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(Published November 15, 1999)

Staff Writer

An obscure but long-standing provision of D.C. appropriations legislation casts doubt on the legality of almost all personnel decisions made within D.C. Public Schools since the control boardís 1995 takeover.

The provision has remained a part of congressional appropriations measures for the District, and apparently overlooked, even as some members of Congress made the municipal budget bill their vehicle for divisive and highly publicized social crusades or other pet projects.

What is known as "Section 138" in the fiscal 2000 budget bill vests decision-making authority regarding all employees of D.C. Public Schools in the elected D.C. Board of Education "notwithstanding any other provision of law, rule, or regulation."

That wording in the provision appears to supersede even the April 1995 congressional legislation that created the financial control board and its nearly universal legal authority within the D.C. governmentís structure.

"Clearly, that was not the intent of Congress, but weíll have to take a look at it," said control board general counsel Daniel Rezneck when The Common Denominator recently inquired about the possible consequences of Section 138ís wording.

Numerous major personnel actions have been taken during the past four years by the control board, or by the schoolsí superintendents through delegation of the control boardís presumed legal authority. Among those actions has been the firing of numerous DCPS staff members, demotions or replacements of building principals, approval of new union contracts, and the hiring of current Superintendent Arlene Ackerman.

The actual consequences of congressional inattention in this case could be minimal, should it be determined that another act of Congress can retroactively remedy any questions of dubious legality in DCPS personnel matters.

But one congressional source close to the appropriations process called the provisionís repeated passage an example of Congress "not taking seriously" the constitutional legislative authority it insists on exercising over the District of Columbia. The provision has been passed by Congress annually as part of the D.C. Appropriations Act dating at least as far back as fiscal 1996.

Members of Congress generally donít read the D.C. appropriations bills before voting on them, the source said. "Thatís part of the problem," he noted.

Wayne Witkowski, who heads the legal counsel division of the D.C. Corporation Counselís Office, said he was unaware of the provisionís existence. The corporation counselís office is charged with providing legal advice and representation to the D.C. Board of Education.

"It sounds as though somebody didnít cross all the ĎTís and dot all the ĎIís," said attorney Ronald C. Jessamy, who has served as an outside legal counselor to the cityís elected school boards for many years and is currently helping the board with charter school oversight issues.

Former D.C. City Council aide Jim Ford, who is still regarded by many as one of the foremost experts on education issues in the District of Columbia, said he recalls what is now Section 138 originally being inserted into the appropriations bills as part of a personnel reform effort of a past Board of Education. Ford said the section, along with other language, was meant to help clarify questions of authority over which DCPS employees would lose their jobs when personnel cuts were being made.

At-large school board member Tonya Kinlow, who won election to the board one day before the appointed control board announced its controversial decision in November 1995 to take away the Board of Educationís legal authority to run the cityís schools, expressed frustration over the school boardís presumed powerlessness.

"I thought everything that happened in the schools since 1996 was superseded by control board actions," she said. "You mean Iíve had all this power for the past four years and nobody told me?"

Copyright 1999, The Common Denominator