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General Counsel to the City Council Response to Dino Drudi’s Complaint
Charlotte Brookins-Hudson
May 2, 2000

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May 2, 2000


Benjamin Wilson, Chairman
Board of Elections and Ethics
441 4th Street, N.W., 2nd Floor
Washington, D.C. 20001

RE: Challenge filed to the legality of Act 13-295, the School Governance Charter Amendment Act of 2000

Dear Mr. Wilson:

This is in response to the objections filed by Mr. Dino Joseph Drudi to Act 13-295, the School Governance Charter Amendment Act of 2000 (also referred herein as Bill 13-469). Mr. Drudi objects to the Board's formulation of the summary statement and raises concerns about the legislation's compliance with the two-reading requirement of the District Charter. This memo takes no position on the formulation of the summary statement, but addresses only the objection raised concerning the two-reading requirement.

Mr. Drudi asserts that the proposed charter amendment act does not comply with section 412 of the District Charter because "[a]lthough the Council read Bill 13-469 . . . three times, no version of the bill approved at any reading was in substantially the same form as one approved at any other reading." For this reason, Mr. Drudi asks that the Board not subject the proposed charter change "to a charter amendment election." For the reasons stated below, I respectfully request that the Board reject the challenge filed by Mr. Drudi and place Act 13-295, the School Governance Charter Amendment Act of 2000 on the appropriate election ballot.

A. The Bill was Read on Three Separate Occasions

1. At the January 18, 2000 Reading of the Legislation the Council Proposed to Reduce the Board of Education to Seven Elected Members.

On January 18, 2000, the Council held an Additional Legislative Meeting to consider, among other measures, Bill 13-469, the School Governance Charter Amendment Act of 2000. The bill had been reported out of the Committee of the Whole immediately preceding the legislative session. The version reported out of the Committee of the Whole proposed a charter amendment that would decrease the elected members of the Board of Education from 11 to 7, create special school districts consisting of compressed wards from which 4 members of the Board were to be elected and provide for the at-large election of 3 members of the Board, one of whom was to be elected President. See Engrossed Version of Bill 13-469, attached as Exhibit 1.

2. At the February 1, 2000 Second Reading the Council Considered Legislation Which Would Give Voters the Option of Reducing the Board to 7 Members, Having a 5-Member Appointed Board, or Adopting a Hybrid 9-Member Board Consisting of 5 Elected and 4 Appointed Members.

On February 1, 2000, the Council again considered the School Governance Charter Amendment Act of 2000. Councilmember Kevin P. Chavous, Chairman of the Council Education Committee, together with Chairman Linda W. Cropp, and Councilmember Harold Brazil moved an amendment in the nature of a substitute for the engrossed version. The substitute amendment contained three separate proposals for changing the structure of the governance of the School Board. Title I proposed decreasing the number of board members from 11 to 7 elected members with the 4 compressed special school districts which was identical to the bill as read on first reading. Title II of the substitute amendment proposed a five-member board appointed by the Mayor. Title III proposed a mixture of Titles I and II by having five members elected (four selected from the four compressed special school districts) and four members appointed by the Mayor, for a nine member board of education. A copy of the substitute amendment is attached as Exhibit 2.

After various written and oral amendments were offered by councilmembers during the legislative session, the bill as adopted consisted of Title I proposing a nine member elected Board of Education and Title II proposing a five member appointed school board. The provision that would allow voters to decide on whether to have a hybrid board consisting of five elected and four appointed members was stricken by a 8-5 vote on an amendment offered by Councilmember Chavous. A copy of the enrolled version of B13-469 is attached as Exhibit 3.

3. At the February 17, 2000, Additional Legislative Session the Council Reconsidered the Enrolled Version of B13-469 Before it Adopted An Amendment Limiting the Proposed Change to a 9-Member Hybrid Board of Education.

On February 17, 2000, Bill 13-469 was reconsidered by the Council, thus providing an opportunity for a third reading on the elected and appointed members option adopted at the February 1st meeting. The roll-call vote on the reconsideration resulted in a 9-4 favorable consideration of the motion. Upon reconsideration, Councilmember Kevin P. Chavous moved a substitute amendment to the enrolled version of B13-469. The substitute amendment proposed to reduce the members of the Board from 11 to 9 members; with 5 being elected and 4 being appointed. A copy of the substitute amendment is attached as Exhibit 4. Prior to the vote on the substitute language, Councilmember Mendelson (At-Large) inquired as to whether the bill as modified would necessitate another reading of the legislation. Chairman Cropp, as the presiding officer of the Council, responded "No. . . There is no need to have one as far as the Chair is concerned." No challenge was made to the ruling of the Chair. An appeal may be taken from any decision of the Chairman. A member must state his or her reasons for appealing a decision, to which the Chairman may respond. Appeals must be acted upon immediately. An affirmative vote of 1/2 of the members present and voting is required to sustain the Chairman. Once put to a vote, the amendment passed and the bill as amended passed. The legislation was re-enrolled and published in the D.C. Register. See 47 DCR 2212.

B. The Etiology and Purpose of the Two-Reading Requirement of HRA §412(a).

Section 412(a) of the District Charter provides that each proposed act (except emergency acts and budget acts) "shall be read twice in substantially the same form, with at least thirteen days intervening between each reading." D.C. Code §1-229(a). This second reading requirement was proposed by Congressman Rees, who explained the need for it, as follows:

What this merely does is set up a technique which is merely followed in most legislative bodies in the Country. This would be so the City Council or members of the City Council can't bring up a bill all in one session and pass it . . . .

It is merely a parliamentary procedure that is followed in most legislative bodies in the country. Most bodies have three readings of the bill. This requires two readings and the first reading, it would be one week between the first reading and the second reading and during this period, of course the public and interested parties can discuss this legislation.

Staff of House Committee on the District of Columbia, 93d Cong., 2d Sess., Home Rule for the District of Columbia, 1973-1974 1042 (Comm. Print 1974) ("Home Rule History").

The House and Senate reports on the Home Rule Act do not give any further explanation of the second reading requirement; however, as a general rule, these provisions are intended to give public notice and opportunity to participate in the legislative process. The District of Columbia Court of Appeals, quoting Congressman Rees, observed that the District's second reading requirement was adopted "to give notice of a pending proposal so that 'the public and interested parties can discuss this legislation' before passage." Washington Home Ownership Council v. District of Columbia, 415 A.2d 1349, 1352 (D.C. 1980) (En Banc) (citations omitted). The Court also observed, Id., at note 8, that:

A second-reading rule is often found in municipal charters; it serves the purpose of permitting the public to participate in the legislative process. See Town of Burnsville v. City of Bloomington, 268 Minn. 84, 90, 128 N.W.2d 97, 102 (1964); Hatfield v. Meers, 402 S.W.2d 35, 44-45 (Mo. App. 1966).

Courts generally construe second reading rules as permitting amendments between readings as long as the amendments do not enlarge or limit the scope of the bill to such an extent the bill in its final form is materially and substantially different from the bill adopted at the first reading. For example, in Farnsley v. Henderson, 240 S.W.2d 83 (Ky. App. 1951), the court found that the elimination of five employee title classifications from a bill between first and final readings did not violate the second reading requirement:

What constitutes a material or substantial change in an ordinance between the date of its first and final enactment is dependent
upon the circumstances of each case. If nothing new is added to it, or if what is taken from it does not render it misleading in its fundamental content when passed, such alteration will not be so material or substantial as to characterize the ordinance in its final form a different instrument from that introduced. In the case at bar, we are of the opinion that the elimination of five employee title classifications from the ordinance in question between the time it was originally introduced and finally enacted was not such a modification as to invalidate it. (Emphasis added).

240 S.W.2d, supra, at 84. In Jefferson v. City of Anchorage, 513 P.2d 1099, 1101-02 (Alaska 1973), the court found that an amendment striking an amendment adopted at the prior meeting did not mandate a further reading because:

amendment of the proposed Ordinance did not change its basic character. After amendment, the Ordinance still covered the same subject matter as when it was introduced. There being no material change in the subject treated in the proposed Ordinance, it was not necessary to proceed as though it was a new one.

Similar holdings were made in Biltmore Hotel Court v. City of Berry Hill, 390 S.W. 2d 223 (Tenn. 1965); Wollen v. Fort Lee, 142 A.2d 883 (N.J. 1958); Klaw v. Pan-Mar Construction Company, 135 A.2d 123 (Del. 1957); and Community Home Builders v. Town Council of North Kingstown, 117 A.2d 544 (R.I. 1955).

C. Act 13-295 Meets the Two-Reading Requirement Because the Public Had Notice That the Council was Going to Decrease the Size of the School Board and the Act Had Two Readings Which Contained Language About An Elected and Appointed School Board.

In the present situation, the letter of the two-reading requirement was met when the Council on three occasions -- January 18, February 1, and February 17, 2000 had readings on proposals to restructure the school board. On two of these occasions, namely February 1st and February 17th, the Council considered a 9-member board made up of a mixture of elected and appointed board members. In addition, the subject matter of this legislation remained constant for all three readings -- the lowering of the number of elected members of the school board.

The purpose of the two-reading requirement was served because prior to all the readings the public always had notice that the Council was considering an elected, appointed, or combination school board. At no point does, nor could, Mr. Drudi dispute that he did not have notice of the Council's intended legislative actions with respect to the school board. The Council's consideration of proposals for restructuring the school board, which included elected and appointed members, was widely publicized and was the subject of hearings by the Council Committee on Education, Libraries and Recreation.

Moreover, in my opinion Chairman Cropp's ruling on the question of whether after February 18, 2000, the legislation would receive an additional reading, and the lack of any appeal by a member of the Council, further supports a finding that the two-reading requirement was met.

It should be noted that the Chairman, is the presiding officer of the Council under section 411 of the District Charter. The organizational rules of the Council also reflect that the Chairman is the presiding officer. See, Council Rule 211. As the presiding officer the Chairman has authority to decide the correctness of the application of the Council rules and to interpret the application of laws to Council procedures. With respect to District Charter § 412(a)'s two-reading requirement the Council, through the Chairman, is the entity charged with the responsibility for adhering and implementing that rule. Since the Council is the agency that has that responsibility, its interpretation of the two-reading requirement should be given greater weight than that of anyone else. See Chevron USA Inc. v Natural Resources Defense Council, Inc., 467 U.S. 837, 842 (1984) (where a statute is "silent or ambiguous with respect to the specific issue," the reviewing court must defer to the agency's construction of the statute so long as it is reasonable) and Sutherland Statutory Construction §49.05 at 17 & note 17 (5th Ed.) (Great weight is given to an agency's interpretation "except those that are inconsistent with the statutory mandate or that frustrate the policy that Congress sought to implement."). This is especially true where, as in this case, the interpretation is one of long-standing. The Council has consistently interpreted the two-reading requirement to allow for amendments in the nature of a substitute on final reading.

In this case, I believe that the Chairman's ruling that there was no need for an additional reading is reasonable. For this reason, her interpretation should be given greater weight under the well established principal of statutory interpretation that "[w]hen two equally reasonable interpretations of the statute in question are available the reviewing court must defer to the interpretative choice of the agency" charged with administering the statute in question. Id. at 18. In addition, there is the general rule that "while not conclusive, the construction given by the legislature to the provisions of the constitution dealing with legislative procedure is entitled to great weight." 73 Am Jur 2d Statutes § 50 and note 28.

This is an issue of first impression that has not been presented to a court and therefore there is no dispositive legal authority on this issue. However, when the court was presented with a challenge to the validity of an emergency act passed by the Council as to whether it was an "emergency," the court has deferred to the Council's interpretation. See, United States v. Alston, 580 A.2d 587, 597 (D.C. 1990), citing to AFGE v. Barry, 459 A.2d 1045, 1050 note 9 (D.C. 1983). That same deference should be applied in this situation.

For all the reasons stated above, the Board should reject the challenge filed by Mr. Drudi. I understand that there will be a hearing on this challenge at 8:30 p.m. in Room 270 North this evening. I will be available at the hearing to address any questions the Board may have with respect to the compliance of this act with the two-reading requirement.

Charlotte Brookins-Hudson
General Counsel


cc: Honorable Linda W. Cropp, Chairman
All Councilmembers
Phyllis Jones, Secretary to the Council
Mr. Kenneth McGhie, General Counsel, BOEE
Daryl Gorman, Director, Legal Counsel, OCC
Mr. Dino Joseph Drudi
938 Perry Place, NE
Washington, D.C. 20017

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