Small Advances for Open Government Policy as D.C. Council Votes on FY 21 Budget and Other Bills
Fritz Mulhauser | July 14, 2020 | Last modified: July 24, 2020
In an eight-hour session July 7, major decisions on tax and spending for the coming fiscal year passed the first Council votes, along with some urgent individual bills. Modest open government improvements in police and schools were included. Advocates did not attempt improvement by amendments in the hours the Post called “contentious” and “chaotic at times.”
See full reports on the session from Jenny Gathright at DCist and Fenit Nirappil and Julie Zauzmer at the Post. On what happened to “defund the police,” see Martin Austermuhle in DCist July 10.
Details are below on the open government matters and their shortcomings. In brief, the legislation that advanced will:
- improve public information about the worst police misconduct and strengthen citizen complaint review procedures; and
- provide the public clearer school budget and spending information about both D.C. Public Schools and charters, as well as slightly improving access to meetings of charter schools’ boards of trustees.
The first emergency police reform bill passed June 6 included much-expanded release of body-worn camera video: mandatory release now of all past shooting death incidents on video, with officer names, and release in three days for all future serious incidents. But these and the many other responses to public demand won only opposition from Metropolitan Police Department officials and the mayor, who refused to sign. Judiciary Committee Chairman Charles Allen ditched that text and substituted a new bill that passed again July 7 and is expected to be signed. [UPDATE: The Post reports the mayor signed the bill July 22, 2020.]
Changes in the second bill give the executive more time (until August 15) to release all the past shooting-death videos, and more time also to release video and names (within five days instead of three) in all future cases of serious uses of force. Victims of police use of force or decedents’ next-of-kin also gained a veto over video release.
The Coalition remains concerned that the legislation still doesn’t limit the excessive redaction (blurring of details) common in past MPD releases, requiring lengthy delays in release and skyhigh costs. A Coalition request to the Office of Open Government for legal review of MPD redaction policy remains pending.
Trustworthy independent review of complaints is a key element of police accountability and the revised bill keeps original sections with improvements such as putting into law a new complaint review board for the Metro Transit Police (now established only by Transit Authority board policy), and strengthening the Office of Police Complaints that oversees MPD and Housing Authority Police. The law broadens community membership on the OPC board and provides authority to the office to investigate conduct of officers who fail to intervene when they see colleagues use excessive force.
MPD will also be required to report its handling of officers who fail to activate body cameras. The Coalition noted in testimony last year that MPD has not explained its follow-up discipline or retraining despite sustaining most such complaints (1,183 or 78 per cent of 1,514 in the most recent report at that time last October).
In other sections, the bill includes wide ranging provisions reflecting concerns about policing in the District echoing those nationwide:
- banning some uses of force,
- limiting searches,
- removing discipline from collective bargaining,
- term-limiting the police chief,
- prohibiting hiring those with bad prior police employment records,
- prohibiting police acquisition of military weaponry as well as use of chemical and less-lethal weapons in demonstrations,
- expanding voting to include most incarcerated felons, and more.
The emergency police reform act and companion temporary legislation last only 90 and 225 days, respectively. A police reform commission is established in the bill and will be able to help as a permanent reform package is assembled and subjected to public hearings in the fall.
That will give opportunity for the community to renew demands for further police changes and for the Open Government Coalition to continue longstanding avocacy for
- better public access to police video by FOIA (less redaction, faster, cheaper); and
- access to police misconduct investigation files in MPD and the complaint office (following the dramatic lead of New York and California where long-secret files on officers’ conduct have been opened by courageous legislatures in the face of fierce police opposition).
Press reports continue to illustrate ways police frustrate the public’s right to know what its government is up to–which in turn causes public distrust. Washington City Paper “Loose Lips” columnist Mitch Ryals devoted a 5,000 word cover piece June 25 to three local examples:
- how MPD prohibits access to details of discipline proceedings, even fighting a lawsuit seeking records of an open hearing;
- how U.S. Attorney’s Office prosecutors require secrecy agreements as they release body-worn camera video in court cases; and
- how both police and prosecutors are fighting a lawsuit seeking a list of officers whose past court testimony was so unreliable they can’t be allowed any future work where they might have to go to court and face certain impeachment.
In New York, ProPublica deputy managing editor Eric Umansky reported June 23 how his family saw an unmarked NYPD cruiser hit a Black teenager and when he tried to find out how it happened, he instead found all of the ways the NYPD is shielded from accountability.
Transparency in education
Charter schools’ budgets and spending will be clearer and more public under a school finance transparency measure included in the FY 21 Budget Support Act passed at an initial vote in the same July 7 session. This allows solid comparisons of all D.C. schools that can shed light on fairness of resources; DCPS must follow the same new accounting and reporting requirements. Extra funds for “at risk” students will be better tracked as well, following the D.C. Auditor’s report that many of the funds didn’t clearly reach their target.
The financial transparency segment is Title IV Subtitle F in the FY 21 Budget Support Act of 2020, beginning at p. 126 in Bill B23-0760. It follows a bill Education Committee Chairman David Grosso introduced in April 2019. The BSA will face its final vote July 28.
Though helpful in better transparency of budget details, the bill remains far short of the full access to charter school trustees’ meetings and charter school records that many had called for in multiple hearings before the Charter School Board and Council in 2018-19. Advocacy by charter parents and teachers describing years of decisions behind closed doors changed the landscape of D.C. charter school politics.
Those advocates will find their hopes for a stronger right to information remain largely disregarded in the charter sector—66 nonprofits operating 128 schools that educate just under half of D.C. students and receive almost a billion public dollars a year.
The new bill does deal with charter board meetings but they may remain mostly closed. Council Member Grosso told constituents this year his bill “requires greater transparency from charter schools by making them subject to the Open Meetings Act.” But that two-Pinocchio boast is true only by giving it a generous reading.
Yes, charter schools’ boards are to be included among public bodies subject for the first time to the Open Meetings Act requirements for advance notice and agenda, and meeting records afterwards. But under questioning by Education Committee members Robert White and Charles Allen at the markup last October, Chairman Grosso could not satisfactorily explain why his proposal also allows trustees to close any meeting to discuss charter school “operation.” (He offered a farfetched threat by charter lobbyists that without such special protection, the schools would close all meetings using an existing exemption for “trade secrets.” The Coalition would love to bring the first lawsuit to challenge how public schooling in any sense of the words can be a secret. Do they really have a secret sauce in their lunchrooms?) Except for final budget votes, school opening or closing discussion, and meetings with staff that must be open, expect the rest to be behind closed doors as before.
Access to charter records appears out of reach the rest of this Council term. The community and the Coalition have advocated for public access to charter schools’ records under the D.C. Freedom of Information Act—as common in most states. Charter records are excluded by law so it will take Council action to change that. Council Member Allen in March 2019 introduced legislation to do so. The Coalition in repeated testimonies (for example, as reported here and here) suggested changes to ease any workload concerns and help charters take on new responsibilities. Yet FOIA access is not mentioned in the BSA text on school transparency.
Advocates could urge Council members to amend the Budget Support Act July 28 to fully open charter trustees’ board meetings and add FOIA access to charter schools’ records. Unfortunately, even supportive Council members face severe limits on amendments and discussion in virtual budget sessions. Action may await a new Council session in January 2021 that will include three new members and a change in leadership in education with the retirement of Education Committee Chairman David Grosso (I-At Large).
Legislative sessions are set July 21 and 28. The Council has no scheduled activity from August 1 to September 21.