At a meeting of the D.C. City Council's Committee on Government Operations and the Environment Feb. 23, Robert Becker, chair of the Coalition's Government Relations Committee testified that the new open meetings statute should cover Advisory Neighborhood Commissions.
When it passed the open meetings bill, Bill 18-716, in December the Council excluded ANCs from the definition of a public body. But at second reading it adopted an amendment proposed by Council Member Jim Graham (Ward I) to study whether an amendment is needed to bring ANCs into conformity with other public bodies required to comply with the open meetings law.
The Coalition's testimony follows:
Thank you very much for inviting me to address you on behalf of the D.C. Open Government Coalition and the Society of Professional Journalists’ D.C. Professional Chapter. I chair the Coalition’s Government Relations Committee, the SPJ chapter’s Feedom of Information Committee, and I assist journalists seeking access under the D.C. and federal open records and meetings laws.
I want to start by noting that some Advisory Neighborhood Commissions in Washington, in compliance with their enabling legislation, have for a long time practiced what the new open meetings statute requires. They have held most, if not all, of their meetings in public with no ill effects. They give the public notice of their meetings, they welcome neighborhood residents at their meetings, they receive residents’ input, and reach decisions in the open. Their experience with transparency demonstrates that ANCs can function effectively under the new statute, and that the blanket exclusion of them from it is unwarranted.
ANCs should be included under the open meetings statute for several reasons. They are the most grass-roots elected bodies in the city, and they often mediate among competing, very local interests. Transparency is essential if neighborhood residents, especially those on the side that does not prevail on a particular issue, are to have confidence that all sides were treated fairly and all views were considered. Although ANCs cannot implement policy, the Council and Executive Branch agencies give their recommendations considerable weight in the decision-making process.
Although the post of ANC commissioner is an unpaid, volunteer position, it often is a stepping stone to higher office or to appointment to the Zoning Commission, the Alcoholic Beverage Control Board, or another important commission with authority to implement policy that affects a broad cross-section of the community. To make informed choices on election day residents need to know what their ANCs are doing and why they make particular decisions.
Last July, Gottlieb Simon, Director of the Office of Advisory Neighborhood Commissions, sent emails to ANC commissioners advocating that they seek an exemption from Bill 18-716. He argued that ANCs could not comply with the bill’s notice requirements, that they could not perform their duties if required to admit the public to briefings from agency staff, that commissioners would be exposed to frivolous lawsuits seeking to enforce the open meetings statute, and that their enabling statute adequately provided for public access.
Coalition board members met with Mr. Simon to discuss possible amendments that would alleviate his concerns without totally exempting ANCs, but his position did not change. We wrote to commissioners in August to explain why they should support the bill and to respond to Mr. Simon’s objections. Rather than go into detail about our arguments I have attached a copy of the letter to my written testimony. Despite our efforts, some commissioners pressed Council members to exclude ANCs, and the Council, as it had in 2006, granted their request.
Amendments made before the Council passed Bill 18-716 in December have addressed every objection Mr. Simon and ANC commissioners raised last summer and fall.
The notice requirements of § 406(1) are less stringent than the notice requirements of D.C. Code § 1-309.11(c), the ANC enabling legislation. The new open meetings statute says notice must be given no less than two business days before a meeting, while the ANC statute requires 7 days’ notice, except in emergencies.
The new statute requires public bodies to meet in public whenever a quorum of members is present. It permits closed meetings only to discuss subjects falling under one of 15 exemptions. The enabling statute requires ANCs to hold public meetings to “consider and make recommendations,” “to hear the views of residents … and other affected persons on problems or issues of concern … and on proposed District government actions,” and to take official action.
In its letter to commissioners the Coalition argued that the risk of being sued under the new statute was very small. Today it is non-existent because the Council eliminated the possibility of suits by individuals to enforce the open meetings statute against any public body. Only the new Open Government Office can sue to enforce the statute, and it is unlikely to do so unless all other attempts to convince a public body to comply with the law have failed.
ANC commissioners may now find themselves in exactly the situation they hoped to avoid by being exempted from the open meetings statute. Neighborhood residents could sue to enforce open meetings provisions of the enabling statute, even though such suits could not be brought under the open meetings statute against other public bodies.
ANCs should not be exempt merely because commissioners are unpaid volunteers, or because ANCs are advisory bodies that lack authority to implement policy. Appointed members of many boards and commissions are unpaid volunteers, and many boards and commissions have no more power to act than ANCs. Yet those boards and commissions must comply with the open meetings statute.
ANCs should not be exempt merely because their enabling statute includes open meetings requirements. The Council did not exempt the ABC Board, even though its enabling statute was amended in 2008 to require open meetings. Rather, the Council should promote uniformity of enforcement by eliminating agency-specific open meetings provisions from enabling statutes and subjecting all public bodies, including ANCs, to oversight by the Open Government Office.
By exempting ANCs from the open meetings statute the Council precluded the Office from responding to complaints about ANC secrecy, and from working with commissioners to facilitate public access to important meetings that directly affect the everyday lives of D.C. residents.
Thank you for listening. We look forward to working with you to improve D.C.’s open meetings and freedom of information statutes.