Without hearings or discussion, the D.C. Council has rewritten the law to weaken key protections for the independence of the Office of Open Government and its director. The office enforces open meeting requirements for boards and commissions, investigates complaints about access to public records and gives leadership to open government initiatives across the D,C. government. The changes appear to shift power in line with agency heads’ criticisms voiced to the mayor’s office in the last year.
The new marching orders are in the “BEGA Amendment Act” buried in the 300-page 2019 Budget Support Act that takes effect October 1, passed without debate at the Council legislative session June 26 that ended action on the D.C. budget for the coming year. The Judiciary Committee, chaired by Council Member Charles Allen (D-Ward 6), proposed the text but it had not been the subject of hearings. (The Budget Support Act is Bill 22-0753. For the BEGA section, see pp. 30-52.)
Criticism of the office in its current form surfaced at the Council oversight hearing earlier in the year. (See earlier Coalition blog post reporting on the Feb. 9 hearing.) The chair of the Board of Ethics and Government Accountability (BEGA), Tameka Collier, testified the board had determined not to reappoint the director and to seek “legislative solutions” to concerns that more oversight and control were needed to cure a lack of “collaboration” between the office and board (though the law has never required that).
Emails that surfaced later showed agency officials had groused to the mayor’s staff about office investigations. No problems with facts or legal interpretations ever came to light but there was no question office opinions showed violations of the law, for example, improperly closed meetings, lack of notices and minutes, and incorrect treatment of public records requests. The troubles plagued even high profile agencies such as the United Medical Center, the public charter school board, a judicial nomination commission, the Department of Consumer & Regulatory Affairs, a mayoral advisory committee, several mayoral education task forces, and more.
Under the new law
- the Office of Open Government will no longer be independent but will be under BEGA;
- the director will be appointed by the board (as before) but will lose the protection of a five-year term and removal only for cause;
- the office will lose the authority to issue final opinions as any agency dissatisfied with an office decision may appeal to the board;
- annual recommendations to the mayor and Council for improvements in open government will come not from the office but from the board; and
- for all these new tasks, the board will be required only to have one person knowledgeable about open government issues.
Public witnesses had praised the initial five years of work of the first office director, Traci Hughes, and disputed the stated BEGA rationale for not reappointing her. D.C. Council Chairman Phil Mendelson told The Washington Post, “She did a good job, and that may be why the board did not want to reappoint her” and the paper’s editorial board said “given the questions that surround her departure and the importance of open government, D.C. residents are entitled to more information.”
Council Member Allen explained to constituents in recent weeks his view that the independence of the office (in effect, reporting only to the mayor) was a “structural” problem needing correction and his changes should not be seen as diminishing the Council’s interest in open government. This overlooks that the current structure, which gives BEGA authority only to appoint the director and no more, was the choice of the Council in 2011. If it needs improvement, such as clearer reporting and accountability, that would be readily addressed with the creation of an open government board, composed as in many states of members specialized and expert in just those matters.
Instead, to place the office under BEGA, a board on record as dissatisfied with independent investigation and reporting, seemed to many observers an odd solution. But without hearings or other open discussion, there was no chance for alternatives to be heard.
Washington City Paper has reported Niquelle Allen is the mayor’s choice as the new Director of Open Government . Sources at the office say she will start work after the next BEGA meeting July 9. She has been a D.C. government attorney for some years, most recently FOIA Officer and attorney advisor in the Office of the Chief Technology Officer. The Coalition looks forward to working with her to apply existing law and also achieve the many improvements needed that are in the pending omnibus transparency amendments legislation, Council bill B22-0188.