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Back to Part 1 of Report — Back to Table of Contents — Forward to Part III of Report

CHAPTER 2: THE STANDARD LEGISLATIVE PROCESS

I. INTRODUCTION

The Council's existing legislative process has numerous shortcomings, many of which relate to the inadequacy of information available to Council members and the public during the legislative process. Analyses critical to evaluating legislative proposals contained in documents such as fiscal impact statements and evaluations of a bill's legal, policy, and technical adequacy are not produced early enough in the legislative process (if at all) to allow Council members and the public to consider effectively, and improve upon, legislative proposals. Drafts of bills are sometimes not distributed to Council members until moments before they must vote, and are often never given to the public. Other Council practices (e.g., the lack of a germaneness requirement) severely curtail the public's opportunity to participate in the consideration of certain legislative provisions, and the Council's failure to record many legislative votes prevents the public from evaluating the voting record of each Council member. The net result of these processes is that the Council enacts bills before they are adequately reviewed and considered, leading to laws that are often difficult to interpret and, at times, impossible to enforce effectively.

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II. CURRENT PRACTICES: THE STANDARD LEGISLATIVE PROCESS

Under the Home Rule Act, there are two primary processes that the Council can use to enact legislation: "standard" and emergency. Many of the Council's internal operating practices — such as who drafts a bill and when it is reviewed for legal and technical sufficiency — are similar for both processes. However, because the opportunities for Council consideration and public participation are substantially lessened when the Council engages in the emergency — as opposed to the "standard" — legislative processes, emergency legislation is addressed separately, in Chapter 3 of this report.²⁴ The remainder of this chapter discusses the various stages of the standard legislative process — introduction, consideration by a Council committee, consideration by the full Council, and actions after Council enactment.

A. Introduction of a Bill

The Home Rule Act and the Council's Rules of Procedures establish the process by which the Council considers standard legislation.²⁵ The Council's Rules require that the Council place a notice in the D.C. Register at least 15 days before enacting a bill or resolution, or conducting a legislative or investigative hearing.²⁶ Thus, there is no requirement that a public hearing be conducted on every piece of legislation, but the public must be notified before the Council takes formal action on a legislative proposal

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B. Consideration, a Committee

Following introduction, a bill is referred by the Council Chair to the Council committee (or committees) that has (or have concurrent) responsibility for the subject matter of the legislation. Typically, a committee will review proposed legislation and receive public comment through the formal public hearing process, although a public hearing is not required. In addition, the committee chair will typically assess the position and/or concerns of the executive branch, other public entities, and Council members through informal means. A bill and committee report are then considered by the committee at a mark-up session, and, if approved, the bill and report, as amended, are forwarded to the full Council.

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C. Consideration by the Full Council

After a bill has been approved by a committee, the full Council will begin its consideration at a session of the Committee of the Whole ("COW").²⁷ This stage is intended to provide Council members the opportunity to ask committee chairs and sponsors questions about each bill, and to allow the Council to ascertain whether each bill is legally and technically sufficient, to review fiscal impact statements, and to determine whether legislative records are complete. If a bill clears COW review, it is automatically scheduled for consideration by the full Council at a legislative session.

Under the Home Rule Act, standard legislation must be "read [by the Council] twice in substantially the same form, with at least 13 days intervening between each reading."²⁸ At the "first reading," if a quorum is present, a majority of Council members present and voting can ( I ) approve the legislation with or without amendment, in which case the bill is scheduled for a second reading, (2) reject the legislation entirely, (3) "table" the legislation for possible consideration at a subsequent legislative session,²⁹ or (4) decide to send the legislation back to a Council committee for reconsideration or amendment. At the second reading, standard legislation may be enacted by the Council if a quorum is present and a simple majority of those who are present and voting approve the bill.³⁰

At legislative sessions, the agenda will list bills in two groups — consent and non-consent. The consent agenda includes those bills the Council Chair believes will be approved unanimously without debate.³¹ Council members cast a single vote for all items listed on the consent agenda. All other bills are considered individually on the non-consent portion of the agenda.

For every bill, resolution, or amendment to a bill that the Council approves, the Council must concurrently approve a fiscal impact statement ("FIS").³² The FIS can appear either in the text of the legislation itself, in a committee report, or in a separate document. The FIS (1) estimates the costs which will be incurred by the District government in each of the first four fiscal years that the act is in effect, and (2) includes the basis for that estimate. The required contents of an FIS have been greatly expanded in recent years, in conjunction with the Control Board's responsibility for reviewing legislation adopted by the Council.³³

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D. Actions After Council Enactment

After the Council passes a piece of standard legislation, the Home Rule Act requires that three steps be taken before the bill becomes law — approval by the Mayor, Control Board, and Congress. First, the Mayor must sign the Act, or take no action within 10 working days of receiving the Act from the Council.³⁴ Second, following the Mayor's signature but before Congressional review, the Control Board has a minimum of seven calendar days to review (and, if it wishes, to reject) legislation enacted by the Council in order to determine "whether [the bill] is consistent with the applicable financial plan and budget . . . and with the estimate of costs accompanying the Act."³⁵ If the Control Board fails to reject legislation during the review period, approval is assumed.³⁶ Third, Congress has an opportunity to reject the law during a period of 30 legislative days, but to do so Congress must pass a joint resolution, which must be signed by the President or passed by a two-thirds vote of both the House of Representatives and the Senate over a Presidential veto.³⁷ Because a legislative day is defined as a day that at least one house of Congress is in session and thus usually excludes Saturdays and Sundays,³⁸ the review period lasts a minimum of six weeks, and, if the review period extends over a Congressional recess, can last many months. The counting stops for Congressional vacations and other breaks which can last from a few days to over a month. Also, the 30-day period must begin and end during a single Congressional session. This means that, in a federal election year, unless Council legislation is submitted to Congress more than 30 workdays before Congress adjourns, the time period will begin to run anew during the next Congressional session, and any time accrued during the election year will be lost. The chart below depicts the Council's standard legislative process, and Appendix IV provides a more detailed description of this process.

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III. RECOMMENDATIONS

DC Appleseed offers below a series of recommendations, which we believe will accomplish the following:

• assure technical accuracy and legality of legislation enacted by the Council;
• increase the public's ability to participate in the legislative process, to understand the law, and to evaluate Council members' voting records; and
• increase the availability to the public and Council members of documents that describe and evaluate legislative proposals.

The recommendation to create a central staff structure responsible for legal and policy research and legislative drafting also will assist in achieving these objectives (refer to Chapter 1 for a discussion of staffing). Further recommendations related to the legislative process are presented in Chapter 4: Public Hearings.

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A. Assure Technical Accuracy and Legality Before a Bill is Considered

1. Require that All Legislation be Reviewed by the Office of General Counsel to Ensure that it is in the Proper Form Before the Public Hearing Notice is Published

To facilitate informed and reasoned debate regarding proposed legislation, it is imperative that bills introduced in the Council be well written. Members of the public interested in a particular piece of legislation, and legislators responsible for establishing policy, are less likely to understand a poorly drafted bill, making it more difficult — if not, at times, impossible — for them to participate effectively in deliberations.

Moreover, a poorly drafted bill merely postpones the work to later stages of the legislative process, a more time-consuming and less efficient way of doing business. Too often, other factors such as inattentiveness or lack of time may prevent such changes from ever being made. Thus, when a bill is poorly drafted to begin with, it is more likely that the enacted version will continue to suffer from the effects of poor draftsmanship. These problems will be minimized if the vast majority of legislative research and drafting is performed by the central staff of experts recommended in Chapter 1.

To alleviate these problems further, the Council should require that — prior to publishing the notice of its public hearing — proposed legislation be reviewed by the General Counsel's office to ensure that it complies with the Council's legislative drafting manual and, in fact, would do what is intended. Any problems with technical and legal sufficiency should be documented, forwarded to the sponsor and the committee chair, and made publicly available prior to a hearing.

This review is not intended to assess the wisdom of enacting legislation for any particular purpose.

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2. Require a Review of the Committee Print for Technical and Legal Sufficiency the Office of General Counsel Prior to the Committee Mark-up

At present, the General Counsel's office typically reviews legislation for technical and legal sufficiency after a committee completes its work but prior to Committee of the Whole ("COW") consideration.³⁹ DC Appleseed believes that this review process occurs too late in the legislative cycle to allow adequate time for the Council to give appropriate consideration to final legislative proposals. Council and committee members are entitled to be assured that a bill does not violate federal law or the Constitution before the committee takes its first formal action on the legislation at mark-up. Requiring that committee members vote before receiving that analysis is to deny them the information they need to ensure that they are not enacting laws that violate the legal rights afforded District residents.

Similarly, review of a bill's "technical sufficiency" should not be left until the last minute. Technical corrections to a bill may change a bill's substantive meaning. Thus, when such changes are circulated just prior to the vote of the entire Council, there is an increased risk that substantive changes will inadvertently be made through the technical corrections process and will escape Council members' attention.

Accelerating the General Counsel's review of a bill so that a determination of legal and technical sufficiency has been made prior to committee mark-up, and adopting any necessary technical amendments at that time, would significantly improve the process. It would enhance the committee's control over the version of the legislation presented to the full Council and allow each Council member to review (1) legal adequacy to ensure that the proposed legislation is permissible, and (2) technical amendments to ensure that they are truly `'technical" in nature. The General Counsel could still make the certifications to the full Council at the COW session, but the bill presented to Council members at that time would already have been corrected to ensure legal and technical sufficiency. In addition, this earlier review would reduce confusion on the dais, thereby enhancing the perception that the Council is a deliberative, professional body.

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B. Increase the Public's Ability to Participate in the Legislative Process, to Understand the Law. and to Evaluate Council Members' Voting Records

1. Adopt a Germaneness Rule for Amendments Offered at Committee Mark-up and Legislative Sessions

At present, Council members may offer amendments to a bill during a committee markup session or at a Council legislative session whether or not the amendment is germane to the legislation introduced. Thus, amendments on issues that have not been subject to public hearing or debate or to prior consideration by Council members may be presented for a vote without warning. Indeed, amendments in the nature of a substitute can alter any aspect of a legislative proposal, including its basic subject matter. DC Appleseed recommends adopting a germaneness rule for amendments at committee mark-up and legislative sessions to ensure that the public and Council members receive an opportunity — through the hearing process — to consider carefully all proposed legislative provisions.

Because germaneness requirements may result in a loss of some flexibility to the Council, DC Appleseed further recommends that a rule be established allowing the Council to override the germaneness requirement by affirmative vote of two-thirds of a quorum of the body (whether a committee or the full Council) present and voting. If the Council is not able to waive the germaneness rule but nonetheless feels strongly that a provision contained in the non-germane amendment is necessary, a new bill can be introduced and the Council can proceed through the legislative process anew.

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2. Require a Recorded Vote on all Non-consent Legislation

At a legislative session, bills and amendments to bills on the non-consent agenda are voted by voice vote unless a member demands a roll call vote.⁴⁰ Any member may request a roll call vote either before or immediately after the voice vote. On a voice vote, any member may ask that his or her individual vote be recorded.

If a roll call vote is taken, each Council member's vote is recorded in the legislative record. Conversely, the vote of each individual Council member is not recorded when a voice vote is taken; the record merely states that a voice vote was taken and that a bill was approved or disapproved. Thus, unless a voice vote is unanimous or a Council member requests that his or her vote be recorded, the public does not know who voted for and against a particular piece of legislation when a voice vote is taken.

DC Appleseed recommends that the system be changed so that votes are individually recorded for all non-consent agenda legislation. Simply put, the public has a right to know its legislators' voting records when assessing their performance at election time. Providing such information does not require that a roll call vote be taken on every bill; electronic voting, for example, would allow votes to be cast silently. Nonetheless, a record of all legislative votes must exist to ensure accountability.

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3. Reform "Breakfast Meetings"

In recent years, the Council has held — immediately prior to virtually every legislative session — private "breakfast meetings," during which Council members discuss the matters on the agenda at that day's legislative session. These meetings — which are not a part of the Council's formal legislative process exclude all persons except the Council members and their staffs. These meetings were raised as an issue of concern by some of those interviewed for this report by the DC Appleseed Project Team. Several interviewees pointed out that other legislative bodies operate under the requirements of open meetings laws and seem to function effectively without closed-door meetings, thus avoiding the appearance that deals are made and votes exchanged, away from public scrutiny.

Others disagreed, suggesting that such meetings serve a valuable purpose, providing a setting in which Council members can candidly air their concerns. With a clearer understanding of the issues under consideration, Council members will be better able to participate constructively in public meetings. Accordingly, in legislative bodies such as the Council, many believe that such discussions are an appropriate, if not a necessary, component to political decision-making.

DC Appleseed believes that both viewpoints have merit. Since the public does not attend, we do not know how breakfast meetings are conducted or whether the meetings are used by the Council to decide matters on its public agenda prior to its legislative session. Some former Council staff members interviewed by the DC Appleseed Project Team have attended breakfast meetings and told us that they are far from being "dress rehearsals" for the legislative sessions but instead are merely ad hoc discussions among small groups of Council members. They point to the number of times that Council members appear to change their minds during open meetings as indications that little (if anything) is actually decided in breakfast meetings.

If the Council is not, in fact, meeting in private to decide —  as a body — matters on which it will hold public meetings, breakfast sessions are not a problem. However, while informal sharing of ideas should be encouraged, decisions ought to be made by the Council in a public forum. Votes should not be taken in private session. Moreover, some members of the public believe that decisions are being made, regardless of what the Council actually does in these private sessions. Particularly because the breakfast meetings occur immediately prior to (and often cause e delay in the start of) legislative sessions, they are seen by many as a substitute for open legislative deliberations. Thus, the meetings create the impression that the Council wishes to evade public scrutiny of its debates and decision-making.

Ultimately, DC Appleseed does not oppose the general idea of informal meetings among Council members. We nonetheless believe that certain changes should be made (1) to reduce the likelihood (and the perception) that public issues will be decided privately, and (2) to prevent breakfast meetings from delaying legislative sessions.

The Council should prepare minutes to increase public understanding of what takes place at breakfast meetings and to assure the public that votes are not being taken in these private sessions. The minutes should describe, in general terms, any matter on the public agenda that was discussed by a quorum of a committee or the Council, but need not reflect casual conversations between Council members.⁴¹ The minutes should not attribute particular comments to individuals, for doing so might deter frank and open exchanges. However, the minutes should include a list of attendees and the matters discussed.

There is a simple solution to the problem of breakfast meetings delaying the commencement of legislative sessions: change the schedule. The breakfast meetings should be held far enough in advance of legislative sessions (perhaps the night before) to ensure that legislative sessions begin on time. This change alone would increase the perception that the Council respects the public's time, and would decrease the public's sense that the Council is conducting public business in private.

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4. Codify All Titles of the D.C. Code So that the Council Need Not Continue to Amend Organic Acts

A serious impediment to making Council legislation accessible to citizens and lawmakers alike is the fact that the D.C. Code which is the source of District law relied upon by most citizens, lawyers, and the courts — rarely contains the text of the actual law. With few exceptions, the original act that created a law and the enacted amendments to the original law are the only source of the actual law. As a result, researching D.C. law is quite difficult, as is amending the law, since the Council must refer to the original act and trace each amendment to the original act.⁴²

If all titles of the D.C. Code were codified, legislation would be much easier to draft and understand. In addition, drafting errors could be expected to occur less frequently and be easier to spot arid correct. For example, assume the Council wants to amend "An Act to establish a code of law for the District of Columbia, approved March 3, 1901 (31 Stat. 1426; D.C. Code §1-901 et seq. )." Council staff must track all amendments and additions to this Act to be sure that all subsections of the law amended between its creation in 1901 and the date of the new amendment are changed in a way that carries out the Council's intent. That process is inherently fraught with the possibility for error and cannot be the most productive use of the Council staff s time. It would be eminently simpler and clearer for the Council to amend D.C. Code §1-901. Because simplifying the legislative process by codifying the Code would provide such a great benefit to the Council and the public, the Council should take appropriate steps to begin the codification process.⁴³

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C. Increase the Availability of Documents to the Public and Council Members that Describe and Evaluate Legislative Proposals

A Council member introducing legislation is required to provide only a signed original of the legislation to the Secretary; Council Rules do not require bills or resolutions introduced in the Council to include any information explaining their purposes or impacts.⁴⁴ The information provided to Council members and to the public at the time legislation is introduced is clearly inadequate. Rarely if ever is a bill accompanied by a detailed policy justification or fiscal analysis, and it is often difficult to discern what the legislation is intended to do or how it changes current law. Legislative reports that describe the policy justifications for, and fiscal impact of, legislation are never provided until a bill is presented to the committee for consideration. This is simply too late in the legislative process to circulate information that is critical to well-informed public comment and Council deliberation.

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1. Require that, for All Legislation, a Fiscal Impact Statement Be Prepared and Made Available Prior to the Notice of the Public Hearing

The Home Rule Act requires that a fiscal impact statement ("FIS") be adopted for all legislation passed by the Council.⁴⁵ Despite comprehensive requirements for what must be included, FISs are often not useful.⁴⁶ The quality of FISs varies among committees, as do FISs prepared for different bills reported out of the same committee. Those interviewed by DC Appleseed's Project Team suggested that many of the staff members who draft FISs have little or no expertise in developing the information required. As a result, the vast majority of FISs are based primarily on information, provided by the executive branch, which is incorporated into a committee report's FIS without substantive review by the Council. Even when a Council committee member questions or challenges the information provided by the executive, the Council has little or no in-house expertise to evaluate information or to develop alternative analyses.⁴⁷

Further, many FISs are prepared too late in the process to assist Council members and the public in the decision-making process. Some legislation goes through the standard process and is presented to the full Council at the COW session without an FIS, in which cases the FIS is offered at the first reading by the Council. In some cases, the FIS first appears before the Council as an amendment offered at a bill's final reading. This means that, before many Council members know what effect the legislation will have on the District's operating and capital budgets, the bill has been voted out of committee, cleared the COW, and may even have been approved by the full Council at one legislative session.

Such a practice undermines the credibility of the Council and severely hampers informed debate on legislation and consideration of alternatives by both Council members and the public. By presenting and adopting an FIS at the last possible opportunity — after preliminary votes have been cast — the Council sends a clear signal to all observers that it has not carefully reviewed the full fiscal impact of legislation. In addition to sending the wrong signal to the taxpaying public, the Council gives both Congress and the Control Board the perception that the Council is not carefully considering important fiscal aspects of its policy role. The Council should not ignore the real possibility that such a perception increases the likelihood that the Council's powers will be usurped by non-democratically elected bodies.

By the time public hearing notice is provided, the public and Council members should have ready access to an analysis of the bill's effects, through an FIS. Simply put, it is not possible to have a meaningful discussion on the merits of any bill that requires expenditures by the government without considering its fiscal impact.⁴⁸

We recommend that each FIS be prepared by central staff, with assistance from the executive branch agencies affected by the applicable bill, as well as input from the staff of the bill's sponsors. Under DC Appleseed's staffing recommendations (see Chapter 1), the central staff will be configured to provide the Council with fiscal expertise needed to produce the estimates.⁴⁹

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2. Require that Draft Committee Reports and Draft Committee Prints be Circulated to Committee Members and Available to the Public at Least Two Working Days before the Committee Mark-up

In order for committee members to make informed decisions on proposed legislation, it is imperative that they have reasonable time in which to review legislation before they vote. While draft committee prints and draft committee reports to be considered at mark-up sessions are, by rule, to be circulated to the committee members prior to the session, this requirement is sometimes met by circulating the documents literally minutes before the meeting begins. Often, sufficient copies are not available for the public, and sometimes no copies are available publicly Committee meetings are open to the public, but without copies of the legislation being debated especially because legislation considered by a committee often contains substantial changes from the introduced version — the public often cannot understand what is taking place.

We recommend that the Council require that both the draft committee print and draft committee report be circulated to committee members and made publicly available at least two working days before the committee mark-up. These changes would provide the opportunity for committee members to consider in a less frenetic way the matters they will be deciding and would allow the public to understand more completely issues and legislation.

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3. Improve Legislative Reports

Legislative reports that accompany committee prints referred to the full Council for consideration are of uneven quality and contain inadequate information. As a result, Council and executive-branch staff, members of the public, and judiciary personnel who are interested in researching legislative histories are sometimes unable to decipher the reasons a bill was enacted. Given the technical inadequacy of some legislation, the need for sound legislative histories is even greater.

The Council can improve its legislative reports by assigning central staff to to assemble such reports according to a standard format. While we understand that standards for legislative reports now exists, the comments of people interviewed by the DC Appleseed Project Team suggest that committee staff (who are the staff that generally prepare reports) sometimes ignore those standards. Moreover, the Council should enact rules which ensure that such reports are easily accessible to the public at a central location within a calendar week following the committee mark-up.

Finally, each legislative report should be required to include an analysis of the impact legislation is expected to have on non-governmental entities. Just as an FIS requires that the Council analyze the impact of legislation on the government, so too should the Council investigate the probable effects of legislation on the private sector — including citizens, neighborhoods, businesses, and other private entities. Because this analysis will be less exact, the level of detail should not be expected to rise to the level contained in an FIS, and need not be performed as early in the legislative process. Nonetheless, requiring that the Council analyze, prior to enacting legislation, the impacts laws will have on non-governmental entities will impose a needed discipline on the Council to pay attention to a wider range of effects resulting from its enactments.

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CHAPTER 3: THE EMERGENCY LEGISLATIVE PROCESS

I. INTRODUCTION

The Home Rule Act allows legislation to be considered on an expedited basis under "emergency circumstances," which are defined as those for which serious consequences would result from the delays associated with the standard legislative process.⁵⁰ As documented in this chapter, the D.C. Council has employed its emergency powers far more frequently than anticipated in the Home Rule Act, enacting as much as 50% of all legislation in recent years under emergency procedures. There are numerous causes for this heavy reliance on the emergency legislative process, not all created by the Council. Regardless of the causes, however, the effect is the same. Each time the emergency legislative process is employed, the public is excluded from participating in the Council's deliberations. As a result — on numerous legislative issues — the public's views are not heard, and the Council may be unaware of important perspectives and facts that could inform the Council's conclusions.

Congress, the Mayor, and the Council have the power to prevent the over-use of the emergency legislative process. While all three should act, the Council — as the District's local legislative body — has a distinct obligation to provide the public the opportunity to participate in legislative deliberations, regardless of whether Congress or the Mayor takes remedial action. As detailed below, the most important step that the Council can take to minimize use of the emergency legislative process is to plan its legislative work program more carefully.

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II. CURRENT PRACTICES: THE COUNCIL'S EMERGENCY PROCESS

A. Legislation Enacted Outside of the Standard Legislative Process

The Council enacts two types of laws that are directly related to its expedited legislative process: emergency legislation and temporary legislation. Both are described below. However, because temporary legislation arises only as a result of the emergency legislative process and does not raise independent concerns, the recommendations in this chapter address only the emergency process.

1. Emergency Legislation

The Council is statutorily empowered to pass legislation on an expedited basis if two thirds of the entire Council (9 members) votes for a declaration that "emergency circumstances" so require.⁵¹ Pursuant to the implementing rules, the Council may find that an emergency exists in any

situation that adversely affects the health safety, welfare, or economic well-being of a person for which legislative relief is deemed appropriate and necessary by the Council, and for which adherence to the ordinary legislative process would result in delay that would adversely affect the person whom the legislation is intended to protect.⁵²

Emergency legislation is effective for up to 90 days.⁵³

The expedited legislative process used in the case of an "emergency" severely limits the opportunity for the public to receive notice regarding — and to comment upon — proposed legislation. Unlike the 15 days' notice required in the standard legislative process, the expedited process merely requires that, prior to enacting an emergency bill or resolution, the Council provide 24 hours' notice "in any . . . manner directed by the Council."⁵⁴ Moreover, because emergency legislation may be enacted after a single reading, the mandatory 1 3-day period between first and second readings of standard legislation is eliminated.

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2. Temporary Legislation

An additional method used by the Council to enact legislation — the temporary legislative process — is a procedural mechanism used by the Council to extend to up to 225 days the effective period of measures contained in emergency legislation.⁵⁵ Temporary legislation is introduced at the same time as emergency legislation, and must be substantially similar to an emergency bill.⁵⁶ Temporary legislation, like emergency legislation but unlike standard legislation, is rarely, if ever, the subject of a public hearing, and is not assigned to committee.⁵⁷ However, temporary legislation is similar to standard legislation in that it must comply with the Home Rule Act requirements that it (1) be passed on two readings, separated by 13 days, by a majority of Council members present and voting and (2) pass both Control Board and Congressional review.⁵⁸

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B. The Council's Reliance on the Emergency Process

1. Almost Half of all Legislation is Enacted on an Emergency Basis

From 1985 to 1996, the Council used the emergency legislative process at an increasing rate. According to published statistics, 24% of bills were enacted on an emergency basis in Council Period VI (1985-86), 32% in Council Period VII (1987-88), 38% in Council Period VIII (1989-90), 50% in Council Period IX (1991-92), and 45% in Council Period X (1993-94).5' Because the District has not reported this information since 1994, DC Appleseed's Project Team independently calculated the percentage of legislation enacted on an emergency basis in 1996, and found that this high rate has continued. Of the 260 acts (emergency, temporary, and standard) passed by the Council and signed by the Mayor in 1996, 121 (or 47%) were emergency acts.

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2. The Overuse of Emergency Legislation Diminishes Public Participation

It is unlikely that the Home Rule Act's specific definition of emergency was intended to foster the use of an expedited process for nearly half of all enacted legislation. Each time that the emergency legislative process is utilized, public participation is lessened because (1) the Council can enact emergency bills after providing the public 24 hours' notice in any manner that the Council deems appropriate, as opposed to the 15-day notice required for standard legislation;⁶⁰ (2) only one reading is required (as opposed to two readings 13 days apart), thereby collapsing into a single day the time period in which the public may participate; and (3) the Council rarely, if ever, assigns emergency legislation to a committee or considers it at a public hearing, whereas both practices almost always occur in the standard legislative process.

District law recognizes that such limitations are warranted when an emergency exists. However, when emergency circumstances are not present, such limitations should be avoided. Formal procedures for public participation enable the Council to consider the views of constituents, experts, and advocates who might not otherwise have the time or access to make their views known to the Council. Each of the formal procedures diminished or eliminated in the emergency legislative process — public notice, public hearings, and the second reading — was created by Congress to increase public participation.⁶¹

Defenders of the Council's heavy reliance on emergency legislation argue that public participation is not, in fact, substantially diminished when the Council uses the expedited process. Because emergency bills are effective for no more than 90 days, the Council typically considers standard legislation on the same matter, at which time the Council generally allows public participation through open hearings. This argument fails to account for several real-world effects of emergency legislation.

Several nonprofit service providers interviewed by the DC Appleseed Project Team noted that even though emergency legislation affecting their clients is effective for a limited period of time — emergency measures may still have significant (and occasionally irreversible) consequences for people affected by the legislation. Even if such legislation is not extended through the enactment of standard legislation, its impact during its 90-day effective period should not be ignored. Moreover, anecdotal evidence indicates that legislation is less likely to be disapproved or substantially amended by the Council if it has been preceded by enactment of emergency legislation. Several people interviewed by the DC Appleseed Project Team noted that the enactment of emergency legislation creates a sense of expectation and inertia, which often makes it difficult to make changes in any proposed standard legislation that follows.

In addition, them is evidence that the Council considers public comment during the standard legislative process to be less important when that process has been preceded by enactment of emergency legislation addressing the same issue. For example, in 1996, when considering standard legislation to reform Medicare insurance (Bill 11-627) that mirrored already enacted emergency legislation (discussed in greater detail in Case Study Three below), the Council chose not to hold a public hearing. The legislative report of the Committee of Consumer and Regulatory Affairs provides the reason: the committee "found no reasons to hold a public hearing on Bill 11-627 since it . . . puts in permanent place the changes already enacted in emergency and temporary legislation."⁶²

Another reason the Council should decrease its use of emergency legislation is because the law says it must. As noted above, Congress included several procedures in the Home Rule Act (such as the second reading requirement) for the express purpose of facilitating public participation in the District's legislative process. While recognizing that the Home Rule Act contemplates the enactment of emergency legislation in some circumstances, several court decisions interpreting the Act expressly limit the use of emergency process, holding that the process should not be used to defeat the clear intent of Congress. For example, in District of Columbia v. Washington Home Ownership Council ("Washington Home"), the D.C. Court of Appeals struck down the use of successive emergency acts to respond to an ongoing emergency, reflecting "the common-sense notion that an 'emergency' prerogative and procedure is extraordinary and should not be substituted freely for the regular procedure."⁶³

The DC Appleseed Project Team's research reveals that, despite the Washington Home decision, the Council frequently used successive emergency measures in 1996 to respond to the same "emergency" situation. Specifically, of the 121 emergency acts passed by the Council and signed by the Mayor in 1996, 30 (or approximately 25%) were second or successive emergencies. A good example of this is described in Case Study Two below.

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III. REASONS THE COUNCIL USES EMERGENCY LEGISLATION

There are times when genuine emergency conditions require that the Council use its expedited legislative authority to prevent harm that would result if the Council pursued the standard legislative process. Case Study One provides an example.

However, true emergencies do not explain many of the instances in which the Council enacts emergency legislation. Each of the 11 other cities surveyed by the DC Appleseed Project Team has expedited legislative procedures available, and the majority of those cities do not require public notice or hearings in such circumstances. Yet, as indicated in the Chart below, seven of the nine city councils that provided information regarding the extent to which they used the expedited process reported that they enact 10% or less of all legislation under such procedures. Only the Columbus (Ohio) City Council reported using emergency legislative procedures more than the D.C. Council does.

Apart from circumstances under which legitimate emergencies clearly exist, the DC Appleseed Project Team's research indicates that three factors lead the D.C. Council to over-use the emergency process: the lengthy Congressional review period, poor planning by the Council, and poor planning by the Mayor.⁶⁵ While the DC Appleseed Project Team was unable to quantify the amount of emergency legislation caused by each factor, our research suggests that each plays a role in the Council's use of the emergency legislative process.

It follows from DC Appleseed's analysis that Congress, the Council, and the Mayor can (and should) act to reduce the number of times District residents are excluded from the legislative process. And, while Congress and the Mayor should not ignore their respective responsibilities in this regard, the D.C. Council has an independent obligation to correct those aspects of the problem under its control.

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A. The Congressional Review Period

In their meetings with the DC Appleseed Project Team, several D.C. Council members cited the 30-day Congressional review period as the main reason for the Council's use of the emergency legislative process. According to these Council members, the lengthy time during which Congress (and the Control Board) may review enacted legislation so delays the Council's ability to respond to important issues, that the Council frequently must use the emergency legislative process to respond in a timely fashion.

DC Appleseed recognizes that such exigencies can occur. The existence of a lengthy Congressional review period may, by itself, justify the use of expedited legislative procedures in some cases. One such case is described in Case Study Two-Part One below. Without the enactment of emergency legislation, the Council would not have been able to approve any contract over $1 million, and the D.C. government would have had difficulty operating.

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B. Inadequate Planning by the Council

Many of those interviewed by the DC Appleseed Project Team cite poor planning as a major reason for the Council's use of the emergency legislative process. In certain cases, the Council has failed to meet either its own deadlines or those imposed by Congress to enact standard legislation. Case Study Two-Part Two below reveals that missed deadlines often lead the Council to use sometimes repeatedly — the emergency legislative process. Better planning could (and should) have avoided these occurrences.

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C. Inadequate Planning By the Executive Branch

Several of those interviewed by DC Appleseed's Project Team cited the Mayor's failure to account for the Congressional review period when proposing legislation as a reason for the Council's use of the emergency legislative process. Case Study Three illustrates a case in which executive branch inaction compelled the Council to use the emergency legislative process.

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IV. RECOMMENDATIONS

While DC Appleseed recognizes that situations beyond the Council's control sometimes force the emergency legislative process to be employed, we also believe that the Council itself can (and should) decrease the use of emergency legislation. Indeed, the unique Congressional review process for District legislation requires that the D.C. Council plan better than other legislative bodies. But unless Congress eliminates its review, the Council must account for the review period in the standard legislative process. The alternative — continuing to exclude the public from participating in nearly half of all legislative deliberations — is unacceptable.

The Council should be more rigorous in defining the presence of emergency circumstances. Merely citing the presence of the Congressional review period does not automatically warrant the use of emergency legislation. Instead, the Council should consider the likely length of the Congressional review period in its overall legislative planning process. Important legislative initiatives that can be foreseen should be scheduled to allow for Congressional review and public participation through the standard legislative process. The staffing recommendations in Chapter I address this point directly by recommending a centralized policy staff that would include personnel to support the planning of the Council's legislative work program.

If, despite this planning, exigencies still suggest the possibility of using the emergency process, the Council must — as elected representatives of the public — weigh the hardship that will be caused by delays inherent in the standard legislative process against the hardship that will be caused by excluding the public through use of the emergency process. The Council should use the emergency legislative process only if the immediate need to enact legislation substantially outweighs the benefits of public participation and extended legislative deliberations. And, even then, the Council should attempt to utilize as many mechanisms that provide for public participation — including holding a public hearing — as time will allow.⁷⁸

In addition, the Council should improve communications with the District's executive branch in order to reduce the number of times the executive refers legislation to the Council too late to allow the Council to use the standard legislative process. For example, the Council should re- establish a close relationship with the Mayor's Office of Intergovernmental Relations to ensure that the executive's planned legislative initiatives are communicated to the Council as early as possible.

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24. A third process for enacting legislation — the `'temporary'' legislative process — is merely a procedural mechanism made necessary by the existence of emergency legislation. Because the temporary process does not raise independent concerns, it is not evaluated in this report, although it is described in Chapter 3.

25. District of Columbia Self-Government and Governmental Reorganization Act, Pub. L. 93-198 (1973) (hereinafter 'Home Rule Act"); D.C. Council Resolution 13-l, ``Rules Resolution for the Council of the District of Columbia, Council Period Xlll Resolution of 1999, 46 D.C. Reg. 306 (1999).

26. Council Rule 422.

27. Although the COW also conducts public hearings and mark-up sessions relating to its substantive responsibilities (e.g. planning and zoning, grants management), the "COW Session" serves a separate function for all legislative proposals.

28. Home Rule Act, Pub. L. 93-198 §412 (a) (hereinafter "Home Rule Act"). See also D.C. CODE §1229, D.C. CODE §-146(a) (Supp. 1979).

29. The Council can table legislation either (1) for consideration at a specific legislative session, in which case the legislation is automatically placed on that session's agenda, or (2) without setting a specific date for subsequent consideration, in which case the legislation will be considered at a subsequent session only if a Council member moves to add it to that session agenda.

30. At the second reading, the Council can approve, reject, or table legislation, or return legislation to a committee.

31. Council Rule 411.

32. Home Rule Act, Pub. L. 93-198 §602(c)(3), amended by District of Columbia Financial Responsibility and Management Assistance Act §301(d) (1995).

33. The specific requirements for an FIS are discussed in Appendix IV and are contained in Home Rule Act, Pub. L. 93-198, §602(c)(3), amended by District of Columbia Financial Responsibility and Management Assistance Act, §301(d) (1995). See also Council Rule 443(c).

34. Home Rule Act, Pub. L. 93- 198 §404(e) (1973). If the Mayor vetoes the Act, two thirds of Council members present and voting (if a quorum is present) may override the veto. Id.

35. District of Columbia Financial Responsibility and Management Assistance Act, 109 Stat. 100; §203(a)(2) (1995). The Control Board may request an additional seven days for review, for a total of 14 calendar days. D.C. CODE §392.3(a)(5).

36. Id

37. D.C. CODE, §I-144(e) - 147(c)(I) (Supp. 1979). The Congressional review period is 60 days for criminal laws. Id.

38. See D.C. CODE, §1-147(c)(1) (Supp. 1979).

39. The general practice is for the General Counsel to prepare and circulate to all Council members a list of " technical amendments" needed to make the bill technically and legally sufficient. Frequently, technical amendments are not circulated to Council members until the first reading of the bill during a legislative session.

40. Votes need not be recorded for legislation enacted from the consent agenda because such legislation, by definition, can only be enacted by unanimous vote.

41. Of course, Council discussions regarding non-public items such as internal personnel decisions, procurement, litigation, or collective bargaining, etc. would not have to be reflected in the minutes.

42. Of the 49 titles in the Code, only 14 have been enacted as law: Titles II-17 Judiciary and Judicial Procedure; Titles 18-21 Decedents' Estates and Fiduciary Relations; Title 23 Criminal Procedure; Title 28 Commercial Instruments and Transactions; and Title 47 Taxation.

43. DC Appleseed has not researched precisely what would be needed to codify the Code. While it may be possible to pass one bill adopting the entire D.C. Code as currently constituted, questions remain regarding the effect such enactment would have on the effectiveness of provisions in original acts that are not contained in the D.C. Code. If the process proves to be time-consuming, the Council should investigate the possibility of obtaining outside pro bono assistance from District law firms to complete this task.

44. See Council Rule 402(a).

45. Home Rule Act, Pub. L. 93-198 §602(c)(3), amended by District of Columbia Financial Responsibility and Management Assistance Act §301(d) (1995). See also Council Rule 443(c).

46. See Appendix IV for a list of requirements.

47. In some instances, the Council's budget staff can be of general assistance, but staff often lack detailed information about what it will cost to implement a program, which is necessary to provide support to committees preparing FISs.

48. we recognize that a bill may change substantially after the public hearing is held. As a result, the FIS may have to be changed as the bill is amended. The possible need for such amendments does not, however, reduce the need for the public to have access to initial fiscal statements at the time of the hearing. In fact the FIS may lead to amendments in the legislation.

49. DC Appleseed further recommends that Council members be encouraged to examine — and make available to the public at the time public notice is provided — what other jurisdictions have done to address the matters covered by a proposed bill. The District is fortunate to have readily available the resources of many national organizations to provide information regarding what other cities or states are doing (National League of cities, United states Conference of Mayors, National Conference of State Legislatures, National Association of Counties, and the International city/county Management Association are examples).

50. Home Rule Act, Pub. L. 93-198 §412(a) (1973). See also Council Rule 412.

51. Home Rule Act, Pub. L. 93-198, sec. 412(a) (1973). The two-thirds majority is required only to pass a resolution declaring an emergency; the Council can pass an emergency bill by a simple majority.

52. Council Rule 41 2(b)

53. Council Rule 412(c). D.C. CODE §1-146(a) (Supp. 1979).

54. See Council Rules 425, 426.

55. See Council Rule 413; United States v Alston, 58 A.2d 587, 590 (D.C. 1990). The temporary legislative process grew out of the D.C. Court of Appeals ruling in District of Columbia v Washington Home Ownership Council, in which the court stated that, when an emergency continues after the 90-day period of emergency legislation has expired, the Council can address the issue only through standard legislation rather than by using successive emergency bills. 415 A.2d 1349, 1359 (D.C. 1980). The Court left open the possibility that consecutive emergency bills would be permissible if the Congressional review period for standard legislation was extended due to Congressional recess. Id at 1359 n.20. Recognizing that emergency legislation may expire before standard legislation becomes law — including Congressional review — the Council created the temporary legislative process. Because temporary legislation may remain in effect for up to 225 days (substantially longer than emergency legislation), it acts as a bridge between the expiration of emergency legislation and the enactment of pending standard legislation.

56. Council Rule 413.

57. Council Rule 413.

58. See Home Rule Act, Pub. L. 93-198 §412(a) (1973); D.C. CODE §4.7-392.3(a). The first reading of temporary legislation must occur at the same legislative session as enactment of an emergency bill on the same subject.

59. "Indices: A Statistical Index to D.C. Services" (annual), as cited in Letter from Fair Budget Coalition to David Clarke, (April 13, 1995) (discussing Council's excessive use of emergency powers). The data for Council Period X are calculated only through August 1, 1994.

60. See discussion of notice in Chapter 4, PP. 46-47 below.

61. STAFF OF THE HOUSE COMM. ON THE DISTRICT OF COLUMBIA, 93D CONG., 2D SESS., HOME RULE FOR THE DISTRICT OF COLUMBIA 1 042 (Cornrn. Print 1974).

62. Committee Report at 2 and 4, n.l. Although the Committee Report and the Mayor's letter refer to temporary legislation, only emergency and standard legislation were enacted, according to both the Council's Office Legislative Services and a review of the D.C. Register 1996 index.

63. District of Columbia v. Washington Home Ownership Council, 415 A.2d at 1354, 1359. See also United States v Alston, 580 A.2d 587, 590 (D.C. 1990), American Federation of Government Employees v Barry, 459 A.2d 1045 (D.C. 1983). In addition to enacting laws using its emergency authority, the Council may repeal laws on an emergency basis, but upon expiration of emergency legislation, it is not clear that, without more, an emergency repeal can permanently deprive a law of legal effect. Atkinson v Board of Elections and Ethics, 597 A.2d 863 (D.C. 1991).

64. Fiscal Year 1997 Reemployment and Contracting Restriction Rescission Act, D.C. Act 11-448, 43 D.C. Reg. 6864 (1996).

65. While other reasons for the over-use of emergency legislation were mentioned in the DC Appleseed Project Team's interviews — such as a conscious attempt by some Council members to exclude the public — the broad consensus was that the three factors detailed in this report are the main reasons for this problem.

66. District of Columbia Financial Responsibility and Management Assistant Act, 109 Stat. 151 (1995); D.C. CODE §1-1130.

67. Council Contract Approval Emergency Amendment Act, D.C. Act 11-125 (1995), 42 D.C. Reg. 4319 (1995).

68. See, e.g., D.C. Council Resolution 11-379, §2(d), "Council Contract Approval Modification Temporary Amendment Act of 1995 Emergency Declaration Resolution of 1996," 43 D.C. Reg. 3071 (1996); D.C. Act 11-294, 43 D.C. Reg. 3718 1996).

69. Establishment of Criteria for Council Review of Contracts Act, Perm. Bill 12- 144 (1997), 44 D.C. Reg. 1542 (1997).

70. See Committee Report on Standard Bill 12-144. Council Rule 231(c) provides that "each bill and resolution reported by the committees of the Council. . . shall be referred to the Committee of the Whole for a review of its legal sufficiency and technical compliance with the drafting rules of the Council...."

71. See Committee Report on Standard Bill 12-144.

72. See D.C. Act 12-397, "Establishment of Council Contract Review Criteria, Alley Closing, Budget Support, and Omnibus Regulatory Reform Amendment Act of 1998." Because the legislation was rejected by the Control Board, it was not published in the D.C. Register.

73. 42 U.S.C. §1395ss(a)(2)) (1998).

74. Id (a state would be considered out of compliance with the requirements of section 188 of the Social Security Act if it failed to make changes to its statutes or regulations one year after the date the National Association of Insurance Commissioners or the Secretary of Health and Human Services modified the 1991 NAIC Model Regulation).

75. Letter from Mayor Barry to Council Chairman Clarke, dated March 27, 1996.

76. See Notice, D.C. Law 11-202, 44 D.C. Reg. 2397 (1997).

77. Council Transcript, 28th Legislative Meeting (April 2, 1996) at 158; Council Resolution 11-275, 43 D.C. Reg. 1878 (1996); Notice, 43 D.C. Reg. 1913 (1996); "Medicare Supplement Insurance Minimum Standards Emergency Amendment Act of 1996," D.C. Act 11-244, 43 D.C. Reg. 2119 (1996).

78. Congress and the Mayor should also take action to alleviate this problem by, respectively, eliminating (or substantially curtailing) Congressional review of most District legislation and planning into executive branch initiatives the Congressional review period. Detailed recommendations to Congress and the Mayor are beyond the scope of this report