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Dupont Circle ANC Illegal Meeting Nixed ~ continued from January 2019 issue pdf page 1

Oftentimes, ANC 2B itself has been DelleDonne’s target. He wasted little time with the dawn of the New Year, already having forced ANC 2B Chair Daniel Warwick to cancel a closed meeting of the ANC commissioners that was to be held on January 5th in their office space at the Dupont Resource Center, the small brick building immediately west of the Circle at 20th and P Streets,NW. [Ed. Note: “HearUsNow!” is a Google group; to participate one must access Google groups on-line and dearch for this group to be added.]

Using HearUsNow!, DelleDonne circulated allegations from another ANC Commissioner, Single Member District 9’s Ed Hanlon, that holding the meeting would be a violation of DC’s open meeting laws.

On the other hand, on January 5th Commissioner Mike Silverstein posted an extensive comment on the Dupont Forum listserv countering Hanlon’s and delleDSonne’s objections to Warwick’s planned (then cancelled) plan for a non-public ANC meeting. [Ed. Note: see Appendix A following copyright notice below.]

However, notwithstanding  ’s assertion about the legality of such a meeting, his opinion is contradicted by a July 21, 2017 advice letter from the DC Attorney HGeneral’s Legal Counsel Divison in response to an inquiry from Executive Director Gottlieb Simon of the Mayor’s Office of Advisory Neighborhood Commissions. His question was “whether a quorum of Advisory Neighborhood Commissioners . . . could conduct a closed planning meeting — meaning, as you have described it, a closed meeting in which Commissioners gather and take no official action, but discuss upcoming ANC meetings and consider issues that should be discussed at those upcoming meetings.”

The bottom line response was that “[a]ny meeting of this kind must be open to the public, except to the extent that legal or personnel matters are discussed.” [Ed. Note: for the complete text of the opinion letter, see Appendix B following copyright notice below.]

Resource Center as viewed looking in the direction of Mass. Ave. to the far right beyond the tree. photo--William G. Schulz--The InTowner

Resource Center as viewed looking in the direction of Mass. Ave. to the far right beyond the tree. photo–William G. Schulz–The InTowner

Now, DelleDonne has Warwick’s continuation as Chair of ANC 2B in his crosshairs. Immediately after forcing cancellation of the closed meeting, which Warwick characterized as agenda-setting, DelleDonne began releasing a scathing review of Warwick’s leadership.

Among actions cited were the ANC’s approval, with only minor changes, of a developer’s plans for a new apartment building to be built on 15th Street, NW behind the historic Masonic Temple on 16th Street. The plans, as we have been reporting, have drawn outrage and strong opposition from neighbors, which DelleDonne and others say Warwick and fellow ANC commissioners simply ignored.

What’s more, DelleDonne says, last year Warwick forced changes to the ANC policy manual that will stifle public discussion of matters that come before the ANC and favor whatever position commissioners have already decided to take in private and behind closed doors. Under Warwick, DelleDonne says, the practice of ANC 2B has been to reach a consensus in private so that public discussion and vote are just a formality.

“It’s really a condemnation of his performance,” DelleDonne says, of his review of Warwick’s tenure as chair of the Dupont Circle ANC. “Anybody else would do a better job than him.” [Ed. Note: Seven of the eight commissioners voted to continue Warwick as chair; Commissioner Hanlon voted ‘no.’]

Warwick has an agenda, DelleDonne says, that is pro-developer, pro- business, and pro-bicyclist — all in line with his personal interests, not necessarily those of the neighbors.

Commissioner Warwick presiding over the January ANC meeting shown 3rd from left. photo--William G. Schulz--The InTowner

Commissioner Warwick presiding over the January ANC meeting shown 4th from left. photo–William G. Schulz–The InTowner

DelleDonne says he realizes that he might be seen as having an axe to grind when it comes to Warwick. It was Warwick, after all, who engineered a vote to censure DelleDonne at a September 2017 ANC 2B meeting. While Warwick and other commissioners refused to cite specifics, they were unhappy with DelleDonne’s opposition to a request for a liquor license by the 17th Street  Safeway store. The vote to censure was eventually overturned, however, in a scathing opinion released by DC Attorney General Karl A. Racine’s office. [Ed. Note: see Appendix B following copyright notice below.]

“I don’t have an axe to grind. I just ask what they are doing,” DelleDonne says, in regards to ANC 2B. “They regard themselves as a board of directors for a business that has to keep things quiet.

In the New Year, ANC 2B is poised to take on any number of issues that people in Dupont Circle feel passionately about. One is bike and traffic safety, including a push for new, dedicated bike lanes on different thoroughfares that cut through the neighborhood. Bicyclists want open and safe passageways, while residents say the lanes threaten the availability of already scarce parking and space for delivery vehicles.

After speaking with The InTowner, DelleDonne said he was off to a community meeting about the bike lanes that he helped organize, and that will be among issues deliberated at the January ANC 2B meeting.

“I am trying to make the ground fertile so that people know when these issues are coming up,” DelleDonne said.

Commissioner Warwick (far right) being sworn in by Ward 2 Councilmember Jack Evans in with other commissioners. photo--William G. Schulz--The InTowner

Commissioner Warwick (far right) being sworn in by Ward 2 Councilmember Jack Evans in with other commissioners. photo–William G. Schulz–The InTowner

Seeking a response from Warwick to DelleDonne’s criticisms and to what this reporter had been told by persons who were interviewed for this report, the following three were passed on — specifically about claims of being pro-developer and pro-bicyclist in line with his own interests and that he does not listen to feedback in the neighborhood; that he has pursued changes to the ANC policy manual that are meant to cut off public discussion in favor of positions/decisions he and fellow ANC commissioners have already made in private; and regarding the Masonic Temple development (about which we have extensively reported),<http://intowner.com/2018/12/19/the-masons-get-a-qualified-approval-from-hprb-subject-to-approval-of-revised-design-changes> they say he gave the ANC’s blessing to a developer’s plan for the new apartment building that ignored community input and criticisms.

Warwick responded by email as follows:

“Please note that the ANC’s resolution on the 1733 16th St NW passed by a 6-1-0 vote. It was also not a resolution supporting the project. It may be viewed [in our November 18, 2018 letter to the HPRB].

“Updates to the policies and procedures manual were also considered and passed by a majority of the Commission, with the changes broadly supported by most commissioners.

“Advisory Neighborhood Commissions are comprised of individual commissioners. On ANC 2B I’m one of nine commissioners and the role of the Commission is to send written recommendations to DC agencies. As one of nine I can’t give a “blessing” to an item on the agenda.”

Copyright © 2019 InTowner Publishing Corp. & William G. Schulz. All rights reserved. Reproduction in whole or in part without permission is prohibited, except as provided by 17 U.S.C. §§ 107 & 108 (“fair use”).

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Reader Comment

There’s a very good article in the January 2019 Intowner about former ANC COMMISSIONER Nick DelleDonne’s most recent efforts to get the Dupont Circle ANC to comply with the law and let the public weigh in on matters such as bike lanes, major developments, etc. It was written by Bill Schulz, who has covered the ANC extensively.

kbkemp
Dupont Forum listserv

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Appendix A

Dupont Circle ANC has held a closed organizational get-together the first weekend of January each year for more than a decade. The meetings are closed because personal and family matters are often discussed.

Last year, one Commissioner mentioned the likelihood of an upcoming surgery and how that might affect her ability to serve in an executive position. She could service in one executive role, but the recuperative process would be such that her mobility might be limited. She asked that this be kept private for a while.

Another Commissioner spoke of his partner having two upcoming surgeries.

Another of balancing the needs of caring for a small child with certain roles on the Commission.

Another of her role in her child’s PTA or HSA and other community activities limiting her time.

A year earlier, a Commissioner told us he couldn’t serve in an executive role because he was in the final stages of accepting a new job offer, and asked us to keep that private so that it would not affect his then-current job.

A few years ago, we had a Chair whose job took him to isolated areas of profound poverty, where there was often no internet access. Given that reality, we agreed that a Vice Chair who was retired and in town and able to fill in between meetings when the Chair was away would best serve our needs.

These are private and personal matters that we – as volunteers – need to take into account when we organize ourselves at the start of the year.

As far as “goals,” perhaps that’s a misstatement of what goes on.

Last year, for example, we wanted to know if any Commissioner had the time and desire to be the liaison with MPD, and whether it was helpful to request an officer attend each meeting and recite crime stats, etc; The decision was made that I had worked with folks at 2D and could fill that role and that we might ask MPD to come to meetings when we or they felt there was a need, but we would go a few months without a recitation of crime stats at the monthly meeting and see if anyone missed them. No one did.

There was also the matter of the duties and workload of the Executive Director. When will letters go out to various agencies, who contacts who, who will oversee? How will the Executive Director interface with the Treasurer, the Secretary, and the Chair in the multitude of shared tasks? Each year, this must be reviewed.

That’s what these sessions are all about.

Every single ANC that I know of has one just before the start of their term. We all need to get to know one another and especially need to know who has the time and ability to serve in the various roles and – most important – who has personal, family, or job limitations. We also need to know who has the desire and ability to tackle certain issues.

No votes are taken.

In fact, it has been a decade since anything even remotely newsworthy has taken place at one of these closed meetings that was intentionally kept from the public to spare anyone embarrassment.

This is all much ado about nothing.

The Saturday get-together has been cancelled.

We will simply discuss these private matters by phone – in one-on-one sessions. We still need to know what personal and job matters limit our colleagues’ abilities to serve in various functions.

And our family and health matters remain personal and are none of your business.

Appendix B

 

GOVERNMENT OF THE DISTRICT OF COLUMBIA OFFICE OF THE ATTORNEY GENERAL

July 21, 2017

Gottlieb Simon Executive Director,
Office of Advisory Neighborhood Commissions
1350 Pennsylvania Ave., N.W.
Washington, D.C. 20004

 Re: Open Meetings Question

 Mr. Simon:

You asked whether a quorum of Advisory Neighborhood Commissioners (“ANC Commissioners”) could conduct a closed planning meeting – meaning, as you have described it, a closed meeting in which Commissioners gather and take no official action, but discuss upcoming ANC meetings and consider issues that should be discussed at those upcoming meetings. Any meeting of this kind must be open to the public, except to the extent that legal or personnel matters are discussed.

I. Legal Framework

The Advisory Neighborhood Commissions Act of 1975 (“ANC Act”) [1] and the District of Columbia Horne Rule Act (“Home Rule Act’ ), [2] regulate ANC meetings . The ANC Act requires advance notice of these meetings, [3] and both the Home Rule Act and the ANC Act require that most ANC meetings be open.

The basic open meetings requirement that applies to ANCs, and the only requirement that has applied to them since their creation, is in section 742 of the Home Rule Act (“section 742”), which states

1 Effective October 1, 1975 (D.C. Law 1-21; D.C. Official Code§ 1-309.01 et seq. (2012 Repl. and 2016 Supp.)).

2 Approved December 24, 1973 (87 Stat. 831; D.C. Official Code§ 1-201.01 (2012 Repl. and 2016 Supp.)).

3 The ANC Act states that an ANC must provide advance notice of any “meeting[] or convocation[].” D.C. Official Code§ 1-309.l l(c) (emphasis added). We have never read the word “convocation” to mean anything other than a meeting, however, in part because nothing in the ANC Act describes or regulates “convocations” as occurrences that are separate from meetings.

Appendix C (footnotes not included)

GOVERNMENT OF THE DISTRICT OF COLUMBIA OFFICE OF THE ATTORNEY GENERAL

ATTORNEY GENERAL KARL A. RACINE

 Legal Counsel Division

November 29, 2017

Nicholas Delle Donne Commissioner, ANC 2B

Re: September 13 Censure Resolution

 Commissioner Delle Donne:

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 mee t in? 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,3 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,6 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] breach 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. “[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. 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 re­publication by the Executive Director no later than the Monday before the meet ing.” 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.

If you have questions about the contents of this letter, please contact Josh Turner, Assistant Attorney General, at 442-9834, or Janet M. Robins, Deputy Attorney General, Legal Counsel Division, at 724-5524.

/s/ Karl A. Racine, Attorney General

/s/ Joshua Turner, Assistant Attorney General Legal Counsel Division