Council wants to limit application of open meetings law to itself

 Published Date: November 16, 2010

  The D.C. City Council appears poised to enact two bills the D.C. Pro Chapter has supported, but with amendments it does not support which limit public access to its own meetings and to Advisory Neighborhood Commission meetings. We urge you to call members of the Government Operations Committee, Chair Mary Cheh (Ward 3) and members Kwame Brown (At large), David Catania (At large), Harry Thomas Jr. (Ward 5), and Tommy Wells (Ward 6), to advocate stronger coverage of the Council and ANCs

  Council Member Cheh (Ward 3) floated revised versions of her Open Government Act of 2010 (Bill 18-777) and Council Member Muriel Bowser's (Ward 4) Open Government is Good Government Act of 2010 (Bill 18-716), November 15. The revised bills exempt the Council and ANCs from the definition of a "public body" in the open meetings bill.

  Under the Cheh version of Bill 18-716, every four years the Council would have to adopt rules "implementing the District's policy of open meetings." The rules would be interpretted broadly to maxiimize public access, require that all votes be taken in open session, and require broadcasting of meetings when public attendance would be impriactical. The rules would have to state that a meeting including a quorum of the Council must be public. The bill does not require Council committees to meet in public. The Council could invoke any of the exemptions enumerated in the statute to hold closed meetings. The Council rules would have to provide for giving the public "reasonable notice" of upcoming meetings, but would not require adherence to detailed notice requirement applied to boards and commissions. Finally, although the Open Government Office proposed in Cheh's bill would provide the first line of enforcement with regard to boards and commissions, a special committee of Council members would investigate complaints that the Council violated its open meetings rules. Because the Council is not a public body under the bill it is unlikely that a person could sue when the Council meets in secret in violation of its rules.

  ANCs would not only be exempt from compliance with the open meetings statute, each ANC would adopt its own rules "to meet the District's stated polcy of transparency." The Office of Advisory Neighborhood Commissions would develop model open meetings rules and report every two years on ANC compliance. But ANCs would not be required to adopt the model rules. The Open Government Office could not investigate complaints about closed ANC meetings, issue advisory opinions, or order ANCs to comply with the open meetings statute, and neither the Office nor a resident could sue in Superior Court when an ANC holds an illegal closed meeting.

  Gottlieb Simon, head of the Office of Advisory Neighborhood Commissions and some commissioners complained to the Council that commissioners are unsalaried volunteers who should not have to comply with the open meetings law. Commissioners claimed they would be subjected to frivolous lawsuits and could be held liable and fined for violating the law.

  In a hearing on the open meetings bill in July, the D.C. Pro Chapter argued that the Council, its committees and ANCs should be included in the definition of a "public body" required to adhere to the open meetings statute. To address Council concerns about being sued by the Open Government Office, an independent executive branch agency, the Chapter proposed that the Office be permitted to issue advisory opinions in response to complaints regarding closed Council meetings, but that it not be allowed to sue the Council to enforce the law. Open meetings laws in 30 states require compliance by state legislatures. Constitutions of nine states impose similar requirements on their legislatures. Only five states allow their legislatures to operate under rules intended to foster openness and six exempt their legislatures entirely.

  In an August letter to ANC commissioners, the Open Government Coalition argued that ANCs are the most grass-roots elected bodies in the District and should be held to the same standards as appointed boards and commissions. The Coalition noted that ANC commissioners, elected, unsalaried volunteers, are no different than town council members in many small municipalities across the United States. Open meetings laws in all 50 states require such bodies to comply with the statutes. It is unlikely that commissioners would run afoul of the open meetings law if they followed advice provided by the Open Government Office and the likelihood is very small that they would be sued or fined.

  The current version of the bill includes 15 exemptions permitting public bodies to hold closed sessions. Among them are exemptions to discuss and instruct staff on contract negotiations related to real estate, purchase of goods and services, economic development incentives, and labor contracts; when ordered to do so by a court, and to protect the attorney-client privilege. Meetings could be closed for discussions regarding scholastic, licensing and qualifying exams, disciplinary actions, appointments and employment, and public safety and terrorism.

  The Open Government Coalition identified several exemptions that should be deleted or modified. Among them is the exemption allowing closed deliberations by public bodies performing adjudicatory and quasi-judicial functions. It believes such deliberations provide the public valuable insight into why a body reached particular decisions, and should be closed only when necessary to protect personal privacy or similar interests. An exemption permitting secret deliberations whenever the matter involves trade secrets, confidential and proprietary information is overbroad and subject to abuse, as is the exemption for training and development sessions attended by members of public bodies and staff. The exemption for discussion of planned or ongoing criminal and civil investigations is duplicative of the exemption for attorney-client communications, and is likely to be abused, the Coalition believes.

  The bill states that public bodies may meet by electronic means — telephone or video conferencing, as well as by convening in one location. Whatever the means, the body must make arrangements for the public to attend. It requires public bodies to record their meetings electronically where possible and to keep detailed notes when recording is not possible; and directs that recordings, transcripts or minutes be made public after meetings. The bill provides procedures for notifying the public of regularly scheduled and emergency meetings.

  A person who believes a public body violated the law may file a complaint with the Open Government Office or sue in Superior Court. The Office is charged with investigating complaints and issuing advisory opinions. It may order public bodies to meet in public or declare actions taken in illegal closed meetings null and void. If a body does not comply with an order the Office can sue it in Superior Court.

  Follow the links below for more detailed discussion of the issues we hope you will raise with members of the Government Operations Committee. Time is short because the Committee must have final bills ready for the Council's consideration in early December.

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