Monday, July 11, 2016

David Grosso & Anita Bonds Bill Removes ANC Chairs From FOIA Requirements

FOIA, or Freedom of Information Act is a law giving you the right to access information from the federal government.  It has been described as the law to keep citizens in the know about our government.  State and local governments also have such laws, sometimes called "Sunshine" laws.  Washington DC has one, but Councilmembers Grosso and Bonds have introduced a bill titled Advisory Neighborhood Commission Omnibus Amendment Act of 2016 (B21-0697) which they say is meant to make it easier for the city’s volunteer commissioners to govern as elected officials.  Unfortunately, this bill includes provisions, explained in detail below, which would exempt ANCs and commissioners from FOIA requirements.  Other suggestions provide ways to increase ANC record keeping and email capacity.

I should note that I, G. LEE AIKIN, am running for At Large member of DC Council in the Nov. 8, 2016 General Election.  At Large Council member David Grosso also plans to run again for At Large in this election.  Should I be elected, I will support shining all the SUNSHINE possible on all our publicly elected officials.  Thus I believe ANC Chairs and actions should continue to be subject to FOIA requirements, but modest stipends to make their record keeping jobs easier should be approved.

There have been troubling cases involving ANC failures and possible criminal activity.  This Sept. 2011 article explains that in June, the D.C. auditor determined William Shelton as ANC5B Chairman withdrew $30,000 from the ANC account, spending it on payments for a Lexus and purchases at Bloomingdale’s.  He also began paying a friend, Patsy Staten, $25 an hour to answer phones about 25 hours a week. Ms. Staten signed her own timesheets. In repeated calls to the ANC office during those hours, no one ever picked up the phone.

This 1997 article details a number of problems ranging through malfeasance, misfeasance and nonfeasance.  The disturbing actions of Mary Treadwell (Barry), ANC1B, are described in detail in this article and the article in the next paragraph.  Other issues including possible shakedowns for favorable testimony are mentioned, as are comments/actions by politicians like Jack Evans, Phil Mendelson, and former Mayor Anthony Williams.
     A good friend and black activist who was helping the elderly tenants at Clifton Terrace described this scene to me.  "Discussions had been hot and heavy and Ms. Treadwell began rummaging in her handbag.  Suddenly a pistol popped out and landed on the conference table.  I put my hands under the table and said, 'Do you really think I would come here and I wouldn't be prepared?  Now put that gun away and lets finish our work.'"  The above link was to the general Google page for Clifton Terrace and Ms. Treadwell.  There were too many articles for me to decide which was the best to link here.  If you find one you really like, link it in the Comments below.

All that being said, the ANCs do perform important functions.  ANC representatives can face significant problems as described in this 1997 article, and most deserve both our support and our sympathy.  Nevertheless, Sunshine and FOIA are important safeguards for us to have.
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[7-13-16]  Apparently there are ANC's in full agreement with the need for Sunshine.  Here is a resolution submitted and approved unanimously by a quorum of ANC 4C Commissioners.  The ANC Secretary will forward this Resolution to the full Council for consideration.

RESOLUTION BY ANC 4C IN SUPPORT OF IMPROVEMENTS TO THE ADVISORY
NEIGHBORHOOD COMMISSIONS OMNIBUS ACT OF 2016 WITH REGARD TO
TRANSPARENCY IN ANC OPERATIONS.
     WHEREAS, ANC4C deeply appreciates the determined efforts of Councilmember Anita Bonds
and her colleagues to improve the ways in which Advisory Neighborhood Commissions function,
including through the Advisory Neighborhood Commissions Omnibus Amendment Act of 2016;
and
     WHEREAS, transparency is important for an accountable government, and that proactive and
reactive disclosure builds public trust in all levels of government, including Advisory
Neighborhood Commissions; and
     WHEREAS, while broad Freedom of Information Act (FOIA) requests can occasionally pose an
undue burden on individual Advisory Neighborhood Commissioners, relatively few FOIA
requests are filed each year; and
     WHEREAS, there is no adequate centralized public repository for all documents that ANCs are
required to disclose, such as meeting minutes, increasing the need for FOIA requests; and
     WHEREAS, the the director of the Office on Open Government has committed to providing
guidance to ANCs regarding FOIA compliance and best practices; and
     WHEREAS, the Advisory Neighborhood Commissions Omnibus Amendment Act of 2016 could
be improved in the following ways:
   1.ANC records, including but not limited to email, recordings, and other materials related to ANC business should be subject to open records requests, subject to exemptions in DC open records law.
   2.The communications division of the Office of Advisory Neighborhood Commissions, as
provided for in the legislation, should be charged with processing FOIA requests and assisting
with compliance, taking much of the burden off of individual commissioners.
   3.FOIA requests should be filed electronically through the city's central FOIA portal instead
of with individual ANCs. This will ensure that requests are fully documented and allow the
OANC and the public to track the status of a FOIA request, improving consistency and
accountability.
   4.ANCs should be required to publish minutes and other documents that are required to be
disclosed on a central calendar at open.dc.gov. This kind of proactive disclosure would reduce
the need for FOIA requests and make ANC operations more transparent.
[Closing legal language has been omitted.]
Signed:  Vann-Di M Galloway, Chairman, ANC 4C and
Michael Halpern, ANC Commissioner, SMD4C04
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[7-11-16] - Rumor has it that Grosso and Bonds have received enough flak from voters that they are having second thoughts about this bill.  Stay tuned.  I hope they will keep the good parts and get rid of the anti-Sunshine parts.
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Comment from a former ANC member.

The problem is most of the ANC's only talk to a few residents.  They don't put out flyers other than through emails, they don't post notices of their monthly meeting in the neighborhood and ANC5E only gives the community five minutes on their agenda.  Neither of the Council members putting this bill forward show up at their neighborhood ANC meetings, and if they did they would see most ANC members as self serving, instead of representing their 2,000 constituents.  There should continue to be transparency in how they operate and the FOIA should prevail.
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Grosso to shield ANC from FOIA
Jeffrey Anderson, who wrote for the City Paper about the D.C. Superior Court decision in Vining v. Barnes, sent a tweet asking how the Bonds-Grosso bill could be legal, given the court's decision in the 2014 case that all public business is subject to FOIA regardless of the ownership of the device (smart phone, etc.) upon which it is conducted.  Part of that decision stated explicitly that ANCs are elected officials and thus I'd still like to see a lawyer weigh in, though.

Here's a full account from the Sunlight Foundation of the provision of the Bonds-Grosso bill that would reduce government accountability.
Andrea Rosen

by Azeezat Adeleke (policy)
JULY 7, 2016, 4:11 P.M.
Washington, D.C., boasts a unique system of neighborhood governance, but a proposed bill would eliminate the rights of District residents to hold their most local officials accountable.

In a July 6 hearing, Councilmember Anita Bonds explained that the Advisory Neighborhood Commission Omnibus Amendment Act of 2016 (B21-0697) is meant to make it easier for the city’s volunteer commissioners to govern as elected officials.

If you are unfamiliar with the role of the advisory neighborhood commissions (ANCs), they are the most local elected representatives in the District of Columbia. Most people might know that the federal district is split into eight wards, each with its own D.C. councilmember, but they may not realize that D.C. is also divided into 30 ANCs, with a total of 299 commissioners elected from single-member districts. The ANCs describe themselves as “the body of government with the closest official ties to the people in a neighborhood.”

Each of the commissioners is elected, on a volunteer basis, to represent an average of 2,000 residents. ANC commissioners address important issues such as zoning, economic development and liquor licensing. Some of the reforms in the omnibus bill would improve the governing capacity, but one provision would exempt ANCs and commissioners from the District’s Freedom of Information Act.

A short provision, nestled toward the end of B21-0697, declares that an ANC “shall not be considered an agency, an independent agency, or a subordinate agency.” In doing so, the drafters — Councilmembers Bonds and David Grosso — would erase the FOIA requirement with one fell swoop. Another portion of the bill states that ANC commissioners may “choose to transmit” certain information for publication on their websites or social media. The bill would also entrench current law, which exempts ANCs from the requirements of the D.C. Open Meetings Act.

“The motivation behind this provision is to alleviate an impractically high administrative burden that takes an inordinate amount of time from commissioners’ primary function and duties,” Bonds said.

In response, open government advocates, community members, and some ANC commissioners cried foul.

In their testimony, witnesses from Sunlight, the D.C. Open Government Coalition, the D.C. Office of Open Government and other groups argued that the ANC commissioners do not need a free pass from FOIA, but more capacity to comply with its guidelines. That capacity comes from other provisions in the same bill, including those that expand storage in commissioners’ official email inboxes and allow them to receive a $500 yearly stipend to support their time on the job.

Alex Howard, a Sunlight senior analyst, and LaVita Tuff, a member of the D.C. Open Government Coalition Board of Directors and a policy analyst at Sunlight, testified against this provision.

In HIS REMARKS, Howard argued that there is “no compelling need” for the anti-FOIA provision of the bill. Tuff emphasized that the bill would weaken constituents’ power to hold their elected officials accountable, especially when those officials get to choose what the public gets to know.

Barbara Kahlow of the West End Citizens Association, a non-ANC civic group, testified that FOIA allows residents access to ANC spending records, an essential means of keeping commissioners honest. Recent history highlights why D.C. needs this: In 2012, a former ANC commissioner pled guiltyto fraud and using $28,000 in public funds for his personal whims. In 2015, the Office of the D.C. Auditor reported that some ANCs made illegal disbursements while others failed to maintain meeting minutes — or evidence that public meetings happened at all.

Mike Silverstein, commissioner for ANC 2B06 in Dupont Circle, came as a dissenting voice, arguing that FOIA requirements could discourage potential candidates from running.
The plurality of witnesses, however, criticized the provision as a step in the wrong direction, away from transparency and toward government where decisions happen in the shadows. ANC Commissioners Mark Eckenwiler, ANC 6C04 near Union Station, and Kathy Henderson, ANC 5D05 near Brentwood, agreed that the anti-FOIA provision should be removed.

“It’s appalling to suggest that ANCs should be exempted from FOIA,” Eckenwiler said.

In her testimony, Tuff highlighted a contradiction in the legislation. Those who support the legislation, including Councilmember Bonds, emphasized that the bill would increase respect for ANC members as elected officials. But, according to Tuff, “The bill demands that agencies keep ANCs informed, but seeks a blanket exclusion from the Freedom of Information Act that would effectively deprive neighborhood residents of the ability to oversee their elected representatives.”

To this end, Sunlight worked with Councilmembers Mary Cheh and Grosso to draft the STRENGTHENING TRANSPARENCY AND OPEN ACCESS TO GOVERNMENT ACT of 2016, which would mandate that ANCs conform to the Open Meetings Act.

This bill follows the ADVISORY NEIGHBORHOOD COMMISSIONS TRANSPARENCY AMENDMENT ACT OF 2013.  As Sunlight WROTE at the time, that bill would have held ANCs to a higher standard by requiring them to release a variety of documents to the public, including meeting minutes, bank transactions and policy decisions. That bill did not come to a vote.

Residents have already made clear that they want transparency: Gottlieb Simon, executive director of the Office of the Advisory Neighborhood Commissions, testified that the number of FOIA requests to ANC commissioners has climbed in recent years.

Traci Hughes, director of the Office of Open Government, said that her office is eager to assist ANCs in meeting compliance requirements. Howard, of Sunlight, made the same point, emphasizing that Sunlight would be happy to help build capacity on this issue.

In his testimony, Robert Vinson Brannum, former president of the D.C. Federation of Civic Associations, made the overarching point: “ANC commissioners deserve to be respected as elected officials.” But if they want that respect, they have to earn it. And that begins with accountability to their voters.

D.C. residents can join the call for accountability by sending a written statement on this hearing by July 20 at 5 p.m., when the public record will close. A third and final hearing on this bill will happen after the council’s summer recess. In the meantime, D.C. residents can contact the staff and members of the Council on Housing and Community Development here.

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Can they legally do this? Especially after Kirby's (Kirby Vining) recent litigation against Dianne Barnes? Anyone have insight on the legality of such a bill?

I remember hearing scuttlebutt a couple years back about the money DC was spending in litigation on ANC FOIA cases. That must be partly the impetus for this bill.
MB
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A member of  Friends of McMillan Park <friends-of-mcmillan-park@googlegroups.com> wrote:
You may be interested to know that the DC counsel is considering a bill that would exempt ANC commissioners from foia requests. There is an article in urban turf about it dated July 7th. ES
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On Fri, Jul 8, 2016 at 6:21 AM, d.c. forrd, <dc4reality@gmail.com> wrote:
Hey folks,
Here's your chance to be the next McMillan.Leaks explorer.  Let's see what you can dig out of the haystack >>http://www.savemcmillan.org/foia

We are beginning to raw dump PDF files which came by way of DC agencies through the DC Freedom of Information Act.
If you find any goodies, smoking guns, amazing facts or trite government hacks playing with language and our park -- identify by sending us the PDF title, page, and citation.  
McMillan.Leaks!
http://www.savemcmillan.org/foia
Thanks. DC for Reasonable Development, 202-810-2768, dc4reason.org




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