The Transparent Trap Why can't Fenty fulfill his promise of open government? Ask his lawyer.

Secret Service: Nickles and Albert closed up a once open process.
Darrow Montgomery

After 15 months of closed-door fundraisers and low-key door-knocking, Mayor Adrian M. Fenty kicked off his re-election push for real last week. In a state-of-the-District address, a radio interview, and in remarks delivered while opening his campaign headquarters, Fenty made the case that in his three years at the city’s helm, he’d accomplished much of what he said he would do during his insurgent 2006 campaign.

He’s improved test scores, lowered crime, and presided over a rise in the city population. Promises made, promises kept, right?

What about this promise—the “most transparent, most open government” D.C.’s ever seen?

That was a nugget he deployed often on the campaign trail, starting with the 2005 campaign kickoff he held on the steps of his parents’ Mount Pleasant row house. After winning the election, Fenty kept on that tack: He told the Washington Post he’d be “responsive, accountable, transparent and efficient” to residents. He went to New York, saw Mayor Michael Bloomberg’s bullpen, and built his own, lauding how “open and transparent” it was. And, from Baltimore Mayor Martin O’Malley, he adopted a statistics-based accountability regime that he deemed “CapStat.”

The idea behind CapStat is pretty simple: Measure what agencies do, set goals and deadlines for improving those measures, and hold agency directors’ feet to the fire if they don’t meet them. The centerpiece of the CapStat regime were accountability sessions, where agency directors and their senior staff were arrayed around a table and grilled by Fenty, his city administrator, and other top aides. The result would be a short “action item” report—nothing more than a page or two of bullet points—which were then posted to a city Web site. And the sessions themselves were open to the public, broadcast on city Channel 16, and available for viewing on the same Web site.

Used to be anyway. The last CapStat action-item reports on the city administrator’s Web site are now more than a year old. And only a handful of the CapStat videos once available are still posted.

So what’s this mean for openness and transparency?

Michael Neibauer, the longtime ace city hall reporter for the Washington Examiner, now at the Washington Business Journal, was a CapStat fanatic. He wrote an admiring piece about the program shortly after the Fenty inauguration, and he was among the few hardy folks who plowed through all that CapStat data on a regular basis.

The documents and videos yielded some nice stories for Neibauer. For instance, in August 2008, he reported, based on CapStat documents, that Fenty administration officials were considering building a new jail on the site of a former psychiatric hospital on the D.C. General campus—which came as a big surprise to legislators and neighbors. A nice little scoop, in other words.

Last spring, Neibauer noticed the CapStat documents were no longer being posted on the Web. He asked mayoral staffers what was up; they told him staffing was low and there wasn’t time to post the documents. He waited and eventually dropped the issue, but when he picked it up again last year, he was told to file a formal Freedom of Information Act (FOIA) request.

He did, and last week, Xzaquoinett Y. Warrick, a staffer in the Office of the City Administrator, sent Neibauer a letter informing him that the CapStat reports he wanted “constitute records covered under the Deliberative Process Privilege.” In other words, no CapStats for you.

Ah, yes, “deliberative process.” The same privilege cited by the Fenty administration to prevent disclosure of documents involving the Pershing Park arrests, old land deals, and a former rent administrator’s employment, not to mention sundry other matters.

But here’s the thing: If the new CapStat documents constitute “deliberative process,” why are dozens of old reports from 2007 and 2008 still available for download?

“If they had never made these available, and that had been their argument from the beginning, this would be a different story,” Neibauer says. “You can’t leave them up online and say they were deliberative.”

LL’s queries on the matter were funneled from the Fenty press office to—where else?—the desk of Attorney General Peter Nickles.

Nickles was more than willing to take credit for the CapStat clampdown. “I looked at it, and I said, ‘What do you mean this stuff has been produced?’ It’s absolutely crazy. This is the essence of the deliberate process,” he tells LL.

That process is protected, Nickles says, to preserve the executive’s right to have frank discussion and unrestrained internal argument outside of the media’s prying eyes.

So why were the CapStat materials ever available?

“I do understand that this stuff was previously produced. All I can say it was a mistake, becuase I didn’t know about it,” he says. And as for the old materials that remain online, “I can’t do anything about those,” he says.

Now a government executive breaking a promise to be transparent in government—that’s not unheard of. Remember President Barack Obama’s pledge to televise health care negotiations?

But the capping of CapStat also plays into a bigger narrative about Fenty’s approach to transparency. That story goes like this: As councilmember, Fenty was a stickler for accountability, railing for an open-meetings law, for one. In another instance, he went to the Post after the administration of Mayor Anthony A. Williams told him, as chair of council’s human services committee, to file a FOIA request to get some key information on an agency in his oversight portfolio. “How much bureaucracy does the government want to put as a barrier to this council and the public?” Fenty said at the time.

These days, Fenty’s devotion to transparency is mixed at best. He’s been a tiger at collecting statistics and making them available for public viewing—check the new track.dc.gov Web site if you haven’t already. The administration continues to make and publish performance plans that contain broad statistical measures.

But any attempt to glean information about competing priorities, internal operations, policymaking activities—the real nuts and bolts of government—is stymied. Requests for information or comment from Fenty or aides are sent to a press shop that too often responds with meaningless boilerplate. Council offices have been denied documents or executive testimony (though matters have improved somewhat on that front). FOIA requests are routinely denied, often by claims of executive privilege, and sent to households and newsrooms with few resources to appeal them.

How to reconcile candidate Fenty with Mayor Fenty? He addressed the subject Friday on WAMU-FM’s Politics Hour: “When I was on the council,” he said, “I was not a councilmember who just stood around just clapping [for] the executive everywhere. I was the first one to challenge the executive every time. That is the role of a councilmember.”

In his role as mayor, Fenty appears to have calculated that transparency issues aren’t what voters much care about—aside from reporters, civic activists, and good-government advocates that once numbered among his biggest supporters. Perhaps the rest of the city won’t much care about transparency on Sept. 14.

But here’s a question Fenty will have to answer this election season: How much bureaucracy does the government want to put as a barrier to the public?

 

Union Nurses Do Battle With Hospital

 

In late February, news broke that Washington Hospital Center had fired 11 nurses and five other staffers for failing to get to work during that month’s paralyzing back-to-back snowstorms.

Now it’s not often that LL strays into the healthcare realm, but there appears to be more than a hint of politics behind the nurse firings. WHC, the city’s largest hospital, is experiencing a period of labor strife, and nurses say the snow firings were the culmination of a months-long union-breaking operation.

Some background: WHC is owned by Columbia, Md.–based MedStar, owner of nine hospitals in the mid-Atlantic region, and WHC is the only one with union nurses. Last May, hospital CEO James F. Caldas unexpectedly resigned, replaced by a 30-year MedStar vet, Harrison J. Rider III, who had a long run at a company hospital in Baltimore.

Soon after Rider started, union activists say, the trouble began. Staff who did not attend training sessions for a new hospital initiative called “Clean, Safe, and Friendly” were threatened with termination, for one. Then, later in the fall, nurses and other hospital staff were required for the first time to receive seasonal flu vaccines. Again, word came down: No vaccine, no job.

“That was huge,” says Dottie Hararas, a veteran WHC nurse and president of Nurses United, the hospital union. “If you don’t get it, you were fired.”

By Jan. 15, some 250 nurses who still hadn’t gotten the vaccine were officially told they would be fired if they didn’t get their shots. The union filed a grievance, and when the hospital wouldn’t agree to a quick arbitration, the nurses sued. The threats ended up being enough that virtually all the nurses got their shots two weeks later, when a judge sat to hear the case.

And then came snowpocalypse. As the Post and other news outlets reported, 16 hospital employees who failed to make their shifts were issued termination notices, most of them nurses. Rider, in a letter to WHC employees, referred to “associates who did not show the same commitment as most of their co-workers.” Among the first to be fired was Geri Lee, a 31-year veteran labor and delivery nurse who has been very active in Nurses United.

Of the hundreds of nurses who missed shifts during the snowstorm, Lee says she was the only one suspended over the phone and subsequently fired. “What’s wrong with this picture?” she asks. “She’s on the executive board of the union, been on the last two negotiating teams, and she was sitting in court on Feb. 1…and she wrote an affidavit about what would happen on her unit if we lost out staff because of the flu shot.”

Lee says that it was only after she went public in a WTTG-TV interview that the hospital sent pink slips to other nurses. “I’m an example of what they can do to someone that’s high up in the union,” she says. Other fired nurses, Hararas says, were unusually senior, earning veteran-level salaries.

WHC, in a statement, called it “simply incredible to suggest that hospital patient safety initiatives are anti-union in any way,” referring to the “Clean, Safe, and Friendly” and flu-shot mandates, which “preserve the health and safety of not only our patients, but also our caregivers and their families.”

As to the blizzard firings, the hospital says, “We do not take lightly the dismissal of any associate under any circumstances. But we believe strongly those individuals who do not embrace our mission, regardless of union membership, should not continue to serve our patients.”

The backdrop is a negotiation of the nurses’ employment contract—now underway, with MedStar looking for big concessions—and the appearance of a new national nurses organization formed from three smaller unions last December.

“They think they’re fighting this huge national thing, and we’re an independent union, 1,600 nurses,” Hararas says. “And I’m putting all this together, and I’m thinking, This is what’s going on. They want to break us, because they don’t want National Nurses United going into other MedStar hospitals to organize.…If we prevail in any way—if we get hikes in wages, if we get to keep our benefits—the nurses at the MedStar facilities are going to see that we won this” and organize themselves, she adds. “Can I prove it? I can’t prove it, but you give me a better argument.”

Hararas says her organization is “gearing up for a strike”; MedStar, she adds, has already brought in non-union “contract nurses” in anticipation. The current contract expires April 24.

Earlier this month, she said the local Nurses United has no intention to affiliate with the national outfit. But last week, the D.C. nurses invited reps from the National Nurses United for a meeting. A notice posted on the local union’s Web site reads, “They are interested in our affiliation. We will continue to talk to them and learn more about their organization. Should the possibility of affiliation seem like a good idea, it is a choice we would all make together.”

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