Thomas Susman: Are DC officials committed to open government or not?

A new open-government watchdog took office on July 9 when Niquelle Allen became the second director of the DC Office of Open Government. Ms. Allen has her work cut out for her, since that office has become the object of political pressure, while the DC Council’s most recent efforts to relieve that pressure may have made matters worse.

The Office of Open Government was established by the DC Council in 2011 to enforce the District’s Open Meetings Act, which applies to all government boards and commissions. It aims to assist the public in resolving complaints about access to records under the District’s Freedom of Information Act (FOIA) and to assist DC agencies in enhancing transparency across the board. The office was later placed under the administrative authority of the Board of Ethics and Government Accountability, but its director was to exercise independent authority in enforcing the Open Meetings Act and resolving FOIA-related disputes.

Ms. Allen has a hard act to follow, and she is taking office with at least two strikes against her.

First, a few words about Ms. Allen’s predecessor, Traci Hughes. As the inaugural director of the Office of Open Government, Hughes started the position in 2013 from scratch and operated for five years with a shoestring budget and inadequate staff. She established the credibility of her office not only by helping the public to resolve disputes with agencies, but by training District employees, answering their questions about laws that bosses might not want to understand; issuing formal advisory opinions on agency compliance with both the Open Meetings Act and FOIA; testifying at oversight, budget and legislative hearings before the DC Council on open government subjects; and even suing a mayor’s advisory commission for repeatedly failing to take simple steps to follow the Open Meetings Act.

Next, strike one: Although Ms. Hughes sought reappointment for another term as Office of Open Government director, she was denied that opportunity and left office at the end of her term. It was widely believed among those who had followed the office’s activities that she was too independent and too aggressive in pointing out violations of the law by District agencies. And Ms. Hughes upset the status quo when she sued the Mayor’s Commission on Caribbean Community Affairs for ignoring her findings that the commission had violated the law when it failed to publicize upcoming meetings and to publish minutes or recordings afterward (although the Superior Court upheld her stance).

The DC Council, in establishing the Office of Open Government, had clearly intended its director to be independent of political pressure so that the office could, like an inspector general, have the freedom to hold DC officials publicly accountable for complying with the open government laws without fear of retribution. Mayor Muriel Bowser had supported open government during her time as a council member, but as the District’s chief executive she allowed her general counsel to send signals of receptivity to changing the law when agency heads called to complain. When she followed through by allowing the Board of Ethics and Government Accountability not to reappoint Ms. Hughes, Mayor Bowser sent precisely the wrong message to the office’s next director.

Finally, strike two: Without hearings or public debate, embedded in the 300-page 2019 Budget Support Act approved by the council last month is a “BEGA Amendment Act” that has the potential to turn the watchdog into a lapdog. Testimony by the Board of Ethics and Government Accountability chair in hearings last winter made clear her view that the Office of Open Government director had been too independent and had not collaborated sufficiently — collaboration that was not required, or even contemplated, by the statute. Under this new act, which goes into effect Oct. 1, the Office of Open Government will lose its independence to the Board of Ethics and Government Accountability:

• The director will no longer have a five-year term with removal only for cause, but can be removed at the board’s will;
• Any agency that disagrees with an Office of Open Government opinion can appeal to the Board of Ethics and Government Accountability, which has the power to overturn the Office of Open Government’s conclusion; and
• Any recommendations to the mayor and council for improving open government in the District will have to go through the board, implicitly subject to its veto power.

Ward 6 DC Council member Charles Allen, author of the BEGA Amendment Act, has expressed his belief that his changes to the Office of Open Government statute will strengthen that office by making it more accountable and financially stable. How can placing bureaucratic obstacles in the way of the Office of Open Government’s ability to do its job and removing the director’s job security contribute to the office’s effectiveness? And why did he move his amendment through the budget process without soliciting any public comment or holding a hearing?

The District’s protections for government transparency are a work in progress and always fragile, flourishing only where executive and legislative branches agree that the public right to know is a high value. Creating the Open Meetings Act and establishing the independent Office of Open Government to address violations were two big steps forward. Whether the two recent developments — passage of the legislation adding controls over the office, following on the heels of Ms. Hughes’ departure, apparently for doing the job too well — wind up driving DC two steps backward can’t be known yet. That will depend on whether Niquelle Allen is supported or obstructed by the Board of Ethics and Government Accountability when she aggressively attends to the business of her office: enhancing openness in the District government.

Thomas Susman is president of the DC Open Government Coalition.