Wilson Building Bulletin: Curfews and closed doors

Something interesting happened in the D.C. Council on Tuesday. But there’s only so much I can tell you about it – because much of it happened behind closed doors. 

The council was set to vote on an emergency bill that would extend the summer youth curfew – itself passed as an emergency bill in July – for another three months. Initially written by Mayor Muriel Bowser, the extended curfew came as a response to crowds of juveniles causing havoc in nightlife areas. It broadened the city’s existing curfew to include more youth, extend the hours on weekends, and allow police to set up temporary zones with an even earlier curfew. 

Ward 2 Councilmember Brooke Pinto said the new rules were successful and  proposed extending them through the end of December. Most of her colleagues agreed, though a contingent raised concerns about how the curfew would be applied now that there is an increased presence of federal law enforcement officers and National Guardsmen.

“Our circumstances have changed,” said Ward 4 Councilmember Janeese Lewis George. “I’m afraid expanding and extending the provision will be used as a pretext to target Black and brown youth who are already being targeted in this moment.”

And At-Large Councilmember Christina Henderson raised concerns over the process itself; emergency bills don’t require any public hearings, and this would be the second consecutive one.

“I’m trying to get clarity: are we actually going to hold a hearing to allow folks to talk about this or are we going to keep doing emergencies as if we don’t know what the plan is?” she asked. “I do think it’s unfair to our communities for us to do emergency after emergency and no one gets to weigh in. If we believe a curfew is a good tool for MPD, then let’s just say that and have that debate.”

Lewis George and Henderson voted against Pinto’s emergency bill, as did Ward 1 Councilmember Brianne Nadeau, Ward 8 Councilmember Trayon White, and At-Large Councilmember Robert White. Since emergency bills require a supermajority to pass, the bill failed; the summer youth curfew was dead.

Until it wasn’t. 

As debate moved on to other issues, councilmembers visibly scrambled on the dais. Council Chairman Phil Mendelson spoke on the phone to an unknown caller and then moved for a brief break. All but two lawmakers – Lewis George and Trayon White – disappeared into a nearby room and locked the door. (Lewis George was participating in the legislative meeting virtually.)

For more than 20 minutes they remained sequestered away from the press, public, and even their own staff. It seemed obvious enough what was happening: The council was trying to salvage the youth curfew bill after a defeat that seemed to catch many lawmakers – and the mayor – off guard.  

And salvage the bill they did. After the council re-emerged and dispensed with a few more issues, Nadeau moved to resurrect the youth curfew emergency bill. Pinto then motioned to table it. The procedural move snatched a stalemate from the jaws of defeat: Rather than voting down the curfew extension, its consideration was being postponed for two weeks. 

That’s what the public saw. But what happened when lawmakers were squirreled away remains a bit of a mystery. 

Like most public bodies in the D.C. government, the council has to abide by the Open Meetings Act. The law requires boards, commissions, and the council to conduct the majority of their official business in public. It sets out timelines for when the public should be told about meetings, details the limited circumstances under which a meeting can be closed to the public, and prohibits any public body from taking formal action in private if a majority of members is present. 

That last provision, of course, is relevant here, since a majority of councilmembers were present. The law defines a meeting that should be open as one where officials “consider, conduct, or advise on public business, including gathering information, taking testimony, discussing, deliberating, recommending, and voting.” By the letter of the law, the council should not have been able to to discuss an issue behind closed doors that was on their public agenda that day.

But earlier this year the council passed an emergency bill creating a significant loophole for itself. While the Open Meetings Act presumes meetings to be open unless formal steps are taken to close them, the council’s change presumes that most of what the council does is closed to the public (spare the legislative sessions and committee meetings where votes are taken.) Under this new version, the impromptu gathering appears to be legally kosher.

“There are serious issues going on. And some of them can’t be going on in the public eye. They just can’t be,” Mendelson told me after I complained that he and his colleagues had debated the youth curfew – and negotiated a path forward for a bill that seemed dead in the water – completely behind closed doors.

“Members have got to have conversations in private,” he added. “I know members of the press resent that. But open government can only be open so far. The public has a right to see our actions… but they can’t see our conversations. Government doesn’t function that way. If every conversation has to be public, we’re not going to have conversations and government doesn’t work as well.”

I don’t fully disagree with Mendelson; sometimes privacy is needed to be open and frank. But I also told him that for elected officials, it’s a slippery slope. The council now has the power to deem just about anything too sensitive to be debated in public. Sure, we get to see the final votes, but the underlying discussions that inform how lawmakers vote? Those can be fully hidden from view. The best we can do is hope they’re not – at least until March, when the changes to the Open Meetings Act are set to expire.

As for the emergency bill to extend the summer youth curfew, I’ve since been told that the council scrambled to reverse itself over fears of how the White House and congressional Republicans would respond to local lawmakers choosing not to continue a curfew that was publicly sold as evidence that the city was taking public safety seriously. (Bowser told a Washington Post reporter that the vote was “shockingly irresponsible.”) 

Is that a serious concern? Probably. Serious enough to hide the discussion from the public? I’m less sure. Either way, the council decided it would be better to be seen tabling the bill than outright rejecting it.

What happens next? I expect the council will reconsider extending the youth curfew at its next legislative meeting in two weeks. Proponents will need to flip at least one vote. And for that, a compromise seems to have been made: Some lawmakers asked for a hearing to allow residents to share their views on the stiffer curfew for kids, and Pinto has agreed. 

That hearing, at least, will be open to the public.