FY 2008 Supplemental Appropriations

GOVERNMENT OF THE DISTRICT OF COLUMBIA OFFICE OF THE ATTORNEY GENERAL ATTORNEY GENERAL April 22, 2008 BY HAND Dr. Natwar M. Gandhi Chief Financial Officer for the District of Columbia John A. Wilson Building, Room 203 1350 Pennsylvania Avenue, N.W. Washington, D.C. 20004 Re: Opinion of the Attorney General - Release of $191 Million under the Fiscal Year 2008 Supplemental Appropriations Temporary Act of 2008 Dear Dr. Gandhi: I. Introduction This is to confirm my previous advice to you, in an e-mail dated April 10, 2008, that you can lawfully release the $191.345 million under the Fiscal Year 2008 Supplemental Appropriations Temporary Act of 2008 ("2008 Temporary Act"), effective for 225 days starting March 20, 2008, D.C. Law 17-121, as amended by section 3(b) of the Supplemental Appropriations Clarification Emergency Amendment Act of 2008 ("2008 Clarification Act"), effective for 90 days starting February 25, 2008, D.C. Act 17-314. 1 II. Conclusions The 2008 Temporary Act, as amended by the 2008 Clarification Act, permits the release, obligation, and expenditure of the full $191.345 million under the 2008 Temporary Act if the Mayor has submitted a request to the Council for the following three reprogrammings: 1) $26 million for facilities maintenance from the District of Columbia Public Schools ("DCPS") to the 1 The Council and the Mayor also adopted an emergency act that preceded the 2008 Temporary Act and contained substantively identical provisions. That was the Fiscal Year 2008 Supplemental Appropriations Emergency Act of 2008 ("2008 Emergency Act"), effective for 90 days starting January 11, 2008, as amended by section 2(b) of the 2008 Clarification Act. The 2008 Emergency Act expired and the 2008 Temporary Act took its place. 1350 Pennsylvania Ave., NW, Suite 300, Washington, D.C. 20004 (202) 724-7681 Fax (202) 724-7743 Dr. Natwar M. Gandhi April 22, 2008 Page 2 Office of Public Education Facilities Modernization ("OPEFM"); 2) $173.2 million in capital budget authority from the DCPS to the OPEFM; and 3) $101,345,668 for Early Childhood Development from the Department of Human Services to the Office of the State Superintendent of Education. The Mayor has complied with this requirement by submitting three separate reprogramming requests: Reprogramming Request of $26,017,958 for the Office of Public Education Facilities Modernization, circulated to the Councilmembers March 3, 2008 (Reprog. 17-94); Reprogramming Request of $173,178,504 for the Office of Public Education Facilities Modernization, circulated March 12, 2008 (Reprog. 17-96); and Reprogramming Request of $41,142,484 for the Office of the State Superintendent of Education, circulated March 31, 2008 (Reprog. 17-98). I am aware that on April 15, 2008, the Council passed a bill that would change these requirements. In particular, the bill would condition the approval of the release of specified portions of the $191.345 million on the Council's approval of three reprogrammings, including $33.5 million (not $26 million) for facilities maintenance from the DCPS to the OPEFM. This bill, however, has not yet become law. Therefore, until the bill takes effect, the Chief Financial Officer can release the full $191.345 million, based on the request for reprogrammings that the Mayor has already submitted. III. Discussion As you know, the 2008 Temporary Act authorizes an increase in Fiscal Year 2008 appropriation authority of $191.345 million, with these funds consisting of composite amounts from the fiscal year 2007 fund balance pursuant to section 124 of the District of Columbia Appropriations Act, 2006 ("2006 Appropriations Act"), approved November 30, 2005, Pub. L. No. 109-115, 119 Stat. 2396, as extended by section 128 of a Joint Resolution Making continuing appropriations for the fiscal year 2008, and for other purposes, approved September 29, 2007, Pub. L. No. 110- 92, H.J. Res. 52, additional certified Fiscal Year 2008 revenues pursuant to section 126 of the 2006 Appropriations Act, and a designated amount from the 2008 Fiscal Year operating cash reserve fund in accordance with section 202(j)(3)(B) of the District of Columbia Financial Responsibility and Management Assistance Act of 1995, approved April 17, 1995, 109 Stat. 109, D.C. Official Code § 47-392.02(j)(3) ((2005 Repl.). The 2008 Temporary Act directs the allocation of specific amounts for specific purposes. Section 3(b) of the 2008 Clarification Act amends section 6 of the 2008 Temporary Act to make the 2008 Clarification Act apply upon the Council's receipt of a request for the reprogramming of: 1) $33.5 million in annual operating funds for facilities maintenance from the DCPS to the OPEFM, as required by the School Modernization Use of Funds Requirements Temporary Amendment Act of 2007 ("Use of Funds Act"), effective for 225 days starting January 29, 2008, Dr. Natwar M. Gandhi April 22, 2008 Page 3 D.C. Law 17-097;² 2) $173.2 million in capital budget authority from DCPS to OPEFM; and 3) $101,345,668 for Early Childhood Development from the Department of Human Services to the Office of the State Superintendent of Education. The 2008 Clarification Act made the 2008 Temporary Act apply upon the Council's receipt from the Mayor of a request for these reprogrammings and did not require Council approval of the reprogrammings as a condition for the release of the $191.345 million. After the approved Fiscal Year 2008 budget was submitted to Congress but before the beginning of Fiscal Year 2008, DCPS reallocated its budget and reduced the $33.5 million allocated to facilities and infrastructure in the DCPS Fiscal Year 2008 budget to $26 million, pursuant to the authority in the District of Columbia Appropriations Act, 2008, Pub. L. 110-161, 309 and 749, 121 Stat. 1844, approved December 26, 2007, incorporating "Title III - District of Columbia Funds Summary of Expenses" of the Fiscal Year 2008 Proposed Budget and Financial Plan submitted to Congress on June 7, 2007, as amended on June 29, 2007, heading entitled, "Public Education System." Also, the Use of Funds Act requires the reprogramming to OPEFM of "[a]ll assets, personnel, and funding authority for maintenance conducted by the District of Columbia Public Schools' Office of Facilities Management." This language indicates that the Council's intent in enacting the Use of Funds Act was to require the transfer of the funds available for maintenance in the DCPS budget to OPEFM to support OPEFM's performance of the maintenance function, which, at the time of the 2008 Clarification Act, was $26 million. Given this inconsistency, and the fact that the 2008 Clarification Act directs the reprogramming of maintenance funds "as required" by the Use of Funds Act, it is reasonable to construe the 2008 Clarification Act as requiring the submission of a reprogramming limited to the $26 million for maintenance currently in the DCPS budget. To construe the bill as requiring a transfer of the full $33.5 million would contradict the Use of Funds Act by requiring DCPS to satisfy this provision by acquiring $7.5 million for maintenance from another source, either within or outside of DCPS. Likewise, the 2008 Clarification Act requires the transfer of $101,345,668, representing the entire budget of the Early Care and Education Administration, from the Department of Human Services ("DHS") to the Office of the State Superintendent of Education ("OSSE"). Of the $101,345,668 referenced, only $41,142,484 is Local funds available for reprogramming. The remainder is composed of various Federal grants (primarily Child Care Development Fund and a portion of the Temporary Assistance for Needy Families ("TANF") block grant) and Intra- District funds. Although the Clarification Act directs that these resources be transferred via a "reprogramming request" submitted by the Mayor, reprogramming TANF funds to another agency would violate the terms of the District's TANF State Plan, which provides for DHS to receive all TANF funds directly. DHS does, however, have latitude to transfer TANF funds to 2 The School Modernization Use of Funds Requirements Temporary Act of 2007 followed a substantively identical emergency act, the School Modernization Use of Funds Requirements Congressional Review Emergency Amendment Act of 2007, effective December 27, 2007, D.C. Act 17-229. Dr. Natwar M. Gandhi April 22, 2008 Page 4 OSSE via an Intra-District agreement. It is reasonable to assume that the legislation intended to transfer the ECEA budget from DHS to OSSE, without putting the District's TANF block grant at risk by violating the State Plan. Therefore it is reasonable to construe the 2008 Clarification Act requiring the transfer of resources according to appropriate procedures, rather than a reprogramming specifically. This interpretation is consistent with the interpretation of the requirement to reprogram operating budget authority from DCPS to OPEFM. The Mayor has submitted requests to the Council for the three reprogrammings described above, including a request for the reprogramming of $26 million for maintenance from DCPS to OPEFM. For the reasons stated above, this request satisfied the condition in the 2008 Clarification Act for the release and use of the $191.345 million under the 2008 Temporary Act. 3 I am aware that on April 15, 2008, the Council passed Bill 17-720, the "Supplemental Appropriations Release of Funds Emergency Amendment Act of 2008" ("bill") and an accompanying emergency declaration resolution, as well as passed on first reading an identical temporary version of the bill. The bill would amend section 6 of the 2008 Temporary Act, which was previously amended by the 2008 Clarification Act, to make the Council's approval of the expenditure of $93.12 million of the $191.345 million in supplemental funds authorized by the 2008 Temporary Act apply upon the Council's receipt and approval of three reprogramming requests. These reprogramming requests are the same as in the 2008 Clarification Act and are for: 1) $33.5 million in annual operating funds for facility maintenance from DCPS to OPEFM; 2) $173.2 million in capital budget authority from DCPS to OPEFM; and 3) $101,345,668 for Early Childhood Development from DHS to OSSE. The bill would also prohibit the release of the $93.12 million (which includes allocations to DCPS, the Office of the Chief Technology Officer, the Sports and Entertainment Commission, the Office of the Attorney General, the Workforce Investment Fund, and the District Department of Transportation) until the entire $33.5 million in facility maintenance funds has been reprogrammed. Finally, the bill's amendments to section 6 of the 2008 Temporary Act would be made retroactively applicable to March 20, 2008. 3 I note that the requirement for the reprogramming of $101,345,668 for Early Childhood Development from DHS to OSSE, as required by section 503a of the Early Intervention Program Establishment Act of 2004 ("Early Intervention Act"), effective June 12, 2007, D.C. Law 17-9, D.C. Official Code $ 7-863.03a (2007 Supp.), raised a potential problem that could, however, be resolved while still carrying out the Council's intent. It appears that portions of the $101,345,668 subject to the reprogramming requirement consist of federal funds that must be expended by DHS for specific purposes. For example, at least $10,187,079 of the relevant funds are received as part of the District's Temporary Assistance for Needy Families ("TANF") grant and must be used by DHS for an authorized TANF purpose. As a result, although it was possible to reprogram some of the funds included in the $101,345,668 to OSSE, some of the funds may have to be transferred to OSSE by an intra-District transfer with an accompanying memorandum of understanding governing their use. Dr. Natwar M. Gandhi April 22, 2008 Page 5 Bill 17-720, however, has not yet become law. By amending the 2008 Temporary Act in a way that conditions the approval of the release and the expenditure of the specified funds on the Council's approval of the three reprogrammings - including a reprogramming of the full $33.5 million in facilities maintenance funds - the Council has changed the existing law. As described above, the existing law does not require such a reprogramming and is satisfied by the Mayor's request for a reprogramming of only $26 million in appropriations for facilities maintenance. Accordingly, until Bill 17-720 takes effect, you can release the full $191.345 million, where the Mayor has made a request to the Council for the three reprogrammings, including $26 million (not $33.5 million) for facilities maintenance. Sincerely, Peter J. Nickles Interim Attorney General for the District of Columbia PJN/lae, WCW (AL-08-118 E) cc: Adrian Fenty, Mayor Dan Tangherlini, City Administrator JoAnne Ginsberg, Director, Office of Policy and Legislative Affairs Carrie Brooks, Director, Communications Vincent Gray, Chairman, Council of the District of Columbia Yvette Alexander, Council of the District of Columbia Marion Barry, Council of the District of Columbia Muriel Bowser, Council of the District of Columbia Kwame Brown, Council of the District of Columbia David Catania, Council of the District of Columbia Mary Cheh, Council of the District of Columbia Jack Evans, Council of the District of Columbia Jim Graham, Council of the District of Columbia Phil Mendelson, Council of the District of Columbia Carol Schwartz, Council of the District of Columbia Harry Thomas, Jr., Council of the District of Columbia Tommy Wells, Council of the District of Columbia COUNCIL OF THE DISTRICT OF COLUMBIA 1350 Pennsylvania Avenue, N.W. Washington, D.C. 20004 ! URGENT Memorandum To: Members of the Council From: Cyntha Brock Smith Brock-Smith, Secretary Council Date: March 3, 2008 Subject: Notice of Reprogramming Request of $26,017,958 for the Office of Public Education Facilities Modernization Reprog. (17-94) Notice is given that the attached request to reprogram $26,017,958 of Fiscal Year 2008 local funds budget from the District of Columbia Public School (DCPS) to the Office of Public Education Facilities Modernization was filed in the Chairman's Office on February 29, 2008. The reprogramming will allow for the transfer of all assets, personnel, and funding associated with the maintenance of DCPS facilities as required under the School Modernization Use of Funds Requirements Emergency Amendment Act of 2007 and the Fiscal Year 2008 Supplemental Appropriations Emergency Act of 2007. The Council's 14 day review begins March 3, 2008 and the request will be deemed approved on March 17, 2008, unless a notice of disapproval is filed prior to that time which would extend the review period to 30 days. The request would then be deemed approved on the 31st day of receipt unless an approval or disapproval resolution is adopted prior to that time. Copies are available in Legislative Services, Room 10. TITLE: Reprogramming Request of $26,017,958 for the Office of Public Education Facilities Modernization INTRODUCED BY: Chairman Gray at the request of the Mayor Retained by the Council with comments from the Committee of the Whole. Attachment cc: General Counsel Budget Director Legislative Services OF DISTRICT CHAIRMANGRAY 110:36 2008 FEB 29 AM IO: OFFICE OF THE SECRETARY ADRIAN M. FENTY MAYOR FEB 2 8 2008 The Honorable Vincent C. Gray Chairman Council of the District of Columbia 1350 Pennsylvania Avenue, NW, Suite 504 Washington, D.C. 20004 SUBJECT: Reprogramming Request for the Office of Public Education Facilities Modernization Dear Chairman Gray: I am transmitting a request to reprogram $26,017,958 of Fiscal Year 2008 local funds budget authority from the District of Columbia Public Schools (DCPS) to the Office of Public Education Facilities Modernization (OPEFM). This reprogramming will allow for the transfer of all assets, personnel, and funding associated with the maintenance of DCPS facilities as required under the School Modernization Use of Funds Requirements Emergency Amendment Act of 2007 and the Fiscal Year 2008 Supplemental Appropriations Emergency Act of 2007. Pursuant to the Reprogramming Policy Act of 1980, D.C. Official Code 47-363(a-1) (3) (A) (ii) and the District of Columbia Appropriations Act, 2008, P.L. 110-161 approved December 26, 2007, I am transmitting this request as required. I have also submitted this request to the Chief Financial Officer SO that he can certify that funds are available for this reprogramming. This reprogramming will move budget authority from DCPS to OPEFM to comply with provisions contained within the School Modernization Use of Funds Requirements Emergency Amendment Act of 2007 (Act), which conveys authority over the maintenance of DCPS facilities to OPEFM. In addition, the request satisfies the requirements of the Fiscal Year 2008 Supplemental Appropriations Emergency Act of 2007, which requires this reprogramming transaction to occur prior to its enactment. According to the Act, OPEFM is required to support the current and planned maintenance of, DCPS facilities, which include routine maintenance and general up keep of items such as boilers, electrical, mechanical and roof systems. This includes the transfer of 383 full-time equivalents whose positions are funded accordingly. The Act excludes janitorial services, which still remain under DCPS control. If it is later mutually agreed, OPEFM will transfer The Honorable Vincent C. Gray, Chairman Reprogramming Request for the Office of Public Education Facilities Modernization Page 2 assets not related to facilities maintenance back to DCPS. This transfer may be done through the use of an intra-District agreement or through other appropriate methods. Budget authority is available in DCPS because the School Modernization Use of Funds Requirements Emergency Act of 2007 explicitly allows for the transfer of funds for this purpose. According to DCPS, the reprogramming request constitutes the remaining balance within the program, transferring it in its entirety (except janitorial functions) to OPEFM. Additionally, OPEFM will assume all of the year-to-date and on-going expenditures associated with the program. The transfer of expenditures will occur subsequent to the processing of the reprogramming request. Thank you for your consideration of this request. I look forward to the Council's favorable action on this request. Sincere Mayor of the District of Columbia Enclosure cc: Natwar M. Gandhi, Chief Financial Officer Lucille Dickinson, Chief of Staff, OCFO Gordon McDonald, Deputy CFO for Budget and Planning Lolita Alston, Director of Legislative Support, EOM GOVERNMENT OF THE DISTRICT OF COLUMBIA Office of the Chief Financial Officer Natwar M. Gandhi Chief Financial Officer FEB - 1 2008 The Honorable Vincent C. Gray, Chairman Council of the District of Columbia 1350 Pennsylvania Avenue, NW, Suite 504 Washington, D.C. 20004 Dear Chairman Gray: Pursuant to the Reprogramming Policy Act of 1980, D.C. Official Code 47-363(a-1) (3) (A) (ii) and the District of Columbia Appropriations Act, 2008, P.L. 110-161, approved December 26, 2007, the Office of the Chief Financial Officer has reviewed the Mayor of the District of Columbia's request to reprogram local funds budget authority from the District of Columbia Office of Facilities Management (OFM) to the Office of Public Education Facilities Modernization (OPEFM). This reprogramming request for $26,017,958 will cover the costs associated with the transfer of 383 full-time equivalents. It will also cover the costs of the transfer of all records related to maintenance operations, office, field and stored assets utilized by or assigned to the OFM maintenance staff. Budget authority is available because the DCPS fiscal year 2008 approved budget included $26,017,958 to finance the maintenance activities of the OFM. The Office of Budget and Planning's analysis indicates that the reprogramming will not have any adverse impact on the agency's budget or the District's financial plan. Accordingly, the Office of the Chief Financial Officer recommends that the District Council approve this request. Sincerely, ngo Chief Financial Officer cc: Honorable Adrian M. Fenty, Mayor of the District of Columbia Dan Tangherlini, City Administrator, EOM Lucille Dickinson, Chief of Staff, OCFO Gordon McDonald, Deputy CFO for Budget and Planning Lolita Alston, Legislative Support, EOM 1350 Pennsylvania Avenue, N.W., Suite 209, Washington, D.C. 20004 (202) 727-2476 www.dccfo.com DEPARTMENT OF COLUMNITY ADRIAN M. FENTY MAYOR FEB 2 8 2008 Natwar M. Gandhi Chief Financial Officer Office of the Chief Financial Officer 1350 Pennsylvania Avenue, NW, Suite 209 Washington, D.C. 20004 Dear Dr. Gandhi: Pursuant to the Reprogramming Policy Act of 1980, (D.C. Official Code § 47-363 et seq.), I am submitting a request to reprogram and transfer $26,017,958 in local funds from the District of Columbia Public Schools' Office of Facilities Management (DCPS OFM) to the Office of Public Education Facilities Modernization (OPEFM). This reprogramming is required by the "School Modernization Use of Funds Requirement Emergency Amendment Act of 2007" to effect the transfer of "all assests, personnel, and funding authority for maintenance conducted by the District of Columbia Public Schools' Office of Facilities Management" to the Office of Public Education Facilities Modernization (OPEFM). Specifically this request will reprogram and transfer the following: A) $26,017,958 in DCPS maintenance, operating budget authority; B) 383 full time equivalent (FTEs) positions funded with annually appropriated operating funds. This transfer should include all personnel records and related files (including electronic copies and files, if available) of current maintenance employees; C) All records related to maintenance operations (including electronic copies of files, if available), including plans, designs, solicitations, proposals, awards, contracts, change orders, budget and projections, reports, studies, etc; and D) All office, filed and warehoused assests utilized by and/or assigned to the DCPS OFM maintenance staff, including furniture, equipment, machines, vehicles, tools, systems, supplies, part materials, etc. The assests transferred to OPEFM should include District owned or leased office space, buildings, and warehouse occupied and utilized by the above reference maintenance personnel. Should DCPS and OPEFM mutually agree that certain DCPS OFM's transferred services are not facilities maintenance related, then such services with funding would be transferred back to DCPD. If determination is made in FY 2008, an intra-district memorandum of understanding would be utilized to execute the transfer. OPEFM request that personnel records of separated DCPS OFM maintenance employees be maintained in compliance with District laws and policies, and be easily accessible to OPEFM. Further, OPEFM request that records related to prior fiscal years' DCPS OFM operational activities be maintained in compliance with District laws and policies, and be easily accessible to OPEFM. Additionally, since the reprogramming would occur during the fiscal year, year-to-date FY 2008 expenditure balances would follow the budget authority to OPEFM. Thus, all budgetary and financial transactions what have occurred since October 1, 2007 will be moved from DCPS' books to OPEFM's books. Details of the request are contained in the agency's submission. Thank you for your consideration of this request. I look forward to the Chief Financial Officer's favorable review of this request. Mayor of the District of Columbia Enclosure AMF/lsa cc: Gordon McDonald, Interim Deputy CFO for Budget and Planning Tene Dolphin, Chief of Staff COLOMBIA AND PROTRICT DISTRICT OF COLUMBIA PUBLIC SCHOOLS OFFICE OF THE CHANCELLOR 825 North Capitol Street, NE, 9TH Floor Washington, D.C., 20002-1994 (202) 442-5885 - fax: (202) 442-5026 MEMORANDUM