Although the District’s Open Meetings Act allows the Office of Open Government — which judges whether agencies are complying with sunshine regulations — to sue public boards that do not follow the law, there is no explicit provision for agencies to take legal action against the office, and it has never been done before.
May said that the hospital board would seek “judicial review” in D.C. Superior Court of the finding by Open Government Director Traci L. Hughes last month that it violated the law by excluding the public from its discussion and vote to permanently close United Medical Center’s obstetrics ward.
That vote left the nation’s capital without a hospital east of the Anacostia River where women could give birth or seek prenatal care.
“Our next action is to go to court,” May said.
May later confirmed in an interview that the hospital plans legal action against the Office of Open Government, instead of just ignoring its order and risking a lawsuit from Hughes. May would not specify which parts of Hughes’s ruling she disagreed with.
Asked during her testimony about the tally of the vote taken by the board in closed session, May said she could not remember, an answer she stood by when pressed by council member and Health Committee Chairman Vincent C. Gray (D-Ward 7).
“Maybe I had too much fun in college, and, you know, my brain cells are gone,” May said.
In a follow-up email to Gray’s office Thursday afternoon, UMC Board Secretary Mike Austin said the vote was 6 to 2, with board members Konrad Dawson and Girume Ashenafi voting against closing the unit.
For months UMC has been contending with fiscal problems and concerns about patient safety. The hospital, which is supposed to be financially independent, is on track to need roughly $25 million in taxpayer subsidies this year if its budget outlook does not change.
May’s announcement that legal fees for a court battle against the city’s transparency watchdog could soon be added to the hospital’s expenses prompted a strong reaction from some D.C. Council members.
Gray said he was “absolutely shocked” that UMC would choose to fight the Office of Open Government. Council member Charles Allen (D-Ward 6) wrote a letter to May on Thursday, saying the lawsuit would be “without merit and would only waste District taxpayer resources and distract from improving women’s healthcare East of the River.”
Hughes said she hoped the board would not proceed with a court case against her office.
“I think it’s ill-advised, and it’s only going to do a disservice to District residents if the board continues to pursue this type of action,” Hughes said.
Only once since Hughes became the city’s first open-government director five years ago has her office, established by the D.C. Council as a transparency watchdog, found itself in court with a defiant agency.
In the fall of 2016, Hughes sued the Mayor’s Advisory Commission on Caribbean Community Affairs. Last fall, a D.C. Superior Court judge ruled that the commission had violated the Open Meetings Act by failing to notify the public of its meetings, not preparing draft agendas and not recording its proceedings.
The action contemplated by the UMC board would be a new level of noncompliance, however, since no agency has been the plaintiff in a legal action against Hughes’s office.
The city’s Board of Ethics and Government Accountability voted this month against reappointing Hughes to a second term.
Hughes has said she believes the decision stemmed in part from her office’s strict enforcement of D.C.’s Open Meetings Act and Freedom of Information Act, and her resistance to pressure to pull punches in her rulings against agencies.
Tameka Collier, chair of the ethics panel, has denied that the decision was politically motivated.