The Commission on Selection and Tenure (COST) is a little-known D.C. government committee (three lawyers, chosen one each by the mayor, the Council and the chief judge at Superior Court) that has total authority to appoint, reappoint, discipline or remove administrative law judges in the District’s Office of Administrative Hearings (OAH).
The OAH each year labors perhaps in obscurity but is a vital forum in which the public is heard in thousands of appeals from city agencies’ actions, for example, tickets and fines for trash or taxi rule violations; denial of Medicaid, unemployment or Food Stamp benefits; or school suspensions longer than 10 days.
The actions of the COST in choosing those responsible to deal fairly with this crush of cases can have “far reaching and significant impacts on the citizens of the District,” says the Office of Open Government.
But the COST needs to look inward and take more care to follow rules governing their own meetings, according to a tough new investigation and opinion letter issued by the office October 30.
The office found a host of mistakes in COST operations, beginning with a June 29 meeting that triggered a citizen complaint. In that single meeting, the office found COST violated at least a half-dozen parts of the D.C. open meeting laws, including:
- the commission’s meeting notice was published late (days after the meeting), incomplete and wrong in other ways;
- the commission ignored all the requirements for closing part of the meeting and excluding the public;
- it failed to adopt the draft agenda and did not take proper roll-call votes; and
- it failed to make a record of the meeting promptly available.
The problems uncovered in this one session led the office to "undertake an exhaustive review" of a dozen meetings going back to 2014. According to details spelled out in 19 single-spaced pages of fine print, the commission "consistently failed" to issue proper advance meeting notices, close meetings properly and provide the public with timely meeting records, all as required by law.
The Open Government office has frequently taken D.C. government public bodies to task for these kinds of meeting violations. But rarely after finding so many. And also rarely faulting a body composed entirely of lawyers like the COST--one Superior Court judge and two D.C. law firm members with blue-chip resumes including experience in the mayor's office, the D.C. Council, Congress, the Department of Justice and the White House.
And in an additional and highly unusual finding, the office also reported COST meetings may have lacked a quorum, a basic prerequisite to lawful action.
According to the letter, the office found that data on COST appointments showed “troubling gaps” in members’ terms and evidence “that official actions were taken when members of the COST may have been improperly held over, and therefore improperly seated.”
Incomplete data prevented conclusive findings (since record-keeping for the COST was “less than ideal”) so the office made no final determination about quorum problems.
But any official action at a meeting that lacked a quorum of properly appointed and seated members could be questioned. For example, Robert’s Rules of Order (4th ed.), a common reference on meeting procedures, warns in Article XI, Section 64, “The only business that can be transacted in the absence of a quorum is to take measures to obtain a quorum, to fix the time to which to adjourn, and to adjourn, or to take a recess.” Roberts repeats, for emphasis, “no question can be decided in the absence of a quorum excepting those mentioned above.”
Finally, the office letter questioned several orders of the mayor and Council making term appointments retroactive.
A bombshell would have landed in the workings of the OAH, if the Office of Open Government had decided some COST meetings took unlawful action. For example, someone who lost a case might request the decision be thrown out on grounds the deciding judge had not been appointed correctly, as the action had been at a COST meeting with a fatal error--lacking a quorum of properly appointed members. The letter doesn't analyze how many meetings, and how many personnel decisions within those meetings, could be affected.
Therefore, rather than trigger “significant collateral damage” of nullifying improper meetings going back years, the office instead asked the mayor and Council to "take whatever attendant action [they] deemed suitable."
And a COST meeting with a proper quorum may be able to look back and vote again to approve actions taken earlier in meetings with uncertain quorums.
In orders to COST, the office set deadlines for mandatory open meetings training of members, for prompt public posting of records of all meetings since 2014, and for posting of the schedule of future meetings for the next year in more accessible places than used before.
The office also urged action by the D.C. mayor and Council to address “gaping holes” in the law--to make clear what happens when a COST member’s term expires and a successor is not appointed. "Holdover" provisions are common in the authorizing statutes for public bodies and could be readily enacted, for example if Council rules allow adding such a text to an OAH-related bill B22-0352 now pending and feady for markup.
The OAH has gained publicity for turnover at the top and internal conflicts. "It's a mess," Council Chairman Phil Mendelson said in 2014 according to reporting by Mike DeBonis of the Washington Post; "we have an agency in turmoil." The COST committee, created by the Council in 2001 when it established the OAH, has also drawn recent outside attention.
The Council for Court Excellence (CCE) in a review of OAH for the D.C. Auditor in September 2016 reported on a wide range of OAH operational issues including problems of the COST. The report found members lack independent information to oversee judges and for all practical purposes rely on details provided by the chief judge -- which serves to “blur lines of authority.” The COST understaffing and modest pace hurt judges’ morale when personnel decisions take a long time. Overall, CCE concluded the COST “makes it more difficult for the chief ALJ to supervise the agency efficiently and implement improved procedures or practices.”
The CCE report recommended short-term improvements in COST management including adding a staff member to help the panel be better prepared to do timely work based on independent judgment. For the longer term, CCE urged the Council to phase out of many of the COST responsibilities that CCE found in its nationwide comparisons to be inconsistent with good practices in other states with effective central hearing panels.
CCE testified on its recommendations at the OAH oversight hearing before the D.C. Council Committee on Government Operations in February 2017. The committee in its 2018 budget report urged OAH to “continue to implement recommendations made by the Council for Court Excellence” in the 2017-18 year.
The Office of Open Government letter did not include comments by the COST on the opinion.