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The District of Columbia's Legislative Purgatory

Judith Sandalow sat inside the square — the virtual infrastructure made ubiquitous by the coronavirus pandemic as we’ve sought to remain both publicly active and socially distanced, hoping to halt COVID-19’s indiscriminate killing spree. She is executive director of the Children’s Law Center, a nonprofit focused on protecting and defending thousands of vulnerable DC children, many of whom are Black and Brown. Her status as a giant in the city was made clear when DC Council Chairman Phil Mendelson described it as a “shocking surprise” but “nice” to see Sandalow herself testifying before his Committee of the Whole. It’s generally her associates who do most of the testifying these days.

“This is a very important topic,” replied Sandalow, explaining her personal appearance. She was there to plead for full funding for the Office of the Ombudsperson for Children. The yet-unrealized agency was created through legislation introduced by Ward 1 Council member Brianne Nadeau and passed by the council in December 2020. In January, Mayor Muriel Bowser vetoed the bill; the legislature overrode that in February.

“The council must now take this legislation over the finish line by committing the $800,000 in local recurring dollars needed to fully fund the Ombudsperson for Children,” Sandalow continued in her council testimony earlier this month. “Ombudsperson for Children is a critical tool this council needs to be able to fulfill its duty to DC’s foster children and exercise effective oversight of DC’s child welfare system — a system that encompasses many agencies beyond just the Child and Family Services Agency (CFSA).”

Three other speakers — Marie Cohen, a member of the DC Infant Mortality Review Committee who also writes the blog Child Welfare Monitor; Stephanie McCellan of DC KinCare Alliance; and Christian Greene — also appeared at the public hearing, echoing Sandalow’s appeal.

Anyone who has been around the city for more than a year or two knows the horrific plight of District children. So, why isn’t the Ombudsperson funded?

The answer involves details about the District’s budgetary and legislative process, but boils down to politics.

In November, then Chief Financial Officer Jeffrey DeWitt indicated that $577,000 would be needed in the current Fiscal Year 2021 budget, and $3 million for the entire four-year plan, in order to implement the legislation. The city didn’t have that money, he declared.

Rather than wait to get the funds lined up, legislators approved the bill “subject to appropriations.” That is a highly deceptive contrivance deployed far too frequently by council members. It allows them to appear to be responding to demands of their constituents when the real goal is reducing political pressure or activating support during campaign season.

The only tool more misleading or specious used by the council is the yearly Budget Support Act, in which legislators sometimes hide their use of the public’s money from plain sight. Unless residents and advocates are paying close attention, they may miss the fact that the council has funded some public policy or implemented a tax without benefit of a formal public hearing.

Equally disturbing is the “subject to appropriations” legislation. A bill may have been discussed in an open forum and approved at a legislative meeting. However, few people realize that it is in fact being placed in what can only be described as legislative purgatory.

Currently, there appear to be at least 63 bills languishing in that status, according to an April 2021 report on the council’s website. Bowser is proposing to fund completely or partially just 10 of those in her Fiscal Year 2022 Budget and Financial Plan, according to a council staffer. Perhaps the mayor could have done more, but isn’t it the legislature’s responsibility to fulfill its legislative promises?

Among laws without any funding are Ward 8 Council member Trayon White’s Commission on Poverty Establishment Amendment Act of 2020; Ward 6 Council member Charles Allen’s Office of the Deaf, Deafblind, and Hard of Hearing Establishment Amendment Act of 2020; and at-large Council member Anita Bonds’ Voluntary Agreement Moratorium Amendment Act of 2020.

I didn’t support any of the above mentioned proposals. I believed they would be ineffective remedies or were superfluous. Despite my perspective, there was high-level pontificating inside the John A. Wilson Building.

That voluntary agreement bill was supposed to give Bonds time to repair the city’s rent control law. It was just a delaying tactic, I wrote in December.

When White introduced his bill in 2019, he declared: “Clearly those in or near poverty in DC are in dire circumstances, and their perspectives need to be included in our everyday decision-making. It seems from most I’ve talked to that their conditions are getting worse.

“Far too often those in poverty or near poverty are not at the table,” he added.

They were never brought to the table, and poverty remains a palpable problem, especially in White’s ward.

At least 14 of the “subject to appropriation” bills are poised to be repealed, a council staffer told me last week when I went snooping around. If a law has been enacted but remains without funding for three consecutive years, it is automatically considered for repeal.

Among those headed for the public policy heap are the Save Good Food Amendment Act of 2018, introduced by Ward 3 Council member Mary Cheh; the Public School Health Services Amendment Act of 2017, the brainchild of David Grosso, then an at-large council member but now a high-priced lobbyist for Arent Fox; and Trayon White’s Traffic and Parking Ticket Penalty Amendment Act of 2018, which proves in no small measure the circular thinking of legislators.

That bill, which became law in October 2018, set “penalties” for traffic violations caught on camera that were still not paid 120 days after notice of the infraction was issued. It also repealed the section that “suspended out of state driver’s permits for unanswered infractions” and required “reinstatement of those licenses within 30 days of [the law’s] effective date.” Further, it required the mayor to establish a program that would allow DC “residents to perform community service to repay debts related to unpaid notices of infractions.”

Ironically, at-large Council member Elissa Silverman and several of her colleagues recently introduced legislation that would suspend portions of the city’s “Clean Hands” law dealing with traffic penalties and fees, asserting that low-income residents couldn’t pay their tabs. If the council had funded White’s 3-year-old bill, they might not have needed Silverman’s proposal.

Sometimes, I think the answer to all this is to impose by law a definitive legislative session, similar to most states, that could restrict the legislature’s mischief.

That solution won’t help low-income residents, their attorneys or advocates who are pleading for funding of existing laws like the Department of Buildings Establishment Act of 2019 and the Residential Housing Environmental Safety Amendment Act of 2020.

Both were introduced by Mendelson.

The former creates “a subordinate agency within the executive branch … charged with promoting the health, safety, and quality of life of residents and visitors by reviewing proposed plans for technical sufficiency, issuing permits, inspecting the built environment, regulating land use and development, and enforcing the regulations and codes governing building construction, rental housing conditions, building maintenance, and building safety.”

The latter “requires the Department of Consumer and Regulatory Affairs (DCRA) housing inspectors to be certified to conduct indoor mold assessment and remediation.” Further, it makes the agency responsible for issuing “a notice of violation to property owners to remediate indoor mold and impose penalties on owners who do not comply.”

The Legal Aid Society of the District of Columbia started a social media campaign pushing for funding of both laws. “We hope we’re going to see funding for the Department of Buildings and what I call the mold bill,” said Beth Mellen, a supervising attorney at Legal Aid, who testified earlier this month before Mendelson’s committee. “We do not have a firm commitment.” (Mendelson has said he hopes to fund the Department of Buildings legislation.)

Mellen agreed that the whole “subject-to-appropriations” category is “definitely a concern. When legislation is passed, everybody feels good.

“The council has gotten credit for things that haven’t come to pass,” she added.

The deception worked. Mission accomplished.


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