My post a few weeks back on possible reforms to the Washington, D.C. Advisory Neighborhood Commission system stimulated some interesting discussion on the blog. In response, my former Shaw neighbor Sarah Livingston (editor of the 7th Streeter neighborhood newsletter) put me in touch with David Holmes, and elected commissioner with ANC 6A on Capitol Hill. Together with the other 6A Commissioners, David has compiled a set of 15 detailed proposals for improving the ANC system.

In general, the proposals are regarding additional authority, resources, and data from city government, as well as a provision for a stricter ethics code. Several speak to specific ways to address one of my proposals, “enforcing greater transparency and consistency in ANC operations,” although in general they assume transparency is an issue with the city government, and should be addressed with specific disclosure requirements. I argue reforms should enhance transparency by both the city and the local commission, something that may not apply as much more well-run commissions like 6A with its detailed website and good communications.

Lastly David provided some additional recommendations (letters A-D below) that would essentially create additional statutory authority for ANCs. However, none of the recommendations address my remaining three areas of possible reform from my original post: (1) Modify the structure of Single Member Districts, (3) Reduce the number of ANCs or enlarge SMD sizes, and (4) Term Limits for ANC Commissioners.

As is with structural reforms for any type of electoral body, no matter how needed reforms of this type rarely arise from within the membership, elected as they are under the prevailing rules. I maintain this type of more fundamental reform — outside of usual lawyerly quibbling about the DC Code — is necessary.

Click to read all of the proposed reforms.

====================================

Commissioners,

Here is a package of proposed Council actions from Advisory Neighborhood Commission 6A that will strengthen the ANCs. It’s called the “Enhancing Neighborhood Voices Act of 2008”.

Below is a summary of the provisions. They are based on our experience, the recommendations of experienced Commissioners from other ANCs, and from City and Council staff. We have tried to offer only those amendments that have a reasonable chance of adoption by the Council. We omitted a number of amendments we would prefer to have included because it seemed possible they might hurt the chances of the whole package being adopted by the City Council.

The ethics proposals in point 6 are forceful. The provisions are stricter than the ethical code which Councilmembers are required to meet. This we feel is a good thing. There should be no doubt that the Commissioners’ actions are only for the good of their constituents, that they seek nothing for themselves.

The final amendment, for increased funds for the ANCs, is intended to open a debate about how to provide sufficient money to help us become more effective.

We believe these are a reasonable set of tools to help us better represent our constituents. Please join us by asking your Councilmember, Council Chair Vincent Gray, and the at-large Members to sponsor and vote for this package.

David Holmes for ANC 6A
Commissioner 6A03
holmes6a3 at gmail.com

The provisions:

1) add an attorney within the Office of Advisory Neighborhood Commissions (OANC) dedicated to assisting ANCs with appearances and appeals before the Board of Zoning Adjustment and the Zoning Commission.
ANC Commissioners are volunteers. Though their expertise is across many occupations and interests, almost without exception they are not formally trained in zoning law. Zoning requires specialized knowledge of hearing procedure and appeal rules as well as expertise in zoning language and history. In this arena, Commissioners go into battle against $200-800/hour attorneys. We need non-partisan, knowledgeable legal help that is dedicated to the interests of our neighborhoods. It may be that the staff will have to help ANCs on both sides of a zoning issue – and that’s fine.

Staff working out of the Office of the Attorney General would be subject to reassignment and to alternate tasking by the AG, and would likely have other duties to perform concurrently. Thus, ANC responsibilities would surely slip on a hierarchy of responsibilities. Only an attorney operating independently of other City agencies and departments would be useful to us in all circumstances. Their focus would be on the needs of the ANCs, and their loyalties would be to the ANCs, not to any city department that might be inconvenienced or embarrassed by ANC requests or proposed action.

2) Add an additional staff person within the OANC to advise and assist ANCs on the procedures of the Alcoholic Beverage Control Board, the Department of Consumer and Regulatory Affairs, the Department of Public Works, the Department of Transportation, and others. This staff person would become an objective resource for the ANCs.
The Board has specialized procedures, and many Commissioners lack enough knowledge to effectively represent their constituents. The DCRA, DPW, and DDoT are the largest of the City’s rulemaking and enforcing agencies. Their divisions and bureaucracies are vast, and their rules and regulations seem to go on forever. Commissions need help identifying the appropriate person or rule to help with a community problem.

3) Require the provision of interpretive services, for both foreign and sign language, on an as-needed basis to ANCs. This responsibility should be vested in the ANC Office. The City shall either negotiate set low rates or provide interpreters from the City’s payroll. (Adopted)
Residents and citizens who are unable to converse fluently in English or in spoken language should not be kept from participation in civic life. Some ANCs have particularly concentrated populations of non-English speakers or of the deaf. The ANCs are the closest elected body to the citizens of this City, and need to be able to hear from all of their constituents. The requirements of the ADA are not being met by the City, and there is insufficient funding provided to ANCs to hire interpreters at commercial rates.

4) Clarify that a Commission may provide reimbursement to Commissioners for purchases made with credit cards. (Adopted)

5) Ensure that no funds shall be expended for office equipment away from the Commission office, whether provided for the use of Commissioners, committee chairs, officers, or staff. Exceptions may be sought through a ruling by the OANC, based upon publicly announced criteria.
This is an obvious source of misappropriation of City funds. Any policy for equipment use away from Commission offices shall be set by written regulation and explicit permission obtained from the OANC. This proposal is intended to answer the criticism that some commissioners have taken advantage of their position of public trust to divert monies and equipment to themselves or to organizations they either control or in which they have a financial interest.

6) Prohibit the acceptance of monies, services, or of any thing of value by any Commissioner (or his or her family or family-owned company or partnership) from any person, company, partnership, or corporation with business before the Commission, either currently or within one year (before or after) of Commission action affecting that person, company, partnership, or corporation. Prohibit membership on the Commissions of any person who has been convicted of a crime that betrays the public trust (embezzlement, misappropriation of funds, fraud, false statements). Those who have committed other types of crimes, not otherwise barred from public office or from voting, remain eligible. This prohibition shall be printed on the ANC candidate filing form provided by the Board of Election and Ethics.
As in #5 above, this proposal is intended to answer the criticism that commissioners have taken advantage of their ability to affect the issuance of permits, licenses, and zoning matters for financial and other rewards. We have all read stories of errant commissioners in the past few election cycles. While there are related provisions in law, this language clarifies ANC financial prohibitions and responsibilities. In addition, persons found guilty of crimes that betray the public trust should not serve as Commissioners. This issue is frequently mentioned as a reason that greater faith and more funds are not given to the ANCs by the City Council.

7) At the request of an ANC, the City shall provide office space in government buildings or by leasing appropriate space. In addition, the City should provide office furniture and equipment for an ANC office. At its choice, an ANC may decline to use these City-provided services.
The costs for the lease should be covered by the Office of Property Management (OPM), with their budget adjusted accordingly. The OPM has the staff and knowledge with which it provides leased space for City agencies — adding ANCs to the list should not overburden the office. It will alleviate the need for inexperienced Commissions to negotiate leases. OPM should provide office furniture and equipment to ANCs, as it does for every other city agency. The OPM has the procurement experts and pre-negotiated prices to ensure that DC tax dollars are spent wisely and in accordance with the law.

The ANCs need a location for interaction with constituents, for the storage of files and office equipment, and for people to have access to public documents. The City has made inadequate efforts to locate appropriate offices in City-owned facilities. The current allocation of $600/month towards the cost of a lease is laughably small. The City already employs experts to provide office equipment at contracted prices and with service maintenance contracts, and the ANCs should be able to use these expert services. Basic office equipment should be provided by the City. It may well be that some ANCs will prefer not to take advantage of this provision. An ANC must adopt a motion to request this assistance.

8) Staff shall be made available to ANCs (20 hours a week). ANCs should be able to use the same personnel services that other DC agencies employ to hire staff assistants. At a minimum, ANCs should be able to use the city personnel, accounting, and management systems to hire staff and ensure the payment of income and Social Security tax withholdings. At its choice, an ANC may decline to use these City-provided services.
One of the consistent failures noted by the DC Auditor is the inability of ANCs to properly account for taxes and benefits for staff they hire. Use of the Office of Personnel (OP) will reduce or eliminate these problems. ANCs should have the ability to hire their own staff, but be able to use OP services.

Commissioners serve as unpaid volunteers, with little time during the workday to be available to their constituents or for gathering information. Having staff to answer phone calls, file appeals, pick up documents and packages, and even attend key agency meetings during the day would greatly improve the effectiveness of ANCs.

9) Provide an adjudicated appeal mechanism for decisions made by City agencies; appeals may be heard by the Office of Administrative Hearings.
For example, there is no current appeal of any ruling by the Auditor or the Board of Election and Ethics. Only by going to the Courts, the Mayor, or the Council can the decisions of several other agencies be appealed. However, an issue that may be vital to a particular neighborhood may be of little interest or too time-consuming for the Council or the Mayor.

10) Clarify the ability of an ANC to directly petition the Zoning Commission for zoning amendments, by amending the DCMR as follows: In DC Official Code, Title 11 102.2, insert “the Advisory Neighborhood Commissions” as (f); and re-number the current language… “Any other department of the District or federal government”… as (g).

11) Within 10 days of their first notification of the Office of Planning, developers seeking a Planned Unit Development (PUD) shall provide the ANC in which the project is to be located, and any other ANC within two hundred feet of the proposed PUD’s lot, written notice of their intention to build. This notice shall be conveyed to the ANC’s address of record, along with renderings of the project; a statement of special exceptions and variances to be requested; the names, addresses, and phone numbers of the project managers and legal counsel; and a listing of proposed community amenities. This provision should be placed in both the ANC law and the zoning code.
This provision will ensure that ANCs receive appropriate notice for major developments in and adjacent to each Commission. There is now no requirement in law for advance notice. Currently we depend on the goodwill of the Office of Planning. A requirement imposed upon the developer, rather than the Office of Planning or the Office of Zoning, ensures adequate time for ANC consideration of community impact and of proposed community benefits. This requirement efficiently provides us with the names and contact information of the developer and the project’s counsel. It also alerts the ANCs to zoning exceptions and variances that will be sought by the developer. The ANCs along those transportation corridors now beginning intense development need all the tools that can be provided to enhance and protect their communities.

12) Require 30-day notice to the local ANC, or any ANC located within 200 feet of a proposed site, of any consideration by the Public Charter School Board (PCSB) of a possible location of a new charter school or of the expansion of an existing charter school.
Only in the last year has the PCSB provided ANC notice of proposed school sites. Although the Office of the Attorney General has ruled that written notice must be provided, it currently comes after the siting process is almost completed. Public schools, other than charters, must go through an extensive public process before a school building can be located in a neighborhood. The ANC, community groups, the Councilmember, and others have the opportunity to analyze the proposed site for traffic safety, proximity to dwellings, adequate playgrounds, sufficient parking, and whether there is enough room for the school and the anticipated number of students. This is not the case for the location of charter schools. Commissions, for example, have complained that too many schools have been sited in the same area; that there has been no thought given to how parents can drop off and pick up students at charter sites on busy commercial streets. At best, ANCs receive 10 days notice of the only PCSB vote on the final location. In addition, the PCSB itself does no examination of the site or of the building – they rely only on the DCRA certificate of occupancy. This amendment offers ANCs time to analyze the site, consult the neighbors, offer advice to the PCSB, and prepare for public testimony.

13) Allow ANCs to proceed in civil suits against those who are harming the ANC or fail to perform promised actions, and remove prohibitions against enjoining City agencies when they take action without waiting for the expiration of the ANC 30-day comment period. The ANC may originate or be a party to the suit.
This envisions use of a hired or pro bono attorney to sue on behalf of the ANC. Many times actions are promised by those seeking ANC approval for zoning, public space, beverage licenses, or economic development. This allows compulsion of those who fail to perform promised actions. Failure to give ANCs the full 30-day period to respond negates the ANCs’ “great weight”.

14) Provide timely, free access to DC government documents and data.
The DC Code 1-309.10(i)(1) is amended by striking the language following the word “data”, and inserting a comma: DC Code 1-309.10(i)(1) Each Commission shall have access to District government officials and to all District government official documents and public data pursuant to § 2-531 et seq. that are material to the exercise of its development of recommendations to the District government.

The Code is further amended by adding after the word “data” at DC Code 1-309.10(i)(1): “, provided that no fee shall be charged a Commission when requesting documents or data pursuant to this section.”; And the following new language shall be added after the period: “Commission requests shall be given immediate priority.” The new language of DC Code 1-309.10(i)(1) shall then read: “DC Code 1-309.10(i)(1) Each Commission shall have access to District government officials and to all District government official documents and public data, provided that no fee shall be charged a Commission when requesting documents or data pursuant to this section. Commission requests shall be given immediate priority.”

ANC access to government documents is currently greatly hindered because: 1) some departments attempt to impose FOIA requirements; 2) several agencies impose charges on material provided; and 3) document and data requests go to the back of the line. DCRA, in particular, fails to respond in a timely fashion to ANC requests. We understand that they and other agencies are deluged with requests for information and documents. Nonetheless, the ANC law reads… “Each Advisory Neighborhood Commission (“Commission”) may advise the Council of the District of Columbia, the Mayor and each executive agency, and all independent agencies, boards and commissions of the government of the District of Columbia with respect to all proposed matters of District government policy including, but not limited to, decisions regarding planning, streets, recreation, social services programs, education, health, safety, budget, and sanitation which affect that Commission area.” Without timely access to documents, data, and officials, the ANC is greatly handicapped in the performance of its mandated functions. In summary, this proposed language clarifies access, eliminates the charges that some DC agencies have imposed, and provides a priority for ANC requests for information.

15) Adequately fund the ANCs, preferably at the level adopted in the original authorizing legislation.
This language is intended to request that the Council raise the current funding level. The original amount of money available to the ANC in the 1976 Congressional authorizing legislation was 1 cent of each $100 of property valuation. This would be about twice the current amount, according to Gottlieb Simon of the ANC Office. As things now stand, many ANCs don’t get enough money to hire or even share a staff person or to open an ANC office in the high rent areas. Congress left the funding for the ANCs within the jurisdiction of the City Council, although the original funding level required no annual appropriation, the amount then being fixed by Congress. Both Congress and the City Council have since reduced annual allocations. When a member of Congress failed to obtain ANC support for his proposed home modifications before the BZA, the DC Appropriations bill mysteriously zeroed out the ANC funds for that year. In FY94, the ANC allocation was $1,172,000. In FY95, in a fit of cost-cutting, the Council reduced that amount to $624,000. We have crept up over $800,000 since that time. The ANCs have been a football to be kicked around when the Council feels cuts are needed, but sometimes the cut just reflects a Councilmember’s greater interest in a particular project. One year a Council Chair took the entire ANC budget to fund a project dear to his heart. It is time to ask for something better. If we are to represent the voices and needs of our constituents, we need better tools and better funding. The original level of ANC funding seems to be the appropriate starting point, since that formula was the largest amount the ANCs have ever received.

Not adopted by ANC 6A for inclusion in its suggested improvements but enthusiastically supported by several Commissioners from around the City were the proposed amendments below. They are much more controversial.

Other amendments which, after preliminary discussion, did not come to a vote:

A. Stop the provision of the annual allocation to any ANC whose bank account totals exceed 250% of the annual allocation. These funds shall revert to the Office of the ANCs. The provisions of this section become effective 18 months from the date of enactment. An ANC may obtain a waiver of the requirements of this act by a ruling of the ANC Office, based upon publicly announced criteria, e. g., anticipated future rental expenses.
We are reliably informed that this is a principal reason that ANC funding levels have not been raised. While most ANCs annually spend all of their funds on Commission business and grants, others have amassed multiples of their annual allocation. Councilmembers have asked why ANCs need more money when some ANCs simply accumulate their City-provided funds.

B. Require DCRA to give notification to ANCs of any action taken with respect to either an existing Certificate of Occupancy, or the issuance of a C of O to a new structure or property. This notice shall be provided biweekly both in writing and electronically.

C. Require HPRB to give notification to ANCs of pending actions, and of all actions recently taken, relating to properties and structures within each ANC. This notice shall be provided biweekly both in writing and electronically.

D. 1. In proceedings by the Zoning Commission, ABRA, the Historic Preservation Office, the Board of Zoning Adjustment, and in any government action in which the Advisory Neighborhood Commissions (ANC) are by law granted “great weight”, the opinion of the ANC shall be determinative unless 1) there is clear and convincing evidence to the contrary or 2) the ANC can be shown clearly to misunderstand the underlying law or regulation.
If the additional Office of Advisory Neighborhood Commissions (OANC) staff are provided, then point 2 should be changed to “if the OANC states in writing that an ANC’s position conforms to District law and regulation, then the board, commission, or agency must meet the burden of proof to decide to the contrary.” All too often the ANCs’ “great weight” is minimized by the City’s regulatory bodies. As long as the requirements of law and regulation are met, it is appropriate to give determinative power to the elected body most closely in contact with the citizenry. The use of the phrase “clear and convincing evidence to the contrary” effectively mandates the great weight of the Commissions. Because this is a considerable expansion of the reach of ANC powers, this provision should not be enacted without adoption of the ANC ethics reforms to be found elsewhere in this package.

Or (alternate version)

D. 2. In proceedings of the Zoning Commission, Alcoholic Beverage Regulation Administration, the Historic Preservation Office, the Board of Zoning Adjustment, and in any government action in which the Advisory Neighborhood Commissions (ANC) are by law granted “great weight”, there shall exist a refutable presumption that the position of the ANC is correct.
If the additional Office of Advisory Neighborhood Commissions (OANC) staff are provided, then add: “if the OANC states in writing that an ANC’s position conforms to District law and regulation, then the board, commission, or agency must meet the burden of proof to decide to the contrary.”

E. ANCs shall be permitted to initiate legal actions in the courts: DC Official Code § 1-309.10 (g) – (Advisory Neighborhood Commissions-Duties and responsibilities; notice; great weight; access to documents; reports; contribution) which reads: “The Commission shall not have the power to initiate a legal action in the courts of the District of Columbia or in the federal courts, provided that this limitation does not apply to or prohibit any Commissioner from bringing suit as a citizen” is amended as follows: DC Official Code § 1-309.10 (g) is repealed.

Sources: ANC 6A commissioner David Holmes, ANC 6A