D.C. Council Budget Hearing Schedule Shows Mixed Picture for Public Access

Fritz Mulhauser | May 7, 2020 | Last modified: May 12, 2020

UPDATE 5/12/20: Mayor’s budget submission changed to May 18. New Council hearing schedule here.

“Open government” takes on a new meaning in the D.C. Council budget season starting soon. The Wilson Building is quiet, hearings will be online only and the Council plans greatly reduced time for public comment, according to the schedule published Friday (1).

Two other schedule surprises are fewer and shorter hearings, with the time crunch resolved by reducing public comment.

In the 18 days of hearings beginning after the mayor’s budget arrives May 12, the schedule lists only 39 hearings totaling 141 hours. Committees oversee more or less agencies with bigger and smaller issues, so the chairman assigned each committee varying numbers of the three-hour slots (from two to four). Under this time pressure, the result seems to be generally a priority to hearing from the agencies; 24 of the hearings are limited to government witnesses only.

Last year’s budget hearing schedule showed 54 hearings in the same number of days, sometimes four at once, usually with no set ending time and only two that were limited to government witnesses. With fewer agencies reviewed in each and no set ending time, members, public and government witnesses could exchange with each other in sessions that began in the morning and sometimes lasted into the evening.

Estimating 4-6 hours per 2019 hearing, the 54 hearings allowed members 200-300 hours, much more time than in this year’s schedule, to talk about spending and priorities for the District.

Why so much less time? The change appears to stem from limits of the new virtual hearing technology, according to Council staff (speaking on condition of anonymity as they were not authorized to discuss Council management). Staff say they were told the arrangements for streaming a virtual hearing with multiple Council members and witnesses coming in on internet conference platforms allow only one hearing at a time.

That’s not quite Situation Room capability; in past years the public grew used to simultaneous online video from four hearings in the four wired Wilson Building rooms, 120, 123, 412 and 500.

Council Chairman Phil Mendelson also cited in his press comments Monday (4) “the need for security” in the online hearing scheme as causing changes. (Video here, comment at 8:50.) This may refer to the need to check people in and out of online “waiting rooms” to assure those admitted are bona fide.

With fewer hours, and the same work, cutting back public comment is apparently the solution.  

Public input is still allowed in various ways, as defined by each committee (see “Instructions for Public Participation” attached to the schedule). In general:  

• Written testimony will be accepted.
• Oral comments (up to three minutes) can be phoned in to be transcribed for the record.
• Eight committees will allow some public oral testimony on the virtual platform—one by invitation only, the rest with prior sign-up (and with warnings of limited numbers allowed). Time limits vary, one minute only at one committee. (One committee announced completely separate plans for public input in other formats including Facebook Live.)
• The Committee of the Whole will hold two days of hearings to receive public witnesses’ testimony on any aspect of the budget, in writing or live on the platform with prior sign-up.

At least two community groups are organizing asking for change in these ground rules. Jews United for Justice seeks signatures on a petition that says “Now is the time to revolutionize how public voices — and especially the voices of those who are suffering most acutely from the ripple effects of this pandemic — are centered in the city’s annual budget discourse. This means requiring all committees to host at least one live, virtual hearing for public witness voices and requiring committees to accept additional input on the budget through multiple means of communication. More than ever, we need to keep lines of public communication with our legislators open and transparent.”

And EmpowerEd, a D.C. nonprofit emphasizing teachers’ voice, has a petition on Change.org. Addressed just to the Committee on Education, it calls on the committee to scrap its plan to hear from only invited witnesses. It asks the committee to use virtual tools to change the past practice of hearings involving only insiders and instead to hear all who sign up, to stream the virtual session on many widely-used outlets (YouTube, Facebook, Twitter,Instagram), and to add a “moderated comment feature” where an individual Council member answers any question endorsed by 15 or more and the committee discusses any question endorsed by 50. (Disclosure, the writer is an advisor to EmpowerEd.)

For the short run, it’s hard to accept that three of 11 committees plan to hear no live public witnesses on the record at all (one of the three has mentioned a Facebook session; unclear how that would form part of the record).

The old “normal” was far from perfect; going forward, many are hoping that creative ideas developed in the crucible of the one-time, urgent needs of the pandemic time may turn out to be keepers. Two thoughts come to mind:

• Better ways to hear from more. Many in the community could never take part in the long in-person hearings of past years. So new methods of hearing from the community, by transcribed voicemail, submitted video, live testimony by online connection, and in other ways may after trial and evaluation be worth adding to the permanent tool kit. See a brief roundup of experience elsewhere in Governing magazine.
• Better tech tools for governing. If despite trying new tools, tech limits are keeping the Council and the public from engaging in the best ways, it’s time for a deep review by outside experts and accepting the costs of needed upgrades.

The compressed virtual hearing schedule will not be missed when live hearings resume, we hope in 2021.

Footnote on the law

Whether there is a right to be heard in a meeting is interesting, and many questions to the Coalition suggest people expect that’s true. Even the 9th U.S. Circuit Court of Appeals remarked in a 1990 decision, White v. City of Norwalk: “Citizens have an enormous First Amendment interest in directing speech about public issues to those who govern their city.”

 When a government body opens a meeting to comment, free speech rules apply: within reasonable limits of time, relevance, and decorum, all views and speakers must be treated equally; that’s basic fairness required in government public forums where the First Amendment rules. But usually the government gets to decide whether to open the meeting to comment in the first place, and the topic (such as hearing from agency officials on their budget).  

Some state laws, such as the Brown Act in California, go further. That statute says in black and white: there shall be access to both observe and also to comment at meetings of state and local legislative bodies, either at the meeting itself or from an alternate place (with any needed assistance) if the meeting is by teleconference.

The pandemic has required some adjustment in that brave promise.

As meetings moved online in the emergency, California Governor Gavin Newsom (D) in March issued an order suspending the requirement of an actual place for the public to visit from which to attend and comment electronically to a legislative meeting occurring electronically. But an electronic connection is still required that will allow real-time public observation and comment.

For an interesting discussion on how this is working, featuring journalists, legal experts, and a leader of the League of Women Voters, see this 60-minute webinar by the First Amendment Coalition in California last week (29).

There is no requirement in D.C. law affording a right to comment at a government meeting that’s otherwise public. A Council rule requires a “public hearing” on agency budgets by each committee but doesn’t spell out who gets to speak. And Council rules also say a hearing is “open” if it’s “televised’—a one-way communication.