D.C. Council creates crippled Open Government Office

 Published Date: December 8, 2010

  The D.C. Council December 7 passed the Open Meetings Amendment Act of 2010 (Bill 18-716) on first reading, improving the city's antiquated open meetings statute, but allowing the Council to adopt rules exempting itself from most of the statute's openness provisions.

  The bill will create an Open Government Office, an independent agency nominally empowered to oversee and enforce the open meetings statute, but without the tools needed to operate effectively. It has no authority to oversee and enforce the city's Freedom of Information Act. A budget bill enacted by the Council provides $236,000 to fund the Office for the remainder of the 2011 fiscal year.

  Although the bill makes the Council a "public body" covered by the open meetings statute, Council committees are not covered. To preempt Council Member Jim Graham's (Ward 1) plan to introduce amendments to include Council committees and to delete the provision permitting the Council to make its own rules on how it would comply with the statute, Council Member Mary Cheh, chair of the Government Operations Committee, proposed amendments including the council, but not its committees, and to eliminate the rule-making provision. Cheh opposed both amendments, but claimed she offered them as a compromise.

  In response to a question from Chairman and Mayor-Elect Vincent C. Gray, Cheh admitted that if the Council is allowed to operate under its own rules it could exempt itself from compliance with the open meetings statute.

  In the debate that followed, Council Member Phil Mendelson (At-large), said he believes the public only needs to know how council members vote, not the reasoning behind their decisions.

  Council Member and Chairman-Elect Kwame Brown, who made transparency an issue in his campaign, opposed the amendments, incorrectly arguing that Council members would be unable to discuss committee business if three committee members met by chance outside the Wilson Building or at a meeting of a regional body like the Council of Governments. The bill specifically states that chance meetings are not covered.

  Cheh argued that three members of a committee, a quorum of most Council committees, should be able to discuss issues before the committee without having to give the public notice and holding an open meeting. Council Member David Catania (At-large) voiced opposition to the amendments as well

  When put to a vote, only Graham and Council Member Muriel Bowser (Ward 4), who introduced the open meetings bill last March, voted to cover committees and to put the Council on an equal footing with other public bodies.

  Although Cheh, Mendelson, Kwame Brown and Catania vehemently opposed opening committee meetings to the public, the rules under which the Council has operated for the past four years state that committee meetings must be public whenever a quorum of the committee is present and that committees must give the public notice of meetings. Robert Becker, the chapter's Freedom of Information Chair and a member of the D.C. Open Government Coalition board, said making the open meetings statute applicable to Council committees merely would have codified current practice, which opponents of the measure apparently do not want to follow in the future.

  Open meetings laws in 30 states and constitutional provisions in nine more require their state legislatures, like other public bodies, to comply fully with open meetings statutes. Only six states allow their legislatures to make rules for compliance and in five states legislatures are exempt. Every state open meetings statute requires full compliance by municipal and county governing bodies.

  Another amendment Cheh introduced makes it possible for the Council and other public bodies to comply with the open meetings statute by permitting only reporters to attend meetings or by televising them. This amendment codifies for all public bodies the Council's practice of permitting reporters, but not the public, to attend breakfast meetings of Council members  before each regular session. Becker questioned the legality of the provision, which would allow public bodies to restrict public access to important meetings while claiming they held a "public" meeting.

  There was no discussion of the bill's provision excluding Advisory Neighborhood Commissions from complying with the open meetings statute.

  Cheh decide at the last minute not to put forward her Open Government Act of 2010 (Bill 18-777), which would have created a more robust Open Government Office and amended the FOI Act. She apparently concluded that the cost of implementing the bill, based on a fiscal impact statement prepared in the past week by Chief Financial Officer Natwar Gandhi, made passage unlikely at a time when the Council is looking for ways to cut the city's budget.

  Under Bill 18-777. the Open Government Office would have been charged with establishing procedures for agencies to follow when processing FOI Act requests, issuing advisory opinions interpreting the statute, compiling statistics on agency compliance, training agency employees and the public, providing informal dispute resolution, and issuing rules to implement the FOI Act. Under the bill the Office could order an agency to disclose records, and if the agency refused the Office could file suit in D.C. Superior Court to enforce the order. The bill gave the Office authority to investigate complaints about noncompliance and to subpoena witnesses and documents as part of investigations.

  The Open Government Coalition, of which the D.C. Pro Chapter is a member, proposed that the Office be given similar powers to administer the open meetings statute. But the bill the Council passed gives it more modest powers, saying the Office must report annually on how well public bodies are complying with the act; that it shall issue advisory opinions in response to complaints about violations, provide training to public bodies and their staffs, and issue rules implementing the statute. The Office would have no authority to investigate complaints or to compel public bodies to provide testimony or records related to closed meetings that prompted complaints.

  The Council was so intent on preventing the Open Government Office from interfering with its decisions regarding public access it never considered how the amendments would affect public access to such bodies as the Alcoholic Beverage Control Board, the Zoning Board, the Public Charter School Board, the Public Service Commission and more than 160 other public bodies that make decisions that significantly impact D.C. residents and businesses, Becker said. Without the ability to enforce the FOI Act, to investigate complaints under the open meetings statute against public bodies, and to issue orders compelling public bodies to comply, it is doubtful that the Open Government Office will be able to significantly change the culture of secrecy in the D.C. government, he added.

  Becker noted that a provision in the bill bars D.C. residents and business from suing public bodies to enforce the open meetings statute. Because the Open Government Office cannot order public bodies to comply and may, but is not required to sue to compel compliance, it is likely that boards and commissions will continue to hold illegal closed meetings without fear of sanction, he said.

  Even though the open meetings bill passed on first reading, it is possible to amend the bill before its second reading at the Council meeting December 21. Becker urged chapter members to contact their Ward representatives and At-large Council members and advocate for a stronger Open Government Office to enforce the FOI Act and open meetings statute, to treat the Council and its committees like other public bodies, and to require ANCs to comply with the statute.

  For more information about the Open Government Act and the Open Meetings Amendment Act click here and here.

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