BEGA attacks OOG director independence

April 2, 2018

 

Ms. Ventris C. Gibson
Director
D.C. Department of Human Resources
One Judiciary Square
441 Fourth Street, N.W.
Suite 330 South
Washington, D.C. 20001

Re: Director of Open Government, ES-0901-10

Dear Ms. Gibson:

We note that the Board of Ethics and Government Accountability (BEGA) has begun the search for a successor to Traci Hughes as director of the Office of Open Government (OOG).[1] We are distressed to find that BEGA’s posting appears to deviate in significant ways from the statutory conception of OOG as a functionally independent entity.

BEGA Chair Tameka Collier testified in a performance oversight hearing before the D.C. Council’s Committee on the Judiciary and Public Safety February 8, 2018, that she intended to assert greater supervision over the next OOG director. That prompted a warning from Councilmember Charles Allen, committee chair, that BEGA should not attempt through the hiring process to alter the statutory relationship between the OOG and BEGA.

BEGA appears to be acting in a manner contrary to statute and in disregard of Councilmember Allen’s warning. We ask that you remove this posting from the DCHR website pending a determination about whether it conforms with relevant statutes. Interested candidates should not be invited to apply, and their applications should not be evaluated, until the legality of key sections of the job description (italicized in the excerpts below) is reviewed.

According to the posting, the OOG director

Researches best practices among federal, state and local governments designed to promote open government, freedom of information, and public transparency.  Makes recommendations to the Ethics Board about which practices should be adopted by the District government to promote the mission of the Office of Open Government.

At the request of the Ethics Board and in consultation with the Ethics Board’s Senior Attorney Advisor, drafts proposed legislation and rules relating to open government and freedom of information. Prepares reports and policy papers.

In consultation with the Ethics Board’s Senior Attorney Advisor, issues advisory opinions to public bodies on compliance with the Open Meetings Act (D.C. Official Code §§ 2-571 through 2-580).

In consultation with the Ethics Board’s Senior Attorney Advisor, provides direction and oversight of other responsibilities of the Office of Open Government, including enforcement actions in Superior Court for declaratory relief from violations of the Open Meetings Act (D.C. Official Code § 2-579).

(Emphases added.). The italicized passages indicate where we believe BEGA, in the 2018 job posting, is effectively changing core agency functions in a manner beyond its authority.

The OOG is operationally independent of BEGA

“The District of Columbia Open Government Office (‘Open Government Office’) is established as an independent office within the Board of Ethics and Government Accountability to promote open governance in the District of Columbia.” D.C. Code § 2-592. Its director is appointed to a five-year term by BEGA, but the director, not BEGA, employs the OOG’s staff. D.C. Code § 2-594(a) and (d). To assist you in understanding the statutory relationship between BEGA and the OOG, I have attached a letter the Open Government Coalition sent the Judiciary Committee to augment the record after the February 8 hearing.

The scope of the OOG’s authority is clear; the enabling statute requires that

(a) The Open Government Office shall:

(1) Report annually, on or before February 1, on its activities, including recommendations for changes in the law;

(2) Issue advisory opinions to public bodies on compliance with subchapter IV [Open Meetings] of this chapter;

(3) Provide training to public bodies, officials, and employees related to subchapter IV of this chapter; and

(4) Issue rules to implement the provisions of this subchapter [Open Government Office] and subchapter IV of this chapter.

(b) The Open Government Office may bring suit to enforce § 2-579.

(c) The Open Government Office may issue advisory opinions on implementation of subchapter II [Freedom of Information] of this chapter.

D.C. Code § 2-593. The statute does not require the director to consult with or obtain permission from BEGA or its senior attorney advisor in performing these duties.

The distinct and separate work of BEGA is equally clear. According to D.C. Code § 1-1162.02,

(a)  There is established a District of Columbia Board of Ethics and Government Accountability, whose purpose shall be to:

(1)  Administer and enforce the Code of Conduct;

(2)  Appoint a Director of the Open Government Office;

(3)  Appoint a Director of the Ethics Board;

(4)  Receive, investigate, and adjudicate violations of the Code of Conduct;

(5)  Conduct mandatory training on the Code of Conduct;

(6)  Produce ethics training materials, including summary guidelines for all applicable laws and regulations;

(7)  Produce a plain-language ethics guide;

(8)  Issue rules and regulations governing the ethical conduct of employees and public officials; and

(9)  Establish an anonymous and confidential telephone hotline for the purpose of receiving information related to violations of the Code of Conduct or other information with regard to the administration or enforcement of the Code of Conduct.

BEGA’s primary purpose is to enforce the Code of Conduct; and it appoints the OOG director. Nothing in either statute subordinates the OOG director to the board or any member of its staff. Furthermore, BEGA has no authority with regard to the Open Meetings Act (OMA), D.C. Code § 2-571, et seq., the Freedom of Information Act (FOIA), D.C. Code § 2-531, et seq., or operations of the Office of Open Government.

BEGA’s proposed restrictions would prevent the OOG from meeting its statutory obligations

Based on Ms. Collier’s testimony, we are concerned that by using the phrase “in consultation with,” BEGA clearly creates the inference that the OOG director must obtain permission from the board or its senior attorney advisor before issuing an advisory opinion, initiating litigation to enforce its orders, promulgating rules and proposing legislation. The board provides no standards circumscribing its exercise of this newly created approval process, or procedures for the OOG director to appeal any disagreement with BEGA’s position.

In fact, the OOG statute requires the Office’s director to advise the Executive Branch and Council directly on needed legislation and best practices. BEGA has no authority to filter those recommendations or to demand that the OOG obtain permission to engage in legislative or rule-making activities. The board’s legislative and rule-making authority are limited to the realm of government ethics. See, e.g., D.C. Code § 1-1162.02(b) and § 1-1162.09.

Similarly, the OOG has an independent duty to issue advisory opinions and determine whether to initiate litigation to enforce its orders. If it were to bow to the board or its senior attorney advisor, the OOG would forfeit the independence the Council intended for this open government watchdog agency.

We have other concerns about the job description, and would welcome the opportunity to share them with you. If we can provide additional information please let us know.

Yours truly,

Thomas M. Susman
President

Robert S. Becker
Chair — Government Relations Committee
(202) 364-8013
rbecker@dcappeals.com

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[1] The job posting is attached.