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OFFICE OF THE

GENERAL COUNSEL
LEGALESE


February 1998 Council of the District of Columbia Vol. 4, No. 1

||1998 Appropriations Act||Management Reform||Litigation||Ethics Matters||Reminders||Make a Note||Welcome Aboard||Editors||







DISTRICT OF COLUMBIA APPROPRIATIONS ACT

1998


On November 19, 1997, the President signed the District of Columbia Appropriations Act, 1998, Pub. L. 105-100, 111 Stat. 2160. In addition to appropriating the District's Fiscal Year 1998 budget, the Act contains several substantive provisions affecting many aspects of District law.

Concerning federal payments to the District, the Act provides the following:

(1) $8 million is directed for deposit into an escrow account of the Financial Authority. This money is to be used for a program of management reform and will be disbursed solely according to the discretion of the Financial Authority.

(2) A federal contribution of $190 million is directed for deposit into an escrow account held by the Financial Authority. This money is to be used for operating costs of the District government. The Financial Authority will allocate this money to the Mayor as it deems appropriate for the implementation of the financial plan. These funds may be used to cover the costs of advances to the District government for certain purposes outlined in section 11402 of the Revitalization Act and at least $30 million shall be used to repay the accumulated general fund deficit.



(3) $201 million is to be deposited into an escrow account held by the Financial Authority. This money will be allocated to the Mayor or other District official as the Financial Authority deems appropriate and in accordance with a plan that has been approved by the Financial Authority. These funds can only be used for deficit reduction, capital expenditures including debt service, and management and productivity improvements.

Under the Public Safety and Justice appropriations title, Congress allowed the MPD small purchase authority up to $500,000 and limited to 15 the number of MPD officers who may be detailed or assigned to the Executive Protection Unit until the Chief of Police submits a recommendation to the Council for its review. Congress also directed that no less than $2,254,754 be available for a pay raise for uniformed firefighters "when authorized by the District of Columbia Council and the District of Columbia Financial Responsibility and Management Assistance Authority. . . ." This means that upon the submission by the Mayor to the Council of a proposed compensation change resolution in accordance with the CMPA, the Council will have a basis for authorizing this pay raise.







[Note: the Authority reduced the ETEBT to an advisory board].









MANAGEMENT REFORM


Congress has enacted several legislative provisions to fund and require management reform in the District. In the District of Columbia Appropriations Act, 1998, approved November 19, 1997 (Public Law 105-100), $8 million was allocated for management reform. According to the Congressional Record, a portion of this money is to be used to create and fund the position of Chief Management Officer ("CMO"), whose role would be to assist the Authority to carry out its mandate under 11101-11106 of the Revitalization Act of 1997. See,143 Cong. Rec. S12658, dated November 13, 1997. On January 15, 1998, Camille Cates Barnett began her employment as the new District of Columbia CMO.

Section 11104 of the Revitalization Act created a management reform team consisting of the Chair of the Authority, the Chair of the Council, the Mayor, or their respective designees, and in the case of a management reform plan for a department of the District government, the head of the department involved. That act requires that a management reform plan be created for each of 9 departments (i.e. the nine departments set forth in section 11102(b)(1) of the Revitalization Act: Administrative Services, Consumer and Regulatory Affairs, Corrections, Employment Services, Fire and Emergency Medical Services, Housing and Community Development, Human Services, Public Works, and the Public Health Department) of the District government as well as for four areas (i.e. the four areas set forth in section 11102(b)(2) of the Revitalization Act: Asset management; Information resources management; Personnel; and Procurement) of the District government. The Revitalization Act requires that "the head of the department involved shall take any and all steps within his or her authority to implement the terms of the plan, in consultation and coordination with the other members of the management reform team." (emphasis added). That act further provides that in carrying out the management reform plans, the head of the department shall report to the Authority. The Chair of the Council, together with the Chair of the Authority, the Mayor, or their respective designees, are to provide advice to the head of each of the nine departments on suggested plans for management reform. [CB-H]

















LITIGATION


Protests of Health Right, Inc.

(Medicaid managed care contracts)

CAB Nos. P-507, 510, and 511




On October 15, 1997, the District of Columbia Contract Appeals Board ("CAB") ruled that the District violated procurement requirements when it awarded contracts to 4 managed care organizations ("MCOs"). The Board concluded that the contracting officer "did not evaluate the proposals and determine the relative merits of the competing proposals or receive substantive individual [or] consensus evaluation

data from the technical evaluation board." After concluding that the evaluation

process was flawed, the Board directed the contracting officer to negotiate contracts with the three MCOs who had submitted bids, but had not been awarded contracts "under terms consistent with the contracts" awarded to the winning bidders.

This case involved the District's attempt to provide managed health care services to public assistance recipients. Recipients were to be required to choose one of the selected managed health care providers to receive health maintenance, preventive, treatment, pharmacy, hospital, and emergency services. Three losing bidders protested the award of the contracts to the 4 MCOs, alleging a variety of substantive and procedural irregularities in the process. One of the alleged violations was that a conflict of interest existed because the Mayor and certain members of the Council were required to recuse themselves from participating in the award decision because they received political contributions from 2 of the awardees. The CAB dismissed this claim, finding it to be without merit.

* * * *


Rachel Clay v. Council

D.C. Super. Ct. No. 97-MPA-28


On November 7, 1997, Rachel L. Clay, a former employee of the Office of the Secretary, filed a petition with the D.C. Superior Court to review a decision of the Office of Employee Appeals which dismissed her original petition for lack of jurisdiction. In the petition for review the claim is expected to be asserted that the OEA decision failed to address certain issues raised in the original petition.

This appeal follows a ruling issued on October 31, 1996, in which the D.C. Court of Appeals determined that Rachel L. Clay was a Career Service employee, not an Excepted Service employee, at the time she was terminated from the Council in December 1990. Ms. Clay was formerly the Director of the Council's Legislative Services Division, Office of the Secretary, until Chairman David A. Clarke, at the end of Council Period 8, gave her notice that as an excepted service employee her services were no longer needed. Ms. Clay challenged her separation on the ground that she was a career service employee, not in the excepted service, and therefore could only be separated for cause. However, the Court of Appeals adopted Chairman Clarke's position that she had been in the excepted service at the time of her separation.

* * * *


Johnson v. United States


In October 1997, the D.C. Court of appeals issued a decision in a case challenging the constitutionality of the Misdemeanor Streamlining Act (Omnibus Criminal Justice Reform Amendment Act of 1994, effective August 20, 1994; D.C. Law 10-151). In that case, the accused, who had been charged with simple assault, had requested a jury trial which was denied on the grounds that the Streamlining Act had made that offense nonjury demandable because the maximum penalty was reduced to 180 days incarceration. After a bench trial, the accused was found guilty and appealed his conviction on the grounds that the Streamlining Act violated his Sixth Amendment right to a jury trial. In upholding the law, the court ruled that legislatures determine what is a petty offense and what is a serious offense "namely through the length of the maximum authorized penalty." The Supreme Court has concluded that an offense carrying a maximum prison term of six months or less is presumed to be "petty" and thus not subject to the Sixth Amendment's entitlement to a jury trial, which is limited to cases involving "serious" offenses.

* * * *


Karen Shook v. D.C. Financial Authority

U.S. App. D.C. No. 97-7087


On January 6, 1997, the United States Court of Appeals for the District of Columbia Circuit ruled that the Financial Authority exceeded its powers under section 207(d) of the FRMAA when it transferred the Board of Education's authority to the appointed Board of Trustees. The appellate court found that the Financial Authority could not delegate to the Board of Trustees "the immediate responsibility for operation and management of the District of Columbia public school system" because it exceeds the limits of the Board of Education's power to delegate under D.C. Code 31-107. That provision limits the Board of Education's power to delegate to the Superintendent, not to other entities.

This case involved the issue of whether the Authority had the power to issue the order establishing the ETEBT and the CEO-Superintendent. The court's ruling focused on the power granted to the Authority by section 207(d) of FRMAA. That provision provides that the Authority may issue "such orders, rules, or regulations as it considers appropriate to carry out the purposes of this Act . . . to the extent that the issuance of such an order, rule, or regulation is within the authority of the Mayor or the head of any department or agency of the District government."

The court concluded that the Financial Authority's power to delegate was limited to "one of its own members or staff prior to, during, or after stepping into the shoes of the Board of Education . . . and that the Control Board could not redelegate its 207(d) power to an outside body."

In response to the Court's decision, the Financial Authority issued a second order which designates the Board of Trustees as its agent for the purpose of making recommendations on matters relating to the D.C. public school system. The Board of Education has challenged this order as violative of the Court's ruling. The issue is pending in the United States District Court as of the date of publication.

* * * *


Simpson v. Turner

U.S. District Court

D.C. No. 97CV02721 (CKK)


Simpson v. Turner is a pending case involving a petition to commit a mentally retarded person. The plaintiffs allege, among other charges, that the Mayor and members of the Council should be held liable for their roles in approving the Omnibus Budget Support Act of 1995, effective September 26, 1995 (D.C. Law 11-52; D.C. Code 6-1901 et seq.). In response, the District government has asserted that these elected officials are absolutely immune from suit for their "legislative acts."

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

Although the Mayor is in the executive branch of government, it is maintained in the lawsuit that the Mayor is entitled to assert the legislative immunity defense because he performs a legislative function when he is proposing budgets and signing legislation.

* * * *


Tucker v. United States


In October 1997, the D.C. Court of Appeals issued a decision in a case challenging the constitutionality of the Tinted Window Amendment Act of 1994, effective August 26, 1994 (D.C. Law 10-163; D.C. Code 40-718.1), on the grounds that the law illegally discriminated on account of wealth. The Court upheld the constitutionality of the law on the ground that there was a rational basis for exempting from the law's coverage limousines and vehicles which are in compliance with federal standards. The Court concluded that in exempting limousines from coverage the Council "could reasonably believe that the tinting of the windows in these vehicles would in some measure enhance the security of their occupants." It further concluded that exempting vehicles meeting federal law concerning window tinting of motor vehicles was rational "for it avoids any potential interference with interstate commerce that might arise if the District indirectly imposed more restrictive requirements on the automobile industry than the federal government does."



UDC Faculty Assoc./NEA v. UDC/D.C. Financial Authority

U.S. District Court

D.C. 97-01080


On February 3, 1998, Judge Henry Kennedy, Jr., of the United States District Court for the District of Columbia issued a decision and order declaring that the D.C. Financial Responsibility and Management Assistance Authority ("Authority") had "exceeded its statutory authority in ordering the Board of Trustees of UDC to repudiate provisions of the University's collective bargaining agreement with the Faculty Association . . . ."

The primary issue in this case was whether the Authority had the power to abrogate a contract (collective bargaining agreement) to which the District or its agency was a party. This decision focused on the power granted to the Authority by sections 203 and 207(d) of FRMAA. Section 203 grants the Authority the right to prior approval of contracts. Section 207(d) provides that the Authority may issue "such orders, rules, or regulations as it considers appropriate . . . to the extent that the issuance of such an order, rule, or regulation is within the authority of the Mayor or the head of any department or agency of the District government." The court held that neither of these provisions, nor a directive in the 1997 Appropriations Act authorized the Authority to repudiate the collective bargaining agreement.

The decision essentially reaffirms the proposition that administrative agencies have only delegated powers, and that when the Authority is acting under section 207(d) to "stand in the shoes" of an agency, its powers are limited to those held by the agency. The court concluded that although the Financial Authority has wide ranging powers over the District government's operations, it "does not have the authority to arrogate for itself power and authority not delegated to it by Congress." [BKF]








ETHICS MATTERS


Gift Acceptance Authority of Councilmembers and District Employees


The ability of Councilmembers and District employees to accept gifts is governed by D.C. Code 1-1461 et seq. and implementing regulations laid out in the D.C. Personnel Manual.

Pursuant to D.C. Code 1-1461(c)), no public official (i.e. any person required to file a financial statement, which includes Councilmembers and certain Council staff, pursuant to D.C. Code 1-1461(i)(1) and 1-1462) shall be offered or shall receive anything of value, "including a gift, favor, service, loan gratuity, discount, hospitality, political contribution, or promise of future employment, based on any understanding that such public official's official actions or judgment or vote would be influenced thereby, or where it could reasonably be inferred that the thing of value would influence the public official in the discharge of his or her duties, or as a reward, except for political contributions publicly reported pursuant to 1-1416 and transactions made in the ordinary course of business of the person offering or giving the thing of value."

Complementary criminal sanctions for corrupt gift offers to or receipt by District officers and employees are found at D.C. Code 22-712 and 18 U.S.C. 201, 203, and 209.

If a public official must take official action on a matter which is believed to create a conflict of interest, that employee should prepare a statement, consistent with D.C. Code 1-1461(g), disclosing the nature of the potential conflict and submit it the employee's immediate supervisor, to the Board of Elections and Ethics, and to the Chairman of the Council.

If a gift constitutes lobbying, officials in the legislative branch or members of their staff are prohibited from soliciting or accepting gifts from persons required to register as lobbyists if the gift exceeds $100 in value in the aggregate in any calendar year. D.C. Code 1-1456(a) and (b). Contributions which are authorized pursuant to D.C. Code 1-1441 (financial limitations on campaign contributions) and D.C. Code 1-1443 (constituent services) are excepted from this rule.

Section 1803.2 of the District Personnel Manual provides the basic standard governing the acceptance of gifts by District employees. This regulation provides that no gift, gratuity, favor, loan, entertainment, or other like thing of value may be accepted from one who:

(a) Has, or is seeking to obtain, contractual or other business or financial

relations with the D.C. government;

(b) Conducts operations or activities that are subject to regulation by the D.C. government; or

(c) Has an interest that may be favorably affected by the performance or

non-performance of the employee's official responsibilities.

Section 1803.3 sets forth numerous exceptions to section 1803.2 for gifts which involve family relationships (where the motivating factor for the gift is not related to the business of the recipient); food and refreshments of nominal value; personal bank loans; unsolicited advertising or promotional material of nominal value (e.g. pens, note pads, calendars); and personal gifts of nominal value received for marriage, illness, or retirement. With regard to food and refreshments, subsection (b) provides that a District employee may accept "food and refreshments of nominal value on infrequent occasions in the ordinary course of a luncheon or dinner meeting or while on an inspection tour ..."

Based on the above laws and regulations, several conclusions can be drawn about whether a Councilmember or District employee is able to accept gifts. If the acceptance of a gift gives rise to the appearance of impropriety or improper influence; if the giver of the gift is seeking to obtain some sort of business with the District, is conducting business that is subject to District regulation, or has an interest which may be affected, then the gift may be forbidden. Certain exceptions to this rule are enumerated in section 1803.2 of the District Personnel Manual. In particular, a Councilmember or District employee may accept payment of lunch or dinner as long as it is of nominal value and takes place on infrequent occasions during the course of a business meeting.

The above provisions serve as helpful guidelines. Each conflict of interest situation is, however, unique, and whether a Councilmember or District employee may accept gifts, depends on various factors, such as the purpose for which the gift was given and received, the nature of the relationship between the donor and donee, and the value of the gift. Because it may not always be clear whether a gift may be accepted, you are encouraged to seek the advice of this office or the Office of Campaign Finance in situations which are questionable. [BF]







REMINDERS


Deadline for 1998 Acts

Congress is scheduled to adjourn sine die with a target date of October 9. 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 106th Congress convenes sometime in January 1999. That legislation will not become law until, at the earliest, the end of February or March 1999.

If enactment in 1998 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 2, 1998. The deadline for final Council passage is April 7, 1998, 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 24th to conclude its 30-day review period prior to the scheduled October 9th adjournment.

It will be difficult for matters having final reading by the Council on July 7th to complete a 30-day Congressional review cycle prior to the October 9, 1998, target adjournment date, if all parties (the Mayor and the Financial Authority) take their full review period. During the month of July, Congress is scheduled to be out from July 1-July 13, leaving 14 review days from July 14-July 31. Congress is scheduled to be on recess all but 5 days during the month of August through September 8, and on September 21st and September 30. This means that we will only have 5 review days in August, 14 review days in September, and maybe 6 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 24th. [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 15, 1998, and the general election for Tuesday, November 3, 1998. June 16, 1998, will be the last date to have a mass mailing of official mail for this year's primary election. August 4, 1998, 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. [SB]



PLEASE MAKE A NOTE

D.C. CODE UPDATE CHART


The most recent publication of the Update Chart, depicting all revisions to the D.C. Code since the printing of the 1997 replacement volumes and "pocket parts," can be found in the December 12, 1997, issue of the District of Columbia Register at page 7503. The next publication of the Update Chart will be in March 1998.

The Update Chart is also available to Councilmembers and Council staff in WordPerfect via v:\update\chart. Within the next couple of months, the Update Chart should be available on the Council's web site.

All drafters of Council legislation should utilize the Update Chart to ascertain the most recent amendments to the District's laws.

HOME RULE ACT AMENDMENTS


Copies of the District of Columbia Home Rule Act as amended through November 19, 1997, are available in the Office of the General Counsel. The Office of the General Counsel has updated the Home Rule Act to incorporate the current state of the law concerning the District of Columbia governance. The update includes amendments contained in the National Capital Revitalization and Self-Government Improvement Act of 1997 and the District of Columbia Appropriations Act, 1998.





WELCOME ABOARD


BRIAN K. FLOWERS

Deputy/Legislative Counsel


Brian Flowers has joined the Office of the General Counsel to become the Deputy General Counsel/Legislative Counsel to fill the vacancy created by the retirement of John McNeal. He is very familiar to most employees in the District government having recently served as an attorney in the Office of Documents for the past 10 years where he reviewed many documents for publication in the D.C. Register. His academic achievements include receiving a Juris Doctor degree from the Georgetown University Law Center, a B.A. degree from Howard University, and graduating from the Chofu High School in Tokyo, Japan. During law school he was a legislative intern in the office of Congressmen Sam Gibbons (D-Fla.) and William L. Clay (D-Mo.) and clerked for the Interstate Commerce Commission and the National Association of Home Builders here in Washington.

Upon graduation from law school he spent 4 years in private practice where he represented individuals and corporate clients before the local courts here; 4 years as the Executive Director/Attorney for Advisory Neighborhood Commission 5C; 2 years as a legislative and policy analyst for the D.C. Department of Housing and Community Development, and the past 10 years as an attorney in the Office of Documents and Administrative Issuances for the executive branch. He has also held several elected positions as an Advisory Neighborhood Commissioner in SMD 5A90 for 6 years, Chairperson of ANC 5A, and the Adult Chairperson of the Neighborhood Planning Council No. 10. From November 30, 1994, until May 2, 1995, Mr. Flowers served as the Acting Administrator of the Office of Documents.

The duties of the Legislative Counsel are very demanding and require the exercise of good judgment and careful attention to a vast number of details. Among other qualifications, the individual must have strong legal research and analytical skills; a comprehensive knowledge of the construction and contents of District laws and regulations; and knowledge of legislative drafting procedures, and the role of the Council and its rules and procedures. During his 10-year tenure with the District Office of the Documents, Mr. Flowers demonstrated that he has the requisite knowledge of the construction and contents of District laws and regulations based on the countless number of rulemakings, executive orders, and administrative issuances he has reviewed and approved or rejected. His knowledge of other District laws is based on his years of reviewing and compiling all Council enacted legislation for inclusion in the D. C. Register as well as his experience as a litigator while in private practice. More importantly, his vast knowledge of the operation of the District government and his long term contacts with various agencies will be useful in his role as Legislative Counsel. Welcome aboard! [CB-H]



ADA ARRINGTON

Secretary to the General Counsel


On October 14, 1997, Ada Arrington joined the Office of the General Counsel as Secretary. She is a native Washingtonian who is committed to the District of Columbia and to doing quality work. She will be the first person visitors to the office will see. She is a highly professional and courteous person who is very skilled in managing a variety of functions including greeting visitors, answering telephone inquiries, filing, editing documents, directing incoming and outgoing mail, and is knowledgeable of protocol procedures when dealing with various personalities and organizations. She has excellent typing, computer, and proofreading skills, as well as other administrative skills that have been honed by her many years of service in the Federal Government. Her past work experience includes serving as Secretary to a Division Director in the Department of Agriculture; Secretary to the Deputy Assistant Inspector General, in the U.S. Department of Justice; administrative support person at the U.S. Federal Trade Commission; administrative support person with the Federal Emergency Management Agency; and as a temporary support person with the National Institute of Health. This experience will be fully utilized in this office.

She has already begun to reorganize the office filing system to assemble information in a way that enables the General Counsel and staff attorneys to respond more efficiently to the numerous inquiries for legal assistance and to assist in the upkeep of the office law library. She maintains the appointment calendar for the General Counsel, has become familiar with the work of the Council through her typing of the technical amendments sheets for proposed legislation generated by this office, and is zealous about maintaining accurate and up-to-date recordkeeping. Her typing and proofreading skills are exceptional and, while initially unfamiliar with the inner workings of a legal legislative office, she has shown herself to be a quick learner.

Ada has the type of personality, attitude, skill, and determination to be a great asset to this office. Welcome aboard! [CB-H]



Editors:

Sheila Barfield and Britta Farahati

Contributors:

Charlotte Brookins-Hudson, Brian K. Flowers,
Benjamin Bryant, and Johnnie Barton

Editorial Assistant:

Karen Westbrook