Reform the Reform Work Groups

by Megan Rhyne

(This article originally appeared in the Times-Dispatch, Sept. 8, 2011)
(Also note: the day before the article appeared, the Governor said that work groups in which 3 or more commission members participated would be open; no word on whether groups with fewer members would be open, too.) 

"More voices are being heard. More opinions are being considered. That kind of transparency can be difficult for some to properly conceptualize, as it is a relatively new way of doing business at the government level."

That's what Governor Bob McDonnell's spokesman Tucker Martin told Washington Post reporter Anita Kumar when questioned about why the Governor's Commission on Government Reform & Restructuring had used closed-door work groups to come up with the dozens of recommendations announced at its Aug. 31 meeting.

Martin also added that the commission's sole interest was in producing good ideas, "not adhering to a certain way of doing things," and that he felt McDonnell was being punished for being transparent enough to tell the public about the existence of work groups, something he said would not have happened in other administrations, according to the Post's article.

I'm still trying to wrap my head around these statements. I'm trying to come up with an interpretation that doesn't make me, as an access advocate and a citizen, feel like an outsider. Or hopelessly old fashioned.

Because I believe that this so-called new way of doing things is actually as old as government itself.

For starters, the practice of using work groups is in no way new. In the open government context, informal but open work groups were effectively used in 1999 to bring affected stakeholders together to discuss FOIA policy. The result was a major revision of the act, as well as the creation of the FOIA Council. In turn, the FOIA Council has routinely used the work group format, with informal but open meetings, to hammer out compromise legislation on everything form the rules regulating electronic meetings to the best practices for requesting public records. Work groups have been used by any number of groups contemplating major changes. Former Del. Glenn Oder extolled the virtues of the work group concept to the commission at its April 12, citing his participation in a transportation work group.

Less charitably, however, the notion of meeting in secret and then springing the results on an unsuspecting public is not a new way of doing things, but is instead the very smoky, back-room deals transparency in general, and FOIA is particular, seeks to eliminate.

Keep in mind, too, that one of the commission's four core missions is to "Examine ways for state government to be more transparent, user friendly and accountable to the citizens of the Commonwealth." Think about that: the commission only has four core missions. One of those four is about transparency. One-quarter. Twenty-five percent.

But the commission's work groups, including the ones making a pitch to change the way electronic meetings are conducted, have been meeting privately. Without the knowledge of, input from or benefit to public. The irony is too cruel.

McDonnell's counselor, Jasen Eige, said that the work groups didn't have to follow FOIA because they were created by the governor and not by the commission. But the work groups reportedly included included multiple members of the commission. FOIA says that when three members of a public body -- and no one (yet) has said that the commission itself is not a public body -- get together for the purpose of discussing public business, it's a public meeting that must follow FOIA.

In another section of FOIA, a "public body" is defined as, among other things, "any committee, subcommittee, or other entity however designated, of the public body created to perform delegated functions of the public body or to advise the public body."

These work groups are an "other entity...of the public body" (the reform commission). They may have been created by the governor, but the language of FOIA says it applies "however designated." The workgroups were created to "advise the public body." That's not just me talking, that's how the work groups were advertised April 12, 2011, when the commission's then-director Mike Reynold said the work groups would make recommendations that the commission's staff would research and gather public input on and that the commission would then formally adopt.

I'm also disappointed to hear this issue devolve into one of partisanship. The governor may be a Republican, but both Republicans and Democrats are capable of making decisions that are not in the interest of greater transparency, just as both parties can and have made significant contributions to the cause of open government.

Closed work groups are just a bad idea, period. No matter the party affiliation of the one calling the meetings.

If the government reform commission wants the support of the greatest number of people -- not just those with Rs or Ds next to their names -- then it needs to be open, transparent, accountable and forthright with everyone.

So please: Open the work of the commission and its work groups up to the public. Without sunshine, reform just looks like politics as usual.