Council Seeks Balance in Open Meetings Law, Emergency Rental Assistance Program Reforms

While there is much hay to be be made by arguing that politics is full of easy answers to society’s problems, the reality is that virtually all policy decisions hinge on delicate balancing acts. Tilting the scales too far in one popular direction will inevitably throw another element, expectedly or unexpectedly, out of balance. Public policy consists of an endless effort to modify these countervailing forces to achieve the best result. While there is little easy popularity to be gained in massaging these shades of gray to get to what can often be the “least bad” result, it is nonetheless the essence of good public policy to do so. Two critical bills at the heart of the Council’s most recent Legislative Meeting provided vivid illustrations of how to achieve this difficult balance.

The first bill was an emergency measure modifying the District’s Open Meetings law. The term “open government” had its origins in the 1950s, with the process gaining full steam as part of the post-Watergate reforms. At the heart of the “open government” debate is a balance between efficiency and openness. Creating legislation in complete secrecy may be technically efficient in the short term and on the micro level, but it is deeply undemocratic and ultimately completely unproductive in the long term.

However, absolute openness could be equally unproductive and unhelpful—if every conversation between each elected official, voter, and/or interest groups on every topic could somehow be made instantly and entirely public, while this would provide perfect openness, it would be profoundly inefficient and arguably would not lead to successful public policy. With the realization that perfect secrecy and perfect openness are both ultimately unproductive from a public policy standpoint, “all” that remains is to find the proper balance between unacceptable but streamlined secrecy and laudable but inefficient openness.

The District’s Open Meetings Act of 2010 shifted that balance substantially by determining that it was not just action on policies, but also the discussions surrounding those eventual actions, that should be open to the public. As a result of those changes, it is not permitted for a quorum of Councilmembers to discuss any topic, even if no decisions or actions emerge from such a conversation, unless the meeting is open. Other than certain limited exceptions, if a quorum of Councilmembers wants to meet to discuss a topic, advance notice of the meeting needs to be published, and the meeting must be open to/viewable by the public. If a topic to be discussed meets certain criteria (such as homeland security or personnel matters), a vote can be taken to close the meeting to the public; but that vote itself must occur at a public meeting that was noticed in advance.

While the mayor and the Council are officially and famously “coequal branches of government,” under the open meting framework that existed prior to the emergency reforms passed at the most recent Legislative Meeting, the Council was at a significant disadvantage. If, prior to a major goverment-wide discussion regarding a key policy area (like the budget, or a major negotiation such as the deal to keep the Wizards and the Capitals in the District), the mayor could bring together her entire team behind closed doors to hash out her policy proposal, since mayoral cabinet meetings are explicitly exempted from the open meetings law. However, there is no parallel allowance for the Council. Crafting initial policy proposals exclusively in public, or in multiple one-on-one conversations, is a barrier to efficiency that hampers collective strategic and policy planning by the Council while leaving the mayor completely unfettered in this regard.

Members of the public and the media often decry the mayor and Council for not working together more freely and frequently. Yet when any meeting between the mayor and a quorum of the Council must be noticed in advance and fully open to the public, one imperative (openness) hamstrings a second (collaboration).

On a simpler logistical basis, potential site visits by the Council or a Council committee have always been impractical under the prior open meetings restrictions, since either smaller group visits would have been required, or else larger visits would have to be noticed in advance and be televised and/or open to the public.

The emergency measure passed at the most recent Legislative Meeting retains the original core principles of open meetings—that any actions (such as votes) must occur at public meetings, and that the public must receive adequate notice of any such meetings.

The emergency bill specifies that Legislative Meetings, committee markups, hearings and roundtables will remain covered by open meeting requirements, but that exceptions to the prior law’s restrictions should and do exist. These exceptions include chance encounters, press conferences, field trips, and retreats. An exception is also created for briefings on potential terrorist activity, major public health threats, or confidential negotiations, as long as no actions are taken at those meetings. Similarly, meetings between the mayor and Council are also exempted, as long as no actions are taken at the meetings.

Given the current, ongoing uncertainty surrounding the District’s budget situation currently, and other elements of unpredictability in our federal interactions, the open meetings bill was passed on an emergency basis. This means no hearing was held and a supermajority vote was required, and that the bill would go into effect immediately if signed by the mayor, but that it would only remain in effect for 90 days. In the interest of expediting Council action on the permanent version of the measure, an April 22 hearing has been scheduled on that permanent bill.

Emergency Rental Assistance Program Permanent Bill Reforms

Similar to the open government bill, a permanent bill to reform the Emergency Rental Assistance Program (ERAP), a key eviction prevention measure, demonstrates the delicate balance that is at play in policy matters.

Evictions are undoubtedly traumatic events with deep personal, financial, physical, and mental consequences on those affected, and the government has an interest in seeking to avoid them whenever possible. During the COVID public health crisis, when the health and financial stability of the entire population was completely disrupted, the government understandably and correctly doubled down on the need to avoid evictions. It was during this time that a provision was written into the ERAP legislation that provided unlimited, indefinite stays to any eviction process affecting anyone with an open ERAP application.

As these ERAP-related holds accumulated, affordable housing providers found themselves unable to make mortgage payments on many affordable housing buildings in the District. If that lack of payment persists, the buildings could be foreclosed upon, the current residents would be displaced, and the affordability of that building would be permanently lost.

Once a smaller program, ERAP was originally designed to provide temporary, bridge funding during temporary periods of limited and unexpected emergencies. During the COVID crisis, so many more people faced unexpected emergencies, and the duration of these temporary periods greatly expanded.

In the aftermath of the COVID crisis, there is a need to balance continued compassion towards, and assistance for, those facing eviction due to unexpected financial instability with an attempt to preserve the District’s threatened existing affordable housing prior to a wave of foreclosures potentially decimating it. The critical policy challenge is seeking the proper, sustainable balance between short-term compassion for individual residents facing eviction with the long-term needs and survival of those who provide the District’s affordable housing stock. The permanent ERAP reform measure passed on the first of two necessary votes at the most recent Legislative Meeting seeks to find this balance.

As passed, the ERAP bill would continue to provide potential assistance to those applicants who could document their eligibility by demonstrating that the emergencies they are experiencing are in fact time-limited and unforeseen. Additionally, the bill would attempt to alleviate case backlogs in landlord/tenant court by giving those judges the discretion to grant (rather than requiring them to grant) stays in cases where the tenant has a pending ERAP application. The bill also creates a rent waiver workaround for tenants who can demonstrate that their landlord did not cooperate in the ERAP process, and allows those tenants who did not apply to ERAP because the ERAP portal was closed to reschedule their eviction on a one-time basis.

As is the case with all permanent Council legislation, this bill will require a second vote by the full Council at a subsequent Legislative Meeting. Prior to that second vote, changes could potentially be made to the text of the measure to continue to balancing process mentioned ahove.

The Council’s next Legislative Meeting is scheduled for May 6.

Budget Process

The mayor did not deliver her proposed FY26 Budget and Financial Plan to the Council on April 2 as planned.

Once the Council has been notified of a revised transmittal date, the Office of the Budget Director will update the calendar and the hearing schedule (as needed).