BRINGING THE ANCs INTO THE DUE PROCESS FOLD;
COUNCILMEMBER CATANIA TO BE CONGRATULATED

[from November 1999 issue]

PRIOR EDITORIALS ARCHIVED HERE


The idea of the Advisory Neighborhood Commissions, born with home rule, is a positive thing--in theory, but heretofore not so good in practice. Now comes a brilliant and aggressive first-term legislator committed to not only fixing a broken idea, but making it even better. At-large Councilmember David Catania has brought to this task his customary thoroughness of analysis and keen intellect to fashion a genuinely superior end result.

While the ANCs were designed to reflect grass-roots citizen consensus and serve as a kind of advocate on behalf of us all to ensure that our concerns would be taken seriously by city bureaucrats and policy-makers, the system has tended over the years to evolve into an often out-of-control, student government-like operation.

Too often throughout the city, ANCs will reject an application for reasons not based on current law or, even worse, for reasons that can only be characterized as purely arbitrary and capricious. Because existing law requires the referral of many kinds of license and permit applications by agencies to the ANCs for their approval or disapproval, which views are supposed to be accorded "great weight," this initial step is a critical one for petitioners trying to navigate the regulatory process. If ANC commissioners reject these applications for reasons having nothing to do with the merits or for reasons based on rumor, supposition, misinformation, or without any interest in getting the true facts, then such petitioners have been denied their fundamental rights of due process. After all, we are talking about people's livelihoods, not just whether some group ought to be permitted to close a street for a one-day block party.

Meanwhile, over the years ANC commissioners have been complaining that the city agencies for the most part give them short-shrift and do not accord their pronouncements with the "great weight" they deem required. Entreaties have from time-to-time been made to city council members to strengthen the clout of the ANCs, but nothing has ever come of that. Maybe the reason for this seeming council apathy is that members have viewed aggressive ANC commissioners as possible rivals in an election down the line. Fortunately, David Catania is not one of those.

Recognizing the need to strengthen the hand of the ANCs if they are to exercise appropriate clout on behalf of their constituents, Catania, who also chairs the council's local and regional affairs committee which has jurisdiction over the ANCs, has introduced a "comprehensive" ANC reform bill. In our view, the bill's most outstanding contribution to good government is the linking of increased ANC clout in the regulatory process to a requirement for adhering to the rules of administrative due process.

What this means is that ANCs will have to conduct their business in accordance with proper due process procedures consistent with the District's own Administrative Procedures Act, something which this newspaper has advocated for many years. No longer will it be acceptable to base actions on vague impressions, unfounded notions, non-existent "facts," or worse. ANCs will have to conduct orderly and fair hearings, following genuinely adequate notice to all affected parties, allow for rebuttals and even cross-examination, and to otherwise conduct their fact-finding efforts in a manner that will ensure absolute fairness with a record based on provable facts.

These provisions will mean that no longer will ANCs be able to take action based simply on what some commissioner has "heard" in the street or based on some unfounded bias. All this is quite nicely spelled out and should leave no doubt as to what standards the commissioners must abide by if their views are to be considered by a government agency.

To sum up, an ANCs views are to be ignored if their objections are "unsupported by a preponderance of the evidence in the record," are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," exceed the ANCs "statutory jurisdiction [or] authority," or if decisions are arrived at "without observance of procedures required by law," among other disqualifiers.

Another important improvement is the requirement to give notice to all "individuals with official business before the Commission . . . no less than 7 days prior to the date of such meeting." Another very helpful addition to the law is the inclusion of a strong provision ensuring the right of members of the public to inspect and copy any public record document of the ANCs, subject to reasonable rules of access.

If this legislation had been in force the very week we were going to press, for example, then it is highly unlikely that the Dupont Circle ANC would have voted to transmit a resolution to the Alcoholic Beverage Control Board stating its objection to an ABC-licensed establishment's plan to expand into an adjacent premises--at least in the form adopted. In that case, it appeared that the action was based on the commissioners being displeased with the existing law that allows lateral expansion into an adjoining premises; the commissioners had no substantive objections about the establishment and how it conducts its business, and in fact made that clear.

But it is wrong to use a business application proceeding to raise issues of public policy simply to seek out attention from the city council or to make a statement about something they don't like. To act in this fashion was to have denied due process.

If the Catania bill has one major weakness--one that was seemingly revealed in connection with the matter noted above--it is the failure to reiterate in the bill the requirement that ANCs are subject to the District's open meetings law. It is all too common for ANC commissioners to hold informal meetings, often at dinner, immediately prior to their public sessions at which time they will decide among themselves how they will vote.

This was all too obvious at the meeting dealing with the expansion application. Notwithstanding that the commission allocated an hour to hear views from concerned residents and notwithstanding that out of 22 speakers, 19 supported the applicant, when the public "input" portion was completed one of the commissioners pulled out a previously prepared motion which the other commissioners were already privy to, and the commissioners then voted against the applicant. So, what was the point of having a public meeting and hearing from neighbors? What was the point of the applicant even being in attendance to present his case? Issues that were germane to the application were raised and answered at that session, but it apparently mattered not one bit since the commissioners had already made up their minds and were not to be swayed by testimony presented at the public hearing. This was surely a denial of administrative due process. Accordingly, the ABC Board ought not give "great weight"--nor, for that matter, any weight--to the ANC's resolution.

Private meetings among the commissioners, for dinner or otherwise, at which time they will discuss and agree on their voting--even before hearing witnesses--is clearly outside the spirit of the Catania ANC bill, if not in total violation of the District's own open meetings law. So, tighten up that glaring deficiency and then maybe--just maybe--there will be a more level playing field. That would be good for everybody.