The Director of Open Government (Director), of the Office of Open Government, pursuant to the authority set forth in Section 205c(a)(3) of the Board of Ethics and Government Accountability Establishment and Comprehensive Ethics Reform Amendment Act of 2011, effective October 30, 2018 (D.C. Law 19-124; D.C. Official Code § 1–1162.05c(a)(3) (2016 Repl. & 2018 Supp.)), hereby gives notice of the adoption of the following amendments to Chapter 104 (Office of Open Government) to Title 3 (Elections and Ethics) of the District of Columbia Municipal Regulations (DCMR).
The rules make conforming changes to ensure that the Office of Open Government’s rules are consistent with the newly added Section 205c to the Board of Ethics and Government Accountability Establishment and Comprehensive Ethics Reform Amendment Act of 2011, effective October 30, 2018 (D.C. Law 19-124; D.C. Official Code § 1–1162.05c(c) (2016 Repl. & 2018 Supp.)). Subsection 205c(c) of D.C. Law 19-124 authorizes appeals for reconsideration of Open Meetings Act advisory opinions in prescribed circumstances. Additionally, the rulemaking makes clarifying and conforming amendments consistent with the Open Meetings Act, effective March 31, 2011 (D.C. Law 18-350; D.C. Official Code §§ 2-571 et seq. (2016 Repl. & 2018 Supp.)).
No comments have been received in response to the proposed rulemaking published in the D.C. Register on April 12, 2019 at 66 DCR 4804. One technical change was made to Subsection 10499.1, changing “D.C. Official Code § 2-594” to “D.C. Official Code § 1-1162.05b, to reflect the correct citation for the definition of “Director.” The Director adopted the rules as final on May 16, 2019. The rules became effective after publication of a Notice of Final Rulemaking in the D.C. Register on May 31, 2019.
Title 3 DCMR, ELECTIONS AND ETHICS, is amended as follows:
Chapter 104, OFFICE OF OPEN GOVERNMENT, is amended as read on the document attached on this page and below.
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OFFICE OF OPEN GOVERNMENT
NOTICE OF FINAL RULEMAKING
The Director of Open Government (Director), of the Office of Open Government, pursuant to the authority set forth in Section 205c(a)(3) of the Board of Ethics and Government Accountability Establishment and Comprehensive Ethics Reform Amendment Act of 2011, effective October 30, 2018 (D.C. Law 19-124; D.C. Official Code § 1–1162.05c(a)(3) (2016 Repl. & 2018 Supp.)), hereby gives notice of the adoption of the following amendments to Chapter 104 (Office of Open Government) to Title 3 (Elections and Ethics) of the District of Columbia Municipal Regulations (DCMR).
The rules make conforming changes to ensure that the Office of Open Government’s rules are consistent with the newly added Section 205c to the Board of Ethics and Government Accountability Establishment and Comprehensive Ethics Reform Amendment Act of 2011, effective October 30, 2018 (D.C. Law 19-124; D.C. Official Code § 1–1162.05c(c) (2016 Repl. & 2018 Supp.)). Subsection 205c(c) of D.C. Law 19-124 authorizes appeals for reconsideration of Open Meetings Act advisory opinions in prescribed circumstances. Additionally, the rulemaking makes clarifying and conforming amendments consistent with the Open Meetings Act, effective March 31, 2011 (D.C. Law 18-350; D.C. Official Code §§ 2-571 et seq. (2016 Repl. & 2018 Supp.)).
No comments have been received in response to the proposed rulemaking published in the D.C. Register on April 12, 2019 at 66 DCR 4804. One technical change was made to Subsection 10499.1, changing “D.C. Official Code § 2-594” to “D.C. Official Code § 1-1162.05b, to reflect the correct citation for the definition of “Director.” The Director adopted the rules as final on May 16, 2019. The rules shall become effective on publication of this Notice of Final Rulemaking in the D.C. Register.
Title 3 DCMR, ELECTIONS AND ETHICS, is amended as follows:
Chapter 104, OFFICE OF OPEN GOVERNMENT, is amended to read as follows:
CHAPTER 104 OFFICE OF OPEN GOVERNMENT
10400 FILING AND PRESENTATION OF COMPLAINTS
10400.1 Any person who does not receive proper notice of any open meeting and or records of open meetings of a Public Body in accordance with the provisions of the Open Meetings Act (D.C. Law 18-350; D.C. Official Code §§ 2-571 et seq.) may submit a complaint under the provisions of this chapter. If a meeting is timely published and posted as set forth in the Open Meetings Act, the Public Body has given proper notice of a meeting.
10400.2 A Complainant shall submit a complaint to the Director within sixty (60) days following the date that the Complainant knew or reasonably should have known of the alleged violation. A complaint may refer to one or more open meetings.
10400.3 The Director may accept a Prospective Complaint that alleges the future action of a Public Body appears, to a Complainant, likely to violate the Open Meetings Act.
10400.4 The Director shall take reasonable steps to reach prompt conclusions on a Prospective Complaint and to minimize future violations of the Open Meetings Act.
10400.5 Complaints may be submitted in writing or in person at the Office of Open Government, Board of Ethics and Government Accountability by mail at 441 4th Street, N.W., Suite 830 South, Washington D.C. 20001; or by electronic means at opengovoffice@dc.gov. When submitting complaints by mail, the Complainant shall write “Open Meetings Act Complaint” on the outside of the envelope. Electronic complaints shall state “Open Meetings Act Complaint” in the subject line or heading of the communication. A Complainant may access and submit a complaint form on the Office of Open Government’s website, OPEN.DC.GOV.
10400.6 Complainants may be submitted anonymously. If the Complainant requests anonymity, the Director shall honor Complainant’s request to remain anonymous.
10400.7 A complaint shall include the Complainant’s name, and at least one of the following: mailing address, email address, or phone number.
10400.8 Complaints shall include the following details regarding the meeting complained of:
(a) The name of the Public Body;
(b) The date of the open meeting, and
(c) The specific provision(s) of the Open Meetings Act that the Complainant alleges have been violated.
If there are record(s) to substantiate the complaint, the complaint shall identify the supporting record(s) and the location of the record(s). Relevant timestamp information shall accompany audio and video records.
10400.9 The Director shall confirm receipt of a complaint within five (5) businesses days of the Director’s receipt of the complaint.
10401 PROCESSING OF COMPLAINTS
10401.1 The Director shall review a complaint within fourteen (14) business days and may take one or more of the following actions:
(a) Request additional information from the Complainant or Public Body to investigate the complaint;
(b) Dismiss the complaint;
(c) Conciliate the complaint; or
(d) Initiate the issuance of an Advisory Opinion.
10401.2 A Complainant may withdraw a complaint at any time prior to the Director’s issuance of an advisory opinion. A request to withdraw the complaint shall be made in writing with “Open Meetings Act Complaint Withdrawal” on the envelope or in the subject line or heading of electronic correspondence sent to opengovoffice@dc.gov.
10401.3 Prospective Complaints shall be processed in the same general manner as other complaints, with reasonable modifications of deadlines to provide a timely response.
10402 REVIEWS OF COMPLAINTS
10402.1 The Director shall consider, at a minimum, the following factors when issuing findings, determinations, and conclusions under this chapter:
(a) The nature, content, language or subject matter of the complaint;
(b) The nature, content, language or subject matter of prior or contemporaneous complaints by the person making the complaint; and
(c) The nature, content, language or subject matter of other verbal and written communications to any Public Body or any official of a Public Body from the person making the complaint.
10403 DISMISSALS OF COMPLAINTS
10403.1 The Director may dismiss a complaint on one or more of the following grounds:
(a) The complaint does not raise issues within the Director’s authority under the Open Meetings Act;
(b) The action complained of does not violate the Open Meetings Act;
(c) The Complainant declined to provide information the Director reasonably believed necessary to evaluate the complaint (or failed to respond within thirty (30) days to such a request);
(d) The Complainant’s failure to cooperate with the investigation;
(e) The violation committed is a technical violation of the Open Meetings Act that constitutes a harmless error that does not infringe upon the Complainant’s rights under the Open Meetings Act; and
(f) The complaint becomes moot due to action taken by the Public Body.
10403.2 The Director shall return a dismissed complaint to the Complainant with an explanation of the reason(s) for dismissal.
10404 CONCILIATIONS OF COMPLAINTS
10404.1 Upon receipt of a complaint, the Director may first seek to resolve disputes through conciliation.
10404.2 The goal of conciliation is to arrive at an acceptable resolution of the complaint through discussion and exchange of views. The Director may only issue an Advisory Opinion on a complaint resolved through conciliation with the consent of the parties and for the sole purpose of instructing the public on the issue in dispute.
10404.3 In the conciliation discussion, the Director (or the Director’s designee) serves as facilitator.
10404.4 If conciliation is not successful, the Director may dismiss the complaint, investigate further, issue an Advisory Opinion or take any other step permitted by the Open Meetings Act and in these regulations.
10405 INVESTIGATIONS OF COMPLAINTS
10405.1 The Director shall complete the investigation of a complaint within a reasonable time after the Director’s receipt of the complaint and any subsequent requests for information from the Complainant or Public Body.
10405.2 The Director shall transmit a complaint to the Public Body named in the complaint. The Public Body shall respond to the complaint within thirty (30) days of receiving notice of the complaint from the Director. If the Public Body does not respond within thirty (30) days, the Director may issue an Advisory Opinion based on the information available from the complaint and any other relevant sources. In the case of Prospective Complaints, the Director may request an earlier deadline for a response from the Public Body.
10405.3 The Director may grant the Public Body one extension of up to five (5) business days in which to respond to the complaint. Any subsequent extensions may only be granted with the agreement of the Complainant.
10405.4 The response from the Public Body shall address the complaint and any other questions raised by the Director. A response that denies one or more violations of the Open Meetings Act shall include an explanation. A response that admits one or more violations of the Open Meetings Act shall include a plan of corrective action. An individual (officer, counsel, staff) with authorization to represent the Public Body shall sign the response.
10405.5 The Director shall maintain the confidentiality of records of a closed meeting of a Public Body, provided they are submitted with clear markings of the portions to be kept sealed.
10405.6 The Public Body shall provide a copy of its response to the Director and the Complainant at the same time. The copy of the response provided to the Complainant shall omit records of a closed meeting.
10405.7 The Director may request further information from either the Public Body or the Complainant, to be provided within a reasonable time, and in no event less than five (5) business days from the date of the request for further information. The Director may request representatives of the Public Body and the Complainant to attend an informal conference to discuss the complaint.
10405.8 If it is determined after investigation that a Public Body has violated or intends to violate the provisions of the Open Meetings Act, the Director may bring a lawsuit in the Superior Court of the District of Columbia for injunctive or declarative relief pursuant to D.C. Official Code § 2-579, without first issuing an Advisory Opinion.
10406 ADVISORY OPINIONS
10406.1 Based on results of the investigation, the Director shall issue an Advisory Opinion addressing the complaint that a Public Body violated the Open Meetings Act. The Director shall issue an Advisory Opinion within thirty (30) days of the later of the following: receipt of the response from the Public Body, the last due date for any additional information requested, or the date of any informal conference.
10406.2 An Advisory Opinion shall explain the Director’s findings of fact and understanding of the law. Where the Director concludes there was a violation, the Advisory Opinion shall set forth corrective actions that the Public Body shall complete to avoid further legal action as set forth in an Advisory Opinion.
10406.3 If the corrective actions set forth in an Advisory Opinion are not taken or not completed in a timely matter, the Director may bring a lawsuit in the Superior Court of the District of Columbia for injunctive or declaratory relief pursuant to D.C. Official Code § 2-579.
10406.4 The Director shall provide copies of the Advisory Opinion to the Complainant and the Public Body and shall make it available to the public by posting it on the Office of Open Government Website and by publication in the District of Columbia Register.
10407 PUBLIC BODY REQUESTS FOR ADVISORY OPINIONS
10407.1 The Director may issue an Advisory Opinion on compliance with the Open Meetings Act on the Director’s own initiative or at the request of a Public Official or employee, pursuant to D.C. Official Code §§ 2-579(g) and 1-1162.05(c)(1).
10407.2 A request for an Advisory Opinion by a Public Official or employee may be submitted in writing to the Office of Open Government, Board of Ethics and Government Accountability by mail at 441 4th Street, N.W., Suite 830 South, Washington D.C. 20001 or by electronic mail to opengovoffice@dc.gov. Requests for Advisory Opinions submitted by mail shall include the phrase “Advisory Opinion Request” on the outside envelope. Electronic mail requests shall state “Advisory Opinion Request” in the subject line or heading of the communication.
10407.3 The Director may publish an Advisory Opinion upon approval of the requesting Public Official or employee. When publishing an advisory opinion, the Director shall make appropriate redactions to ensure confidentiality.
10407.4 The Director shall review requests from Public Officials or employees and provide notice of the Director’s intent to issue an Advisory Opinion to the requester within ten (10) business days of receiving the request. Once the Director provides notice of the intent to issue an Advisory Opinion, the Director shall issue the Advisory Opinion within thirty (30) days.
10407.5 A Public Official requester, employee requester, or any person aggrieved by an Advisory Opinion issued by the Director on his or her own initiative may appeal the Advisory Opinion to the Board for its consideration.
10407.6 The Board shall receive the request to appeal the opinion for consideration within ten (10) business days of the Director’s issuance of an Advisory Opinion. The Advisory Opinion is final and not appealable after ten (10) business days.
10407.7 An appeal of an Advisory Opinion to the Board for consideration shall be in writing, signed by the party making the appeal, and shall include:
(a) A copy of the Advisory Opinion;
(b) A statement of circumstances, reasons or legal arguments in support of the request for consideration by the Board;
(c) A statement requesting that the Board take a specific action; and
(d) A draft Board Order.
10407.8 A request to appeal an Advisory Opinion to the Board for consideration shall be submitted in writing to the Board of Ethics and Government Accountability. The request for reconsideration may be sent by U.S. mail to 441 4th Street, N.W., Suite 830 South, Washington D.C. 20001 or by electronic mail to bega@dc.gov. Requests for reconsideration by the Board submitted by mail shall include the phrase “OMA Advisory Opinion Appeal” on the outside envelope. Electronic mail requests for reconsideration by the Board shall state “OMA Advisory Opinion Appeal” in the subject line or heading of the communication. The requester shall send a copy of the request for reconsideration of an Advisory Opinion by the Board to the Director at the same time it is sent to the Board.
10407.9 If the Director elects to file a response to a request to appeal an Advisory Opinion to the Board for consideration, the Director shall file the response to the Board within ten (10) business days of the Director’s receipt of a copy of the appeal.
10407.10 The Director may request an extension of time to file the response required by Subsection 1047.9, by sending a written request for extension of time to respond to the Board with a copy to the Public Official, employee, or party aggrieved by an Advisory Opinion that the Director has issued on his or her own initiative. The request for extension of time shall state the length of the extension and the reasons for the extension. The Board shall receive the request for extension of time within seven (7) business days of the Board’s receipt of a request for reconsideration of an Advisory Opinion. The Board (or its designee) shall respond to the Director’s request for an extension of time within seven (7) business days and provide a copy of the response to the Public Body member, employee, or aggrieved party.
10407.11 The Board shall issue a written decision on the appeal as soon as practicable. The Advisory Opinion is binding unless and until the Board disapproves of it in writing. If the Board does not issue a written decision on the appeal within six months of the Board’s receipt of the request for reconsideration of an Advisory Opinion, the Advisory Opinion is deemed approved. The Board’s decision is final and not subject to further appeal.
10408 RULES OF PARLIAMENTARY PROCEDURE
10408.1 Unless otherwise provided by law or its own by-laws, a public body, except for the District of Columbia Council, may conduct public meetings using the rules of parliamentary procedure set forth in the latest edition of Robert’s Rules of Order. A Public Body shall be clear and simple in its procedures and avoid invoking the finer points of parliamentary procedure when doing so would obscure the issues and confuse the public.
10408.2 The Director may provide advice and training on parliamentary procedure upon request.
10409 PUBLIC MEETING RECORDS
10409.1 The records for all regular, special, and emergency meetings shall contain a draft and final meeting agenda and a recording of the meeting in electronic form. The records of all closed/executive sessions shall include an electronic recording of the meeting.
10409.2 A Public Body’s agenda shall contain the order of business for the meeting. The final agenda shall contain any changes adopted by the Public Body. The Public Body shall include the following statement at the end of all draft and final meeting agenda: “This meeting is governed by the Open Meetings Act. Please address any questions or complaints arising under this meeting to the Office of Open Government at opengovoffice@dc.gov.”
10409.3 A Public Body shall make electronic meeting records available to the public upon request within seven (7) business days after the meeting.
10409.4 A Public Body may post transcripts in lieu of posting detailed meeting minutes. When posting transcripts in lieu of meeting minutes, transcripts of meetings shall be posted to the Public Body’s website or the District of Columbia’s website within seven (7) business days after the meeting. If transcripts will not be available within this time-frame, a Public Body shall post detailed meeting minutes within three (3) business days after the meeting, with a notation at the top of the document that full meeting minutes shall be posted on the next meeting date of the Public Body.
10409.5 A draft of the detailed meeting minutes shall be posted on the Public Body’s website or the District government’s website within three (3) business days of a meeting, with a notation at the top of the document that full meeting minutes shall be posted on the next meeting date of the Public Body.
10409.6 Detailed meeting minutes shall contain the following information:
(a) The date, time, and place of the meeting or session;
(b) The names of members of the Public Body recorded as either present or absent; and
(c) Any motions, and amendments thereto, a record of all votes taken, and general description of all matters considered during the meeting.
10409.7 A Public Body conducting a meeting by electronic means shall ensure the meeting complies with the Open Meetings Act and take the following actions:
(a) Provide a dial-in number for the public to participate in the meeting if the meeting is held by teleconference;
(b) Provide login information if the meeting is held by web-conference;
(c) Record the meeting my electronic means; and
(d) Take all votes by roll call.
10409.8 A Public Body shall retain all electronic recordings of meetings and written minutes pursuant to District law and shall comply with the District of Columbia General Records Schedules concerning the disposition of its electronic meeting recordings and written meeting minutes.
10410 TRAINING
10410.1 Pursuant to D.C. Official Code § 2-580, the Mayor, in coordination with the Office of Open Government, shall:
(a) Develop an Open Meetings Act training manual, within nine months of the adoption of these rules, for Public Body members and their assigned administrative points of contact; and
(b) Annually advise all Public Body members and their assigned administrative points of contact of their responsibilities under the Opening Meetings Act and related regulations.
10410.2 The Director shall establish procedures for Public Body members and their assigned administrative points of contact to complete training on the Open Meetings Act within sixty (60) days of assuming their office or role.
10499 DEFINITIONS
10499.1
“Advisory Opinion” means (i) an opinion issued by the Director upon investigation of a complaint alleging violation of the Open Meetings Act; (ii) an opinion issued by the Director following a request from a Public Official or employee regarding its compliance with the Open Meetings Act; or (iii) an opinion issued by the Director on his or her own initiative.
“Board” means the Board of Ethics and Government Accountability established by D.C. Official Code § 1-1162.02(a).
“Director” means the head of the Office of Open Government as provided in D.C. Official Code § 1-1162.05b.
“Prospective Complaint” means a complaint about a future action of a Public Body that appears, to a Complainant, likely to violate the Open Meetings Act.
“Public Body” has the meaning given in D.C. Official Code § 2-574(3) and includes for the purposes of requesting an Advisory Opinion or appeal for consideration by the Board of an Advisory Opinion, a Public Body member or employee.