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District of Columbia (1)
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James M. Cannon Files (Ford Administration)
James Cannon's Issues Files
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Affirmative action programs
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Home rule
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The original documents are located in Box 10, folder "District of Columbia (1)" of the
James M. Cannon Files at the Gerald R. Ford Presidential Library.
Copyright Notice
The copyright law of the United States (Title 17, United States Code) governs the making of
photocopies or other reproductions of copyrighted material. Gerald Ford donated to the United
States of America his copyrights in all of his unpublished writings in National Archives collections.
Works prepared by U.S. Government employees as part of their official duties are in the public
domain. The copyrights to materials written by other individuals or organizations are presumed to
remain with them. If you think any of the information displayed in the PDF is subject to a valid
copyright claim, please contact the Gerald R. Ford Presidential Library.
District of Columbia
Feb. 19767
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FORD :- LIBRARY GERALD
Digitized from Box 10 of the James M. Cannon Files at the Gerald R. Ford Presidential Library
THE WHITE HOUSE
ACTION Miamo, ANDUM
WASHINGTON
LOG NO.:
Date:
Time:
February 23,
700pm
FOR ACTION: Dick Parsons
cc (for information): Jack Marsh
Max Friedersdorf
Jim Cavanaugh
Ken Lazarus
Robert Hartmann
FROM THE STAFF SECRETARY
DUE: Date: February 25
Time: 300pm
SUBJECT:
D.C. Enrolled Act 1-88-District of Columbia Shop-Book Rule Act
ACTION REQUESTED:
For Necessary Action
For Your Recommendations
Prepare Agenda and Brief
Draft Reply
For Your Comments
Draft Remarks
X
REMARKS:
Please return to Judy JOhnston, Ground Floor West Wing
Recommend disapproval in accordance with the views of the
Department of Justice. Would also note that if the assertion of
authority by the D.C. Council is allowed to stand in this instance,
there are indications that further changes would be made in
local rules. of evidence which could further erode the process
of law enforcement in the District.
Ken Lazarus
6
FORD is LIBRARY GERALD
PLEASE ATTACH THIS COPY TO MATERIAL SUBMITTED.
If you have any questions or if you anticipate a
delay in submitting the required material, please
telephone the Staff Secretary immediately.
CUTTER TITT
ACTION MEMORANDUM
WASHINGTON
LOG NO.:
Date: February 23
Time: 700pm
FOR ACTION: Dick Parsons
cc (for information):
Max Friedersdorf
Jack Marsh
Ken Lazarus
Jim Cavanaugh
Robert Hartmann veto message ok
Pat Lindh
FROM THE STAFF SECRETARY
DUE: Date:
Time:
February 25
300pm
SUBJECT:
D.C. Enrolled Act 1-87 - Affirmative action in
District Government Employment Act
ACTION REQUESTED:
For Necessary Action
For Your Recommendations
Prepare Agenda and Brief
Draft Reply
X
For Your Comments
Draft Remarks
REMARKS:
Please return to Judy Johnston, Ground Floor West Wing
I agree that this legislation does not represent an optimum model
of affirmative action. However, the power conferred upon the
President by the Home Rule Act is a two-edged sword and, in these
circumstances, I fail to discern any substantial Federal interest
warranting intervention in D.C. affairs. Recommend the President
decline to act.
Ken Lazarus
FORD & LIBRARY GERALD
&
PLEASE ATTACH THIS COPY TO MATERIAL SUBMITTED.
If you have any questions or if you anticipate a
delay in submitting the required material, please
telephone the Staff Secretary immediately.
THE WHITE HOUSE
WASHINGTON
February 25, 1976
MEMORANDUM FOR:
JIM CAVANAUGH
FROM:
MAX L. FRIEDERSDORF
mib.
SUBJECT:
D.C. Enrolled Act 1-87 - Affirmative action
in District Government Employment Act
The Office of Legislative Affairs concurs with the agencies
that the Act be disapproved.
Attachments
FOND
THE WHITE HOUSE
WASHINGTON
February 25, 1976
MEMORANDUM FOR:
JUDY JOHNSTON
FROM:
PAT LINDH
PL
SUBJECT:
D.C. Enrolled Act 1-87
I agree with the Civil Service Commission arguments and
would recommend disapproval.
In the disapproval statement, I would suggest one word
change on page 2 last paragraph. Instead of using
adequate representation, as some think one is adequate,
I would recommend fair or use the language used on the
first page of the statement, adequate and equitable.
THE WHITE HOUSE
ACTION MEMORANDUM
WASHINGTON
LOG NO.:
Date:
Time:
February 23,
700pm
FOR ACTION:
Dick Parsons
cc (for information): Jack Marsh
Max Friedersdorf
Jim Cavanaugh
Ken Lazarus
Robert Hartmann
FROM THE STAFF SECRETARY
DUE: Date: February 25
Time:
300pm
SUBJECT:
D.C. Enrolled Act 1-88-District of Columbia Shop-Book Rule Act
ACTION REQUESTED:
For Necessary Action
For Your Recommendations
Prepare Agenda and Brief
Draft Reply
X
For Your Comments
Draft Remarks
REMARKS:
Please return to Judy JOhnston, Ground Floor West Wing
FORD
PLEASE ATTACH THIS COPY TO MATERIAL SUBMITTED.
If you have any questions or if you anticipate a
delay in submitting the required material, please
telephone the Staff Secretary immediately.
EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE OF MANAGEMENT AND BUDGET
WASHINGTON, D.C. 20503
FEB 20 1976
MEMORANDUM FOR THE PRESIDENT
Subject: District of Columbia Enrolled Act 1-88 -- District
of Columbia Shop-Book Rule Act
Last Day for Action
February 27, 1976 - Friday
Purpose
To make documentary records of business transactions admissible
as evidence in judicial proceedings in the courts of the District
of Columbia.
Agency Recommendations
Office of Management and Budget
Disapproval (Memorandum of
disapproval attached)
Department of Justice
Disapproval
Discussion
Introduction
The District of Columbia Self-Government and Governmental
Reorganization Act ( Home Rule Act) provides that Acts of the
City Council which have been vetoed by the Mayor and overridden
by a two-thirds vote of the Council shall be transmitted by the
Council Chairman to the President for review. These Acts become
law unless the President expresses disapproval within thirty
days. We understand that the Home Rule Act has been interpreted
to provide that if the President declines to act, thereby
approving the legislation, the Congress would then have thirty
days for its consideration of the legislation. On the other hand,
if the President disapproves the D.C. bill, the Mayor's veto would
become final.
2
This is the second Council override of a mayoral veto since the
Home Rule Act was enacted. A separate memorandum is being
submitted to you on the other bill.
Summary of Act 1-88
This legislation would amend Title 14 of the D.C. Code, which
contains rules of evidence, to exempt business records from the
hearsay rule. Act 1-88, cited as the "District of Columbia
Shop-Book Rule Act, " provides that any documentary record
(either the original written version or a photographic copy)
of any business transaction, event, or occurrence shall be
admissible as evidence in any civil or criminal judicial
proceeding in the courts of the District of Columbia. The
introduction of a reproduced record does not preclude admission
of the original as evidence.
Background
Although, under the Home Rule Act, all legislative power granted
to the District is vested in the Council, that power is subject
to reservations by the Congress of its own constitutional powers
and to specific limitations included in Title VI of the Home
Rule Act. Specifically, Section 602 of that Act, headed
"Limitations on the Council" prohibits the Council from enacting
any act, resolution, or rule relating to the organization and
jurisdiction of the District of Columbia courts, as set forth
in Title 11 of the D.C. Code.
In addition, Section 602 similarly prohibits the Council from
enacting any rule, resolution, or law with respect to the
rules of criminal procedure for a period of two years from the
date on which the first elected members of the Council take
office.
The District of Columbia Court Reorganization Act of 1970,
P.L. 91-358, which established the D.C. Superior Court and
the D.C. Court of Appeals as local courts, forms Title 11 of
the D.C. Code and provides, in part that the Superior Court
must operate under the Federal Rules of Civil Procedure and
the Federal Rules of Criminal Procedure. It also provides
that, with the approval of the D.C. Court of Appeals, the
Superior Court may modify those rules and may adopt and enforce
such other rules as it deems necessary. This rulemaking
authority was not modified under the Home Rule Act.
GERALD
3
Enactment of P.L. 93-595 (approved January 2, 1975), establish-
ing new Federal Rules of Evidence, repealed certain rules of
judicial procedure relating to the admissibility of evidence,
including a 1936 Federal Shop-Book Rule, which was in force
in the D.C. courts. P.L. 93-595, which took effect on July 1,
1975, and which includes a new shop-book rule as a rule of
evidence, did not reference the D.C. courts as courts within
the purview of the Act. Apparently believing that these new
rules of evidence could not be applied in the D.C. Superior
Court, and that the absence of a shop-book rule would have had
a disruptive effect on litigation, the Board of Judges of that
court reenacted a shop-book rule, which is substantially
identical to this bill and the repealed 1936 Federal rule.
The rule was approved by the D.C. Court of Appeals and became
effective on July 1, 1975, thus coinciding with the effective
date of the new Federal Rules of Evidence.
On December 16, 1975, the D.C. Council passed this legislation,
because it viewed the Board of Judges' action in passing the
rule as an emergency measure to be consummated by legislative
enactment of substantive law. The Mayor, however, vetoed the
bill on the grounds that (1) its passage was unnecessary in
view of the legitimacy of the Superior Court's action, and
(2) the Council exceeded its legislative authority under the
Home Rule Act in passing a law affecting the judicial proce-
dures of the D.C. courts. The Mayor's veto was overridden on
January 27, 1976, by a unanimous vote of the eleven Council
Members present.
Issue
The Federal interest in this matter is whether the intent of
Congress in delegating legislative authority to the D.C.
Council under the Home Rule Act has been appropriately carried
out in this instance. The specific issue to be decided is
whether or not the Council was within its authority under the
Home Rule Act in enacting this bill. If not, it has exceeded
its powers under the Home Rule Act and encroached upon the
powers of the D.C. courts. However, neither the continued effect
nor the content of the D.C. court's rule was contested by the
Council; only the legitimacy of the Council's action is disputed.
GERALD FORD (IBRARY
4
Summary of Arguments
The arguments of the D.C. Corporation Counsel and the General
Counsel of the D.C. Council which, respectively, formed the
basis of the Mayor's veto and the Council's override are
summarized below for your consideration. Briefly, the arguments
presented by the Corporation Counsel are:
-- Under the D.C. Court Reorganization Act, which was
not modified by the Home Rule Act, the power to prescribe
rules of judicial procedure, including rules of evidence,
was vested exclusively in the D.C. courts, subject only
to acts of Congress.
-- The Home Rule Act prohibits the Council from enacting
any act with respect to the provisions of Title 11 of
the D.C. Code, which contains the courts' rulemaking
authority.
-- Rules of evidence are an integral part of rules of
judicial procedure, and, therefore, the D.C. courts'
action in this regard was within the scope of their
rulemaking authority under the 1970 D.C. Court
Reorganization Act, i.e., Title 11 of the D.C. Code.
For example, the Superior Court has replaced other
Federal rules of procedure, including the new Federal
Rules of Evidence, with the former versions of these
rules.
Conversely, the General Counsel of the D.C. Council argues:
-- The shop-book-rule is a substantive law of evidence,
which is quite distinct from rules of judicial procedure,
and which, therefore, must be promulgated by legislation.
-- Codification of the D.C. rules of evidence in Title 14
of the D.C. Code instead of under Title 11 (dealing
with the organization, jurisdiction, and authority of
the D.C. courts) reflects Congressional intent that rules
of evidence are not exclusively a function of the
judiciary. P.L. 93-595, which established the new
GENELD FORD
5
Federal Rules of Evidence and affirmed the right of
Congress to supersede rules of evidence promulgated
by the Supreme Court, is referenced as analgous
precedent.
-- The Home Rule Act limits the authority of the
Council with respect to Title 11, not to Title 14.
View of the Department of Justice
The Department of Justice advises that the Shop-Book Rule,
though technically a rule of evidence, is clearly in the
nature of a procedural rule which could properly be encom-
passed within the rules of civil procedure. Therefore,
promulgation of the Shop-Book Rule by the D.C. courts was
well within the courts' express power to adopt rules of
civil procedure, and, as such, is beyond the power of the
Council under the Home Rule Act. The Department further
advises that it is not necessary in this instance to deter-
mine whether Title 11 of the D.C. Code empowers the courts to
adopt rules of evidence of a more substantive nature (although
the courts did in fact do so on December 22, 1975). Similarly,
it is not necessary to determine whether the Council retains
authority to enact legislation altering the rules of evidence
now codified in Title 14 of the D.C. Code. In this connection,
the D.C. Corporation Counsel has noted that the Council has
suspended action on a number of bills to enact rules of
evidence for the Superior Court, pending your decision.
Conclusion
We concur with the views of the Mayor and the Department of
Justice that this bill be disapproved on the ground that the
D.C. Council has exceeded its authority in this instance and
encroached upon the authority of the courts to enact rules of
procedure. Your decision on this matter would, therefore, be
based on a technical legal interpretation of the distinctions
between rules of procedure and evidence, judgments generally
reserved to the courts or the Congress. You may wish to
consider the alternative of not taking any action on this
bill. As noted earlier in this memorandum, the bill would
then go to the Congress which would have 30 days to make its
judgment. It might be more appropriate to have the Congress
FORD & LIBRARY 938870
6
settle the jurisdictional question of the relative authority
of the D.C. courts and the City Council rather than draw the
Presidency into narrow legal questions.
A proposed statement of disapproval to the Chairman of the City
Council is attached for your consideration.
James James m. Trey Assistant Director for
Legislative Reference
Enclosures
FORD
TO THE CHAIRMAN OF THE DISTRICT OF COLUMBIA CITY COUNCIL
In accordance with the District of Columbia Self-Government
and Governmental Reorganization Act, I disapprove Act 1-88,
the District of Columbia Shop-Book Rule Act.
The Act would make documentary records of business trans-
actions admissible as evidence in any civil or criminal judicial
proceeding in the courts of the District of Columbia. This
"shop-book rule" is substantially identical to the one adopted
by the D.C. Superior Court which took effect on June 30, 1975.
The issue is whether the City Council was acting within
its authority under the District of Columbia Self-Government
and Governmental Reorganization Act (Home Rule Act) in passing
a law affecting the judicial procedures of the D.C. courts.
The Federal interest is whether the intent of Congress in
delegating legislative authority to the Council under the Home
Rule Act has been appropriately carried out in this instance.
I am advised by the Department of Justice that this "shop-
book" rule is clearly within the nature of a procedural rule
which could properly be encompassed within the rules of civil
procedure and that promulgation of the rule is clearly within
the express power of the District of Columbia courts to adopt
rules of civil procedure and, as such, is beyond the power of
FORD
the City Council.
Therefore, since the Council has exceeded its statutory
authority in enacting this bill, I am disapproving Act 1-88.
ASSISTANT ATTORNEY GENERAL
LEGISLATIVE AFFAIRS
Department of Justice
Washington, D.C. 20530
February 20, 1976
Honorable James T. Lynn
Director, Office of Management
and Budget
Washington, D. C. 20503
Dear Mr. Lynn:
This is in response to your request for the views of
the Department of Justice on the District of Columbia
enrolled bill B-1-137, the District of Columbia Shop-Book
Rule Act, which was submitted to the President for approval
on January 29, 1976. Under section 404 (e) of the District
of Columbia Self-Government and Governmental Reorganization
Act (P.L. 93-198), a bill passed by a two-thirds majority
of the District of Columbia City Council over a mayoral
veto becomes law at the end of the thirty-day period
beginning on the date of transmission to the President,
unless disapproved by the President within that period.
Bill 1-137 is substantially identical with Rule 43-I
adopted by the D.C. Superior Court on June 30, 1975, which,
in turn, is substantially identical with the relevant pro-
visions of the U.S. Code since repealed. Those provisions
essentially allow the introduction into evidence of records
regularly made in the normal course of any recurring
business, to include accurate photographic copies. They
are also consistent with Rule 803 (6) of the Federal Rules
of Evidence to the same effect, although different in form.
Thus, there is no dispute over the substance of the enrolled
bill; Mayor Washington, the D.C. Superior Court, and the
D.C. City Council all agree on its desirability.
The issue between the Mayor and Council is a more
fundamental one. In the Mayor's view, the Council lacks
statutory authority to legislate rules of evidence, and
any action by the Council to that effect must be without
force. Mayor Washington's veto of the Council enactment
was correct in this instance although the reasons stated in
his message of January 7, 1976, sweep too broadly. The
Justice Department recommends that the President disapprove
the enrolled bill, enacted by the Council over the Mayor's
veto.
- 2 -
The City Council is the sole legislative body of the
District of Columbia government, and all legislative power
granted to the District is vested in and may be exercised
by the Council, Home Rule Act, Sec. 404 (a). However, that
power is subject to careful reservations by the Congress
of its own constitutional powers and to specific limitations
included in title VI of the Home Rule Act. Indeed, the very
grant of power in section 404 (a) begins with the words,
" [s] ubject to the limitations specified in title VI of this
Act,
Thus, there are real limits on the Council's
authority to act.
The most specific of those title VI limitations are
set forth in Section 602 of the Home Rule Act. That section,
headed "Limitations on the Council," reads in pertinent part
as follows:
(a) The Council shall have no authority to pass
any act contrary to the provisions of this Act
except as specifically provided in this Act, or
to --
*
*
(4) enact any act, resolution, or rule with
respect to any provision of title 11 of the
District of Columbia Code (relating to
organization and jurisdiction of the District
of Columbia courts)
;
Therefore any action by the City Council with respect to
matters controlled by any provision of title 11 of the
District of Columbia Code is beyond the authority of the
Council and should properly be disapproved by the Mayor
and by the President. The question then becomes one of
whether enactment of the Shop-Book Rule is such an action.
The courts of the District of Columbia are created by
Act of Congress. The Court Reorganization Act (P.L. 91-358,
84 Stat. 473) forms title 11 of the present D.C. Code, a
title over which the D.C. City Council has no legislative
authority. Section 718 (a) of the Home Rule Act continues
the Superior Court and Court of Appeals for the District in
existence even after Home Rule, and section 431 (a) of the
same Act vests the whole judicial power of the District in
those two courts. That authority is to be exercised under
the terms of title 11 of the D.C. Code.
1 1 w
Pursuant to Section 11-946 of title 11, the Superior
Court must operate under the Federal Rules of Civil
Procedure and the Federal Rules of Criminal Procedure. With
the approval of the District of Columbia Court of Appeals,
the Superior Court may modify those rules and may adopt and
enforce such other rules as it deems necessary. The Superior
Court has adopted, with the approval of the Court of Appeals,
its new Rule 43-I, which is identical in substance with
the enrolled bill under discussion. Rule 43-I became
effective in the Superior Court June 30, 1975.
Rule 43-I is technically a rule of evidence but it
is clearly in the nature of a procedural rule which could
properly be encompassed within the rules of civil procedure.
Prior to enactment of the Federal Rules of Evidence, several
provisions of the Federal Rules of Civil Procedure contained
evidentiary provisions of a similar nature. See, e.g.,
Rule 26 (b) (2), Rule 32 (a) (1), Rule 33 (c), Rule 43, Rule 44,
Fed. Rules of Civ. Proc. (1970). Title 11 of the District
of Columbia Code clearly empowers the District of Columbia
Courts to adopt rules of procedure of this nature and the
Home Rule Act just as clearly restricts the power of the
Council to affect such rules.
It is not necessary in this instance to determine
whether title 11 of the D.C. Code empowers the courts to
adopt rules of evidence of a more substantive nature (although
the courts have, in fact, done so). Nor is it necessary to
determine whether the Council retains authority to enact
legislation altering the rules of evidence now codified in
Title 14 of the D.C. Code. Promulgation of the Shop-Book
Rule by the District of Columbia courts is well within the
courts' express power to adopt rules of civil procedure and,
as such, is beyond the power of the City Council. Because
of the ramifications of a veto with respect to the separate
issue of the power of the Council to modify statutory rules
of evidence, such as those contained in Title 14, the
Department of Justice recommends that veto of the Council's
action be premised on the narrow ground that the Shop-Book
Rule was adopted by the courts as an exercise of its undis-
puted power to adopt rules of civil and criminal procedure.
Sincerely,
Wilmoun
Michael M. Uhlmann
Assistant Attorney General
Attachments
Home Rule Act Pub. L. 93-198, 87 Stat. 774
Sec. 404 Powers of the Council
(a) Subject to the limitations specified in title VI
of this Act, the legislative power granted to the District
by this Act is vested in and shall be exercised by the
Council in accordance with this Act.
Sec. 602 Limitations on the Council
(a) The Council shall have no authority to pass any
act contrary to the provisions of this Act except as
specifically provided in this Act, or to--
(4) enact any act, resolution, or rule with
respect to any provision of title 11 of the District of
Columbia Code (relating to organization and jurisdiction
of the District of Columbia courts);
FORD
D.C. Code
11-946 Rules of Court
The Superior Court shall conduct its business according to the
Federal Rules of Civil Procedure and the Federal Rules of
Criminal Procedure (except as otherwise provided in title
23) unless it prescribes or adopts rules which modify those
Rules. Rules which modify the Federal Rules shall be sub-
mitted for the approval of the District of Columbia Court
of Appeals, and they shall not take effect until approved
by that court. The Superior Court may adopt and enforce
other rules as it may deem necessary without the approval
of the District of Columbia Court of Appeals if such
rules do not modify the Federal Rules. The Superior
Court may appoint a committee of lawyers to advise it in
the performance of its duties under this section.
July 29, 1970, Pub. L. 91-358, §111, title I, 84 Stat.
487. (emphasis added)
ACTION MEMORANDUM
WASHINGTON
LOG NO.:
Date: February 23
Time: 700pm
FOR ACTION: Dick Parsons
cc (for information):
Max Friedersdorf
Jack Marsh
Ken Lazarus
Jim Cavanaugh
Robert Hartmann
Pat Lindh
FROM THE STAFF SECRETARY
DUE: Date:
Time:
February 25
300pm
SUBJECT:
D.C. Enrolled Act 1-87 - Affirmative action in
District Government Employment Act
ACTION REQUESTED:
For Necessary Action
For Your Recommendations
Prepare Agenda and Brief
Draft Reply
x
For Your Comments
Draft Remarks
REMARKS:
Please return to Judy Johnston, Ground Floor West Wing
R FORD
PLEASE ATTACH THIS COPY TO MATERIAL SUBMITTED.
If you have any questions or if you anticipate a
delay in submitting the required material, please
telephone the Staff Secretary immediately.
EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE OF MANAGEMENT AND BUDGET
WASHINGTON, D.C. 20503
FEB 20 1976
MEMORANDUM FOR THE PRESIDENT
Subject: District of Columbia Enrolled Act 1-87 -- Affirmative
Action in District Government Employment Act
Last Day for Action
February 27, 1976 - Friday
Purpose
To establish the goal of employment of women and minorities in
District of Columbia government agencies proportional to their
representation in the total population of the District between
the ages of 18 and 65.
Agency Recommendations
Office of Management and Budget
Disapproval (Memorandum
of Disapproval attached)
Civil Service Commission
Disapproval
United States Commission on
Civil Rights
Disapproval
Department of Labor
Disapproval (Informally)
Department of Justice
Approval
Equal Employment Opportunity
Commission
No recommendation
Discussion
Introduction
The District of Columbia Self-Government and Governmental Reor-
ganization Act (Home Rule Act) provides that Acts of the City
Council which have been vetoed by the Mayor and overridden by
a two-thirds vote of the Council shall, be transmitted by the
Council Chairman to the President for review. These Acts
become law unless the President expresses disapproval within
thirty days. We understand that the Home Rule Act has been
interpreted to provide that if the President declines to act,
thereby approving the legislation, the Congress would then
2
have thirty days for its consideration of the legislation. On
the other hand, if the President disapproves the D.C. bill, the
Mayor's veto would become final.
This is the first Council override of a mayoral veto since the
Home Rule Act was enacted. A separate memorandum is being
submitted to you on a second bill involving a Council override.
Summary of Act 1-87
Act 1-87 is designed to increase employment opportunities for
women and minorities in the agencies of the District government.
The bill states that "the goal of affirmative action in employ-
ment throughout the District government is, and must continue
to be, full representation, in jobs at all salary and wage
levels and scales, in accordance with the representation of all
groups in the available work force of the District of Columbia,
including, but not limited to Blacks, Whites, Spanish-speaking
Americans, Native Americans, Asian Americans, females and males."
"Available work force" is defined as the total population of
the District of Columbia between the ages of 18 and 65.
Each District government agency would be required to develop
and submit to the .Mayor and Council an affirmative action plan
within 12 weeks of enactment and annually thereafter. Each plan
would state
-- the number of women and minorities who would be
employed by the agency "using the goal of their
representation in the available work force in the
District";
-- the actual employment levels of women and minorities
in the agency and the difference between the actual
employment and the goals;
-- the number of women and minorities projected to be
hired and promoted in the period until the next plan;
and
-- what actions the agency is taking to assure equal
employment opportunity for women and minorities and
for "the aging, the young, the handicapped, and the
homosexual citizens of the District."
Other provisions of the bill would direct the Mayor to transfer
all Equal Employment Opportunity officers from their respective
agencies to the central Office of Human Rights (HR) impose the
responsibility of equal employment opportunity on each agency;
and provide for the Act's effective date.
FORDO LIBRARY & 028870
3
The bill passed the City Council on December 10, 1975, was
vetoed by the Mayor on December 24, and the veto was over-
ridden on January 19, 1976, bya 9-0 vote with 4 Council members
absent.
Issues
The Mayor and the City Council disagree on the effects of
this legislation. Specifically, there is a difference of
opinion as to whether the bill would require D.C. agencies
to hire women and minorities strictly in proportion to their
percentages in the gross population of the District of Columbia
regardless of qualifications or other factors. Such a statu-
tory requirement would be a matter of concern to the Federal
government because of its implications in affirmative action
policy generally.
The Mayor, the Civil Service Commission, and the Civil Rights
Commission believe that the goal of affirmative action in employ-
ment as defined in the bill would lead to the future requirement
that employment be in accordance with population parity at all
levels of the District Government, regardless of the qualifica-
tion or availability of individual employees. In this connection
the Civil Service Commission, in a letter to Mayor Washington,
stated:
"The use of gross population data is inappropriate in
defining the work force available to an employing
organization. Such data more often than not fails to
reflect the availability of particular skills in the
labor market required by the employing agency. If no
attention is paid to the relative availability of needed
skills, the result is frequently erroneous expectations
on the part of potential applicants and/or deliberate
decisions to hire less than qualified personnel.
Either one of these results could turn well-intentioned
goals into senseless and even illegal quotas. Indeed
the bill fails to take into account the concept of
relative ability which underlies the merit system and
competitive staffing."
In its views letter, the Civil Rights Commission "strongly
opposes quota systems by which an employee limits its work force
to fixed numbers or percentages of any race, sex, or ethnic group.
The Federal interest in this question arises partly because of
the present responsibility of the Civil Service Commission in
the District government personnel system. Until the District
4
establishes its own personnel system, the Commission has juris-
diction over positions (about 20%) in the District government
which are in the competitive service. In addition, the Com-
mission is responsible for the merit system compliance required
for D.C. participation in numerous Federal grant programs and
compliance with the Civil Rights Act is an important aspect of
a merit system. The Equal Employment Opportunity program in
the District government must also be carried out under the regu-
lations of the Commission.
Another source of Federal interest in this issue is a statement
entitled a "Federal Policy on Remedies Concerning Equal Employ-
ment in State and Local Government Personnel Systems," issued
jointly by the Equal Employment Opportunity Commission, the
Justice Department, the Department of Labor, and the United States
Civil Service Commission. That statement describes distinctions
between permissible goals and impermissible quotas in equal
employment. This bill does not appear to adhere to those dis-
tinctions. The Commission notes in its views letter that juris-
dictions writing affirmative action plans must set goals "based
on the availability of race/ethnic group members and women with
the necessary job skills in the relevant recruiting area" and
that work forces must not be established "on non-merit based
lines simply for the sake of achieving proportional representation.'
However, the City Council and the Justice Department do not
believe the bill is objectionable. Justice states that it sees
no reason for disapproval since "it appears the Act could be
administered, consistent with its language, to take into account
the availability of qualified persons." Justice does not mention
either the Civil Service Commission's responsibility in this area
or the "Four Agency Agreement" even though it is a signatory to
the latter. The Council argues that (a) the population standards
set in the bill are long range goals, not quotas; and (b) these
standards are quite different from population parity, because
the young and elderly (those under 18 and over 65) have been
removed from the definition of "available work force."
Recommendation
We believe the principle regarding Presidential actions on
District legislation enunciated by the Justice Department in
its views letter is appropriate: "The presidential authority
to disapprove City Council action is intended as a safeguard
for the Federal interest in this Federal city." Absent a
Federal interest, this authority should not be exercised. The
5
question is whether the bill raises a substantial issue of
Federal concern.
In our view, the Presidential authority to disapprove should
be exercised in this case. We base this recommendation on
two judgments.
1. The bill appears to justify the belief of the Mayor,
the Civil Service Commission, and the Civil Rights Commission,
that it not only establishes gross population parity as a
standard of employment in the District government but in fact
mandates it in the future. The bill sets forth a goal (repre-
sentation in accordance with the available work force in the
District) and then requires agency plans which seem to set up
a process which would lead over time to a D.C. work force
characterized by proportional representation along racial,
sexual and ethnic lines. This process would be set in motion
by the requirements that the plans state the difference between
what employment would be under the goal and what it is now and
that the agencies move toward eliminating that gap.
2. Approval of this bill would be inconsistent with both
the responsibility of the Civil Service Commission regarding
merit-based employment systems in the District government and
the District's Equal Employment Opportunity program, and the
"Four Agency Agreement" on equal employment in State and local
governments.
Accordingly, we recommend disapproval. A proposed statement of
disapproval to the Chairman of the City Council is attached for
your consideration.
James m. Trey
Assistant Director
for Legislative Reference
Enclosures
FORD
UNITED
STATE
EIVIL
COMMISSION
UNITED STATES CIVIL SERVICE COMMISSION
SERVICE
WASHINGTON, D.C. 20415
CHAIRMAN
February 10, 1976
Honorable James T. Lynn
Director
Office of Management and Budget
Washington, D. C. 20503
Attention: Assistant Director for Legislative Reference
Dear Mr. Lynn:
This is in reply to your request for the Civil Service Commission's
views on Enrolled D. C. Bill No. 1-133, "To insure the further develop-
ment and specification of Affirmative Action employment plans by all
District government agencies.'
Upon review of the documents furnished, we find ourselves in agreement
with the Mayor's veto comments. The bill which passed the City Council
contains a number of issues which we find to be non-merit based. My
letter of December 12, 1975, to Mayor Washington (copy attached) clearly
explains the position of this agency on Bill 1-133. It was submitted to
the Mayor in accordance with the Commission's jurisdiction over competi-
tive service positions in the District Government as well as our responsi-
bilities under both the Equal Employment Opportunity Act of 1972 and the
Intergovernmental Personnel Act.
It should be noted that neither the Council-passed bill nor the
alternative proposal by the Mayor would modify the Commission's regu-
latory authority over the Equal Employment Opportunity program in the
District government. Consequently the provisions of the proposed
legislation and its implementation must be consistent with Part 713 of
the Commission's regulations and with other Commission regulations
applicable to appointments, promotions, etc., in the competitive service.
We would like to take this opportunity to emphasize two points which
should be taken into consideration by any jurisdiction writing an
affirmative action plan:
(1) Setting affirmative action goals requires a careful analysis
of the number of employees by race/ethnic groups in job
categories, salary levels, organizational units and similar
breakdowns compared with the number of persons by race/ethnic
groups with the required skills in the appropriate recruiting
areas.
Where this analysis indicates that discrimination may have
occurred in the past, whether intentional or not, an affirma-
tive action plan should include numerical employment goals
and timetables aimed at improving the employment situation.
The goals and timetables set should be realistic and flexible,
based upon the availability of race/ethnic group members
and women with the necessary job skills in the relevant
recruiting area and upon the job opportunities anticipated.
(2) Equal employment opportunity is not accomplished by an
agency when it meets race/ethnic employment goals that are
proportional to general population figures. Management
officials should avoid any tendency to establish their work
forces along race/ethnic or any other non-merit based lines
simply for the sake of achieving proportional representation.
Therefore, we recommend that the President disapprove Bill 1-133. The
substitute bill, which the Mayor recommends, is a significant improve-
ment over Bill 1-133. Nevertheless, it needs additional work in the
assessment of the present employment situation in the District govern-
ment, the identification of major equal employment opportunity problems,
the allocation of resources and the definition of measurable goals.
We would be happy to work with the appropriate District government staff
in making those improvements.
By direction of the Commission:
Sincerely yours,
Robert Robert E. Hampton Hampton
Chairman
FORD is LIBRARY
UNITED STATES CIVIL SERVICE COMMISSION
27
WASHINGTON, D.C. 20415
CHAIRMAN
DFC121975
Honorable Walter E. Washington
Mayer of the District of Columbia
Washington, D.C. 20004
Dear Mayor Washington:
Recently we received a copy of a bill on Affirmative Action in Employment
which was adopted by the District's City Council on December 2, 1975.
Since the Civil Service Commission exercises certain responsibilities to-
ward the District Government under both the Equal Employment Opportunity
Act of 1972 and the Intergovernmental Personnel Act 23 well as some gen-
eral responsibilities for competitive service positions, we find it nec-
essary to bring to your attention certain concerns which we have regard-
ing this legislation.
Section 2 of the bill uses the phrase, "available work force" which is
defined as "the total population of the District of Columbia between the
ages of 13 and 65." Thus, the bill in effect states that if "females and
nales who are Black, White, Spanish-speaking, Native American and Asian
American" are not represented at salary and wage levels in District en-
ployment in proportion to their number in the total population of the
District between the ages of 1S and 65, corrective affirmative steps must
be taken.
The use of gress population data is inappropriate in defining the work
force available to an employing organization. Such data more often than
not dails to reflect the availability of particular skills in the labor
market required by the employing agency. If no attention is paid to the
relative availability of needed skills, the result is fraquently erroneous
expectations on the part of potential applicants and/or deliberate decisions
to hire less than qualified personnel. Either one of these results could
turn well-intentioned goals into senseless and even illegal quotas. Indeed
the bill fails to take into account the concept of relative ability which
underlies the merit system and competitive staffing.
2
In March 1973, four Federal agencies, the Equal Employment Opportunity
Commission, the Justice Department, the Department of Labor, and the
U.S. Civil Service Commission, jointly issued 2 "Federal Policy on Rea-
edies Concerning Equal Employment Opportunity in State and Local Covern-
ment Personnel Systems," generally referred to as the "Four Agency Agree-
rent. " Attached is a copy for your information. In that policy, the
agencies recognize that, in appropriate circumstances, goals and time-
tables are "a proper means for helping implement the nation's commitment
to equal employment opportunity through affirmative action programs."
They also describe the basic distinctions between permissible goals and
impermissible quotas.
It is our view therefore that Governmental agencies especially those
operating within the context of a marit system must avoid any tendency
to arbitrarily establish their work forces along race, sex or ethnic
lines for the sake of achieving proportional representation.
We remain keenly interested in the adoption of an affirmative action
policy for the District Government which provides true equal opportunity
in employment. We would be happy to work with you in providing assistance
OF this and related issues. Please feel free to call upon US.
Sincerely yours,
Robert Robert E. Hampton Hampton
Chairman
Enclosure
UNITED STATES COMMISSION ON CIVIL RIGHTS
WASHINGTON, D. C. 20425
STAFF DIRECTOR
February 12, 1976
Mr. James M. Frey
Assistant Director for
Legislative Reference
Office of Management & Budget
RALD
Washington, D.C. 20503
Dear Mr. Frey:
This is in response to your request of February 5, 1976
for the views of the U.S. Commission on Civil Rights with
respect to the "Affirmative Action in District Government
Act", which has been submitted to the President by the
District of Columbia City Council pursuant to Section 404 (E)
of the District of Columbia Self-Government & Governmental
Reorganization Act.
The Commission believes that the Council has adopted a
leadership position by drafting and enacting this legis-
lation to make affirmative action in employment a reality
in the District of Columbia government. The Council has
properly sought to carry out the affirmative duty which
rests with the Mayor and the Council to eliminate the last
vestiges of discrimination and to assure that nondiscrimina-
tory employment practices are followed in the future.
However, the Mayor's veto message makes an important point
with which we agree. The definition of "available work
force" must in our view include language which makes it
clear that the Council does not intend to legislate the
hiring of women and minorities in proportion to their
percentages in the population of the District of Columbia.
In our view the purpose of this affirmative action legis-
lation is to remedy underutilization and eliminate employ-
ment discrimination. The Commission position on the manner
in which such a remedy should be based is indicated in its
report: The Federal Civil Rights Enforcement Effort, 1974,
Volume V, "To Eliminate Employment Discrimination."
2
By underutilization, the Commission means the
disparity between minority and female employment
in the employer's work force and the proportion
of these groups having those skills and knowledges
manifestly related to the job. The establishment
of goals and timetables, we insist, is not a quota
to fix a particular level of employment for any
group, but rather an attempt to make a good faith
effort to overcome past discriminatory practices
which excluded minority and female applicants.
The U.S. Commission on Civil Rights strongly opposes quota
systems by which an employer limits its work force to fixed
numbers or percentages of any race, sex, or ethnic group.
The Commission recognizes that such quota systems have been
used to keep members of certain minority groups and women
from achieving their full potential and believes that
there is no legal or moral justification for such practices.
The Commission recommends that the President not sign this
bill until language is included in section 2 which makes it
clear that "available work force" relates to persons in
underutilized groups possessing skills manifestly related
to the jobs available.
Sincerely,
JOHN A. BUGGS
Staff Director
ANT ATTORNEY GENERAL
GISLATIVE AFFAIRS
Department of Justice
Washington, D.C. 20530
February 20, 1976
Honorable James T. Lynn
Director, Office of Management
and Budget
Washington, D. C. 20503
Dear Mr. Lynn:
This is in response to your request for the views of the
Department of Justice on the District of Columbia Council
Bill 1-133, "Affirmative Action in District Government Employ-
ment Act". Pursuant to Section 404 (e) of the District of
Columbia Self-Government and Governmental Reorganization Act
(P.L. 93-198), the President has thirty days within which to
"disapprove" any act passed by a two-thirds vote of the Council
over the Mayor's veto of an earlier enactment.
Bill 1-133 states that the "goal of affirmative action in
employment throughout the District [of Columbia] government"
is "full representation, in jobs at all salary and wage levels
of all groups in the available work force of the District
of Columbia, including, but not limited to, Blacks, Whites,
Spanish-speaking Americans, Native Americans, Asian Americans,
females, and males". (Sec. 2). "[F]ull representation" is to
be in accord with "the representation of [such] groups in the
available work force of the District
"
(id.); "available
work force is defined as "the total population of the District
of Columbia between the ages of 18 and 65". (id.).
To achieve this goal, each agency of the District
government is to develop and submit to the Mayor and Council
an affirmative action plan (Sec. 3), which shall include goals,
as outlined above, at all pay levels in all offices of each
agency, including projected new hires and promotions (Secs. 4
and 5). "These shall be the goals, not the quotas, of the
plan." (Sec. 4).
Each agency shall also indicate in its plan what steps
it is taking to secure employment rights for "the aging, the
young, the handicapped and the homosexual citizens of the
District
" (Sec. 6; see also Sec. 8); other provisions
of the bill impose the responsibility of equal employment
opportunity cases (Sec. 9), and provide for the Act's effective
date (Sec. 10).
The Justice Department does not recommend executive
disapproval of the Act.
It is important that governments at all levels in the
United States heed the equal employment opportunity obligations
implicit in the Fifth and Fourteenth Amendments and explicit
in Title VII ofthe Civil Rights Act of 1964, 42 U.S.C. 2000e
et seq. While racial ethnic or sexual statistics concerning
an employer's work force are but one indicator of whether it
is providing equal employment opportunity, the courts have been
unanimous in finding statistical information very probative.
Accordingly, the Council's concern with this aspect of employ-
ment is quite proper, and, absent compelling policy or constitu-
tional considerations, the Act should not be disapproved.
The Department has considered the correspondence you shared
with us -- (1) the December 12, 1975, letter from Chairman
Hampton of the Civil Service Commission to Mayor Washington, and
(2) Mayor Washington's veto message of December 24, 1975, to
the Council -- and do not find there a sufficient predicate for
executive disapproval.
Both Chairman Hampton and Mayor Washington express concern
about the Act's defining "available work force" as the "total
population of the District" (e.g., Hampton letter, p. 1). From
this they conclude that the Act calls for population parity at
all levels of the District government, regardless of qualifications
or availability. This is seen as possibly turning "well-
intentioned goals into senseless and even illegal quotas" (id.).
If the Act had to be read to require that all groups be
represented at all levels of the District government in their
proportion of the population regardless of qualifications or
availability the Department would agree that substantial policy
and possibly constitutional issues would be raised. However,
since it appears the Act could be administered consistent with
its language to take into account the availability of qualified
persons, there appears to be no reason for executive disapproval.
It should be noted, however, that if the Council had intended
population parity without regard to the factors mentioned above,
there would be no need for each agency of the District government
to calculate kinds of employees by levels; rather, the Council
could simply have established the percentages for all groups in
the District (by using, say, the 1970 census) and left to each
agency merely the mathematical calculation for its particular
size.
- 3 -
Finally, in each instance where Presidential disapproval
of a city council bill is considered, that consideration must
take into account the objectives of P.L. 93-198, which include:
"grant to the inhabitants of the District of Columbia powers
of local self-government." (Sec. 102(a)). Thus, the question
before the President here is different from the question before
the President deciding whether to veto a bill passed by Congress
or the question before the Mayor in deciding whether to veto a
bill passed by the City Council. The presidential authority
to disapprove city council action presumably is intended as a
safeguard for the federal interest in this federal city.
Regardless of the wisdom of Bill 1-133, it does not seem to
impinge on the national government, and therefore should be left
to the political and judicial processes of the District of
Columbia.
Singerely,
Michael HE Welmam
Michael M. Uhlmann
Assistant Attorney General
SOUAL SHIPLOYMENT
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
WASHINGTON, D.C. 20506
1
February 19, 1976
MEMORANDUM
TO
:
Edgar Morgan
Director
Congressional Affairs
FROM
:
Constance L. Dupre CLD
Associate General Counsel
Legal Counsel Division
SUBJECT :
Mayor Washington's Proposed Substitute Bill
on Affirmative Action
Under Title VII of the Civil Rights Act of 1964, as amended,
an employer is permitted to initiate voluntary affirmative
action programs upon completion of an internal self-analysis
which reveals underutilization of protected classes in
proportion to their representation in the relevant labor
force, and the employer has reason to believe that the
presumption of discrimination arising from such underuti-
lization could not be rebutted. This memorandum is based
upon the assumption that such a self-analysis has been made.
We wish to note that, pursuant to Section 717 of Title VII,
those units of the Government of the District of Columbia
having positions in the competitive service are subject to
the United States Civil Service Commission's rules, regula-
tions, orders and instructions concerning employment dis-
crimination and affirmative action programs. Those units
not subject to procedures of the competitive service are
subject pursuant to Section 701 of Title VII, to the juris-
diction of the Equal Employment Opportunity Commission in
matters involving alleged employment discrimination.
Since the Equal Employment Opportunity Commission was
afforded only a few days to evaluate this bill, it is im-
perative that we emphasize that this memorandum only ad-
dresses the more significant features of the bill and does
not constitute an exhaustive analysis.
We have the following comments on the proposed substitute
bill:
1. The bill, in Sections 2a and 3, provides for
affirmative action goals of representation of minorities and
females in the District government proportionate to their
Page 2
representation in the "available labor force" in the District
of Columbia, Section 9 of the bill, however, provides that
"nothing in this Act shall be construed to prohibit the
recruitment or hiring of applicants located outside of the
District of Columbia.'
Thus, the bill is establishing affirmative action goals by
the use of labor force statistics for a narrower geographic
area than from which it is drawing its workforce. Such a
use diverges from the general principle of Title VII law 1/
as established by the Commission and the courts that minority
population statistics used to establish goals for remedying
discrimination, are taken from the area from which the
workforce is drawn. 2/
Furthermore, Civil Service Commission guidance for federal
affirmative action programs, as set forth in Section 713 of
the Federal Personnel Manual, prescribes the establishment
of goals (of hiring minorities and females) that are "rea-
sonable in terms of their relationship to hiring needs and
skills available in the recruiting area. 3/ (emphasis sup-
plied)
Accordingly, it appears that the female and minority labor
force statistics could more appropriately be taken from a
broader geographical area than the District of Columbia, 4/
assuming that such an adjustment would further the goal of
remedying the prior underutilization.
1/ The general principles of Title VII law are also rele-
vant to the federal service.
2/ See the Commission publication, Affirmative Action and
Equal Employment, Vol. 1, p.25, where private employers are
advised: "Determine Extent of Underutilization of Minorities
and Females - Survey your labor area (the area in which you
can reasonably expect to recruit)
"
See also Rios V.
Enterprise Ass'n. Steamfitters, Local 638, 501 F. 2d 622 (2d
Cir. 1974), where the court ordered the use of statistics in
the area for the union's territorial jurisdiction.
3/ Section 713, Federal Personnel Manual, Letter No. 713-
22, 2(g), Cf. n.2 supra, and accompanying text.
4/ See EEOC publication, Affirmative Action and Equal
Employment Vol. 1, p.25, where the private employer is
advised:
Page 3
2. The goal of attaining representation on the work-
force proportionate to minority and female representation in
the definition of "available workforce" as "those persons
between the ages of 16 and and 65 eligible for the desirous
of employment," is in accord with the general principles of
Title VII law as established by the Commission and the
Courts with respect to remedial affirmative action. The
courts have held that Title VII imposes upon employers an
affirmative duty to recruit minorities where there is a
history of exclusion. See U.S. V. Ironworkers, Local 7, 438
F.2d 697 (7th Cir. 1971); Papermakers, Local, 189, V. U.S.,
416 F.2d 980 (5th Cir. 1970), cert. denied, 397 U.S. 919
(1970). In implementing these affirmative duties by court
order, the courts have rejected absolute preference remedies 5/
but have approved ratio hiring of previously excluded
minorities, for both private and public employers, rejecting
arguments that such ratio hiring is unconstitutional or in
contravention of Title VII's anti-preferential treatment
statute. 6/ In setting hiring goals, the courts have
4/ continued
Your labor area should generally be the
Standard Metropolitan Statistical Area
(SMSA) for which Census Bureau and other
employment data is available. An Affirm-
ative Action Program should include "an
area of reasonable recruitment." For
example: if you are located in a predom-
inantly white county 30 miles from an
urban area with considerable minority
population, the urban area is an area
of reasonable recruitment.
The reverse situation would apply to the District of Columbia,
i.e., the suburbs would be regarded as an area of reasonable
recruitment.
5/ Carter V. Gallagher, 452 F.2d 315 (8th Cir. 1971), cert.
denied, 406 U.S. 150 (1972).
6/ Carter, supra; United States V. Wood, Wire Metal Lathers
International Union, Local No. 46, 471 F.2d 408 (2d Cir.
1973), cert. denied, 412 U.S. 939 (1973).
Page 4
cautiously approved the use of minority representation in
the relevant labor force. 7/
We believe that from the outset the
court should be guided by the most
precise standards and statistics
available in view of the delicate
constitutional balance that must be
struck in the use of such goals or
quotas between the elimination of
discriminatory effects, which is per-
missible, and the involvement of the
court in unjustifiable reverse racial
discrimination, which is not. These
conflicting considerations make it
essential that the percentage figure
be reached with the utmost of care,
since once the goal is reached the
party will thereafter be bound by
standards of non-discrimination
applicable to all, and not forced to
continue in effect a percentage ratio
which could become anachromistic.
Rios, id. at 633.
Although the affirmative action discussed above was judicially
ordered after a specific finding of past discrimination, the
fact that the affirmative action program established here is
voluntary, does not render illegal the goals of minority
representation in the workforce in proportion to their
representation in the relevant labor force. If underutili-
zation of minorities and females in the workforce be found
by the use of such a yardstick, it may be presumed (a re-
buttable presumption) that discriminatory exclusion has been
taking place. Affirmative action by its very nature is
remedial. We note here that courts have upheld federal
affirmative action programs against challenge under the
Equal Protection Clause. Contractors Ass'n. of Eastern
Pennsylvania V. Secretary of Labor, 442 F. 2d 159 (3rd Cir.
19 ), cert. denied 404 U.S. 854; Weiner V. Cuhahoga Community
College District, I9 Ohio Lt. 2d 35, 249 N.E. 2d 907, 908,
cert. denied 396 U.S. 1004.
77 See Rios, supra, n.2; Bridgeport Guardians V. Bridgeport
Civil Service Commission, 482 F.2d 1333 (2d Cir. 1973)
(specific numbers of minority patrolmen to be appointed in
order to achieve 15% representation on workforce, in relation
to the 25% representation of the minority population in the
area).
Page 5
In Contractors Ass'n., supra, the court specifically held
that "a finding as to the historical reason for the exclu-
sion of available tradesmen from the pool is not essential
for federal contractual remedial action.' As the Four
Agency Agreement of March 1973 stated with respect to
affirmative action for state and local governments, "all
agencies recognize that goals and timetables are appropriate
as a device to help measure progress in remedying discrimi-
nation. The agreement defines "goal" as a numerical ob-
jective, fixed realistically in terms of the number of
vacancies expected and the number of qualified persons
available in the relevant job market.
3. The change of the definition "available labor
force" from "those persons between the ages of 16 and 65" to
"those persons between the ages of 16 and 65 eligible for
and desirous of employment, is in accordance with Title VII
principles of affirmative action. Such circumscription of
statistics in setting affirmative action goals is in accord
with the Rios standard set forth supra, that the percentage
figure be reached "with the utmost care."
4. We wish to comment on the statement by the Civil
Service Commission that "the bill fails to take into account
the concept of relative ability which underlies the merit
system and competitive staffing. " 8/ We think it important
to note that in affirmative action programs there is no
requirement that candidates selected from the underutilized
groups be superior in qualifications to those over whom they
are selected. The standard that is used is that they be
qualified. The Four Agency Agreement explains this as
follows:
"While determinations of relative ability
should be made to accord with required
merit principles, where there has been a
history of unlawful discrimination, if
goals are set on the basis of expected
vacancies and anticipate availability of
skills in the market place, an employer
should be expected to meet the goals if
there is an adequate pool of qualified
applicants from the discriminated against
group."
8/ See Letter of December 12, 1975, from Robert E. Hampton,
Chairman, to Mayor Walter E. Washington.
FURD & LIBRARY 038470
Page 6
In fashioning its ratio remedy, the court in Carter V.
Gallagher speaks only in terms of choosing qualified
persons, stating at p.330, "[W]e think some reasonable ratio
who can qualify (emphasis added) under the revised qualifi-
"
cation standards is in order for a limited period of time
Moreover, in most instances where there is an underutiliza-
tion of minorities and/or females, discriminatory selection
devices are involved, which do not properly measure the
ability of the candidate to do the job. As the court
stated in Carter V. Gallagher:
Because of the absence of validation
studies on the record before us, it is
speculative to assume that the qualifying
test, in addition to separating those
applicants who are qualified from those
who are not, also ranks qualified appli-
cants with precision, statistical validity
and predictive significance.
Id.
at
331.
With respect to the possibility of District of Columbia dis-
criminatory employment selection devices, we note that in
the case of Davis V. Washington, 9 EPD para. 9980 (D.C.
Cir., 1975), the Court concluded that the District of
Columbia police entrance testing examination was discrimi-
natory as it had a disproportionate rejection rate for
minority applicants.
Accordingly, we feel that the bill, in order to conform to
"merit" requirements, need state only that candidates
selected for a job pursuant to affirmative action programs
be "qualified" for that job.
5. Section B, which prescribes the goal of hiring
females and minorities in proportion to their representation
in the "available" workforce is awkwardly stated. More
appropriate wording for the first sentence would be: Each
plan shall set a numerical goal in the workforce of females
and males who are Black, White, Hispanic, Native American,
and Asian American, in proportion to their representation in
the "available labor force."
MEMORANDUM
THE WHITE HOUSE
WASHINGTON
February 24, 1976
MEMORANDUM FOR THE PRESIDENT
FORD LIBRARY is 079839
FROM:
Jim Cannon
SUBJECT: D. C. Enrolled Act 1-87 --- Affirmative Action
in District Government Employment Act
Under the District of Columbia Self-Government and Governmental
Reorganization Act (Home Rule Act), where, by two-thirds vote,
the City Council overrides the Mayor's veto of a bill, the bill
is sent to the President for his review and he has 30 days in
which he may disapprove the City Council's override of the
Mayor's veto. The subject bill is the first one on which the
City Council has overridden the Mayor's veto since the Home
Rule Act was enacted. It is presented for your review.
MEMORANDUM
THE WHITE HOUSE
INFORMATION
WASHINGTON
February 24, 1976
MEMORANDUM FOR:
Jim Cannon
FROM:
Dick Parsons
SUBJECT:
D. C. Enrolled Act 1-87 -- Affirmative
Action in District Government Employ-
ment Act
Normally I would not bother you with routine legislation, but
I think the attached bill is potentially politically explosive.
Under the D. C. Home Rule Act, if the City Council passes a
bill and the Mayor vetoes the bill and the City Council over-
rides the Mayor's veto by a two-thirds vote, the President has
30 days in which he may override the City Council's override,
thereby affirming the Mayor's veto. The attached bill is the
first one on which the Council has overriden the Mayor's veto
since the Home Rule Act was enacted.
This bill is intended to promote affirmative action in D. C.
government employment by establishing the goal of representation
in all D. C. government jobs of minorities and women in pro-
portion to their representation in the available work force.
The "available work force" is defined as the total population
of the District of Columbia between the ages of 18 and 65.
OMB, the U.S. Civil Service Commission and the U.S. Commission
on Civil Rights have recommended disapproval of the bill because
they believe that it would require District government agencies
to employ minority group members and women on the basis of race
or sex, without regard to their qualifications for the jobs,
since, in defining "available work force," no mention is made
of skills or abilities manifestly related to given jobs. The
Department of Justice, on the other hand, believes that a
skill-qualification requirement could be read into the law
and, therefore, does not oppose its enactment.
On the merits, I agree with OMB, the Civil Service Commission
and the Commission on Civil Rights that the bill should be
disapproved (if for no other reason than to force the City
Council to clarify its intention in this regard).
FORD & LIBRARY 077830
2
However, the President should be aware of two things before
he acts on this measure:
1. Disapproval of the bill could enrage a sizeable
(and vocal) segment of the civil rights community
as well as the proponents of home rule. While I
would view the disapproval as substantively
justified, it would be based on a rather subtle
and difficult-to-define nuance of legal inter-
pretation. Moreover, I do not believe that the Federal
interest here is so clear or compelling as to require
Presidential involvement.
2. The President has an alternative to disapproval of
the bill. If he says nothing within the 30-day
period, the Congress then has 30 days in which to
review the Act and disapprove it if it (the
Congress) so determines. The President may wish
to simply pass the ball to the Congress.
In light of these factors, I would not recommend that the
President disapprove the bill. I think he should let the
Congress or the courts do it.
Attached is a draft of the text of a memorandum from you to
the President setting forth the issue as I see it. Note,
however, that I have not set forth your recommendation to
the President, since I thought you might want to reflect not
only on these points but on the views of the President's other
advisers.
Attachment
FORD & LIBRARY 07V839
THE WHITE HOUSE
WASHINGTON
February 25, 1976
MEMORANDUM FOR:
JIM CAVANAUGH
FROM:
MAX L. FRIEDERSDORF M. 6.
SUBJECT:
D.C. Enrolled Act 1-88 - District of Columbia
Shop-Book Rule Act
The Office of Legislative Affairs concurs with the agencies
that the Act be disapproved.
Attachments
FORMS & LIBRARY and a7v839
THE WHITE HOUSE
WASHINGTON
February 26, 1976
MEMORANDUM FOR:
JIM CANNON
FROM:
DAVID LISSY
Sold
SUBJECT:
District of Columbia Enrolled Act
1-87 -- Affirmative Action in District
Government Employment Act
I would prefer that the President disapprove this D.C.
City Council action.
If, however, you share Dick Parson's view that the President
take no action then I have an additional suggestion which I
believe Dick finds acceptable.
If the President takes no action because he determines there
is no substantial Federal interest, it is important that Ron
Nessen get us on record as to the reasons for Presidential
non-action and also express our concern about the merits of
the legislation. This City Council action frightens people
who worry about affirmative action turning into quotas. They
will be surprised if the President does not act and will see
it as inconsistent with the President's general views.
Points to make in the press briefing:
The only reason the President did not act was because
the Federal interest was not clearly substantial.
On the merits, we think this legislation is very unwise --
but "home rule" means just that.
We do not believe quotas are appropriate and it is the
Mayor's view that this legislation would require quotas
regardless of the qualification or availability of
individual employees.
We understand that Congress now has 30 days in which it
may choose to disapprove the action of the City Council.
When asked whether we would recommend that Congress act or
would consider Congressional action inappropriate for the
reasons the President did not act -- we should duck the
question.
CC: Dick Parsons
GERATE FORD
Last day for action:
February 27, 1976
THE WHITE HOUSE
WASHINGTON
February 27, 1976
put DECISION
MEMORANDUM FOR THE PRESIDENT
FROM:
SUBJECT:
Presidential Policy on Home Rule
JIM CANNON Jui
grup Fle
This is an important issue related to your policy of
federal, state and local relationships.
In 1973, Congress passed the District of Columbia
Self-Government and Governmental Reorganization Act
(Home Rule Act) which was to provide for home rule
in and by the city of Washington. Part of that law
provides that if the D.C. Council passes a bill, has
it vetoed by the Mayor and then overrides his veto,
the bill must be sent to the President for his review.
The President has 30 days in which to disapprove the
bill or take no action. If he takes no action, then
Congress has 30 days in which it can override the D.C.
Council action. If neither the President nor Congress
acts, then the bill becomes law. D.C. laws are, of
course, subject to judicial review.
Up to now, this issue has not come before you. Now
there are two such bills which have been presented for
your review. What you do on these bills will probably
set a precedent not only for your Administration but
for Presidents who follow you.
PRIMARY ISSUE
The fundamental issue can be stated in these two options:
Option I
Should the President intervene in the District of Columbia
home rule process only if there is a clear and compelling
Federal interest?
Option II
Should the President intervene if there is a substantial
Federal interest?
FORDO LIBRARY & PERALD
2
Arguments in Favor of Option I
A. The Presidential authority to disapprove actions
of the D.C. Council was intended as a safeguard
of Federal interest in the District and not as
a general check on the wisdom of Council decisions.
B. Unless there is an overriding Federal interest,
the President should not intervene in home rule
decisions in Washington any more than he intervenes
in similar decisions by, for examp the City of
Baltimore.
a
Arguments in Favor of Option II
A.
Washington is unique as a federal city, and the
2/21/16 hogis
President has an cobligation to safeguard a special
Federal interest in the District.
B
The President must insure that the intent of Congress
in delegating legislative authority to the D.C.
Council is properly carried
SECONDARY ISSUES
looked out, agm are altm tity
durth
I
1-87
II
Affirmative Action in District Government ju to euch take
Employment Act
This bill is being viewed as an attempt do to set quotas
have
for employment by the District government
wt
It is intended to promote the concept of affirmative action
in D.C. government employment by establishing the goal
to
is
of representation in all D.C. government jobs of minorities
and women in proportion to their representation in the
available work force. The "available work is
defined as the total population of the District of Columbia
between the ages of 18 and 65.
OMB, the U.S. Civil Service Commission and the U.S.
Commission on Civil Rights have recommended disapproval
of the bill because they believe it would require District
government agencies to select minority group members and
women for employment on the basis of race or sex, without
regard to their qualifications for the jobs, since, in
defining "available work force," no mention is made of a
FORD & LIBRARY CERALD
3
skill or an ability requirement. This result is of
concern to the Federal government because of the
responsibility of the Civil Service Commission to
insure that competitive service positions in the
District government are filled in accordance with
merit principles.
The Department of Justice, on the other hand, believes
that a skill or an ability requirement can be read
into the law and, therefore, the law can be administered
in accordance with the merit system. Therfore, Justice
does not oppose enactment of the law.
The OMB enrolled bill memorandum on this bill is
attached at Tab A.
1-88 District of Columbia Shop-Book Rule Act
In this bill, the D.C. Council may have reached beyond
its authority under the Home Rule Act. Specifically,
the bill provides that any documentary record of any
business transaction, event or occurrence shall be
admissible as evidence in any civil or criminal judicial
proceeding in the courts of the District of Columbia.
OMB and the Department of Justice have recommended
disapproval of the bill on the ground that the D.C.
Council had no authority to enact it. They point out
that, under the D.C. Court Reorganization Act, the power
to prescribe rules of judicial procedure, including rules
of evidence, is vested exclusively in the D.C. courts.
OMB and Justice believe there is a Federal interest here
in ensuring that the intent of Congress in delegating
legislative authority to the Council is being appropriately
carried out.
The OMB enrolled bill memorandum on this bill is attached
at Tab B.
RECOMMENDATION
FORD & LIBRARY GERALD
1. OMB recommends disapproval of both bills.
2. The President's Counsel (Lazarus) recommends no action
on 1-87 and disapproval of 1-88.
3. Max Friedersdorf, Dick Parsons and I recommend you take
no action on either bill. We do not believe that the
Federal interest involved in either case is sufficiently
4
compelling to warrant Presidential disapproval.
If home rule is to have real meaning, the sanctity
of the local political process must be respected
where no compelling federal interest exists.
This position is, I believe, also consistent with
your general view that local governments should
retain, to the maximum extent possible, control
over local matters.
If you concur in this recommendation, I suggest
you issue a statement explaining your reasons for
2/17/76 2/27 whon
taking no action (draft attached at Tab E).
If you decide to disapprove one bill and not the
other, the draft statement at Tab E can be amended
to make essentially the same point about home rule.
DECISION
D.C. Enrolled Act 1-87 (Affirmative Action)
GRF
GASE
Take no action (not sustain Mayor's veto).
Disapprove the bill (sustain Mayor's veto).
(Statement at Tab F)
D.C. Enrolled Act 1-88 (Shop-Book Rule)
Take no action (not sustain Mayor's veto).
GRF
Disapprove the bill (sustain Mayor's veto).
(Statement at Tab G)
Unerewt works vsoluty even House
FORD & LIBRARY GERALD
EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE OF MANAGEMENT AND BUDGET
WASHINGTON, D.C. 20503
6:15
FEB 20 1976
MEMORANDUM FOR THE PRESIDENT
Subject: District of Columbia Enrolled Act 1-87 -- Affirmative
Action in District Government Employment Act
Last Day for Action
February 27, 1976 - Friday
Purpose
To establish the goal of employment of women and minorities in
District of Columbia government agencies proportional to their
representation in the total population of the District between
the ages of 18 and 65.
Agency Recommendations
Office of Management and Budget
Disapproval (Memorandum
of Disapproval attached)
Civil Service Commission
Disapproval
United States Commission on
Civil Rights
Disapproval
Department of Labor
Disapproval (Informally)
Department of Justice
Approval
Equal Employment Opportunity
Commission
No recommendation
Discussion
Introduction
FORD & LIBRARY 9ERALD
The District of Columbia Self-Government and Governmental Reor-
ganization Act (Home Rule Act) provides that Acts of the City
Council which have been vetoed by the Mayor and overridden by
a two-thirds vote of the Council shall be transmitted by the
Council Chairman to the President for review. These Acts
become law unless the President expresses disapproval within
thirty days. We understand that the Home Rule Act has been
interpreted to provide that if the President declines to act,
thereby approving the legislation, the Congress would then
EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE OF MANAGEMENT AND BUDGET
WASHINGTON, D.C. 20503
6:15
FEB 20 1976
MEMORANDUM FOR THE PRESIDENT
Subject: District of Columbia Enrolled Act 1-87 -- Affirmative
Action in District Government Employment Act
Last Day for Action
February 27, 1976 - Friday
Purpose
To establish the goal of employment of women and minorities in
District of Columbia government agencies proportional to their
representation in the total population of the District between
the ages of 18 and 65.
Agency Recommendations
Office of Management and Budget
Disapproval (Memorandum
of Disapproval attached)
Civil Service Commission
Disapproval
United States Commission on
Civil Rights
Disapproval
Department of Labor
Disapproval (Informally)
Department of Justice
Approval
Equal Employment Opportunity
Commission
No recommendation
Discussion
Introduction
The District of Columbia Self-Government and Governmental Reor-
ganization Act (Home Rule Act) provides that Acts of the City
Council which have been vetoed by the Mayor and overridden by
a two-thirds vote of the Council shall be transmitted by the
Council Chairman to the President for review. These Acts
become law unless the President expresses disapproval within
thirty days. We understand that the Home Rule Act has been
interpreted to provide that if the President declines to act,
thereby approving the legislation, the Congress would then
GERALD LIBRANT R. FORD
2
have thirty days for its consideration of the legislation. On
the other hand, if the President disapproves the D.C. bill, the
Mayor's veto would become final.
This is the first Council override of a mayoral veto since the
Home Rule Act was enacted. A separate memorandum is being
submitted to you on a second bill involving a Council override.
Summary of Act 1-87
Act 1-87 is designed to increase employment opportunities for
women and minorities in the agencies of the District government.
The bill states that "the goal of affirmative action in employ-
ment throughout the District government is, and must continue
to be, full representation, in jobs at all salary and wage
levels and scales, in accordance with the representation of all
groups in the available work force of the District of Columbia,
including, but not limited to Blacks, Whites, Spanish-speaking
Americans, Native Americans, Asian Americans, females and males."
"Available work force" is defined as the total population of
the District of Columbia between the ages of 18 and 65.
Each District government agency would be required to develop
and submit to the Mayor and Council an affirmative action plan
within 12 weeks of enactment and annually thereafter. Each plan
would state
-- the number of women and minorities who would be
employed by the agency "using the goal of their
representation in the available work force in the
District";
-- the actual employment levels of women and minorities
in the agency and the difference between the actual
employment and the goals;
--- the number of women and minorities projected to be
hired and promoted in the period until the next plan;
and
-- what actions the agency is taking to assure equal
employment opportunity for women and minorities and
for "the aging, the young, the handicapped, and the
homosexual citizens of the District."
Other provisions of the bill would direct the Mayor to transfer
all Equal Employment Opportunity officers from their respective
agencies to the central Office of Human Rights (HR); impose the
responsibility of equal employment opportunity on each agency;
and provide for the Act's effective date.
ERALO FORD LIBRARY
&
3
The bill passed the City Council on December 10, 1975, was
vetoed by the Mayor on December 24, and the veto was over-
ridden on January 19, 1976, by a 9-0 vote with 4 Council members
absent.
Issues
The Mayor and the City Council disagree on the effects of
this legislation. Specifically, there is a difference of
opinion as to whether the bill would require D.C. agencies
to hire women and minorities strictly in proportion to their
percentages in the gross population of the District of Columbia
regardless of qualifications or other factors. Such a statu-
tory requirement would be a matter of concern to the Federal
government because of its implications in affirmative action
policy generally.
The Mayor, the Civil Service Commission, and the Civil Rights
Commission believe that the goal of affirmative action in employ-
ment as defined in the bill would lead to the future requirement
that employment be in accordance with population parity at all
levels of the District Government, regardless of the qualifica-
tion or availability of individual employees. In this connection
the Civil Service Commission, in a letter to Mayor Washington,
stated:
"The use of gross population data is inappropriate in
defining the work force available to an employing
organization. Such data more often than not fails to
reflect the availability of particular skills in the
labor market required by the employing agency. If no
attention is paid to the relative availability of needed
skills, the result is frequently erroneous expectations
on the part of potential applicants and/or deliberate
decisions to hire less than qualified personnel.
Either one of these results could turn well-intentioned
goals into senseless and even illegal quotas. Indeed
the bill fails to take into account the concept of
relative ability which underlies the merit system and
competitive staffing."
In its views letter, the Civil Rights Commission "strongly
opposes quota systems by which an employee limits its work force
to fixed numbers' or percentages of any race, sex, or ethnic group. 11
The Federal interest in this question arises partly because of
the present responsibility of the Civil Service Commission in
the District government personnel system. Until the District
FORD & LIBRARY GERALD
4
establishes its own personnel system, the Commission has juris-
diction over positions (about 20%) in the District government
which are in the competitive service. In addition, the Com-
mission is responsible for the merit system compliance required
for D.C. participation in numerous Federal grant programs and
compliance with the Civil Rights Act is an important aspect of
a merit system. The Equal Employment Opportunity program in
the District government must also be carried out under the regu-
lations of the Commission.
Another source of Federal interest in this issue is a statement
entitled a "Federal Policy on Remedies Concerning Equal Employ-
ment in State and Local Government Personnel Systems,' issued
jointly by the Equal Employment Opportunity Commission, the
Justice Department, the Department of Labor, and the United States
Civil Service Commission. That statement describes distinctions
between permissible goals and impermissible quotas in equal
employment. This bill does not appear 'to adhere to those dis-
tinctions. The Commission notes in its views letter that juris-
dictions writing affirmative action plans must set goals "based
on the availability of race/ethnic group members and women with
the necessary job skills in the relevant recruiting area" and
that work forces must not be established "on non-merit based
lines simply for the sake of achieving proportional representation." "
However, the City Council and the Justice Department do not
believe the bill is objectionable. Justice states that it sees
no reason for disapproval since "it appears the Act could be
administered, consistent with its language, to take into account
the availability of qualified persons." Justice does not mention
either the Civil Service Commission's responsibility in this area
or the "Four Agency Agreement" even though it is a signatory to
the latter. The Council argues that (a) the population standards
set in the bill are long range goals, not quotas; and (b) these
standards are quite different from population parity, because
the young and elderly (those under 18 and over 65) have been
removed from the definition of "available work force."
Recommendation
We believe the principle regarding Presidential actions on
District legislation enunciated by the Justice Department in
its views letter. is appropriate: "The presidential authority
to disapprove City Council action is intended as a safeguard
for the Federal interest in this Federal city." Absent a
Federal interest, this authority should not be exercised. The
5
question is whether the bill raises a substantial issue of
Federal concern.
In our view, the Presidential authority to disapprove should
be exercised in this case. We base this recommendation on
two judgments.
1. The bill appears to justify the belief of the Mayor,
the Civil Service Commission, and the Civil Rights Commission,
that it not only establishes gross population parity as a
standard of employment in the District government but in fact
mandates it in the future. The bill sets forth a goal (repre-
sentation in accordance with the available work force in the
District) and then requires agency plans which seem to set up
a process which would lead over time to a D.C. work force
characterized by proportional representation along racial,
sexual and ethnic lines. This process would be set in motion
by the requirements that the plans state the difference between
what employment would be under the goal and what it is now and
that the agencies move toward eliminating that gap.
2. Approval of this bill would be inconsistent with both
the responsibility of the Civil Service Commission regarding
merit-based employment systems in the District government and
the District's Equal Employment Opportunity program, and the
"Four Agency Agreement" on equal employment in State and local
governments.
Accordingly, we recommend disapproval. A proposed statement of
disapproval to the Chairman of the City Council is attached for
your consideration.
James m. Trey
Assistant Director
for Legislative Reference
Enclosures
FORD is LIBRARY 07V839
&
TO THE CHAIRMAN OF THE DISTRICT OF COLUMBIA CITY COUNCIL
In accordance with the District of Columbia Self-Government
and Governmental Reorganization Act, I disapprove Act 1-87, the
Affirmative Action in District Government Employment Act.
This legislation states that the goal of affirmative action
in employment throughout the District government is "full repre-
sentation, in jobs at all salary and wage levels and scales, in
accordance with the representation of all groups in the avail-
able work force of the District of Columbia including, but not
limited to, Blacks, Whites, Spanish-speaking Americans, Native
Americans, Asian Americans, females, and males." The Act
defines "available work force" to be the total population of
the District of Columbia between the ages of 18 and 65. Agencies
are requested to develop affirmative action plans indicating
the actual number of women and minorities employed and the number
that would be using the goal of affirmative action stated in the
bill.
We can all concur in the ultimate purpose of this legislation
to insure adequate and equitable representation of women and
minorities in all segments of the District of Columbia Government.
The bill as written could be interpreted, however, to legislate
the hiring of women and minorities in proportion to their per-
centages in the population of the District of Columbia. This
could lead to arbitrarily establishing work forces along racial,
sexual, or ethnic lines solely for the sake of achieving pro-
portionate representation. Such a result would be of concern to
the Federal government because of the Civil Service Commission's
responsibility to insure that competitive service positions in the
District Government as well as under the Equal Employment
FORD i LIBRARY GERALD
2
Opportunity program are filled in accordance with merit princi-
ples. Affirmative action to achieve the desirable goals of
this bill should be carried out in the context of the merit
system of employment.
I believe that many of the questions of meaning and inter-
pretation relating to this legislation can be settled by
further discussions between the City Council and the Mayor
and action by them. The United States Civil Service Commission,
which retains various responsibilities relating to District of
Columbia Government personnel, stands ready to help to achieve
a satisfactory and effective solution to the issue of equal
employment opportunity in the District.
I am, therefore, returning this legislation in the hope
and expectation that a consensus can be reached at the local
level on legislation that will lead us toward the goal of
adequate representation of women and minorities in the District
of Columbia Government.
THE WHITE HOUSE.
February
1976
,
FORD i LIBRARY 070839 RALD
EXECUTIVE OFFICE OF THE PRESIDENT
10'
OFFICE OF MANAGEMENT AND BUDGET
WASHINGTON, D.C. 20503
FEB 20 1976
MEMORANDUM FOR THE PRESIDENT
Subject: District of Columbia Enrolled Act 1-88 -- District
of Columbia Shop-Book Rule Act
Last Day for Action
February 27, 1976 - Friday
Purpose
To make documentary records of business transactions admissible
as evidence in judicial proceedings in the courts of the District
of Columbia.
Agency Recommendations
Office of Management and Budget
Disapproval (Memorandum of
disapproval attached)
Department of Justice
Disapproval
Discussion
Introduction
The District of Columbia Self-Government and Governmental
Reorganization Act ( Home Rule Act) provides that Acts of the
City Council which have been vetoed by the Mayor and overridden
by a two-thirds vote of the Council shall be transmitted by the
Council Chairman to the President for review. These Acts become
law unless the President expresses disapproval within thirty
days. We understand that the Home Rule Act has been interpreted
to provide that if the President declines to act, thereby
approving the legislation, the Congress would then have thirty
days for its consideration of the legislation. On the other hand,
if the President disapproves the D.C. bill, the Mayor's veto would
become final.
FORD & LIBRARY 038470
2
This is the second Council override of a mayoral veto since the
Home Rule Act was enacted. A separate memorandum is being
submitted to you on the other bill.
Summary of Act 1-88
This legislation would amend Title 14 of the D.C. Code, which
contains rules of evidence, to exempt business records from the
hearsay rule. Act 1-88, cited as the "District of Columbia
Shop-Book Rule Act, provides that any documentary record
(either the original written version or a photographic copy)
of any business transaction, event, or occurrence shall be
admissible as evidence in any civil or criminal judicial
proceeding in the courts of the District of Columbia. The
introduction of a reproduced record does not preclude admission
of the original as evidence.
Background
Although, under the Home Rule Act, all legislative power. granted
to the District is vested in the Council, that power is subject
to reservations by the Congress of its own constitutional powers
and to specific limitations included in Title VI of the Home
Rule Act. Specifically, Section 602 of that Act, headed
"Limitations on the Council" prohibits the Council from enacting
any act, resolution, or rule relating to the organization and
jurisdiction of the District of Columbia courts, as set forth
in Title 11 of the D.C. Code.
In addition, Section 602 similarly prohibits the Council from
enacting any rule, resolution, or law with respect to the
rules of criminal procedure for a period of two years from the
date on which the first elected members of the Council take
office.
The District of Columbia Court Reorganization Act of 1970,
P.L. 91-358, which established the D.C. Superior Court and
the D.C. Court of Appeals as local courts, forms Title 11 of
the D.C. Code and provides, in part that the Superior Court
must operate under the Federal Rules of Civil Procedure and
the Federal Rules of Criminal Procedure. It also provides
that, with the approval of the D.C. Court of Appeals, the
Superior Court may modify those rules and may adopt and enforce
such other rules as it deems necessary. This rulemaking
authority was not modified under the Home Rule Act.
FORD
GERALD
LIBRARY
&
3
Enactment of P.L. 93-595 (approved January 2, 1975), establish-
ing new Federal Rules of Evidence, repealed certain rules of
judicial procedure relating to the admissibility of evidence,
including a 1936 Federal Shop-Book Rule, which was in force
in the D.C. courts. P.L. 93-595, which took effect on July 1,
1975, and which includes a new shop-book rule as a rule of
evidence, did not reference the D.C. courts as courts within
the purview of the Act. Apparently believing that these new
rules of evidence could not be applied in the D.C. Superior
Court, and that the absence of a shop-book rule would have had
a disruptive effect on litigation, the Board of Judges of that
court reenacted a shop-book rule, which is substantially
identical to this bill and the repealed 1936 Federal rule.
The rule was approved by the D.C. Court of Appeals and became
effective on July 1, 1975, thus coinciding with the effective
date of the new Federal Rules of Evidence.
On December 16, 1975, the D.C. Council passed this legislation,
because it viewed the Board of Judges' action in passing the
rule as an emergency measure to be consummated by legislative
enactment of substantive law. The Mayor, however, vetoed the
bill on the grounds that (1) its passage was unnecessary in
view of the legitimacy of the Superior Court's action, and
(2) the Council exceeded its legislative authority under the
Home Rule Act in passing a law affecting the judicial proce-
dures of the D.C. courts. The Mayor's veto was overridden on
January 27, 1976, by a unanimous vote of the eleven Council
Members present.
Issue
The Federal interest in this matter is whether the intent of
Congress in delegating legislative authority to the D.C.
Council under the Home Rule Act has been appropriately carried
out in this instance. The specific issue to be decided is
whether or not the Council was within its authority under the
Home Rule Act in enacting this bill. If not, it has exceeded
its powers under the Home Rule Act and encroached upon the
powers of the D.C. courts. However, neither the continued effect
nor the content of the D.C. court's rule was contested by the
Council; only the legitimacy of the Council's action is disputed.
GERALD FORD LIBRARY
a
4
Summary of Arguments
The arguments of the D.C. Corporation Counsel and the General
Counsel of the D.C. Council which, respectively, formed the
basis of the Mayor's veto and the Council's override are
summarized below for your consideration. Briefly, the arguments
presented by the Corporation Counsel are:
-- Under the D.C. Court Reorganization Act, which was
not modified by the Home Rule Act, the power to prescribe
rules of judicial procedure, including rules of evidence,
was vested exclusively in the D.C. courts, subject only
to acts of Congress.
-- The Home Rule Act prohibits the Council from enacting
any act with respect to the provisions of Title 11 of
the D.C. Code, which contains the courts' rulemaking
authority.
-- Rules of evidence are an integral part of rules of
judicial procedure, and, therefore, the D.C. courts'
action in this regard was within the scope of their
rulemaking authority under the 1970 D.C. Court
Reorganization Act, i.e., Title 11 of the D.C. Code.
For example, the Superior Court has replaced other
Federal rules of procedure, including the new Federal
Rules of Evidence, with the former versions of these
rules.
Conversely, the General Counsel of the D.C. Council argues:
--- The shop-book-rule is a substantive law of evidence,
which is quite distinct from rules of judicial procedure,
and which, therefore, must be promulgated by legislation.
-- Codification of the D.C. rules of evidence in Title 14
of the D.C. Code instead of under Title 11 (dealing
with the organization, jurisdiction, and authority of
the D.C. courts) reflects Congressional intent that rules
of evidence are not exclusively a function of the
judiciary. P.L. 93-595, which established the new
R
5
Federal Rules of Evidence and affirmed the right of
Congress to supersede rules of evidence promulgated
by the Supreme Court, is referenced as analgous
precedent.
-- The Home Rule Act limits the authority of the
Council with respect to Title 11, not to Title 14.
View of the Department of Justice
The Department of Justice advises that the Shop-Book Rule,
though technically a rule of evidence, is clearly in the
nature of a procedural rule which could properly be encom-
passed within the rules of civil procedure. Therefore,
promulgation of the Shop-Book Rule by the D.C. courts was
well within the courts' express power to adopt rules of
civil procedure, and, as such, is beyond the power of the
Council under the Home Rule Act. The Department further
advises that it is not necessary in this instance to deter-
mine whether Title 11 of the D.C. Code empowers the courts to
adopt rules of evidence of a more substantive nature (although
the courts did in fact do so on December 22, 1975). Similarly,
it is not necessary to determine whether the Council retains
authority to enact legislation altering the rules of evidence
now codified in Title 14 of the D.C. Code. In this connection,
the D.C. Corporation Counsel has noted that the Council has
suspended action on a number of bills to enact rules of
evidence for the Superior Court, pending your decision.
Conclusion
We concur with the views of the Mayor and the Department of
Justice that this bill be disapproved on the ground that the
D.C. Council has exceeded its authority in this instance and
encroached upon the authority of the courts to enact rules of
procedure. Your decision on this matter would, therefore, be
based on a technical legal interpretation of the distinctions
between rules of procedure and evidence, judgments generally
reserved to the courts or the Congress. You may wish to
consider the alternative of not taking any action on this
bill. As noted earlier in this memorandum, the bill would
then go to the Congress which would have 30 days to make its
judgment. It might be more appropriate to have the Congress
GERALD FORD LIBRARY
6
settle the jurisdictional question of the relative authority
of the D.C. courts and the City Council rather than draw the
Presidency into narrow legal questions.
A proposed statement of disapproval to the Chairman of the City
Council is attached for your consideration.
James Assistant m Director Trey for
Legislative Reference
Enclosures
TO THE CHAIRMAN OF THE DISTRICT OF COLUMBIA CITY COUNCIL
In accordance with the District of Columbia Self-Government
and Governmental Reorganization Act, I disapprove Act 1-88,
the District of Columbia Shop-Book Rule Act.
The Act would make documentary records of business trans-
actions admissible as evidence in any civil or criminal judicial
proceeding in the courts of the District of Columbia. This
"shop-book rule" is substantially identical to the one adopted
by the D.C. Superior Court which took effect on June 30, 1975.
The issue is whether the City Council was acting within
its authority under the District of Columbia Self-Government
and Governmental Reorganization Act (Home Rule Act) in passing
a law affecting the judicial procedures of the D.C. courts.
The Federal interest is whether the intent of Congress in
delegating legislative authority to the Council under the Home
Rule Act has been appropriately carried out in this instance.
I am advised by the Department of Justice that this "shop-
book" rule is clearly within the nature of a procedural rule
which could properly be encompassed within the rules of civil
procedure and that promulgation of the rule is clearly within
the express power of the District of Columbia courts to adopt
rules of civil procedure and, as such, is beyond the power of
the City Council.
Therefore, since the Council has exceeded its statutory
authority in enacting this bill, I am disapproving Act 1-88.
THE WHITE HOUSE
February
, 1976
FORD j LIBRARY 0798
R
STATEMENT BY THE PRESIDENT
CONCERNING HOME RULE
The District of Columbia Self-Government and Governmental
Reorganization Act (the Home Rule Act) provides that Acts of
the D.C. Council which have been vetoed by the Mayor and
overridden by a two-thirds vote of the Council shall be
transmitted to the President for his review. The President
shall then have thirty days in which to acquiesce in or
disapprove these Acts.
D.C. Enrolled Acts 1-87, relating to affirmative action
in D.C. government employment, and 1-88, relating to the
so-called Shop-Book Rule of evidence, are the first such acts
to be sent to the President for his review since the Home Rule
Act was enacted.
While I have serious reservations concerning the substance
of both of these I have chosen not to disapprove either THIS
1-87
Act because I believe to do otherwise would violate the sound
precepts of home rule. If home rule for the District is to
have real meaning, the integrity of the local political process
must be respected. The Federal government should intervene
only where there is a clear and compelling Federal interest.
Neither Enrolled Act 1-87 nor Enrolled Act 1-88 meets this
test.
APPROVE
DISAPPROVE
TO THE CHAIRMAN OF THE DISTRICT OF COLUMBIA CITY COUNCIL
In accordance with the District of Columbia Self-Government
and Governmental Reorganization Act, I disapprove Act 1-87, the
Affirmative Action in District Government Employment Act.
This legislation states that the goal of affirmative action
in employment throughout the District government is "full repre-
sentation, in jobs at all salary and wage levels and scales, in
accordance with the representation of all groups in the avail-
able work force of the District of Columbia including, but not
limited to, Blacks, Whites, Spanish-speaking Americans, Native
Americans, Asian Americans, females, and males." The Act
defines "available work force" to be the total population of
the District of Columbia between the ages of 18 and 65. Agencies
are requested to develop affirmative action plans indicating
the actual number of women and minorities employed and the number
that would be using the goal of affirmative action stated in the
bill.
We can all concur in the ultimate purpose of this legislation --
to insure adequate fair and equitable representation of women and
minorities in all segments of the District of Columbia Government.
The bill as written could be interpreted, however, to legislate
the hiring of women and minorities in proportion to their per-
centages in the population of the District of Columbia. This
could lead to arbitrarily establishing work forces along racial,
sexual, or ethnic lines solely for the sake of achieving pro-
portionate representation. Such a result would be of concern to
the Federal government because of the Civil Service Commission's
responsibility to insure that competitive service positions in the
District Government as well as under the Equal Employment
2
Opportunity program are filled in accordance with merit princi-
ples. Affirmative action to achieve the desirable goals of
this bill should be carried out in the context of the merit
system of employment.
I believe that many of the questions of meaning and inter-
pretation relating to this legislation can be settled by
further discussions between the City Council and the Mayor
and action by them. The United States Civil Service Commission,
which retains various responsibilities relating to District of
Columbia Government personnel, stands ready to help to achieve
a satisfactory and effective solution to the issue of equal
employment opportunity in the District.
I am, therefore, returning this legislation in the hope
and expectation that a consensus can be reached at the local
level on legislation that will lead us toward the goal of
adequate representation of women and minorities in the District
of Columbia Government.
THE WHITE HOUSE
February
m.
1976
FORD & LIBRARY 07V835
TO THE CHAIRMAN OF THE DISTRICT OF COLUMBIA CITY COUNCIL
In accordance with the District of Columbia Self-Government
and Governmental Reorganization Act, I disapprove Act 1-88,
the District of Columbia Shop-Book Rule Act.
The Act would make documentary records of business trans-
actions admissible as evidence in any civil or criminal judicial
proceeding in the courts of the District of Columbia. This
"shop-book rule" is substantially identical to the one adopted
by the D.C. Superior Court which took effect on June 30, 1975.
The issue is whether the City Council was acting within
its authority under the District of Columbia Self-Government
and Governmental Reorganization Act (Home Rule Act) in passing
a law affecting the judicial procedures of the D.C. courts.
The Federal interest is whether the intent of Congress in
delegating legislative authority to the Council under the Home
Rule Act has been appropriately carried out in this instance.
I am advised by the Department of Justice that this "shop-
bock" rule is clearly within the nature of a procedural rule
which could properly be encompassed within the rules of civil
procedure and that promulgation of the rule is clearly within
the express power of the District of Columbia courts to adopt
rules of civil procedure and, as such, is beyond the power of
the City Council.
Therefore, since the Council has exceeded its statutory
authority in enacting this bill, I am disapproving Act 1-88
FORD i LIBRARY SERVID
FOR IMMEDIATE RELEASE
FEBRUARY 28, 1976
Office of the White House Press Secretary DC.
THE WHITE HOUSE
76
TO THE CHAIRMAN OF THE DISTRICT OF COLUMBIA CITY COUNCIL
In accordance with the District of Columbia Self,
Government and Governmental Reorganization Act, I disapprove
Act 1-88, the District of Columbia Shop-Book Rule Act.
The Act would make documentary records of business
transactions admissible as evidence in any civil or criminal
judicial proceeding in the courts of the District of
Columbia. This "shop-book rule" is substantially identical
to the one adopted by the D.C. Superior Court which took
effect on June 30, 1975.
The issue is whether the City Council was acting within
its authority under the District of Columbia Self-Government
and Governmental Reorganization Act (Home Rule Act) in
passing a law affecting the judicial procedures of the D.C.
courts. The Federal interest is whether the intent of
Congress in delegating legislative authority to the Council
under the Home Rule Act has been appropriately carried out
in this instance.
I am advised by the Department of Justice that this
"shop-book rule" is clearly in the nature of a procedural
rule which could properly be encompassed within the rules
of civil procedure and that promulgation of the rule is
clearly within the express power of the District of Columbia
courts to adopt rules of civil procedure and, as such, is
beyond the power of the City Council.
Therefore, since the Council has exceeded its statutory
authority in enacting this bill, I am disapproving Act 1-88.
GERALD R. FORD
THE WHITE HOUSE,
February 27, 1976.
# #
FORD LIBRARY & GERALD
FOR IMMEDIATE RELEASE
FEBRUARY 28, 1976
Office of the White House Press Secretary
THE WHITE HOUSE
File
STATEMENT BY THE PRESIDENT
The District of Columbia Self-Government and Governmental
Reorganization Act (the Home Rule Act) provides that Acts
of the D.C. Council which have been vetoed by the Mayor and
overridden by a two-thirds vote of the Council shall be trans-
mitted to the President for his review. The President shall
then have thirty days in which to disapprove these Acts or
allow them to become law.
D.C. Enrolled Acts 1-87, relating to affirmative action
in D.C. government employment, and 1-88, relating to the
so-called Shop-Book Rule of evidence, are the first such acts
to be sent to the President for his review since the Home Rule
Act was enacted.
If home rule for the District is to have real meaning,
the integrity and responsibility of local government processes
must be respected. The Federal government should intervene
only where there is a clear and substantial Federal interest.
I have been advised by the Department of Justice that,
in enacting Act 1-88, the D.C. Council exceeded the authority
which the Congress had delegated to it under the Home Rule
Act; therefore, I disapproved it. I have chosen not to dis-
approve Act 1-87, however, because, while I have serious
reservations about the merits of the Act, I believe my dis-
approval of it would violate the sound precepts of home rule.
The Federal interest involved here is not clear and
substantial.
####
FORD LIBRARY & GERALD