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Part V contains miscellaneous provisions, including the abolition of the Board of Commissioners, without prejudice to the continuation of the Corporation, the status of certain agencies which are not directly affected by the plan, incidental transfers and the effective date of the reorganizations provided for. Major Provisions

Plan No. 3 would abolish the present Board of Commissioners and establish in its place a Commissioner of the District of Columbia and a part-time, nonpartisan Council. Other offices which would be established are an Assistant to the Commissioner and a Secretary of the Council. All of the quasi-legislative, ordinance-making and rule-making functions now performed by the Board of Commissioners would be transferred to the Council, and all of the executive and administrative functions now performed by the Board would be transferred to the Commissioner. The Commissioner, the Assistant to the Commissioner and the members of the Council would be appointed by the President, subject to Senate confirmation. The Secretary would be appointed by the Council.

The Council would be composed of nine members who would serve staggered terms of three years, three members to be appointed each year. Members of the Council would be required to be actual residents of the District of Columbia for at least three years immediately preceding appointment and be broadly repre sentative of the District of Columbia community. They would receive compensation at the rate of $7,500 per annum, except for the Chairman and Vice Chairman, who would be designated by the President and would receive $10,000 and $9,000 per annum, respectively. The secretary of the Council would receive compensation in accordance with the classification laws, and would perform such duties and provide such services for the Council and its members as the Council may prescribe.

Initial appointment of three members of the Council would be for terms expiring February 1, 1968, three for terms expiring February 1, 1969, and three for terms expiring February 1, 1970. Appointments to fill a vacancy would be only for the unexpired balance of the term, a Council member may continue to serve after the expiration of his term of office until his successor is appointed and qualifies, and the President may remove any Council member for neglect of duty, malfeasance in office, or when found guilty of a felony or conduct involving moral turpitude.

The Commissioner of the District of Columbia would be appointed for a term of four years at Level III of the Executive Schedule Pay Rates ($28,500) and may be removed by the President. The first appointment of a Commissioner would be for a term expiring February 1, 1969. Any appointment made to fill a vacancy would only be for the unexpired balance of the term, and a Commissioner may continue to serve after the expiration of his term of office until his successor is appointed and qualifies. The Assistant to the Commissioner would be appointed at Level V of the Executive Schedule Pay Rates ($20,000) and would carry out such functions as the Commissioner may direct. Either the Commissioner or the Assistant to the Commissioner must have been an actual resident of the District for at least three years immediately preceding his appointment.

Plan No. 3 further authorizes the establishment of so many agencies and offices, with such names and titles, as the Commissioner shall from time to time determine, to be filled by appointment by, or under the authority of, the Commissioner. It may be noted that this authority was vested in the Board of Commissioners by Reorganization Plan No. 5 of 1952, but was terminated as of June 30, 1954 by Section 16 of the District of Columbia Appropriation Act, 1954 (P.L. 173, 83rd Cong.).

Authority is given to the Commissioner, and the Council subject to the concurrence of the Commissioner, to delegate the performance of their functions to other officers, employees or agencies of the Corporation, as they deem appro priate, other than the courts, and the Council is authorized to delegate the performance of any of its functions by the Commissioner. The only limitations on the Commissioner's delegation authority relate to his approval or disapproval of quasi-legislative actions of the Council, and his functions of concurring or not concurring in the Council's proposed revisions of his budget requests. With respect to both of these areas, the plan ispecifically forbids any delegations by the Commissioner.

The Commissioner would be authorized to veto actions of the Council, but the Council would be empowered to override such veto by a three-fourths vote of its members present and voting; and the Council would be empowered to review and revise the Commissioner's budget requests prior to submission to the President. With respect to quasi-legislative actions, the plan provides that every action taken by the Council, other than its own internal, housekeeping actions, must be transmitted promptly to the Commissioner for his approval or disapproval. If the Commissioner approves such action, it will become effective immediately, or at such later time as the Council may specify in its action. If the Commissioner neither approves nor disapproves the Council's action within ten days immediately following its presentation by the Council, such action would become effective at the end of the ten-day period, or at such later time as the Council may have specified in the action. Finally, should the Commissioner disapprove a Council action prior to the expiration of ten days following its presentation to him, he would be required to return such action within the ten-day period, together with a statement of his reasons for disapproval. In that event, such action by the Council would not become effective unless the Council re-adopts the action by a three-fourth's vote of its members present and voting, within thirty days immediately following the return of the action to the Council; such action would then become effective upon its re-adoption or upon such later date as the Council may specify.

On budgetary matters, the plan provides that the Commissioner would prepare budget requests and submit them to the Council for approval or revision, and, in the event of approval by the Council without revision, the requests would be returned to the Commissioner who would then submit them to the Bureau of the Budget. If the Council revises the requests, and the Commissioner concurs in the revisions, he would then submit the revised requests to the Bureau of the Budget. However, if the Commissioner does not concur in one or more of the Council's revisions, he would be required to return the requests and the Council's revisions, together with a statement of his reasons for not concurring. If the Council, by a three fourths vote of its members present and voting, insists upon one or more of its original revisions, it would return the requests and the revisions upon which it insists to the Commissioner within five days and so inform him. Thereafter, the Commissioner would be required to submit the requests, incorporating the revisions upon which the Council insists, to the Bureau of the Budget. If, however, a three-fourths vote does not prevail or the Council fails to act upon the requests, the Council would be required to return the requests to the Commissioner who would submit them to the Bureau of the Budget without the revisions. Finally, it is provided that if the Council fails to approve or revise the Commissioner's requests within thirty days immediately following their receipt, the requests shall be deemed to be approved by the Council.

It may be noted that following final action on the budget requests, and their submission to the Bureau of the Budget, such requests would be the subject of review and final action in the same manner as any executive agency requests, prior to transmittal to the Congress by the President.

THE PROPOSED REORGANIZATION CONFORMS TO THE REQUIREMENTS OF THE

REORGANIZATION ACT OF 1949, AS AMENDED General

The authority granted to the President by the Congress in the Reorganization Act of 1949, as amended, is extremely limited in its nature and scope. Under the provisions of the Act, every requirement set forth therein must be complied with, and the purpose for which reorganization plans may be submitted, as well as the types of reorganizations which may be proposed, are clearly stated. Summary of pertinent provisions of the Reorganization Act

The Reorganization Act of 1949, as amended, authorizes the President to submit reorganization plans to the Congress in order to accomplish the following broad purposes, set forth in section 2: (1) promotion of better execution of the laws, more efficient management of the executive branch of the Government, its agencies and functions, and the expeditious administration of public business; (2) reduction of expenditures and promotion of economy to the fullest extent consistent with the efficient operation of the Government; (3) increasing the efficiency of the operations of the Government to the fullest extent practicable; (4) grouping, coordinating and consolidating agencies and functions, as nearly as possible, according to major purposes; (5) reduction in the number of agencies by consolidating those having similar functions under a single head, and abolition of agencies and functions which may not be necessary for the efficient conduct of the Government; and (6) elimination of overlapping and duplication of effort.

These six stated purposes are also the standards to guide the President in making his determinations as to what reorganizations he will set forth in any plans which he transmits to the Congress.

Section 3 provides that, whenever the President, after investigation, finds that any one or more transfers, consolidations, coordinations or abolitions are necessary to accomplish any one or more of the six purpses specified in section 2(a), he is to prepare a reorganization plan for the accomplishment of the reorganizations concerning which he has made the required finding and which he includes in the plan, subject to the limitations prescribed in section 5. The reorganizations contemplated and authorized in section 3 are those which would (1) transfer all or any part of any agency, or its functions, to the jurisdiction and control of any other agency; (2) abolish all or any part of the functions of any agency; (3) consolidate or coordinate the whole or any part of any agency, or its functions, with all or any part of any other agency, or its functions; (4) consolidate or coordinate any part of any agency, or of its functions, with any other part of the same agency or any of its functions; (5) authorize any officer to delegate any of his functions; or (6) abolish all or any part of any agency which agency or part thereof does not have, or upon the taking effect of any reorganization, will not have any functions.

Section 5 of the Act (5 U.S.C. 905), which sets forth the basic limitations on the President's authority, provides that a reorganization plan cannot (1) create any new executive department, or abolish or transfer an executive department or all of the functions thereof, or consolidate two or more such departments or all of the functions thereof; (2) continue any agency or function thereof beyond the period authorized by law for its exercise or beyond the time when it would have been terminated in the absence of any reorganization; (3) authorize any agency to exercise any function not expressly authorized by law at the time the plan is transmitted to the Congress; (4) increase the term of any office beyond that provided by law for such office; or (5) transfer to or consolidate with any other agency the municipal government of the District of Columbia or its functions or abolish said government or its functions.

Additional limitations are contained in Section 4 of the Act (5 U.S.C. 904) which provides that a reorganization plan may (1) change, in such cases as the President considers necessary, the name of any agency affected by a reorganization and the title of its head, and shall designate the name of any agency resulting from a reorganization and the title of its head; and (2) provide for the appointment and compensation of the head and one or more other officers of any agency (including an agency resulting from a consolidation or other type of reorganization) if the President finds, and in his message transmitting the plan declares, that by reason of such reorganization such provisions are necessary; and the head so provided for may be an individual or may be a commission or board with two or more members. Section 4 provides further that (1) in the case of any such appointment, the term of office shall be fixed at not more than four years; (2) the compensation shall not be fixed at a rate in excess of that found by the President to be applicable to comparable officers in the Executive Branch; and (3) if the appointment is not to a position in the civil service, it shall be by the President, subject to Senate approval. However, officers of the municipal government of the District of Columbia may be appointed by the Board of Commissioners or other body or officer of that government designated in the plan.

It may be noted that this exception with respect to the District of Columbia was included in the original 1949 Act, because officers of the municipal government of the District of Columbia are not officers of the Federal Government and could not be appointed to positions in the Federal classified civil service ; accordingly, all such officers would have had to be appointed by the President, subject to Senate approval. Since it was deemed undesirable either to burden the President with such appointments or to relieve the Board of Commissioners and its principal officials of the responsibility for the choice of administrative officers in agencies of the District of Columbia government, the authorized governing offcials of the District of Columbia were specifically permitted to make appointments under authority already granted by the Congress.

An examination of the Provisions of Plan No. 3 of 1967, in light of the pertinent provisions of the Reorganization Act, reveals that (1) it conforms to the purposes set forth in section 2 of the Act; (2) the transfers provided for fall into one or more of the six types of reorganizations authorized in section 3 thereof; and (3) its provisions with respect to designating the name of an agency and the title of its head, as well as those relating to terms of office and compensation, meet the requirements of section 4 of the Act.

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Special Limitation Relative to the Government of the District of Columbia
As indicated above, section 5(a) (6) (5 U.S.C. 905 (a) (6) of the Act provides

no reorganization plan shall provide for, and no reorganization under this Act shall have the effect of * * * transferring to or consolidating with any other agency the municipal government of the District of Columbia or all of those functions thereof which are subject to this Act, or abolishing said government or all of said functions."

Section 7 (5 U.S.C. 902) of the Act specifically includes the municipal govern. ment of the District of Columbia as an agency which is subject to reorganization. Since the Congress clearly intended that reorganizations of the District government could be accomplished by reorganization plan, the limitation contained in section 5(a) (6) must be read in the light of the clear authority contained in section 7. Furthermore, it must be considered in connection with the history and unusual legal status of the District government.

The government of the District of Columbia is not an agency of the Executive Branch of the Federal Government, and would not have been subject to the President's reorganization authority unless it was specifically included in the Act. It is a municipal corporation with certain rights conferred upon it by the Congress, such as the right to sue and be sued, contract, etc. (D.C. Code, 1-102). It has neither sovereign nor legislative powers, and the supreme legislative authority with respect to the District of Columbia is vested by the Constitution in the Congress. (See Crosson v. District of Columbia, 2 F(2nd) 924 (1924); D.C. Code, 1-102 and notes to decisions contained therein.)

The present commission form of government of the District had its origin in the Act of June 20, 1874 (18 Stat. 116), which abolished self-government for the District and established a temporary appointive Commission composed of three citizens. Four years later, by the Act of June 11, 1878 (20 Stat. 102), that temporary arrangement was made permanent, with an officer detailed from the United States Army Corps of Engineers replacing one of the three citizen members of the Board of Commissioners. Congress has provided that the Commissioners shall be officers of the municipal corporation (D.C. Code, 1-103), and that they are vested with the executive powers of the District Government. (D.C. Code, 1-128). However, in a decision involving the authority of the Commissioners to take certain action, the Supreme Court of the United States has held that the District Commissioners are merely administrative officers exercising ministerial powers; and the sum of the municipal powers of the District is neither vested in nor exercised by the Commissioners, but "* * * are, on the contrary, vested in the Congress of the United States, acting pro hac vice as the legislative body of the District, and the Commissioners of the District discharge the functions of administrative officials.” District of Columbia v. Bailey, 171 U.S. 161, 176 (1898).

Viewed in the light of the above, it will be seen that the purpose of the limitation imposed in section 5(a) (6) of the Act was to insure that the corporate character of the municipal government of the District of Columbia could not be altered in any way by reorganization plan. (See testimony of F. J. Lawton, Assistant Director, Bureau of the Budget, before the House Committee on Government Operations, January 4, 1949, p. 14). Thus, under the limitation imposed by the section, a reorganization plan for the District government cannot propose to transfer or consolidate the municipal government of the District or all of its functions with any agency in the Executive Branch of the Federal Government; nor can such a plan propose to abolish the District government or all of its functions. However, operating within these prescribed limitations, it is perfectly clear that the President has authority to submit reorganization plans which provide for the internal reorganization of the administrative structure of the District government, including a reallocation of functions within that structure.

Plan No. 3 of 1967 does not attempt to amend or alter in any way the municipal corporation which is the government of the District of Columbia. As stated by the President in his message of transmittal, “* * * the plan would not impair the corporate status of the District of Columbia.” (H. Doc. 132, 90th Cong., p. vi). Its purpose is to alter the administrative machinery—the mechanism by which the powers delegated by the Congress—are exercised. It proposes to accomplish this objective by substituting an appointive nine-member Council and an appointive Commissioner of the District of Columbia for the present three-man Board of Commissioners. The present functions of the Board are in no way altered, but remain within the government of the District, to be exercised by means of a different administrative structure.

Accordingly, Plan No. 3 of 1967 does not violate the limitations imposed in Section 5(a) (6) of the Reorganization Act of 1949, as amended.

ELI E. NOBLEMAN,

Professional Staff Member. Approved :

JAMES R. CALLOWAY,
Chief Clerk and Staff Director.

APPENDIX A

CHRONOLOGY OF MAJOR REORGANIZATION OF THE DISTRICT OF COLUMBIA The Constitution of the United States provides that the Congress shall exercise exclusive legislation over such district as shall become the seat of the Government of the United States. Originally, what is now the District of Columbia consisted of three political jurisdictions—the City of Washington, the City of Georgetown, and the County of Washington, each with its own government.

The first government of the City of Washington, created by Act of Congress in 1802 consisted of a Mayor appointed by the President of the United States, and a City Council elected by the people of the city. In 1812, the City Council was permitted to elect the Mayor. This practice continued until the year 1820, when the people were permitted to elect the Mayor who served for a term of two years. This form of government continued until the year 1871.

By the Act of Congress of February 21, 1871, the entire District of Columbia was created as a municipal corporation and the charters of Washington and Georgetown and the laws relating to the government of the County of Washington were repealed. This Act provided a territorial form of government for the District consisting of a governor, a board of public works, and a bicameral legislative assembly. The legislative assembly consisted of an eleven member council and a twenty-two member house of delegates. The District was also given a delegate in the House of Representatives of the United States. The governor, the members of the council, and the members of the board of public works were appointed by the President of the United States. The members of the house of delegates and the delegate to the House of Representatives were elected by the people.

The territorial government lasted for three years, until June 20, 1874, when Congress abolished self-government for the District and established a temporary appointive commission of three citizens to govern the affairs of the District. Four years later, by Act of Congress approved July 1, 1878, the commission form of government was made permanent, with an officer detailed from the United States Army Corps of Engineers replacing one of the three citizen members of the Board. Since that date, the District has been governed under this Act.

Although the District has a municipal form of government, Congress has treated it for some purposes as a branch of the United States Government by including it in legislation applying to the executive departments, such as the Budget and Accounting Act, the Federal Classification Acts, and other similar legislation. The District, therefore, has a dual status as a Municipal Corporation and as a branch of the Federal Government. It also performs many of the functions of a State.

In May 1952, the President of the United States, acting under the provisions of the Reorganization Act of 1949, submitted to the Congress Reorganization Plan No. 5 of 1932. This plan, which retained the existing commission form of government, authorized the Commissioners of the District of Columbia to effect a basic simplification and improvement of the internal organization and structure of the District of Columbia government. Plan 5, which became effective on July 1, 1952, was originated by the Board of Commissioners, and had the nearly unanimous support of the leading business and civic organizations of Washington.

One of the key provisions of the plan, in effect, authorized the Board of Commissioners to establish new offices and agencies. This authority was terminated as of June 30, 1954, by a rider to the District of Columbia Appropriation Act, 1954. (P.L. 173, 83rd Congress).

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