My testimony to the DC Council on BEGA’s Office of Open Government

Last week DC’s Board of Ethics and Government Accountability decide not to renew the appointment of its Director of the Office of Open Government for another five-year term. Below is the testimony I made before the DC Council’s judiciary committee (video) yesterday.

Photo by Alex Howard, thanks Alex!

Thank you for the opportunity to speak today.

My name is Joshua Tauberer. I am a District resident, a well-known advocate for transparency in government, and a member of the Mayor’s Open Government Advisory Group.

Last week the open government community was blindsided by the Board of Ethics and Government Accountability’s decision to not renew Traci Hughes’s appointment as the director of BEGA’s Office of Open Government. By all accounts, Hughes’s work to promote compliance with the Open Meetings Act and the Freedom of Information Act have been both successful and laudable. According to BEGA’s answers to the committee’s questions, Hughes conducted dozens of trainings and helped FOIA requestors and agencies a stunning 320 times since the start of FY2017.

I’ve worked with Hughes…

I’ve worked with Hughes on several projects including currently serving together on the Open Government Advisory Group, where her leadership on what it means to have an open government shaped the District’s new city-wide Data Policy. Back in 2014, Hughes and I were on the Kojo Nnamdi Show on WAMU talking about a new project we helped get off the ground in collaboration with the Council to make the DC Code, that is, DC’s laws, available for residents to read in a modern way, improving access to justice. That project is still ongoing at the Council, that’s how successful it’s been, and we have Hughes to thank for being a part of getting it going.

So speaking of Kojo… what I learned listening to Hughes’s most recent appearance on the show this week, was that she’s faced political pressure as Director of BEGA’s Office of Open Government. BEGA’s decision not to renew her appointment is… suspect. The decision, which came without any explanation, came on the heels of Hughes’s successful enforcement action against the Mayor’s Advisory Commission on Caribbean Community Affairs and her office’s new advisory opinion against United Medical Center.

BEGA’s stated rationale can only be understood as retaliation…

[I wrote this section after hearing BEGA’s testimony, which came after mine, and I submitted this along with my spoken testimony for the record.]
At the performance oversight hearing, BEGA chairwoman Tameka Collier testified that the board voted not to re-appoint Hughes with the intent that they would find a new director who would carry out the functions of the Office of Open Government in a less independent manner than Hughes had. Collier testified that relationship with Hughes was “just untennable” not because Hughes was ineffective (in fact, Collier testified “there is no question” that Hughes had achieved many positive outcomes and that Hughes’ issued advisory opinions were not a factor in the decision not to reappoint her), nor that Hughes was withholding information from the board (in fact, Collier testified that BEGA had received draft opinions from Hughes ahead of their issuance). Had there been cause to remove Hughes from her position, the board would have had the power to do so. Collier testified that the decision was not a personnel decision per se but one necessitated only by the structural relationship between BEGA and the Office of Open Government. She testified that the board believes the powers of the Office of Open Government should be limited and “in the absence of a legislative fix” it seeks a new director who will submit to “oversight and reporting requirements” that are not specified in existing law. Finally, Collier testified that the structure of the Office of Open Government “puts us [BEGA] at a disadvantage” — — as if BEGA is concerned more with its power than with the performance of Hughes’s office.

The fact is, there is no structural problem — — as evidenced by Hughes’s unquestioned success. The only problem is that board members are unsatisfied with the limited power given to it by the Council.

BEGA must be held to high standards of ethics and openness…

BEGA’s action has the appearance of being retaliatory for Hughes stirring the pot, and even in the most generous light their decision to change the independence of the Office of Open Government without any public input flies in the face of the very purpose of the board and the spirit of the law that BEGA is charged to enforce. In what way was Hughes not meeting BEGA’s expectations? Let’s talk broadly. What are the expectations of the Director of the Office of Open Government? What does BEGA hope will be different in the next five years? I went back to BEGA’s meeting minutes to see if I could learn anything from their public records. After zero seconds, I finished my review — that’s because BEGA does not document their meetings in the form of minutes, something I was shocked to see in their answers to your questions ahead of this hearing.

BEGA board members are not showing leadership and should not be re-confirmed…

Two of BEGA’s board members have terms expiring a few months from now. If BEGA’s board members are not interested in showing leadership in creating an open, ethical, and accountable District government, perhaps they should not be leading the Board of Ethics and Government Accountability and the Office of Open Government. I am sure there are other District residents who would be glad to do their job and build public trust in government that the District deserves.

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