Susman opposes budget act BEGA/OOG amendments

Thomas M. Susman seeks withdrawal of amendments

  Incrementally, in fits and starts since 2010, the D.C. government has become more transparent to the people it serves. In response to the Fenty administration’s attempts to evade meaningful public oversight, and corruption scandals ensnaring high elected and appointed officials and political operatives, the D.C. Council enacted a new Open Meetings Act (OMA) and created the independent Office of Open Government (OOG) to enforce that law and the Freedom of Information Act (FOIA).

  For five years, the OOG has fielded complaints about closed meetings and denied FOIA requests — sometimes siding with agencies, others with requesters. It has helped government employees and appointed officials be more transparent, and when necessary ordered them to comply with the laws. Last year, it obtained a Superior Court order against an appointed board that repeatedly refused to inform the public about its meetings.

  But the Council could bring that progress to a halt when it votes on second reading of the 2019 Budget Support Act. Amendments proposed by Councilmember Charles Allen, chair of the Committee on the Judiciary and Public Safety, would strip the OOG of its independent decision-making authority.

  The amendments would take authority over the OMA and FOIA away from the director of open government, a person selected for expertise in transparency law, and give it to the Board of Ethics and Government Accountability (BEGA), whose current members have no relevant expertise. The proposed solution to the board’s lack of knowledge would be to require that one BEGA member be a transparency expert, one member among five.

  Without a public hearing on this major change, the bill seeks to reverse a well-considered decision, made after hearings in 2011, not to make BEGA the government’s transparency decision-maker. its rationale, “[g}overnment ethics, open government, transparency, and accountability are interrelated concepts and should be the mission of a singular entity.”

  In drafting the amendments, the Judiciary Committee rejected a proposal from Traci Hughes, the former director of open government, and the D.C. Open Government Coalition, my organization, to create a board of three transparency experts to oversee the OOG in the same way BEGA supervises the Office of Government Ethics (OGE). “[H]aving two agencies with similar missions would not make government ethics or open government and transparency issues easier to understand for officials or employees,” the committee report states.

  The most obvious flaw in that argument is its failure to recognize that government transparency serves a much greater purpose than simply being a tool to prevent corruption. James Madison said “a people who mean to be their own Governors, must arm themselves with the power which knowledge gives.”

  The OMA and FOIA ensure that D.C. residents are so armed every election day — and every day in between as well. Open meetings and records make it possible for us to exercise our First Amendment right to petition the government for redress of grievances. In fact, government transparency is more than a legal issue; it is a quality-of-life issue, as access to government information promotes informed choices about where to live, where to educate our children, how to make our communities safer, and whether to volunteer our time and services.

  The second major flaw is that making BEGA the arbiter of transparency, as it now is of ethics, will not ensure a greater understanding among government officials and employees of how to comply with the OMA and FOIA; and it certainly will not help the public exercise their rights under those laws.

  The proposed amendments were drafted in response to BEGA’s decision in February to replace Hughes, in the wake of complaints to the board from public bodies cited correctly for violating the OMA, and a demand from BEGA Chair Tameka Collier for more control over the OOG. Hughes’s record as a forceful, effective watchdog demonstrates the fundamental weakness of the proposal. BEGA’s detrimental actions as the OOG’s administrative overseer for the past five years have proven that placing one transparency expert on a five-member board tasked with enforcing government ethics will not protect the public’s right to know.

  Councilmember Allen said he rejected the proposal to create a new Open Government Office Board because the Council is concerned about the proliferation of boards with narrow portfolios. But earlier this month, Councilmember Brandon Todd introduced legislation that would create an 11-member board to oversee records management and archiving. The bill does not acknowledge, much less address, the significant overlap between the government’s management and archiving of records and its ability to make such records accessible to the public. Perhaps the best solution would be to hold a hearing on legislation to create a board to oversee both functions. The Judiciary Committee’s BSA amendment short-circuits regular order on these very important public issues.

  Undoubtedly, Allen sincerely hoped these amendments would correct real problems in the BEGA/OOG relationship. But they will neither fix structural problems nor make District government more transparent. 

  If the Council is unwilling to create a new board to supervise the OOG, it should take no action in the Budget Support Act. If the Judiciary Committee truly is concerned about protecting open government and transparency in the District, it should schedule a hearing on the bill Councilmembers David Grosso and Mary Cheh introduced in March 2017 to improve the OMA, FOIA and the statute creating the OOG.

Thomas M. Susman