Present-2009

Date
Subject
Question(s)
Conclusion

6/19/2017

Washington Metrorail Safety Commission Interstate Compact

Do differences in the enabling statutes of the District of Columbia, Virginia, and Maryland require the District to take additional legislative action before the Mayor may enter the Washington Metrorail Safety Commission Interstate Compact (MSC) with Maryland and Virginia?

No. There is no requirement that the enabling statutes of DC, Maryland and Virginia be identical. The differences between the three enabling acts are non-substantial and not requiring of a technical amendment act by the Council. The Mayor has sufficient current authority to enter the MSC on behalf of the District.

4/8/2014

Budget Autonomy

Is the Local Budget Autonomy Act of 2012 legally valid?

No, the Local Budget Autonomy Act of 2012 is not legally valid, because the Council exceeded its authority enacting it and because it violates federal law. The law exceeds Council authority because it changes the functions of the United States in the formation of the District’s budget and is not restricted in its application exclusively to the District.

2/8/2011

DC CFO/DC Housing Authority

Does the District of Columbia Chief Financial Officer (CFO) have the authority to supervise and to control the financial functions and financial personnel of the District of Columbia Housing Authority (DCHA)?

Yes, even though the DCHA was established as an independent agency of the District government, and receives funding from the federal Department of Housing and Urban Development, the District CFO has the authority to control the financial functions and personnel of the DCHA. The District CFO is responsible for supervising all public funds controlled by any department or agency of the District government, including independent ones.    

2008-1999

Date

Subject

Question(s)

Conclusion

4/22/2008

FY 2008 Supplemental Appropriations

May the Chief Financial Officer of the District of Columbia (DC CFO) lawfully release $191.345 million dollars under the Fiscal Year 2008 Supplemental Appropriations Temporary Act of 2008 (“2008 Temporary Act”)?

Yes. The 2008 Temporary Act authorized the release, obligation, and expenditure of the money in question so long as the Mayor had submitted a request to the Council for three specific reprogrammings to the District of Columbia Public Schools (DCPS), the Office of Public Education Facilities Modernization (“OPEFM”), and the Office of the State Superintendent of Education. At the time this opinion was issued, the Mayor had complied with this requirement by submitting the three reprogramming requests; therefore the DC CFO had sufficient authority to lawfully release the funds in question.

12/8/2006

National Capital Revitalization Corporation

1) Is the NCRC part of the government of the District of Columbia (the “District”)?

2) Is the NCRC subject to either the federal or District Anti-Deficiency Acts?

3) Is the NCRC statutorily authorized to borrow money from private commercial banks secured by claims on property it owns? Is it prohibited from exercising this authorization by either of the Anti-Deficiency Acts?

4) Assuming the NCRC may borrow money from private commercial banks, what authority does it have to establish special revolving funds?

1) Yes, the NCRC is part of the District government as an independent instrumentality created by Council statute.

2) The NCRC is subject to both the District and the federal Anti-Deficiency Acts.

3/4) The NCRC does not have the authority to incur debt on its own behalf and may only borrow money with a specific authorization from the Council.

5/23/2005

Constitutionality of Youth Protection from Video Games Act

Is the Youth Protection from Obscene Video Games Act of 2005 (Bill 16-215) a constitutional restriction on free speech?

No, it is unlikely that Bill 16-215 could survive a constitutional challenge on free speech grounds, as its use of the ESRB video game content rating system is an overly broad standard and not narrowly tailored to a compelling state interest. A narrower limit on the sale of obscene material could possibly survive, but not the current bill before the Council. It is likely not permissible to ban a specific medium of obscene material rather than depictions of the material itself.

8/13/2002

Abuse and Neglect Cases

May District government employees or officials, other than attorneys of the Office of the Corporation Counsel (OCC), make the final decision regarding the filing and dismissing of petitions in abuse and neglect cases under D.C. Official Code sections 16-2301 et seq.?

District employees and officials other than OCC attorneys may make the final filing or dismissal decision in abuse and neglect cases where the decision is based on grounds other than sufficiency of the evidence or for reasons arising from not purely legal issues. However, where the final filing or dismissal decision for an abuse and neglect petition is made based on a good faith belief regarding the sufficiency of the evidence, then the authority to make this decision resides solely with the Corporation Counsel.

8/31/1999

Collective Bargaining Agreement, DC Nurses Association

Did the Health and hospitals Public Benefit Corporation Act of 1996 transfer an arbitrator’s award under the Collective Bargaining Agreement from the D.C. General Hospital to the District of Columbia Health and Hospitals Public Benefit Corporation (PBC)?

Yes, the arbitration award transferred to the PBC because the statute creating the PBC required it to assume all the obligations of the General Hospital, including the terms of the Collective Bargaining Agreement and awards issued in connection with it.

8/13/1999

DC Board of Education, Removal of a Sitting President

Does the D.C. Board of Education have authority to remove a sitting president? If so, what procedures must it follow to effect the removal?

The Board of Education has no explicit authority to remove a president except “for cause” as provided for in Robert’s Rules of Order, which govern the Board’s proceedings. Per these rules, a sitting president may only be removed “for cause,” with reasonable advance notice of the charges and a formal trial on such charges.

6/21/1999

Department of Health Programs – License to Practice Medicine

Which employees of the District Department of Health (DOH) are required to hold a license to practice medicine under the terms of the Health Occupations Act?

 

Only those employees of the DOH actually engaged in the practice of medicine as part of their employment by the DOH are required to hold a license to practice medicine. The “practice of medicine” is defined by the Health Occupation Act as “treating physical and mental diseases, disorders, and conditions” of individual patients. Employees of the DOH, including executives, who are not actually practicing medicine, do not require such a license.

3/11/1999

1720 H St., Liquor License

Does the term “Establishment” as used in the Alcoholic Beverage and Control Act and Rules Reform Amendment Act of 1994 (“1994 Act”) refer to the location of a specific business, or to the business generally wherever it is located?

 

Although the wording of the 1994 Act is ambiguous, it is likely that “Establishment” refers only the actual location of the business at a particular time. This conclusion is supported by prior jurisprudence regarding the 1994 Act, the method in which establishments are defined in the ABC Act and Regulations, and the rule of statutory construction that a grandfather clause is to be narrowly, not broadly, construed. Therefore, the 1720 Club, which held a grandfathered liquor license, could not transfer this license to a new physical location

1998-1989

Date

Subject

Question(s)

Conclusion

12/7/1998

Inspector General/DC Housing Authority

Does the Inspector General have the authority to require the production of documents from the District of Columbia Housing Authority (DCHA) and to compel the testimony of DCHA employees?

Yes, the Inspector General has these powers by virtue of Section 208 of the District of Columbia Procurement Practices Act of 1985, and the DCHA is not exempt from the Inspector General’s oversight despite its status as an independent agency.

7/8/1998

Contracts and Leases

Does the D.C. Council have the power to review and approve proposed leases involving expenditures in excess of $1 million during a 12-month period?

Yes. Even though contracting is traditionally a mayoral function not subject to Council review, the District of Columbia Financial Responsibility and Management Assistance Act of 1995 (FRMAA) amended the District charter and gave the Council the authority to review large leases with expenditures exceeding $1 million during a 12-month period.

11/6/1997

National Capital Revitalization and Government Self Improvement Act/D.C. Courts

After the passage of the National Capital Revitalization and Government Self Improvement Act of 1997 (“The Revitalization Act”), are the D.C. Courts (including judges, officials, and employees) the judicial branch of the District of Columbia Government for the purpose of receiving legal representation by the Office of Corporation Counsel, and for the purpose of payments from the D.C. Settlement and Judgement Fund?

The answer to both of these questions is yes – the Revitalization Act did not change the status of the D.C. Courts as the judicial branch of the D.C. Government. The Office of Corporation Counsel may continue to provide legal defense services to judges, officials, and employees of the D.C. Courts who are sued in connection with carrying out their duties, and the judgements and settlements of such cases may still be paid out of the D.C. Settlement and Judgement Fund.

5/10/1996

Council Review, Independent Agency Contracts, $1 Million

Is Council review required for proposed contracts of independent agencies in excess of one million dollars during a 12-month period?

Yes, it was the intention of Congress in passing the District of Columbia Self-Government and Governmental Reorganization Act of 1973 that the Council review all proposed contracts, including those for executive independent agencies, which exceed one million dollars over a 12-month period.

3/15/1995

DC Licenses, Special Police Officers, Federal Property

May the District grant licenses as special police officers to the employees of a private company that guards Federal property?

 

Yes, the District may grant licenses as special police officers to agents of private companies contracted to guard federal property, so long as the private company chooses to apply for those licenses. The language “corporation or person” in the statute governing these licenses does not apply to the federal government but does extend to private security companies engaged by the government. This opinion overrode an opinion of the Office of the Corporation Counsel finding the opposite, which was published on July 2, 1948.

10/28/1994

Preconstruction Costs – D.C. Convention Center, Sports Arena

May the District use appropriations from the Washington Convention Center Fund, the Starplex Fund, and the Rainy Day Fund to pay for feasibility studies on constructing a new convention center and sports arena?

Yes, the FY 1995 Appropriations Act, the statutes which established these specific funds, and the principles of appropriations law all support paying for such studies, as they are a necessary expense of constructing such facilities.

5/6/1993

Special Police Officers – Multiple Residential, Commercial Properties

1) Does D.C. Code Section 4-114 allow armed or unarmed Special Police Officers to perform “roving patrols” of residential and commercial properties?

2) Does 17 DCMR Chapter 21 (“Security Officers and Security Agencies”) permit security officers to perform “roving patrols” of residential and commercial properties?

Yes, armed or unarmed Special Police Officers and security officers may carry out their responsibilities at multiple separate and separately owned properties, and may travel over public space to do so.

1/27/1993

DC Controller – Salary Overpayments, Judges

May the D.C. Controller recoup retirement salary overpayments made to retired judges of the Superior Court?

 

Where the salary for a retired judge has been calculated incorrectly, resulting in an overpayment, the District may bring an action to recoup the overpayment, but should consider whether such an action is appropriate before bringing one. No statute of limitations applies to recovery of overpayments, and the recipient of an overpayment may not plead equitable estoppel as a defense against such an action.

5/31/1990

Housing Regulations Violation Appeals

Does 14 DCMR Section 107.1 permit a person who has received a citation for violating housing regulations to appeal directly to the Board of Appeals and Review?

No, appeals of such citations are governed by the Department of Consumer and Regulatory Affairs Civil Infractions Act of 1985, which specifies the procedure for such appeals.

2/8/1989

DC Council, Mayoral Term Limits

Does the D.C. Council have the authority to implement Mayoral term limits through ordinary legislation?

 

No, the D.C. Council must amend the District’s Charter in order to implement term limits. Where a constitution (such as the District Charter) provides explicit conditions for holding an office, those conditions are to be considered exclusive. The District Charter, which does not feature term limits, is analogous to a state constitution and so must be amended accordingly

1988-1982

Date

Subject

Question(s)

Conclusion

9/9/1988

DC DCRA, Licensing Adams-Morgan Day

Must the Department of Consumer and Regulatory Affairs (DCRA) obtain the written approval of 90% of the resident housekeepers and occupants of business establishments in a neighborhood before issuing a license to a public event, such as a carnival?

The 90% consent requirement applies only to licenses for events to be held on private property. An event which is conducted only on public streets and sidewalks has no community consent requirement. However, if such an event requires the closing of public streets, then the DCRA must obtain the consent of 51% of all households and businesses abutting the street or streets to be closed.

5/4/1988

Solicitation of Funds Requirements

What are the requirements for the solicitation of funds in the District of Columbia?

In order to solicit funds in the District, one must register as a domestic or foreign nonprofit corporation with the Superintendent of Corporations of the District of Columbia, and complete an application to conduct charitable solicitations and verify 501(c)(3) status with the Department of Consumer and Regulatory Affairs.

12/25/1987

DC DCRA, Infractions and Fines

May the Department of Consumer and Regulatory Affairs (DCRA) issue notice and impose fines against District government agencies and their contractors under the authority of the Civil Infractions Act?

No, the DCRA does not have this power. One agency of government does not have the authority to compel another, absent some express statutory authority to do so.

9/16/1987

More Than One Advisory Neighborhood Commission “Affected”

Can more than one Advisory Neighborhood Commission (ANC) be “affected” by a District government action for the purposes of the notice requirement of D.C. Code Section 1-261(b) (1987)?

 

Yes, a District government action can affect more than one ANC. Any ANC which demonstrates that it is affected by an action has standing to submit written recommendations on the proposed agency action. An ANC is affected when a proposed agency action would have “substantial and predictable effect” on any person residing or doing business within the boundaries of the ANC in question.

4/2/1987

Advance Payments of Interests, Real Property Wet Settlement Act

Does the Real Property Wet Settlement Act of 1986 (D.C. Code Section 45-2801 et seq.) (effective February 24, 1987) (“The Act”) prevent the collection of “odd-days’” interest once loan funds have been disbursed?

No, the Act does not prohibit a lender from charging or receiving “odd-days’” interest once the lender has executed the loan documents with the borrower and delivered the loan funds to a settlement agent. “Odd-Days” interest is interest that accrues in between the closing of the borrowing agreement and the first full month of the loan term and is usually collected by the lender (in advance) at closing.

2/24/1986

How District Employees Must Handle Funds

When does a Mayor’s Order constitute rulemaking?

A Mayor’s Order generally constitutes rulemaking (and is thus subject to administrative procedure) when it directly applies to any segment of the public and bestows or deny rights, benefits, services, licenses, or sanctions. However, an Order which is wholly internal to the District government and acts only as a directive to the Mayor’s subordinates is not considered rulemaking.

5/25/1985

Real Property Exemption Status, World Bank

Is the World Bank entitled to a real property tax exemption under the International Organizations Immunities Act (22 U.S.C. Section 288 (1979)) (IOIA)? If so, when does the exemption commence?

The World Bank is entitled to a real property tax exemption because it was designated by executive order of the President as an international organization entitled to certain privileges and immunities under the IOIA. The exemption commenced on the date the World Bank acquired property that would otherwise be subject to the real property tax.

4/16/1985

DC Auditor, Public Service Commission

What authority does the District of Columbia Auditor have to review the activities of the Public Service Commission (“the Commission”)?

The Auditor has the authority to review the “accounts and operations” of the government of the District, including the Commission, and the authority to examine any records or papers of the Commission “necessary to facilitate the audit.” However, the Auditor does not have the authority to review or request disclosure of the actual deliberations by which the Commission comes to different legal conclusions and resolves specific issues.

12/20/1984

No Fault Law, On-Duty Police and Firefighters

Are on-duty firefighters and police officers injured while operating District of Columbia vehicles eligible for compensation under the Compulsory/No-Fault Motor Vehicle Insurance Act (No-Fault Law)?

No, firefighters and police officers injured while operating District of Columbia vehicles are not eligible for compensation under the No-Fault Law. Work-related injuries to District employees are covered by the District of Columbia Government Comprehensive Merit Personnel Act (CMPA), and the CMPA was intended to be the exclusive remedy for such injuries.

5/25/1984

DC Claim, Comptroller of the Currency

Do laws permitting the District to claim abandoned property in safety deposit boxes apply to abandoned property in the possession of the Comptroller of the Currency?

Yes. The District is a “state” for the purposes of laws that allow “states” to claim abandoned property held in the safety deposit boxes of defunct banks. The District may bring claims upon unclaimed or abandoned property under the rules of such statutes, even if the abandoned property is in the possession of the Comptroller of the Currency. No federal laws are pre-empted or violated by this so long as the claim is in accordance with the other provisions of the relevant statute.

12/23/1983

DC Auditor, DC Retirement Board

Does the District of Columbia Auditor have the authority to audit the District of Columbia Retirement Board under the terms of the District of Columbia Retirement Reform Act of 1979 (DCRRA)?

Yes, the District of Columbia Auditor has the authority under section 47-117 of the D.C. Code to conduct audits of accounts and operations of the Retirement Board, subject to the exclusive authority and discretion of that board to manage and control the retirement funds established by the 1979 Retirement Reform Act.

10/4/1983

Commission on Human Rights/Office of Human Rights – Private Sector Complaints

Does the Commission on Human Rights (“The Commission”) have the authority to review no-probable-cause determinations made by the Office of Human Rights (“The Office”), in cases involving private sector complaints of discrimination?

No, the Commission does not have the authority to review such determinations by the Office. Such authority was removed by the District’s 1973 Human Rights Law.

3/3/1983

Tickets – Non-Moving Violations

 

What authority do Department of Transportation (DDOT) enforcement personnel have to issue tickets?

 

DDOT personnel are empowered to issue tickets solely for parking (non-moving) violations as defined by the District of Columbia Traffic Adjudication Act of 1978. Parking infractions include all laws, rules, or regulations regulating the parking, stopping, or standing of a vehicle. DDOT may only issue tickets when a vehicle is on a public highway, stationary, and unoccupied.

2/3/1983

No-Fault Vehicle Insurance – Diplomats, DC, WMATA, US

 

Does the insurance requirement of the Compulsory/No-Fault Motor Vehicle Insurance Act of 1982 (D.C. Law 4-155, effective September 18, 1982) (“the Act”) apply to vehicles owned by diplomats, the District of Columbia, the Washington Metropolitan Area Transit Authority (WMATA), or by the United States?

Yes, the insurance requirement of the Act applies to all four classes of vehicles listed, and so the Department of Transportation may require a certificate of insurance as a prerequisite for the registration of any such vehicles. However, the Department of Transportation may not require more of WMATA or the United States than the statement that they are self-insured for the payment of claims under applicable laws.

10/7/1982

Attorneys’ Fees, Compensatory Damages – Office of Human Rights

Does the Office of Human Rights have the authority to award attorneys’ fees or compensatory damages in cases brought by D.C. employees against the D.C. government?

No. By statute, the Mayor is empowered to determine the remedies in suits by employees against the District, and in Mayor’s Order 75-230, the Mayor identified possible remedies as hiring, reinstatement, or promotion without back pay, and did not include fees or compensatory damages. Under the principle that “to express one is to exclude the others,” the OHR is not empowered to grant attorneys’ fees or compensatory damages in actions brought by employees against the District.

8/30/1982

Unemployment Fund – Interest on Advances from Federal Account

 

May the Mayor obligate the District to pay interest on advances made to it from the Federal unemployment account in the Unemployment Trust Fund?

 

Yes, the Mayor is permitted under the District of Columbia Unemployment Compensation Act to take advances from the Federal unemployment account in the Unemployment Trust Fund, and to repay these advances with interest, so long as the interest is not paid with amounts from the District Unemployment Fund