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Coalition presses for Open Government Office independence

dcogcadmin | November 30, 2011

At a roundtable on proposed ethics and accountability legislation Nov. 30, the D.C. Open Government Coalition sought amendments to a provision that would establish the District’s Open Government Office within a new Ethics Board. Robert Becker, chair of the Government Relations Committee, praised Council Member Muriel Bowser’s effort to stand up the Office through her bill. But he warned that, as currently drafted, the bill would cause confusion, lead to pointless litigation over access to records and meetings, and would weaken enforcement of transparency laws.

At a roundtable on proposed ethics and accountability legislation Nov. 30, the D.C. Open Government Coalition sought amendments to a provision that would establish the District’s Open Government Office within a new Ethics Board. Robert Becker, chair of the Government Relations Committee, praised Council Member Muriel Bowser’s effort to stand up the Office through her bill. But he warned that, as currently drafted, the bill would cause confusion, lead to pointless litigation over access to records and meetings, and would weaken enforcement of transparency laws.

Becker told the Council’s Committee on Government Operations and the Environment that, as it was originally envisioned in the Open Government Act of 2010, the Open Government Office was to be an independent agency charged with overseeing and enforcing the D.C. Freedom of Information Act. It would establish government-wide procedures for processing FOI Act requests, provide informal advice and statutory interpretation to agency FOI officers, investigate complaints from requesters, issue advisory opinions and binding orders to disclose, and, when necessary, litigate in the Superior Court to enforce its orders and to seek sanctions against officials who willfully violated the statute. It was to have subpoena power to gather evidence and compel testimony. In summer 2010 the Coalition proposed that the Office’s portfolio be expanded to include oversight and enforcement of the Open Meetings Act which Council Member Bowser introduced in March 2010 and championed through floor debate in December.

Last December, the Open Government Act did not come to the floor. But the Council amended the Open Meetings Amendment Act of 2010 to establish the Open Government Office with authority to issue advisory opinions in response to complaints under the Open Meetings Act and the FOI Act, to establish procedures implementing both statutes, and to train public officials and employees regarding compliance.

To ensure the Office’s independence, its Director is to be appointed to a five-year term by the Mayor with the advice and consent of the Council. The Director could be removed only for cause.

Although we believe the Open Government Office should be a totally independent agency, we appreciate your efforts, despite tight budgets, to find a way to stand up the Office under the administrative supervision of the proposed Ethics Board. As a next step we hope the Council will enact the Open Government Act of 2011 introduced last March by Council Member Cheh. We stand ready to work with you to maximize the Office’s ability to enforce the Freedom of Information and Open Meetings acts, to provide guidance to government agencies on transparency issues, and to educate D.C. residents and agency personnel about these transparency laws.

As I stated when I appeared before you in October, crafting a bill to meld the Open Government Office with the proposed Ethics Board is a very challenging task. We commend you for your efforts to overcome those challenges, and we hope to work with you to overcome the remaining hurdles.

Several provisions of the proposed ethics legislation cause us to question whether the Open Government Office would be able to carry out its mission as defined in the already enacted Open Meetings Act and the proposed Open Government Act. Chief among them are Title V, Sec. 502 and Title II, Sec. 201(a)(4). The former will create a conflict of interest between the Ethics Board and Open Government Office. Together, these provisions cast doubt on the independence of the Open Government Office, which undoubtedly will be called upon to rule on whether the Ethics Board has violated the transparency statutes.

The proposed Ethics Board clearly is a “public body” under D.C. Code § 2-502(18A), and matters that will come before it are, without doubt, of great public interest and concern. The bill recognizes this in Title V, Sec. 501(a), which requires the Board to comply with the Open Meetings Act.

But, the bill unnecessarily transfers to the Board authority to administer and enforce the Open Meetings Act.

Sec. 502. Open Government Office; Duties transferred.

  (a) The Open Meetings Amendment Act of 2010, effective March 31, 2010 (D.C. Law 18-350 D.C. Official Code § 2-571 et seq.) is amended as follows:

    (1) The powers and duties of the Open Government Office pursuant to section 503 are transferred to the Board of Ethics and Government Accountability.

 …

Title II, Sec. 201(a)(4), states that the Ethics Board shall “[a]dminister and enforce the Open Meetings Amendment Act of 2010, effective March 31, 2010 (D.C. Law 18-350 D.C. Official Code § 2-571 et seq.).” The Board cannot be both subject to the Open Meetings Act and enforcer of the same statute. The conflict of interest will be greatly exacerbated if and when the Council enacts the Open Government Act of 2011.

These provisions conflict with D.C. Code § 2-592, which states

 (a) The Open Government Office shall:

   …

   (2) Issue advisory opinions to public bodies on compliance with subchapter 4 of this chapter;

   (3) Provide training to public bodies, officials, and employees related to subchapter 4 of this chapter; and

   (4) Issue rules to implement the provisions of this subchapter and subchapter 4 of this chapter.

(b) The Open Government Office may bring suit to enforce § 2-578.

(c) The Open Government Office may issue advisory opinions on implementation of subchapter 2 of this chapter.

They also conflict with D.C. Code § 2-578, which states:

(a) The Open Government Office may bring a lawsuit in the Superior Court of the District of Columbia for injunctive or declaratory relief for any violation of this subchapter before or after the meeting in question takes place; provided, that the Council shall adopt its own rules for enforcement related to Council meetings….
… 
(g) A public body may seek an advisory opinion from the Open Government Office regarding compliance with this subchapter.

To have administrative supervision of the Open Government Office, the Board does not need authority to administer and enforce the Open Meetings Act. Title V, Sec. 502 and Title II, sec. 201(a)(4) will cause confusion and easily could lead to pointless litigation under the FOI Act, if not the Open Meetings Act. Most importantly, these provisions will reduce, rather than improve, government transparency.

An good model for establishing the relationship between the Board and the Open Government Office is the relationship between the National Archives and Records Administration and the Office of Government Information Services. OGIS exists administratively as an entity within NARA, but the enabling legislation places substantive responsibility for oversight of federal transparency laws and regulations solely in OGIS.

A major benefit of this model is that the Open Government Office staff can develop the expertise to help other agencies avoid running afoul of the transparency statutes. If the Office is effective in this area and in mediating disputes between agencies and the public, the need for enforcement and related costs will decrease markedly.

The Board’s staff and lawyers borrowed from the Office of Attorney General, the Auditor and the Inspector General — who mainly will focus on ethics and procurement issues — do not have such expertise. Relying on them to oversee the Open Meetings Act and FOI Act will divert their attention from the Board’s main responsibility and will make the D.C. government’s transparency initiatives much less effective.

Our second major concern is Title II, Sec. 203, which establishes the Board’s meetings procedures. This section of the bill is duplicative of the Open Meetings Act and much of it should be removed. The Council passed the Open Meetings Act a year ago to establish uniform requirements for all public bodies within the D.C. government. Activities of the proposed Ethics Board do not present any unique issues not anticipated by the Open Meetings Act. Inclusion of specific open meetings provisions will lead to confusion, litigation, and less, rather than more, transparency.

As proposed, Title II, Sec. 203 states:

  (a)(1) The Board shall hold regular monthly meetings in accordance with a schedule to be established by the Board. Additional meetings may be called as needed by the Board. Except in the case of an emergency, the Board shall provide at least 48 hours notice of any additional meeting.

    (2) The Board shall make available for public inspection and post on its website a proposed agenda for each Board meeting as soon as practicable, but in any event at least 24 hours before a meeting. Copies of the agenda shall be available to the public at the meeting. The Board, according to its rules, may amend the agenda at the meeting.

    (3) All meetings of the Board shall be open to the public, unless the members vote to enter into executive session. The Board shall not vote, make resolutions or rulings, or take any actions of any kind during executive session, except those that:

     (A) Relate solely to the internal personnel rules or practices of the Board;

     (B) Would result in the disclosure of matters specifically exempted from disclosure by statute; provided, that the statute:

         (i) Requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue; or

         (ii) Establishes particular criteria for withholding or refers to particular types of matters to be withheld;

      (C) Would result in the disclosure of trade secrets and commercial or financial information obtained from a person and privileged or confidential;

      (E) Would result in the disclosure of information of a personal nature where disclosure would constitute a clearly unwarranted invasion of personal privacy;

      (F) Would result in the disclosure of investigatory records compiled for law enforcement purposes or information which, if written, would be contained in the records, but only to the extent that the production of the records or information would:

        (i) Interfere with enforcement proceedings;

        (ii) Deprive a person of a right to a fair trial or an impartial adjudication;

        (iii) Constitute an unwarranted invasion of personal privacy; or

        (iv) Disclose investigative techniques and procedures; or

      (G) Specifically concern the Board’s issuance of a subpoena, the Board’s participation in a civil action or proceeding, or disposition by the Board of a particular matter involving a determination on the record after opportunity for a hearing.

    (4) The Board shall keep the minutes of each meeting of the Board and shall make them available to the public for inspection and distribution, and shall post the minutes on the Board’s website, as soon as practicable, but in all cases within 72 hours.

It should be amended to read:

  (a)(1) The Board shall hold regular monthly meetings in accordance with a schedule to be established by the Board. Additional meetings may be called as needed by the Board.

    (2) The Board shall provide notice of meetings and shall conduct its meetings in compliance with the Open Meetings Amendment Act of 2010, effective March 31, 2010 (D.C. Law 18-350 D.C. Official Code § 2-571 et seq.).

If the bill passes as currently written, it is a virtual certainty that disputes will arise over whether the statute allows the Ethics Board greater secrecy than the Open Meetings Act allows any other public body and how the two statutes inter-relate.

Title II, sec. 209 raises similar concerns.

Sec. 209. Penalties for public officials.

  (a) (1) Notwithstanding section 208 of this act, the Board shall censure a public official for a violation of the Code of Conduct that the Board adjudges to violate the public trust.

    (2) The Board may recommend in such censure that the Council immediately convene an executive session to consider suspending or removing a Council member’s committee chairmanship, if any, committee membership, if any, or suspending or removing the member’s vote in any committee.

  (b) The Rules of Organization and Procedure for the Council of the District of Columbia, Period XIX, updated Augusts 8, 2011 are amended as follows: (1) New Council Rule 202(e) is added to read as follows:

      “(e) The Council shall convene an executive session within 72 hours, or as soon as practicable, to consider a censure issued by the Board of Ethics and Government Accountability recommending suspension or removal of a member’s committee chairmanship, if any, committee membership, if any, or suspending or removing the member’s vote in any committee. An executive session shall be called in accordance with these Rules.

Under Title II, sec. 202(h)(2), if the Mayor seeks removal of a Board member, the member has a right to a public hearing before the Council. This right should be accorded any public official brought before the Council in a censure proceeding. Therefore, neither the statute nor the Council rules should require an executive session.

We are concerned about Title III, sec. 306, which states:

… Confidentiality. The identity of the complainant and respondent shall not be disclosed without such individual’s consent unless or until the Director has found reason to believe a violation occurred and presentation thereof pursuant to section 303 of this act, and the Board finds that disclosure would not harm the investigation.

We note that the identity of a person charged with a crime is made public when formal charges are filed. This has been a foundation principle of our system of justice to counteract the evil the Founding Fathers perceived in the Courts of Star Chamber and the Inquisition. Public disclosure of the charge protects the accused. This is no less true for government personnel accused of ethics violations. Once the Director determines that there is sufficient evidence to refer a complaint to the Board for a hearing, the identities of the parties and the charges should be made public. To the extent that disclosure of records related to the case may interfere with the investigation, those records would be exempt under the FOI Act law enforcement exemption, D.C. Code § 2-534(a)(3).

Finally, the bill should provide greater transparency regarding transition committees, inaugural committees, constituent funds and legal defense funds. Additional amendments should be made under Title VIII, Sec. 801; Title IX, Sec. 901; Title X; and Title XI, Sec. (b) requiring the Campaign Finance Office to publish reports submitted by those entities on its website in compliance with D.C. Code § 2-536. The amendments should include a deadline for posting the reports.