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Dupont Circle ANC Censure Resolution – OAG’s Ruling (substantive portion)



 Legal Counsel Division

 November 29, 2017

Nicholas Delle Donne Commissioner, ANC 2B 1622 Riggs Pl NW Washington, DC 20009

Re: September 13 Censure Resolution

On September 13, 2017, Advisory Neighborhood Commission 2B adopted a resolution to censure you, and you have asked us to opine on the narrow question of whether this motion was validly adopted. You also supplied us with information concerning the resolution, including the text of the censure resolution and an audio recording of the meeting in which the resolution was adopted.  We conclude that the resolution was not validly adopted.

Censure of an Advisory Neighborhood Commissioner is a serious matter that affects the ANC as well as the neighborhood area. It represents the ANC’s official, public reprimand of a Commissioner’s conduct, and in ANC 2B, it carries disciplinary consequences.  Under ANC 2B’s Policy and Procedures Manual, a censured Commissioner “shall be immediately removed from all Commission committees and from any officer position(s) which the censured Commissioner holds at the time of the censure,” and is “ineligible to be nominated for any officer position or to serve on any Commission committee for the remainder of the calendar year during which  censure is imposed.”

When ANC 2B seeks to censure a Commissioner, it must, under District law and its own Bylaws, follow Robert’s Rules of Order.  District law requires that “the procedures of the Commission” be “governed by Robert’s Rules of Order” where “not otherwise provided,” and nothing in ANC 2B’s Bylaws allows a censure motion to be conducted in a manner inconsistent with Robert’s Rules. Moreover, the ANC’s Bylaws require it to follow its Policy and Procedures Manual, and the Manual requires the ANC to follow Robert’s Rules when adopting a censure resolution.

Under Robert’s Rules, as this office explained in a 2009 letter, a Commissioner facing censure has the “right to due process.” That includes the right to be “informed of the charge and given time to prepare his defense,” and the right “to appear and defend himself.” Moreover, if a Commission wishes to censure and discipline a commissioner “other than promptly after [a] each occurs,” or to censure and discipline a Commissioner for conduct that took place outside of any ANC meeting, the ANC must take steps to assure itself that the allegations in question are true.11 “[T]here is a need for a trial, or at least fact-finding by the whole assembly or a committee,” which should “occur in a confidential setting because the reputation of the accused is at stake.”

The resolution’s adoption violated Robert’s Rules. You have advised us that the resolution and the broad allegations in it were not made available to you or disseminated to the Commission until the day before the meeting in which the resolution would be considered. The audio recording of that meeting also makes clear that the resolution was adopted without any opportunity for substantive debate. Once the resolution was introduced and read, and brief points of order were considered,13 a Commissioner successfully moved to call the question and vote on the measure, preventing any substantive debate. You therefore had no opportunity to defend yourself against the resolution’s allegations.15 Indeed, after the question was successfully called, the Chair was asked whether you would have the opportunity to respond, and the Chair stated that you would not have such an opportunity because the question had been called. In addition, although none of the conduct described in the resolution was alleged to have taken place in a recent ANC meeting, and much of it was alleged to have taken place outside of a Commission meeting, it does not appear that the ANC or any ANC committee conducted any fact-finding to verify the accuracy of the allegations in the resolution. The audio recording of the September 13 meeting does not mention any fact-finding and you have advised us that none has taken place.

In these circumstances, the resolution’s adoption violated Robert’s Rules, and the resolution and any penalties imposed under it are null and void. Under Robert’s Rules, an ANC action is “null and void” if it “conflicts with the bylaws (or constitution) of the [ANC],” or “has been taken in violation of applicable procedural rules prescribed by [District or federal] law.” By failing to follow Robert’s Rules, the ANC violated both District law and its own Bylaws. These violations do not appear to have been raised in the September 13 meeting, but because the resolution is null and void, these violations may be raised at any time.

You raised two other potential procedural issues.

First, it appears that the agenda that included the resolution was adopted later than the Policy and Procedures Manual allows. Under the Manual, if a meeting agenda needs to be revised sooner than two Mondays before the meeting, that revised agenda must be “re-finalized for re-publication by the Executive Director no later than the Monday before the meeting.” The agenda containing the resolution did not appear to comply with this rule because it appears that it was not re-finalized until the Tuesday before (less than 24 hours before) the meeting. We also note, however, that the Manual also allows Commissioners to amend the agenda in the meeting itself.

Second, under Robert’s Rules, the ANC should not have considered and voted on Commissioner Warwick’s Previous Question motion on the censure resolution while a public-notice point of order on that same resolution was still pending. The ANC considered the Previous Question motion once the Chair concluded that the motion superseded the point of order. That conclusion, however, was incorrect. A Previous Question motion on an underlying matter (here, the resolution) does not supersede a pending point of order on that same matter.  The Chair needed to rule on the point of order before the ANC could consider and vote on any Previous Question motion on the resolution.