Rewriting the law to end the independence of the D.C. Office of Open Government this summer, the D.C. Council at least mandated that the new overseers, the Board of Ethics and Government Accountability (BEGA), include one member equipped with experience in the challenging terrain of law and policy as government responds to 21st century citizen expectations of government access. But it's not happening.
The five-member board previously concentrated on investigating complaints and punishing government employees who violated ethics rules (for example, misuse of authority or property, conflicts of interest, improper political activity,). Its only role in open government (as the Council had provided in law) was to appoint the office director.
The D.C. Open Government Coalition opposed the change requiring that the whole open government activity report to the board as assigning too much new work to a body ill-equipped (arguing instead for a new specialized and expert board devoted to open government issues alone as in many states).
Now the law says at least one member “shall have particular experience in open government and transparency.”
Councilmember Charles Allen (D-Ward 6) assured open government supporters during consideration of the controversial structural change (passed without a hearing) that this new and specific requirement showed undiminished Council support for open government.
The BEGA Amendment Act of 2018 was part of the 2019 Budget Support Act passed in June that is awaiting congressional review (that will likely end October 27). (The text is at p.18 of the signed act, available here.)
Unfortunately, the law seems to have had no effect.
The mayor’s latest nominee, Charles Nottingham, is a transportation lawyer. Two renominated members, Tameka Collier and Darrin Sobin, have other backgrounds (Collier as litigation support attorney for the U.S. Air Force and Sobin as D.C. Bar executive and past head of the ethics office under BEGA). Neither is expert in open government or transparency as the law requires.
Continuing members Shomari Wade and Norma Hutcheson also do not meet the new qualification (Wade is a government contracts lawyer in private practice; Hutcheson is retired after a career as attorney in the U.S. Postal Service).
Government agency members of the mayor’s Open Government Advisory Group suggested at a recent meeting that ethics experience meets the new qualification, but this is unpersuasive. Ethics expertise is already a BEGA member qualification required by law, reflecting the dominant workload in the last few years. This year’s new statute added the words “particular experience in open government and transparency” (emphasis added) to show that something new and different is now required. The OGAG group has a resolution in progress that can help the mayor and Council address this key qualifications issue.
Expert oversight is crucial so that the Office of Open Government has informed support from BEGA as it works to assure government fulfills its obligations to provide access to public records, meetings and data. These are responsibilities of government generally and raise a host of thorny issues that are quite apart from enforcing individual employees’ compliance with traditional ethical obligations.
Especially now is Council vigilance needed so the board has members who can do the job. As Councilmember Allen recognized during contentious oversight hearings this spring, public trust in D.C. government commitment to transparency was badly shaken by the executive branch decision (with very shaky rationale) to dismiss rather than reappoint Traci Hughes, the acclaimed first director of the watchdog office.
The Council confirmation hearing on the package of new BEGA nominees should be delayed and the mayor's recruitment staff advised of the full set of qualifications required in law. That would allow a renewed search to yield at least one BEGA nominee with the mandatory open government expertise the issues require and that D.C. citizens expect.