to the new law. However, this does not mean that the Council cannot mandate that after a certain period of time, the Mayor prepare and submit a report on the effectiveness of the curfew law to the Council.
Judge Tatel, in an effort to dilute the expansiveness of the bill, asked whether the Council had considered the defense of parental permission. Counsel for the District responded that this type of defense would have undermined the curfew law.
Judge Rogers voiced her concern about the Council's proposal to extend the curfew law, on an emergency basis, without making any additional findings about the continuing need for the law. Counsel for the District responded that there would be a committee hearing on the permanent at which testimony would be elicited concerning this factor.
Judge Tatel raised questions about the type of scrutiny that should be imposed for cases affecting the rights of juvenile. Judge Rogers commented that rather than to subject this type of juvenile issue to the higher strict scrutiny test, that an intermediate standard of review should be imposed to evaluate cases involving the diminution of the rights of juveniles. Judge Silberman cautioned that only the U.S. Supreme Court could find juvenile liberty interests to be a fundamental right that would be subject to the strict scrutiny standard. Counsel for the District stated that juveniles do not enjoy the same rights as adults and thus the fundamental right status applicable to certain activities by adults is not extendable to juveniles. It was undisputed that states have more rights to regulate the conduct of juveniles than they do to regulate similar activity engaged in by adults. Judge Tatel questioned whether the District had demonstrated a sufficient need to regulate juveniles, particularly since it was relying primarily on statistics involving the rate of juvenile victimization in areas outside the District of Columbia to substantiate the need for the District's juvenile curfew law. Council for the District argued that this type of reliance was reasonable.
Although the Juvenile Curfew Act of 1995
was originally scheduled to sunset on
September 20, 1997, the Council adopted
emergency legislation at its September 8,
1997, meeting and had second reading on
temporary legislation on September 22,
1997, to indefinitely extend the Juvenile
Curfew Act of 1995. In an effort to further
highlight the current need for and impact of a
juvenile curfew law , during the September
22, 1997, legislative session Councilmember
Harold Brazil read into the record statistics
concerning the victimization of juveniles in
the District for the past few years. Those
statistics indicated that the District has one
of the highest juvenile victimization rates of
areas of similar size.
On September 19, 1997, the United States
Court of Appeals for the D.C. Circuit
affirmed the district court's January 17,
1997, order in Ken Brewer, D.C. Lottery
Board Chairman, et al. v. D.C. Financial
Responsibility and Management Assistance
Authority and the D.C. Council, which had
denied plaintiffs' motion for a preliminary
injunction. As you recall, in our April 1997
issue we discussed Judge Robertson's
dismissal of plaintiffs' claims against the
Council.
Dominion Cogen v. District of Columbia is finally over. On August 20, 1997, the District government and Dominion-Cogen mutually agreed to dismiss their multi-million dollar lawsuits against one another in this case involving the failure to obtain a permit to construct a cogeneration facility in Georgetown. As you recall, this lawsuit was initially filed in November 1993 against three members of the Council -- Jack Evans, John Ray, James Nathanson, individually in their official capacities, and the District of Columbia. In 1995, the district court dismissed these persons as named defendants. In August 1995, the Office of the Corporation Counsel filed a countersuit alleging regulatory fraud and seeking more than $20 million in damages. The lead attorney for the District, Paul Klein, Assistant Corporation Counsel, and other attorneys on the average spent 70-hours weeks preparing this case. Paul Klein, Justin Draycott, and others in the Civil Division of the Office of the Corporation Counsel are to be commended for a job well done for the Council and the District of Columbia government. This case has consumed many file cabinets since its inception. All those involved are glad to see closure come to this case.
It is with great
sadness and appreciation that
we bid farewell to
Debra Brown.
For the past
several years she has been one of the first
faces to greet persons entering the Office of
the General Counsel. Debra began her
career here at the Council over 3 years ago.
She initially came to provide temporary
office services while our Codification
Assistant Karen Westbrook was on maternity
leave. During that time her work was so
exemplary that upon Karen's return she was
hired on a permanent basis. She has worked
in this office since November 1993. During
that time she maintained our office
notebooks, central files, law library, purged
our office files, answered the telephones, and
did whatever was needed to keep the office
running smoothly. The many technical
amendment sheets that are included in the
Council's red legislative folders over the past
4 years were prepared by Debra. She has
been able to communicate effectively over
the telephone with people at all levels. As
most at the Council know, some of the
telephone inquiries may be from highly
emotionally and persistent citizens who want
to speak to someone immediately to assist
them with a problem that is generally not
within the province of this office. Although
this office cannot frequently respond directly
to the needs of citizens, Ms. Brown was very
diligent in trying to find the appropriate place
to refer such inquiries. Her organizational
and typing skills, ability to handle
confidential matters and work well under
time constraints, and willingness to work on
a variety of projects for a number of people
will be greatly missed. However, we know
that after October 10, 1997, she will take
these same skills and drive to the federal
government which will be the better because
of her contributions. Good luck Debra!
[CB-H]
The Office of the General Counsel is about to lose another good one. John McNeal, the Council's Legislative Counsel, has decided to retire from the District government and return to his home state of Pennsylvania. His retirement will occur sometime after this month. John has had quite distinguished careers and educational background. He earned a Bachelor's of Science degree from Millersville State College (Pennsylvania); a Master's of Arts degree from the University of Delaware; a Ph.D. in history from the University of Virginia; and when he decided to leave the teaching profession, he went on to earn his law degree from West Virginia University College of Law. John has had many occupations and interests. He served as a Sergeant in the U.S. Marine Corps, was a high school Social Studies teacher in Pennsylvania, and was an Associate Professor of History at St. Francis College (Pennsylvania) before he attended law school. He worked as a Legal Aid Society attorney in West Virginia before moving to the District of Columbia in 1981.
John has served the District government in many capacities since 1981. His first affiliation with the Council came in October 1981. At that time he was a legislative advisor in the Office of the General Counsel where he was assigned to advise several standing committees of the Council. Those committees included: Judiciary; Human Services; Housing and Economic Development; Government Operations; Public Services and Cable Television; Libraries, Recreation, and Related Youth Affairs; Consumer and Regulatory Affairs; and the Committee of the Whole. Five years later, in 1986, John left the Council for a 5-year sojourn with the Department of Consumer and Regulatory Affairs. John served that Department in various ways. He served as a Special Assistant to the Chief and Senior Administrative Law Judge in the Office of Adjudication; Acting Chief of the Housing Code Enforcement Branch, Housing Inspection Division; and the Director's chief staff advisor on legal/legislative matters.
When the opportunity came to serve the Council again, John returned in February 1991 to become the Codification Counsel for the Council, in the Office of the General Counsel. As Codification Counsel, John demonstrated a comprehensive knowledge of the construction and contents of the D.C. Code, detailed knowledge of legislative drafting procedures, and District laws and regulations. From February 1991 until March 1995, John worked very hard to ensure that the codification of all legislation passed by the Council and the Congress that affected the District was done efficiently and with the utmost accuracy and professionalism. He prepared and issued quarterly legislative update charts for publication in the D.C. Register and for distribution at the Council. During the spring of each year, he spent countless hours reading thousands of pages of galleys from the Michie Publishing Company as he coordinated the preparation of the annual supplements and replacement volumes of the D.C. Code. While Codification Counsel, John was able, after three years of determined effort, to help shepherd through the first (non-sole source) contract for the publication of the D.C. Code. This was no small feat in light of the District's cumbersome procurement process.
In March 1995, John was promoted to the position of Legislative Counsel for the Council. As the Legislative Counsel, he meticulously reviewed all bills and resolutions considered by the Council for technical legislative drafting sufficiency as to form and style during the engrossment and enrollment process. In addition, he provided periodic training sessions on legislative drafting for staff of the Council, employees of executive agencies, and for the Office of the Auditor. He further assisted the Council by responding to requests for legal opinions.
Since 1991 John has worked very closely with the Committee on Consumer and Regulatory Affairs serving as the Office of the General Counsel's legal and legislative advisor to that committee. Until December 1996, he worked very closely with former Councilmember John Ray who chaired the Committee on Consumer and Regulatory Affairs and with Councilmember Sharon Ambrose, who was then the legislative director for that committee. The committee routinely consulted with John McNeal on legislation that was being considered by the committee. During this time the Committee considered several major pieces of legislation including: the Telecommunications Competition Act of 1996, the Noise Control Amendment Act of 1996, the Rental Housing Conversion and Sale Act of 1980 Reenactment and Amendment Act of 1995, Limited Liability Company Act of 1994, Uniform Partnership Act of 1996, Health Maintenance Organization Act of 1996, Department of Insurance and Securities Establishment Act of 1996, Hospital and Medical Services Corporation Regulatory Act of 1996, Insurance Regulatory Trust Fund Act of 1993, amendments to the Health Occupations Revision Act of 1985, amendments to the Uniform Commercial Code, amendments to the Department of Consumer and Regulatory Affairs Civil Infractions Act, the many bills amending the Alcoholic Beverage Control Act, legislation relating to the professional boards regulated by the Department of Consumer and Regulatory Affairs, and the numerous lengthy and complicated insurance-industry related bills.
As a result of his skill, drive, and
dedication to his work on behalf of the
District government, John McNeal leaves an
exemplary record of public service. His
contribution to the District government has
made him an outstanding public servant.
The Office of the General Counsel will
greatly miss John McNeal. Good luck John!
[CB-H]
On July 7, 1997, Britta Farahati joined the
Office of the General Counsel as an Assistant
General Counsel. After an extensive review
of approximately 100 applications for the
vacancy created by the departure of Stephen
Taylor, Britta Farahati was selected as the
newest member of our staff. Her academic
achievements include receiving a B.A.
degree from Boston College in
Massachusetts where she graduated cum
laude and was a member of the Golden Key
National Honor Society, completion of a
Summer Law program at Cambridge
University in England, a Juris Doctor degree
from the University of Baltimore School of
Law in Maryland where she graduated cum
laude, and an LL.M. in International and
Comparative Law from Georgetown
University Law Center. She is a member of
the Bar of the District of Columbia and
Maryland. During law school, her activities
included being a Student Attorney in the
University of Baltimore Family Law Clinic,
two judicial internships, a research assistant
to a professor, internships at private law
firms and volunteer work in the Maryland
Attorney General's Consumer Protection
Division. Since law school, her legal
experience has included work at three private
law firms providing litigation support in civil
litigation and complex antitrust cases,
researching and drafting pleadings for civil
cases, and serving as the Editor of the
Washington Foreign Law Society Journal.
Her assignments will include coverage of the
Committee on the Judiciary and the
Committee of the Whole, responding to
inquiries from Councilmember Sharon
Ambrose, and responding to ethics
questions. She will also be involved with
litigation matters and drafting legal opinions.
Welcome aboard Britta. [CB-H]
Editors:
Sheila Barfield and John McNeal
Contributors:
Charlotte Brookins-Hudson, Benjamin
Bryant, Johnnie Barton, and Britta Farahati
Editorial Assistant:
Karen Westbrook
