Council Hearing Shows Executive Resistance to Open Government (And the Law)

Fritz Mulhauser | April 1, 2022 | Last modified: April 2, 2022

A deputy mayor repeatedly declined to provide, or even describe, agency budget requests that didn’t make it into the mayor’s budget, under questioning by the D.C. Council Chairman Wednesday (30), though the law for years has required those to be shared with the Council and published and a recent court decision upheld the law.

Video of the exchange surfaced in a Tweet from EmpowerEd, a teacher-based group that drew the conclusion “mayoral control of schools disincentives agencies from telling truth in service of improving schools.”

The discussion centered on “enhancements,” requests for additions to the budget that agencies propose in the annual budget process, and that are accepted or rejected by the mayor’s budget staff.

Deputy Mayor for Education Paul Kihn struggled, offering other statements rather than answer the chairman’s questions–in nine exchanges over five minutes of the budget hearing of the Committee of the Whole on education. He declined to offer anything about education agency requests for budget additions the mayor did not accept.

On message, Kihn deflected the chairman’s insistence by defending the budget as “exactly” what is needed for schools, and prouncing himself “satisfied” with it, despite the chairman’s warnings he wasn’t asking for such views. Over the chairman’s pointed questions, Kihn continued by:

• praising the budget for including three requested enhancements (and offering to submit details of those) but sparring with the chairman over how many others there may have been that didn’t make it (first saying he “wasn’t sure there were any”);
• admitting finally there were unfunded enhancements but referring the chairman for details to the Office of the City Administrator that includes a budget office that crunches the numbers;  
• claiming some exemption from sharing the budget enhancement requests because the proposals were internal, “deliberative” documents.

The deputy mayor’s approach seemed to diminish the Council role in the budget, as he kept repeating his support and satisfaction with the mayor’s proposed spending as though that should end discussion.

The District mayor of course submits a budget “request” to the legislature (just as did President Biden March 28); but that is just a starting point. The Council chairman made clear several times the opinions Kihn offered on the budget were not responsive, as he wanted additional facts.

The chairman grew impatient with evasions, eventually asking, “are you refusing to answer my question?” and emphasizing to the deputy mayor “the Council is the appropriator in this government; the Council is the one that adopts the final budget, not the mayor…we need to understand what the agencies think they need…you won’t even tell me with an honest answer whether you had any other enhancement requests.” 

The conflict is even more puzzling since the law appears to require the very documents under discussion to be public.  To help the public and Council consider the mayor’s proposals and make budget decisions, the Council has required this for years, in two ways:

• beginning in 2004 the Freedom of Information Act has required online publication of “budget requests, submissions, and reports available electronically that agencies…transmit to the Office of the Budget and Planning during the budget development process” (D.C. Code § 2-536(a)(6A)),
• and since 2008 the Council has directed that it receive “actual copies, not summaries, of all agency budget enhancement requests…and any similar documentation describing in detail agencies’ budget needs or requests” (D.C. Code § 47-318.05a).

A recent lawsuit challenged the executive history of budget secrecy, and Superior Court Associate Judge Heidi Pasichow last year rejected the mayor’s lawyers’ extreme assertions of almost unquestionable mayoral authority over the budget. The Council even submitted a brief at the trial court and another in the pending appeal explaining their budget powers and information needs. The court found it within the Council’s power to direct what records could be open and ordered publication of agency requests as the law has long required.

See our earlier blog on the case here. The District has appealed and the Coalition has filed a brief in support of the requesters and the court decision, discussed here.

D.C. Auditor and former Council member Kathy Patterson, who led passage of the budget transparency provision while in office, said in a statement last year that publication of budget requests and related records was aimed exactly at shedding light on agency budget needs to be explored in Council oversight. She welcomed the court decision, saying “It’s good to see the court supporting the authority of the legislature as well as the public’s right to know….Let’s see the extent to which the Council takes advantage of the opinion.”