In this suit testing the enforcement powers in the D.C. Open Meetings Act, Superior Court Judge John Campbell heard argument last Friday (28) on pending motions from both sides for summary judgment (decision without a trial). The hearing was the first time the parties squared off in court.
The Office of Open Government (OOG) is part of the District government but, to avoid conflict of interest were the D.C. Attorney General to represent both the Office and the commission being sued, the Office is represented by pro bono counsel from the D.C. law firm of Levine Sullivan Koch & Schulz, LLP.
The court made no rulings.
The OOG brought suit against the D.C. mayor's Caribbean Community Affairs Commission, alleging it held meetings without posting public notices or publishing minutes afterwards. Filed in October 2016, the case is the first court action by the Office, an independent agency created by the D.C. Council in the 2011 Act to be the enforcement watchdog.
Prior complaints about other public bodies, including several filed by the D.C. Open Government Coalition, led to investigations and opinions by the Office requiring compliance. The Office took similar steps in this case including warnings and offers of training and assistance that were unsuccessful. (See earlier blog posts about this case here and here.)
The court appeared to be hesitating to impose a fine for each violation (that could total almost $3,000 if all 11 alleged violations are proved). The District of Columbia argued against any fine on grounds the commission is now complying, questioned the feasibility of some of the law's requirements and warned that over-zealous enforcement can "chill" citizens' enthusiasm for service on volunteer civic bodies like this one.
The Open Meetings Act allows a fine of $250 per violation where a commission member shows "a pattern or practice of willfully participating in one or more closed meetings," so there also remains room for argument whether the earlier violations in the case, now apparently corrected, are what the law meant to punish, as the District has argued the commission failures should be excused as the result of staffing and other resource shortages and shouldn't be considered "willful." The Office noted repeatedly in previous interactions with the commission, and in court, that many other similar bodies have no difficulty following the law's requirements.
The court seemed unsympathetic to the District's hyper-technical argument that a meeting that lacked notice wasn't actually "closed," as anyone who learned of it could have walked in.
The court could still impose a fine under authority in another section of the Open Meetings Act. Where an enforcement lawsuit is brought, the court may impose "such additional relief" as necessary to "serve the purposes" of the law.
The court will reconvene Friday, May 26, at 10:30 in Courtroom 519 unless a decision before then makes that unnecessary.
The case is Office of Open Government v. Michael Yates, No. 2016 CA 7337 (D.C. Superior Court).