In the week celebrated nationwide to draw attention to open government (coinciding with the birthday of James Madison, an early champion), the D.C. Council last Tuesday (12) talked with and about Council member Jack Evans (D-Ward 2) for an hour behind closed doors.
According to Fenit Nirappil’s account in The Washington Post, following a 9-3 vote to close the meeting, Evans apologized, answered a few questions, and announced he was ending his outside consulting business. He and his attorney left after about 15 minutes. Council members continued talking among themselves for about an hour.
Council members told the Post the Evans session was on “personnel” matters and also to seek legal advice.
Evans faces a reprimand vote next week for his actions soliciting outside consulting work. Published emails first drew attention to the subject, and recent federal subpoenas to Council members and the mayor for documents related to Evans have heightened tensions.
The D.C. Open Meetings Act applies to the Council and includes strict rules for when meetings may be closed and how. But in passing it, the Council exempted itself from enforcement by the Office of Open Government that does so for executive agencies, requiring only that “the Council shall adopt its own rules for enforcement related to Council meetings.”
Rules of the Council are adopted for each session and currently allow meetings to be closed for discussion of topics including legal advice, discipline, evaluation of members and staff and some kinds of investigations. Whether these were discussed is unknown (and nothing else may be discussed). Council meetings, open or closed, must be recorded and whether exceptions apply in this case is also unknown.
Such questions are usually the focus of fact finding investigation following a complaint of an improper closed meeting.
After receiving inquiries about the closed meeting, the D.C. Open Government Coalition asked the Council’s legislative attorney, John Hoellen, what procedure was in place for determining if a meeting was properly closed. Hoellen said Wednesday (13), by email, “the current Council rules do not contain a complaint/enforcement procedure.”
The recording of a closed meeting is key evidence. Last year a recording of a closed meeting of the board of the United Medical Center board supported the finding of the Office of Open Government (following a complaint by the Coalition), that the closing violated the law. The topics discussed were not among those allowed by law for closed session.
The three Council members voting against closing the meeting — David Grosso (I-At Large), Brianne K. Nadeau (D-Ward 1) and Trayon White Sr. (D-Ward 8) — left and sat in the hall. Robert C. White Jr. (D-At Large) was absent but sent a Tweet agreeing the meeting should not have been closed.
Nadeau told the Post, “the public deserves to know what we are hearing. It perpetuates this issue of distrust from the public if we can’t even have a conversation publicly about this.”
Post writer Colbert King in his Saturday column said “Mendelson et al. apparently put their interest in preserving and protecting their buddy-buddy relationship with Evans above the public’s right to know.”
This closed session may have been appropriate. But for the law on the subject to be meaningful, surely there should be a way to ask for a formal review to be sure. Time for a rules update?
James Madison would probably agree.