FY25 Budget Oversight Hearing Testimony

Testimony of Niquelle M. Allen, Esq., Director of Open Government, Board of Ethics and Government Accountability

Good afternoon, Chairperson Bonds and members of the Committee on Executive Administration and Labor, and staff. I am Niquelle Allen, Director of Open Government, and I lead the Office of Open Government or the OOG.  The OOG is an office within BEGA that enforces the Open Meetings Act, which I will refer to as “the OMA,” and provides guidance on the implementation of the District of Columbia Freedom of Information Act, which I will refer to as “FOIA.” I am here today to discuss the Board of Ethics and Government Accountability’s (BEGA) budget needs for OOG during FY25.

INTRODUCTION

As public servants, whether we hold the highest office or are a new employee, our responsibility is to use the taxpayers’ dollars to sustain this community and make it better. The public’s trust in the government’s ability and willingness to execute our duties in a manner that respects their role as the ultimate stakeholder undergirds the idea of government transparency and accountability. When the public’s reasonable expectations of their government’s functioning and behaviors are not met, this agency is expected to provide some resolution and relief. That is why BEGA was created. 

I respectfully request that the Committee craft the FY25 budget to provide sufficient funds to ensure that OOG can meet the needs of the District government and the public respecting government transparency. The District government’s financial commitment to OOG’s budget reflects its overall commitment to maintaining an open and transparent government. The proposed FY25 budget must be improved to better reflect a commitment to open government. Furthermore, legislative changes are necessary to ensure government transparency, most importantly the adoption of meaningful enforcement mechanisms to ensure compliance with open meetings laws. I will begin my testimony by discussing the necessary legislative changes that must be made to secure transparency.

REQUESTED LEGISLATIVE CHANGES

I will first discuss the District’s need to have meaningful enforcement of the OMA. Second, I will briefly discuss the need to create and fund a Commission to revise and modernize the District’s open government laws. 

OMA ENFORCEMENT

BEGA’s need to revise the OMA to provide meaningful enforcement mechanisms was reported to the Council by the BEGA Board in BEGA’s FY23 Best Practices Report.^[1] I will review what we advised as support for the legislative change I am requesting today. To enforce the Open Meetings Act, OOG is authorized to bring a lawsuit in the Superior Court of the District of Columbia to petition the court to grant injunctive or declaratory relief either before or after the meeting.²  The statute also provides that the court “may impose a civil fine of not more than $250 for each violation” upon a finding that “a member of a public body engages in a pattern or practice of willfully participating in one or more closed meetings” in violation of the OMA.^[2]  A review of the monetary penalties for violations of state open meetings laws indicates that the District’s maximum $250 civil penalty for violations of the Open Meetings Act is on the lower end of civil penalties authorized in other jurisdictions for comparable violations.   

In comparison to neighboring states, the District’s $250 civil penalty, which is only available after a judicial finding of a “pattern and practice” of violations of the OMA, is significantly lower than the penalties available in Maryland, Virginia, and West Virginia.  Violations of Maryland’s Open Meetings Act for public bodies that “willfully meet” in violation of the act are subject to a civil penalty of up to $250 for the first violation and $1,000 for subsequent violations within 3 years of the initial violation.  In Virginia, a court could impose of civil penalty of not less than $500 an up to $2,000 for an officer, employee, or member of a public body for “willfully and knowingly” violation the state open meetings law, with the penalty for additional violations of at least $2,000 up to $5,000.^[3]  “Willfully and knowingly” violating the provisions of the West Virginia open meetings law can result in a civil penalty of up to $500 for the initial violation and an additional $100 to $1,000 for subsequent violations.⁵ 

Only a handful of states do not include a civil penalty for either the public body or individuals associated with the public body for violations of the open meetings law, although injunctive or other relief may be available – Alaska, Colorado, Delaware, New York, North Carolina, South Carolina, Tennessee. Seventeen states allow for penalties of up to $500 – Arkansas, Florida, Indiana, Kansas, Kentucky, Louisiana, Minnesota, Montana, Nebraska, New Jersey, New Mexico, Ohio, Oklahoma, South Dakota, Texas, Vermont, Wisconsin. Wyoming has a $750 civil penalty for “knowingly or intentionally” violating the state’s open meetings law.  The remaining 23 states allow for penalties $1,000 or more for either the initial or subsequent violations of their respective open meetings laws. I will also note that some states, most notably Florida, have criminal penalties for violating open meetings laws that include fines and imprisonment. As you can glean from the assessment of the enforcement of open meetings laws nationwide, the current state of OOG’s ability to sue a public body and recover monetary fines for OMA violations is insufficient given the enforcement methods in other states. Our laws are a mild deterrent for OMA violations. 

As I previously stated, under the existing law, the monetary penalty for an OMA violation is limited in three critical ways: (1) it is limited to “a civil fine of not more than $250,” which has not been updated since former Councilmember Cheh proposed it in 2010; (2) that fine only applies to improper closure (not advance-notice or recordkeeping violations) and; (3) the court must find “a pattern or practice” of improper closures, implying that OOG cannot seek a fine unless it has waited and observed multiple (if not several) violations taking place—in order to establish the evidence of “a pattern or practice.” 

For the OMA to work early, effectively, and comprehensively to enable OOG to continue to ensure full access to the affairs of District government, the maximum fine available must be increased, and its applicability broadened to cover any violation of OMA (if serious or deliberate enough to warrant a fine). I am proposing that the Council amend the enforcement provisions of the OMA in the following ways to provide sufficient enforcement that is in line with other jurisdictions:

•       Increase the maximum fine from $250 to $1000;

•       Broaden the applicability of the fine, from covering only improperly closed meetings, to covering all requirements of the OMA;

•       Change the standard of intent for judgments of fines under the OMA, from “a pattern or practice of willfully participating in” improper closure, to “willfully and knowingly violating [the OMA]”; and

•       Authorize the award of costs of litigation, including attorneys’ fees.

I am requesting that the Council include legislation to effect this change in the FY25 Budget Support Act, as it is necessary for OOG to effectively enforce the OMA.  I have provided draft legislation for the Committee’s consideration.

OPEN GOVERNMENT TASK FORCE OR COMMISSION

During BEGA’s FY23 Performance Hearing, the D.C. Open Government Coalition requested that the Committee support legislation to create an “Information Technology and Transparency Commission comprised of executive and legislative branch representatives. and outside experts in records management and security, public engagement technology, and transparency.” I am requesting again, as I did in my FY24 budget testimony, that the Committee create and fund this Commission and make it a reality by enacting the D.C. Open Government Coalition’s proposed legislation. 

I will now discuss BEGA’s budget needs for FY25 respecting OOG.

FISCAL YEAR 2025 BUDGET PROPOSAL

BEGA was not provided with adequate resources for OOG when it was created in Fiscal Year 2013. Despite financial challenges, since that time, OOG’s staffing levels and resources have increased, but has never reached the baseline staff level required to adequately provide training and advisory services to FOIA Officers, Boards and Commissions, government employees, and the public on the OMA and FOIA. However, without sufficient resources, OOG has still increased its training capacity and the courses offered to FOIA Officers and Administrative Points of Contact for Boards and Commissions. We have provided live webinars, online webinars via opendc.gov, and stood up a training portal. Investments in OOG’s budget have paid the dividends of a more transparency in government; however, there is much more that could be done. 

The proposed FY25 budget includes cuts to OOG’s already insufficient budget. If adjustments need to be made due to shortfalls, it should not come at the expense of government transparency. In fact, OOG’s mission is more critical now to ensure the public receives information about government operations. With the FY25 budget that was provided for BEGA, cuts to the agency’s non-personnel fund will eliminate OOG’s ability to provide its training portal, which has become a valuable resource for on-demand training on the Open Meetings Act and Parliamentary Procedure. BEGA requested enhancements to its non-personnel services budget to make up for the budget cut that will negatively impact OOG’s already lean budget. Without this funding, OOG will not have the capability to provide on-demand training. OOG’s budget should be restored to at least the FY24 level, which was still insufficient. BEGA has a great need to replenish its nonpersonnel services fund in order for OOG to fully perform its mission and provide training, among other things. Due to increases in the agency’s overall budget for personnel, the difference was made up for by cutting BEGA’s program budget. As the agency is historically underfunded, this was particularly devastating for OOG.

BEGA also needs to enhance its budget respecting OOG to provide sufficient oversight and training to educational public bodies, which include Local School Advisory Teams and Public Charter School Boards of Trustees. An additional full-time attorney position is required to adequately provide oversight and training to these entities and their staff. BEGA requested a budget enhancement of $110,000 to fund an additional full-time Attorney for OOG. Here is why this request is important to fund in FY25. OOG has a niche legal practice area that is of great interest to the public. The addition of new legal talent to the OOG will have an immediate positive impact on the public bodies that serve the needs of our public and charter school community.  We hope that you will consider providing BEGA with the funds to ensure OOG’s continued success and operation.

CONCLUSION

In summary, the Council must revise the OMA to provide for meaningful enforcement of the OMA in the manner suggested in our proposed legislation. This should be part of the FY25 budget support act. The  Council should also enact and fund D.C. Open Government Coalition’s legislation to create an open government commission to recommend other necessary reforms to the District’s government transparency laws.

The funds provided currently in FY25 budget proposal are insufficient for BEGA to fulfil its statutory mission. BEGA requires that OOG receive the requested budget enhancements in order for the office to continue to provide its services to the public and the government. 

Thank you for the opportunity to testify today regarding the FY25 budget. I am happy to answer any questions you or the Committee members may have.