Mayor Adrian Fenty
Letter to Board of Elections and Ethics requesting it to reconsider its approval of "Referendum on Certain Provisions of the Public Education Reform Amendment Act of 2007" as a proper subject for a referendum
May 31, 2007

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ATTORNEY GENERAL.

May 31, 2007

Mr. Kenneth J. McGhie
General Counsel
Board of Elections and Ethics 441 4th Street, N.W., Suite 250
Washington, D.C. 20001

Re: Request for Reconsideration of Referendum Decision 

Dear Mr. McGhie:

I. Introduction

I understand that by order dated May 22, 2007, the Board of Elections and Ethics (Board) certified the referendum entitled, a "Referendum on Certain Provisions of the Public Education Reform Act of 2007" (hereinafter, the Referendum), as a valid referendum on Titles I, IX, and X of the Public Education Reform Amendment Act of 2007 (D.C'. Act 1733) (hereinafter, the Act). This letter requests the Board to reconsider, and rescind, its certification of the Act as a proper subject for a referendum under District law.

Following Congress's passage of H.R. 2080 the week of May 20, 2007, the President will sign H.R. 2080 -probably by the middle of the week of June 3, 2007. H.R. 2080 contains the same substantive provisions as Title IX repealing sections of the Charter. Meanwhile, on May 25, 2007, the Mayor of the District of Columbia signed the District's Fiscal Year 2008 Budget Request Act of 2007 (BRA). D.C. Act 17-51, which contains provisions that appropriate finds to carry out Titles I, IX, and X of the Act.

As explained below, the effect of these two new significant events (i.e, the enactment of Title IX and the BRA) constitute compelling reasons for the Board to reconsider, and to rescind, its certification of the Referendum as a proper subject fin a referendum under the Referendum Charter Act, effective March 10, 1978, D.C. Law 2-46. D.C. Official Code § 1-204.101 et seq. (2006 Repl.) (hereinafter, the Referendum Charter Act). These two critical events further evidence that the Referendum does not meet the definitional requirements for a "referendum" as set forth in section 2(b) of the Referendum Charter Act (D.C. Official Code § 1.204.101 (b)) (2006 Repl.).

II. The Referendum Seeks to Invalidate a Congressional Law

With the President's signature, H.R. 2080 - and the accompanying provisions of Title IX of the Act - will become law. This is a changed circumstance from when the Board last acted, when H.R. 2080 was pending before the Senate and had not yet been enacted into law. The Referendum now seeks to change or rescind an act of Congress.

Section 2 (b) of the Referendum Charter Act expressly recognizes that only an act of the Council may be the subject of a referendum. Here, by contrast, the referendum would target an act of Congress. That makes the Referendum an improper subject for a referendum. See, e.g., Brizill v. District of Columbia Board of Elections and Ethics, 911 A.2d 1212 (D.C. 2006) (holding that an initiative to allow lottery terminals in the District was not a proper subject for an initiative because it would exceed the powers of the Council under the HRA).¹

III. The Referendum Affects an Act Appropriating Funds

The Mayor's signature of the BRA on Friday, May 25th is another new event that changes the posture of this matter before the Board. Examined in the context of this new law, the Referendum would clearly affect an appropriation and undo the will of the Mayor and Council on the allocation of education funds.

The BRA contains the fiscal spending authority for the District government for fiscal year 2008, including those provisions providing for expenditures for the Board of Education and the D.C. Public Schools (DCPS) in anticipation of enactment of the Act. The BRA contains the following provision regarding the Act:

Provided, that, notwithstanding any other provisions of this Act, no later than 60 calendar days after the date of the enactment of this Act, the District may realign the appropriation authority provided under this Act as necessary and consistent with the enactment of the Public Education Reform Amendment Act of 2007, signed by the Mayor on April 23, 2007 (D.C. Act 17-38; 54 DCR 4099), to be allocated as follows:....

Taken together with the Act, the BRA realigns the appropriated fiscal year 2008 budget for the D.C. Board of Education and DCPS to the Mayor and various other newly-created entities. Any referendum that would affect this budgetary authority for the Mayor and other non-Board of Education entities would unlawfully affect "an act appropriating funds for the general operating budget", contrary to section 2 (b) of the Referendum Charter Act. As in District of Columbia Board of Elections and Ethics and District of Columbia Campaign for Treatment v. District of Columbia (BOEE), 866 A.2d 788 (D.C. 2005), this Referendum `would intrude upon the discretion of the Council to allocate District government revenues in the budget process" and therefore is not a proper subject for a referendum. Though the proponents contend that a shifting of funds among programs or authorities is not an appropriation, it is, as the Court of Appeals has clearly held, core to the appropriations process.

The Referendum, by its terms, includes Title I of the Act, which contains section 106 (a). Section 106 (a) of the Act transfers to the Mayor, inter alia, "all unexpended balances of appropriations, allocations, and other funds available or to be made available to the Board of Education, as the local education agency, . . . ." The Referendum also includes Title IX which, inter alia, would repeal section 452 of the Home Rule Act. Section 452 of the Home Rule Act is the source of the Board's current budgetary authority. However, the BRA provision, quoted above, anticipates the transfer of much of the Board's current budgetary authority to the Mayor consistent with Title IX of the Act and section 106 (a) of the Act. Indeed, that transfer will be mandatory after the President signs H.R. 2080 and the Act becomes law. Thus, if permitted to proceed, and if approved by the voters, the Referendum would affect the allocation of revenues by keeping budgetary authority for the public schools, that otherwise would have been transferred to the Mayor, with the Board.

IV. Conclusion

In view of these two new critical events (i.e., the enactment of the BRA by the Council and the Mayor, and the upcoming enactment of the provisions of Title IX of the Act when the President signs H.R. 2080), it is clear that for the foregoing reasons as well as those in my May I, 8, and 17 letters to you, the Referendum is not a proper subject of a referendum and that the Referendum certification by the Board should be rescinded.

If you have questions regarding this letter, please contact either Wayne C. Witkowski, Deputy Attorney General, Legal Counsel Division, at 724-5524, or me at 727-3400. Thank You,

Sincerely.

Linda Singer
Attorney General for the District of Columbia

LS/phg

(AL-07-025 F) (MID 191522)

cc: JoAnne Ginsberg, Director
Office of Policy and Legislative Affairs

Matthew S. Watson 
2301 N Street, N. W.
Washington, D.C. 20027

1 My May 17, 2007 letter to you noted that the Charter grants the Council no power outside section 303 of the HRA to conditionally enact a provision like Title IX. In his arguments before the Board, the proposer's attorney conceded that Tide IX would likely be ultra vires without congressional approval but nevertheless contended that the referendum power does not hinge on whether Tide IX was within the Council's power to enact. In light of Brizill, supra, that argument was wrong. That argument is now even more clearly wrong since the Referendum will not be able to rescind Congress's enactment of Title IX.