Terpworld IV Part B: 'No Vote' Don't Matter

Fallout from the University of Maryland Terps' move to the Big Ten Conference -- something conducted in secrecy -- has continued to bring attention to Maryland's Open Meetings Act, typically an obscure topic with no media profile to speak of.

For example, in recent videotaped testimony on General Assembly HB 331 (a bill which would make some minor changes in the statute) one person explained that she was chagrined because she graduated from the state's University System, now the poster child for evading the law.

A news article -- excerpts below -- looks at the regents' response to the first of two complaints the November secret meetings generated. Read it all.

In essence, the regents' attorney argues that no law was broken because no vote was required or taken. These guys were just sitting around talking. Well, sitting on their phones talking on Sunday, and sitting around talking on Monday.

No one has found out when the contract was signed, though the January 22 letter responding to a couple of Open Meetings complaints hints that it must have been sometime on Sunday, Nov. 18. Perhaps it was that evening.

Response letter: Scribd

If the contract was signed after Secret Meeting #1 and before Secret Meeting #2, the question becomes, why was Secret Meeting #2 held secretly? You might suspect it was to pave the way for a nice smooth press conference later on the morning of Nov. 19, rather than for any legitimately confidential purpose.

Public document requests for the signed contract from at least two newspapers (a national one and a local one) haven't been successful, so far, in turning up anything. It's as if the contract was deliberately hidden away so no one could find it through the usual document request procedure without a nice, long delay.

CHESTERTOWN - After they broke the law in two November meetings, the University of Maryland Board of Regents faced a pair of complaints to the Open Meetings Compliance Board. In a Jan. 22 letter, the university system responded. Their two unannounced meetings were right in the middle of the controversial Big Ten conference switch. The administrators didn't notify the public of Nov. 18 and 19 secret confabs.

At first, they denied any obligation to hold public meetings in a news release Nov. 21:

“We sincerely regret that the need to deliberate and consider endorsement of the application to move to the Big Ten within a given timeframe has led some to believe that the USM Board may have violated the process by which public boards are allowed to convene in closed session. The board takes its public responsibility seriously and, in continued consultation with the Office of the Attorney General, is vigilant of its processes and procedures.”

In a Dec. 7 press release, College Park President Wallace Loh and Chancellor William Kirwan admitted wrongdoing:

“The board and USM officials acknowledge and sincerely regret that the public notice and closing procedures required by the Maryland Open Meetings Act were not followed with regard to the two sessions.”

They said the public wasn't going to hear anything more because Open Meetings Act complaints had been filed. But they also insisted there were no other violations, and the regents have been silent since Dec. 7.

The 24-page letter tries to back up the claim.

Was the Non-Disclosure a Pretext?

Jenna Johnson at the Washington Post obtained the Big 10-College Park nondisclosure agreement. It was signed Oct. 2. The PDF is here, and it sure looks like standard stuff.

All through the uproar that followed the decision and secret meetings, the NDA was brought up as the reason it was all so secret. Though, as Johnson points out, the NDA did not exclude the Board from seeing the materials. From their various public statements and the Jan. 22 letter, Wallace Loh and William Kirwan of UMCP and the UM System, respectively, appear to have made a decision to keep the regents in the dark until the last possible moment. And then they were stuck, because there was a deadline and the regents had to be informed, and so there were hush-hush meetings.

If the contract was signed after Secret Meeting #1 and before Secret Meeting #2, the question becomes, why claim that the nondisclosure agreement applied to everything? If nothing else, a blanket claim was misleading to everyone.

An NDA Doesn't Trump State Law

And also, #3 in the NDA says: "Unless required by law ... neither the Conference nor Maryland shall ... disclose to any person that (a) the conference or Maryland are or may be contemplating this Transaction with each other or any other person or (b) any of the terms ...."

Since the Open Meetings Act requires public discussion of public business unless it fits into one of 14 fairly narrow, fairly strict categories, we can see that the NDA does not and cannot control the regents' behavior when conducting a meeting.

Even if the regents could fit their meetings into one of the categories, a certain amount of disclosure in public immediately before a closed meeting is required by law too.

So the excuse seems unconvincing.

Still TBD: Will Anyone Sue?

Unfortunately, despite the many UM law grads, it seems no one has gone the whole hog, suing the regents over the secret proceedings.

Generally, there is a 45-day statute of limitations on suing for an alleged violation of the Open Meetings Act. The language found in the law is a masterpiece of nonclarity for anyone in the general public:

(2) If a violation of § 10-506, § 10-508, or § 10-509(c) of this subtitle is alleged,
the person shall file the petition within 45 days after the date of the alleged violation.

506 is the Notice Requirement; 508 is the Closed Session Procedure Requirement; 509 is the Minutes Content Requirement.

(3) If a violation of § 10-505 or § 10-507 of this subtitle is alleged, the person
shall file the petition within 45 days after the public body includes in the minutes of an
open session the information specified in § 10-509(c)(2) of this subtitle.

505 is called "Open Meetings Generally Required" and 507 governs Public Attendance.

(4) If a written complaint is filed with the Board in accordance with § 10-502.5
of this subtitle, the time between the filing of the complaint and the mailing of the
written opinion to the complainant and the affected public body under § 10-502.5(g) of
this subtitle may not be included in determining if a claim against a public body is
barred

Normally, the 45 days would have been roughly to January 1, 2013 (starting Nov.18/19). However, if the suit alleged violations of 10-505 and -507, the clock would be running from around Dec. 8 or 9, when the minutes of the secret meetings were publicly available.

To this non-attorney, it seems that the clock stopped anyway when the two complaints were filed in early December, and after the Opinion is issued, anyone could file a suit (though they would have to move quickly).

Whether that will happen is an interesting question. Open Meetings Act lawsuits in Maryland, in its 22-plus-year history, are practically unknown.

Crossposted at Daily Kos.

Terpworld IV: the Response

The UM regents defend their Open Meetings Act irregularities to the Open Meetings Compliance Board.

http://www.splc.org/news/newsflash.asp?id=2516

The Student Press Law Center writes about the University of Maryland regents' response to open meetings complaints filed in December.

The PDF file of the regents' response is here:
http://www.scribd.com/doc/122791445/University-of-Maryland-Regents-reply-to-Open-Meetings-Complaint-1.

TerpWorld III: We Were Wrong. Kinda.

Yes, nearly a month after back-to-back secret meetings about jumping the conference barrier into the Big Ten, the University of Maryland press staff issued a *new press release.*

(Transparency by press release is an interesting concept, but one which doesn't have any standing under the Maryland Open Meetings Act.) The full press release is below. After claiming over and over, in press conference Nov. 19 and in PR, that they had a legal right to meet secretly without telling anyone, the regents now whistle another tune. And it’s not a Christmas carol.

When folks first called them out, they said things were fine in a Nov. 19 press conference, and repeated that in a PR statement Nov. 21:

Joint Statement from Board of Regents Chair James L. Shea and Chancellor William E. Kirwan

Adelphi, MD (November 21, 2012) Questions have been raised about the process by which the University System of Mary-land (USM) Board of Regents convened in closed session to discuss the University of Maryland, College Park’s (UMCP’s) move from the ACC to the Big Ten. ...

With the advice and counsel of the Office of the Attorney General, the board convened in closed session and voted to endorse the university’s application to the Big Ten. 

Some also are reporting that the USM Board of Regents is not allowed to vote in closed session. That is inaccurate. The Maryland Open Meetings Act does not preclude public boards from taking action in closed session.

We sincerely regret that the need to deliberate and consider endorsement of the application to move to the Big Ten within a given timeframe has led some to believe that the USM Board may have violated the process by which public boards are allowed to convene in closed session. The board takes its public responsibility seriously and, in continued consultation with the Office of the Attorney General, is vigilant of its processes and procedures.

And now, Dec. 7:

The board and USM officials acknowledge and sincerely regret that the public notice and closing procedures required by the Maryland Open Meetings Act were not followed with regard to the two sessions.

Issuing a press release as an apology is a nice thing. The Maryland Transportation Authority has never owned up to its many open meetings violations in public statements. Few public bodies ever do. But it doesn't get you off the hook, and we still don't know enough about the secret meetings. Really, I still can't understand how intelligent and experienced people blew right through the statute on the days of the meetings, and then issued "meeting notes" which aren't sufficient as legal minutes, all with their taxpayer-paid Assistant Attorney General right there on hand.

Moreover, in September 2011, the Maryland Transportation Authority did almost exactly the same thing; got caught (by me) and came out on the short end of an Open Meetings Compliance Board opinion. These opinions are public, posted online, and apparently no one associated with the regents has ever reviewed them.

They are essential to understanding what's inside the bounds and what's not, based on each individual situation where someone -- a citizen or a journalist or even a public official -- thought the law was broken and wrote it up.

For example, did you know that a secret vote (i.e., in a closed meeting) is legal, but that who voted how is required to be re-ported in the summary of the secret meeting? Yep. You'll find that in one of the Opinions online.

In November, the Terp Leaps

Jenna Johnson, blogging for the Washington Post, first brought to light the Sunday (Nov. 18) and Monday (Nov. 19) meetings which went on without any public notice. They resulted in a vote which the regents say wasn't legally required, to "bless" the Big Ten Leap.

See http://www.washingtonpost.com/jenna-johnson/2011/02/16/AB6ArDH_page.html for her three posts, with a direct link to the most recent:

U-Md. under fire for possible Open Meeting law violation NOV 23

Details emerge about University System of Maryland regents’ private meetings NOV 21

Legality of University System of Maryland’s Big Ten vote questioned NOV 20


Frank Lomonte, who heads up the Student Press Law Center, in Arlington, Va., picked up on that when Johnson called them for comment. See --

University of Maryland regents approved move to Big Ten in closed session

and a second one asking what sensitive information was being protected.


Writers at the Baltimore SUN followed up. Ralph Jaffe, who has run for office as a write-in Democrat several times, filed a brief complaint with the Maryland Open Meetings Compliance Board.

See Julie Scharper's article here:

Teacher says Big Ten decision violated open meeting laws / Pikesville man files complaint over closed Board of Regents meeting

Meanwhile, the regents kept up vague explanations which made it sound as if the Maryland Attorney General, Doug Gansler, had given them personal permission to have the secret meetings.

As it turns out, it was their embedded attorney, an Assistant Attorney General named Faulk, who they indicate gave them the advice. (But to be completely clear, at no point has anyone raised their hand and said, "I'm the one who gave the bad advice." It's always a ghostly bureaucratic flash mob of people who may or may not have done something, may or may not have said some-thing, may or may not have broken the law, all happening in the passive voice, of course).

The amount of confustication over whether those meetings were illegal, whether the regents had conducted a meaningless vote, whether they'd have to have it all over again in public, prompted my first diary on this, An idiot's guide to Maryland Regents Open Meetings.

When they released some "meeting notes" on Dec. 3, I looked very closely at them. That's because written records of a meeting, no matter what you call them (call 'em B'rer Rabbit if you like) are legally *the minutes.* The minutes say that Faulk explained some legal stuff about the closed meeting, etc., (actual details unspecified) to the regents.

That prompted another diary, Those Wacky Regents: II

The Regents Admit They Were Wrong

... but still think they were right. The Dec. 7 press release *also* says:

However, the matters discussed at each meeting were proper subjects for closed-session discussions in accordance with the Open Meetings Act.

Maybe yes, maybe no. Technically speaking, that can't be true, because once you hold an illegal closed meeting, whatever you discussed was illegally discussed, even if you would have been able to summon one of the law's 14 exceptions which allow barring the public from particular discussions.

You can't use the Wayback Machine or the press office to undo the basic fact of the illegal meeting.

Where there is a dispute -- and there is here -- the referee is the Open Meetings Compliance Board. The ref steps in only if someone gives them a written complaint (In the dark ages, it was paper letters. Now PDFs are fine as long as there is a scanned signature). They don't indicate why they believe they were sorta-right; and they don't address the issue of the bad minutes. Both of those remain to be worked out.

So I continue to be baffled by the press releases from a whole posse of more or less shadowy people. If it's a group apology, why are the 17 regents' names missing? The Chancellor, Kirwan, has no connection to the regents' activities under the Open Meetings Act, any more than a school superintendent would be responsible for an illegal meeting conducted by his or her school board.

There's a place where the buck stops, and it's not with a collective entity, though all members of the public body share basic responsibility for their compliance with the Open Meetings Act. From the point of view of the Open Meetings Compliance Board, the buck stops with the presiding officer. So the regents' chairman, James Shea, is solely responsible under the law for proper open meetings procedures, and for making certain that things like contracts, pending legislation, and policy matters, are not discussed behind closed doors.

The complete 12/7 press release is:

Statement on Board of Regents Closed Meetings

Adelphi, Md. (Dec. 7, 2012) -- As has been reported, the University System of Maryland (USM) Board of Regents met on November 18, 2012, and November 19, 2012, in hastily convened closed sessions to consider confidential information about the University of Maryland, College Park's (UMCP's) application to move to the Big Ten. The representative of the Office of the Maryland Attorney General who serves as the board's general counsel was present at each meeting.

The board and USM officials acknowledge and sincerely regret that the public notice and closing procedures required by the Maryland Open Meetings Act were not followed with regard to the two sessions. However, the matters discussed at each meeting were proper subjects for closed-session discussions in accordance with the Open Meetings Act.

As both USM Board Chair James L. Shea and USM Chancellor William E. Kirwan said in an earlier statement, UMCP's move to the Big Ten did not require the board's approval. But it was important to both the university and the system that the board understand and support the implications of such a significant move. 

The USM board and officials and the Attorney General's Office are thoroughly reviewing their practices to ensure that the USM vigilantly adheres to all of the Open Meetings Act's procedural as well as substantive requirements.

Recently, USM regents and officials learned that a complaint has been filed against the Board of Regents with the Maryland Open Meetings Compliance Board. The USM board will participate fully in the compliance board's process and looks forward to the compliance board's conclusions and instructions on the practices for meetings that must be held in executive session on short notice.

Those Wacky Regents: II

When Maryland jumped to the Big 10 on Nov. 19, it did so after a couple of hastily arranged secret meetings by the Board of Regents, with university administrators. Even though the chairman of the regents said these were not, under state law, "meetings," there are now draft "meeting notes" online for approval at the regents' Dec. 7 meeeting.

The regents apparently first heard of this on Nov. 15; by Saturday the 17th they were told there would be a conference-call meeting the next day.

The “draft meeting notes” of two secret meetings were made available on Dec. 3 and they are contained online in a link on the agenda for the upcoming meeting.

They do answer a few questions about who was there and what was discussed.
They say, in full:

DRAFT
University System of Maryland Board of Regents
Special Meeting on November 18, 2012
Meeting Notes

The Board held a Special Meeting on November 18, 2012 in Executive Session via conference call at 4:30 p.m. Those on the call were: Chairman Shea, Regents Attman, Florestano, Gooden, Hance, Hershkowitz, Johnson, Kelly, Kinkopf, McMillen, Michaux Gonzales, Gossett, and Young; Chancellor Kirwan, Vice Chancellors Raley and Vivona; Ms. Doyle; other USM office and institutional staff and Assistant Attorney General Thomas Faulk. 

A. Chairman Shea noted that the meeting was in closed session and the regents were advised by Assistant Attorney General Faulk regarding the confidentiality and other legal issues pertaining to the closed session.

B. The regents were briefed on the proposal for UMCP to move from the ACC to the Big Ten.

C. The regents were briefed on the status of an ICA review for Towson State University.

University System of Maryland Board of Regents
Special Meeting on November 19, 2012
Meeting Notes

The Board held a Special Meeting on November 19, 2012 in Executive Session at 8:30 a.m. The meeting was held at UMB, Saratoga Building, 220 Arch Street, Baltimore, in the 14th floor conference room. Regents participated in the meeting via conference call and in person. Those participating in the meeting were: Chairman Shea, Regents Attman, Florestano, Gooden, Gossett, Hance, Hershkowitz, Johnson, Kelly, Kinkopf, McMillen, Michaux Gonzales, Reid and Young; Chancellor Kirwan, Associate Vice Chancellor Moultrie; Ms. Doyle; other USM office and institutional staff and Assistant Attorney General Thomas Faulk.

A. The regents continued the discussion from November 18 on the details of the Big Ten proposal to UMCP to join the league.

B. The regents were provided with additional detail regarding the proposal for the UMCP move from the ACC to the Big Ten. After discussion, thirteen regents endorsed the UMCP application to the Big Ten; one regent did not endorse the application.

C. The meeting adjourned at 10:30 a.m.

If you were inclined to pen a complaint for the Maryland Open Meetings Compliance Board, it might cover these items:

No Recorded Vote to Close
The minutes fail to record a motion and vote to close the meeting. Rather, on Nov. 18, they record a diktat by the chairman that “the meeting is closed.”

Mandatory Citation
The minutes fail to give a specific statutory citation for each closed session topic.

Topics
Apparently the topics were “UMCP to move from the ACC to the Big Ten” and something indecipherable, an “ICA review for Towson State University.” A topic must be meaningful, not jargon or boilerplate, in order to satisfy the Open Meetings Act.

Reason for barring public from Discussion of Each Topic
The minutes fail to identify the reason for closing the session for either topic.

People Attending
The minutes fail to identify who was present, specifically. The boilerplate “other USM office and institutional staff” does not fulfill the statutory requirement. And were one or more officials from the Big Ten also participants?

Actions Taken
The minutes fail to identify what actions, if any, was taken at the Sunday meeting. We assume from news reports and the university officials’ statements that one action was to agree to meet secretly again on Monday morning. Apparently the followup was set up via email shortly after non-“adjournment” of the Sunday meeting.

Adjournment Motion and Vote (an action) Not Recorded
The minutes fail to note when the Sunday meeting was adjourned. However, it had to be adjourned, because:

Closed Sessions cannot be “continued.”
On Monday, “The regents continued the discussion from November 18 on the details of the Big Ten proposal to UMCP to join the league.” Unfortunately, this requires separate meeting notice; convening in open session; and a properly handled vote to close the session to the public.

Failure to Notify Public of Location
We note that the Monday meeting was held away from the location of a previously scheduled regent committee meeting, which gives the appearance of deliberately seeking to avoid the press and the public. After all, by Sunday night, word had leaked out about the Big Ten discussion.

Votes Must Be Recorded
Merely saying “thirteen regents endorsed the UMCP application to the Big Ten; one regent did not en-dorse the application” does not provide the legally necessary information on the motion and vote, in-cluding who voted and how. See 7 OMCB 237.

Minutes are Minutes
We note that minutes are minutes, not matter what they are called, and they are required to present certain minimum information for the public. Calling minutes “meeting notes” does not excuse any public body from its statutory obligations to provide accurate, informative minutes.

The interested reader is directed to several OMCB Opinions on the web:

8OMCB46
We point without hesitation to the MDTA and 8 OMCB 46 on the subject of “emergency” meetings held without sufficient public notice, that is, the Sunday confab; and a meeting “convened in closed session” – a legal impossibility.

7OMCB237
“Minutes to disclose how each member votes when a recorded vote is required.”

5OMCB184
We also point to Chestertown and 5 OMCB 184 on the subject of “continued” closed sessions, that is, Monday’s secretive gathering and vote. Which makes Monday’s meeting an illegal closed session, be-cause it is not possible to legally “continue” a secret meeting to a secret future time and place.

The Idiot's Guide to Maryland Regents Meetings: I

Who told the regents of the University System of Maryland to go ahead with their secret meetings?

In this post, we find an answer by way of a few detours into the workings of the Open Meetings Act and Maryland's Office of the Attorney General.

There are so many confused and plain wrong notions floating around about this in comments on various blogs and websites it's time for facts. Lightly spiced, in this case, with opinions. So an idiot's guide, if you will.

In the case of the regents, and typically in every other case where secret meetings are going on, it's not all about "undoing the vote" or "was it strictly legal."

It's about how the public is treated as an afterthought by state and local government people. It's about the appearance of secret dealings. It's about eroding the public trust and their right to know, year after year.

It shouldn't be necessary for the press or public to call them on it, but it seems that things deteriorate until finally someone does.

So.

When a "public body" starts swerving all over the road because it doesn't pay attention to the Open Meetings Act, my blood pressure goes up and my eyes bug out. It's no pretty sight.

You've got a right to look at the meeting records.
Full stop.
It's not debatable.

When the university regents held two secret meetings on November 18 and 19, voting in the second to support a move to ditch the ACC in favor of the Big Ten, they very clearly violated the Maryland Open Meetings Act. But not because of their vote.

A quorum was present.
That's a meeting. (And no, it doesn't matter who wanted to have the meeting).

They didn't notify the public of the "emergency" meeting.
They did not notify the media of the "emergency" meeting.
(It's specifically recommended that the news media get a call, fax or e-mail if there's an emergency meeting. That's basic open meetings CYA. And remarkably enough, often ignored.)

All meetings have to begin in open session.
These didn't.

Washington Post reporter Jenna Johnson noticed the skullduggery, and asked about it in a televised press conference [the link to the presser is very annoying and is not given here]. Then stuff started to get weird.

The public got upset and the news media yakked more about the Open Meetings Act in three days than they'd heard in the prior three years. Competing explanations came from the UM administrators.

Post blogger Johnson is a standout for her determined coverage. She took the open meeting problem seriously; asked the bigwigs about it during their presser; and went on to create a timeline of who-knew-or-said-what-when.

But even that wasn't enough to derail the regents' idea that they know the law better than anyone else, and can do what they did anytime they like.

UM spokesman Mike Lurie said they didn't have to tell anyone because it "was scheduled as a closed session," or words to that effect.

There were also some vague references to "executive session," a bit of bureaucra-jargon that cannot be found in the Open Meetings Act's text.

Jim Shea, regents' president, said, "According to the Attorney General we followed all the procedures we were expected to follow ..." Shea is one of several attorneys on the board. You have to assume that they are prominent in their profession and wonder why the all the confusion.

Bill Kirwan, the UM system's chancellor, said essentially the same thing (though he has no real connection to regents' open meetings compliance or noncompliance; he is not the chairman of the board).

The remarks went out in a televised press conference. There was a press release dated Nov. 21 which was, I guess, supposed to clarify and mollify; it should be titled "Kinda Right, and a Who'Lotta Wrong" --

"Questions have been raised about the process by which the ... Regents convened in closed session to discuss the University of Maryland, College Park's (UMCP's) move from the ACC to the Big Ten. This board is the governing body of the 12-institution USM; UMCP is the system's flagship.

"Under current USM policies on intercollegiate athletics, UMCP's move to the Big Ten did not require the approval of the USM Board of Regents. However, it was important to both the university and the system that the Board of Regents deliberate on a move of such significant magnitude.

"With the advice and counsel of the Office of the Attorney General, the board convened in closed session and voted to endorse the university's application to the Big Ten.

"Some also are reporting that the USM Board of Regents is not allowed to vote in closed session. That is inaccurate. The Maryland Open Meetings Act does not preclude public boards from taking action in closed session.

"We sincerely regret that the need to deliberate and consider endorsement of the application to move to the Big Ten within a given timeframe has led some to believe that the USM Board may have violated the process by which public boards are allowed to convene in closed session. The board takes its public responsibility seriously and, in continued consultation with the Office of the Attorney General, is vigilant of its processes and procedures."

Well, part is right: there's no law against a secret vote, or any other secret decision, in a properly closed session. There are a couple exceptions to this, and they are spelled out in the Act. Whether secret votes are worth the ill will is another question. Some public bodies have, in their bylaws or enabling legislation, a requirement to hold all votes in public. But the state doesn't require it.

As for the press release, take the rest as gospel at your own risk.

Under the statute, whenever there's a closed session, there are certain procedures and other disclosure requirements; we won't much go into specifics right now, but it's becoming clearer and clearer the regents didn't bother with them.

A press conference after the fact doesn't come within miles of satisfying the regents' legal responsibilities.

The regents are required by law to turn over closing statements from closed sessions on request, within a business day, according to the Open Meetings Compliance Board.

None have surfaced from Nov. 18 and 19. Lurie said in an email over a week later, there are none.
If not provided, law broken, end of story.
If none, law broken, end of story.

Minutes which record the open session convening, and then voting to hold the secret meeting must be prepared and approved.
If none, law broken, end of story.

There also has to be a summary of actions taken, including who voted on what and how.
If none, law broken, end of story.

The summary must be published in the minutes of the same date as the closed session or not later than the "next open session." That would be Dec. 7.
No summary, law broken, end of story.

But We Had Permission!

News reports had it that the "Attorney General" or "AG's office" told UM officials it was OK to have the secret meetings. The UM public relations department and university officials put it out in several flavors and have since told me - and the Baltimore Sun - they have "no further comment."

There's one problem with that: how the Open Meetings Act works.

No one in the Attorney General's Office should be providing advice on the Open Meetings Act except Ann MacNeille, the staff attorney for the Open Meetings Compliance Board.

See http://www.oag.state.md.us/Opengov/Openmeetings/index.htm.

And by policy, her office provides general advice, not specific advice, and most certainly does not "pre-approve" any public body's desire to hold a closed meeting or provide hints on strategies to elude public discussion of public business.

She does not tell them they don't have to follow this or that procedure.

The loose talk about permissive Attorney Generals led Julie Scharper of the Sun to write:

"Both the board president and Kirwan contend that the board's action in closed session was proper. According to Kirwan, Maryland Attorney General Douglas F. Gansler has said that the Board of Regents did not violate open meeting laws."

See http://articles.baltimoresun.com/2012-11-26/news/bs-md-open-meeting-complaint-20121126_1_regents-state-open-meetings-law-open-session'

But there's a knot in that, too. Written Open Meetings Act complaints are the only way to resolve a dispute about whether a particular public body followed the law in a particular case, and they cannot be submitted until after the fact.

Gansler - any lawyer - could certainly offer an advance personal take on whether or not a public body should try to do something, but it's even less meaningless - or is that more meaningless? - than any offhand legal comment from any member of the Maryland Bar.

Why? Because that's not the way the Open Meetings Act works. Public bodies are supposed to be aware of, and responsible for, behaving correctly under the statute. They can't pass that off onto anyone else.

"Correct" includes having an open session if there's a gray area or judgement call - not the other way around.

It most certainly includes sticking exactly to the items identified in the open meeting as the topics of discussion. Mentioning them later doesn't count.

They - not their attorney, or some other attorney, or Doug Gansler - are the ones responsible for the decision to exclude the public and to conduct (or not) the secret discussion strictly in accordance with state law.

To Scharper's credit, she tried calling Doug Gansler's office. As no one bothered to respond, not even to dispel serious public confusion about whether UM bigwigs would have a personal inside line to Maryland's Attorney General, we can guess that clarity on Open Meetings Act issues is not Gansler's top priority.

I emailed Scharper to find out whether she got Gansler's involvement directly from Kirwan.

No, she took the words at face value from the news conference:

"I was indeed referring to Kirwan's remarks at the news conference. ... he did say 'the Attorney General.' I did not speak with Kirwan for the most recent story. A spokesman said he had nothing to add from his previous statement."

So even though Kirwan misled people and contributed to unnecessary confusion, the press office is ready to say he has nothing to add. No one here is saying the Shea's and Kirwan's intention has been to mislead the public, but that's what happened. So far, the university hasn't even gotten around to saying anyone "misspoke," a one-size-for-all-gaffes word that has become far too familiar.

Folks, it's easy enough to issue a two sentence release, or a tweet, for heaven's sake, which contain the straight dope, rather than hiding behind the tired rhetoric of stonewalling.

The Whodunit.

And finally, the real story is out. We know who gave the advice before (?) the secret meeting. (We still don't know if it was verbal, written, or an e-mail; or precisely when it was solicited.)

Strictly speaking, it should have been offered to Shea, as the regents' presiding officer, and not Kirwan.
That's because, under the statute, the presiding officer is the one responsible for making sure a public body complies with the Act. We can assume for now that it was.

Given that, Bill Kirwan probably shouldn't have spoken for the regents' chairman on this point, any more than a county executive should explain what it is the chairman of a county council meant.

From the confusion comes one lesson: it's clear there's a disconnect: tremendous ignorance, complacency or confusion among the regents and administrators about their statutory obligations and where the lines are. Maybe all three. It would be nice to know which.

According to an email from Lurie on Nov. 27, the advice came from "Thomas Faulk, the chief of the educational affairs division at the Office of the Attorney General, and counsel to the University System of Maryland and the Board of Regents."

He's the house counsel.

Assistant Attorney Generals in a captive relationship to, say, the Maryland Transportation Authority or the Critical Areas Commission have advanced fanciful interpretations of the Open Meetings Act. Other times they have given the wrong advice -- assuming, that is, they were asked - or come up with arcane after-the-fact justifications.

The Opinions of the Open Meetings Compliance Board - see http://www.oag.state.md.us/Opengov/Openmeetings/board.htm - have instances where an Assistant Attorney General has been wrong. Not just wrong on an arcane point, but subtle-as-a-flying-mallet wrong.

Absence of action is more pernicious and might be more common. In at least one case which I witnessed in person, an AAG sat next to the chair of a Critical Area Commission "panel" while a meeting was illegally closed, and said and did nothing. And then claimed they had proceeded according to the law.

And then her superior claimed that the "panel" wasn't really a public body. Oops. Wrong. It is.

And should you see something go right past an AAG, you will be interested (probably not surprised) to learn there is no procedure for a citizen to contact the Office of the Attorney General and alert them. There's no "ombudsman" and no one who handles questions about AAG behavior. Remember, the Open Meetings Compliance Board addresses the behavior of the public body: not the lawyers.

If a county roads employee treats you badly, you can complain to the county administrator or executive. You'll be taken seriously, at least most of the time.

Unlike a low-level county worker, it appears that there's zero accountability to citizens and taxpayers for these AAGs. It's one thing to argue in the interests of your "client." It's another to try to get them off the hook for blowing off the public's right to witness the conduct of public business and coming up with stuff that's just plain wrong.

So now we know the truth. It was not "Attorney General Doug Gansler."

It was not the proper individual within the Office of the Attorney General.

It was an Assistant Attorney General, whose salary is paid by taxpayers, who sits in on all the regents' meetings. And why would he tell them they can't do what they want to do?

So why couldn't Kirwan and Shea simply say from the very beginning, "We asked our attorney, Tom Faulk, who said it was OK."

I don't know why, but it does not make for, as the pundits say, good optics.

Maryland's Dreadful Gov't Transparency

Note: My comments in response to Len Lazarick's short article, with some additions that I suppose make it an expanded cross-posting.

Len's article on his visit to the Maryland General Assembly's Joint Committee on Transparency and Open  Government, from marylandreporter.com ...

http://marylandreporter.com/2012/10/18/committee-asks-for-recommended-changes-in-open-meetings-act/

My response:

Be happy to help. My experience has been that the "Transparency Community" in Maryland is fragmented and doesn't talk / communicate enough. There doesn't seem to be a critical mass which supports a Google Group type mailing list. I know of a few folks who monitor FOIA-L out of Syracuse.

Perhaps not unsurprisingly, people tend to focus on either the PIA or to a lesser degree the Open Meetings Act (each one is essentially a fulltime hobby - I don't know of anyone in the state who works a 40-hour week concentrating only on one or the other).

So open meetings are Maryland's red-headed stepchild among all constituencies.

Outreach, Training and Involvement

Citizens know when they're being bamboozled or railroaded, but they don't know they do have an effective tool in the form of a complaint. Bringing something to light is its own virtue, even if there are no real teeth to the law, as Len has pointed out. (In Oklahoma, they can show up and take you, the elected official,  out in handcuffs. Someone ask Gov. O'Malley if he thinks Oklahoma is a more progressive state than Maryland).

I have had the opportunity to help/critique open meetings complaints for a few people who are outside my immediate area and I'm always happy to try. They've found me through various Google searches, I guess, or maybe my very occasional blog. I routinely drop notes to writers when I see Open Meetings topics on websites, though to hear back is rare.

I also offered to come and give the journalist-eye's-view to MACO attendees, but was told their setup, where the seminar presented by lawyers, is used for their "continuing education" academy, does not accommodate something like that. That's a shame, and pretty darned shortsighted in my opinion.


As Len points out, there isn't much pain associated with violating the Open Meetings Act and getting caught.

Of the few cases that have gone to court, we see one which would appear to be open and shut now going up for another appeal.

Appeals board broke open meeting law
State court sends WSG case back to county panel
By PAUL S. WARNER, Staff writer

The Maryland Court of Special Appeals sent a case pitting a Washington, D.C.-based defense contractor against Nanjemoy residents back to the county Board of Appeals because the board violated due process protections and the state Open Meetings Act, according to an opinion the court filed Friday.

The opinion, penned by Judge Robert A. Zarnoch, states that the Board of Appeals violated constitutional guarantees of due process and the Open Meetings Act by “conducting a meeting closed to some members of the public at which the merits of the case were discussed, not made a part of the record, but nevertheless relied upon by the Board.”

Considering you might get costs back, and you might get a fine of $100 per member of the public body, who has the time and spare cash to take a flyer on something like this? The complexity of the arguments in the appeal shows just how weak the Open Meetings Act is.


In a word, the law is structured to force the public into court for penalties to be assessed; the penalties are silly; it's a yawning time and treasure sink; and the net effect is that no one bothers. That's the definition of "a chilling effect" on the public's rights.

Yet electeds and appointeds are the same people who are quick to cry out that open meetings complaints "waste taxpayer money" because they themselves elect to pay an attorney to answer the complaint(s). Please note that there is no requirement in the law for attorneys to be involved in the complaint process; and assorted attorneys have come up with some real doozies in their responses over time. I just wish I could bill their rate for some of the same type of wild concepts.

Interestingly, the big penalty a public body pays if it's faced with alert citizens who file complaints is legal budget overrun. On the other hand, that doesn't seem to be much incentive for lawyers to work hard to have public bodies avoid complaints. It seems a little odd, in fact a conflict of interest, for the very attorney(s) who fail to train and advise their clients on the Act's simple requirements to be allowed to bill the same client to answer a complaint. It's just as bad when the attorney who's doing the work is paid by taxpayers because he/she is an assistant AG.


It is true that responding to a complaint through an attorney is a waste of taxpayer money, but not for the reason the electeds and appointeds think it is. First of all, it's.their decision to hand it off to the attorney. Second, it decouples the public body from the consequences of its own actions. The Open Meetings Compliance Board is very clear that final responsibility rests with the presiding officer of the public body. (NOT with a handy attorney.) In my experience, there's very little learned when a body's told to shape up. In one case, electeds in Carroll County have sent out press releases saying a finding of an open meetings violation was not.

This sort of doubletalk should not be permitted. If the county's cutting a check to pay a fine for a violation, it's a lot harder to claim that you've been vindicated in your innocence.


If the purpose of the Compliance Board is education, then the most educational way to handle this would be to require the presiding officer to pen the response ... including a sworn affidavit from the official that the work is their own, and not ghosted by that handy attorney ... it's a small thing, but perjury gets more attention than failing to tell the public that there was a secret vote.

If the purpose is to inflict a little pain when there are potential violations, perhaps a mandatory personal appearance in Baltimore by the presiding officer would be useful. Gas is expensive and there's a dollar value to everyone's time.

I've proposed (in a letter to the OMCB) that every public body be required to hold a public meeting in which they discuss any complaint and the subsequent Opinion in an open forum, within 30 days of receiving the Opinion. This is educational, and again, surely results in some pain for those found violating the Act.

The length of service of the attorneys or members of the public body has no correlation with the ability to comply with the law. That points to totally inadequate training. And frankly, if penalties are somehow made more likely and more, well, punitive, the length of time the public officials or others have been exposed to the law's requirements should factor in. For example, a mayor who's been in office 20 years has, absolutely literally, no excuse for ever finding a complaint on his or her desk about the Mayor and Council's handling of meetings.

Under the rubric of "legal advice" public bodies are allowed to talk in closed session with their attorneys about Open Meetings complaints and opinions. This serves no good purpose, and I can document at least one occasion where the "legal advice" exception was abused to discuss a parliamentary ploy to avoid any action in open session on an open meetings question.


Is that the law we want? A one-sentence amendment ends the opportunity for that abuse in the future: "Any discussion of an Open Meetings Act complaint or Opinion, including legal advice, shall be held in open session before members of the public; and no exception in this Act shall be construed to apply."

The Crux

Anyway, the real question is a structured approach to this hydra-headed monster by the citizen community.

You can find about 100 sunlight organizations nearby, and they all focus on the federal government. As far as I can determine, there is simply nothing in Maryland which acts as an open meetings clearinghouse. MD-FOG is still on the books somewhere but it's moribund. The press association has dropped its support of open meetings training for journalists, as far as I can tell, and the ability to ask the MDDC for an atty's take on something has been gone for several years -- if not in theory, certainly in practice.

The efforts to make legislative workings more transparent through Web technology doesn't seem to have a deep connection with the Open Meetings Act itself. This doesn't see like it would be difficult to put together, but there's a blind spot, it seems.


It's a mystery to me why journalism schools in Maryland don't train their students about the state's Act and require some real-world experience: monitor a local public body, evaluate the notice and minutes processes they use, and file a complaint.

This is basic journalistic forensics, and given the low open meetings standard in the state, it's embarrassingly easy to strike pay dirt. But I'm not sure I've ever seen anything out of Capital News Service which deals with the Maryland Open Meetings Act. Why not?

I've tried -- maybe too half-heartedly, and maybe from too far afield at a weekly paper -- to open conversations with professors at the university. Crickets.

I've tried -- again, maybe not hard enough -- to locate pro bono legal help for some possible future Open Meetings lawsuits. I don't have any in mind, but there may come a time. Again, crickets.

Awards

MDDC, the press association, has an yearly "FOIA Award." Sometimes it is not awarded at all. Open meetings stuff gets shoehorned into that category. Why not a separate "Maryland Open Meetings Act" award? It should involve actual reportorial work, not just editorials. I'll put up $200 a year for the first prize.

Too Big for a Handful of People

As far as the Open Meetings Act, also, it covers such a broad area that each subdivision presents its own set of challenges.

I am certainly concerned about the newly-trendy "P3s" - public-private-partnerships, where as we say with the MDTA, the RFP and vetting process is almost 100 percent in secret because the Open Meetings Act is not explicit about them; and once the P3 has been set up, it would take a court case to pry the clamshell open.

An incomplete list -- there are probably 6,000 public bodies in this state and most get no scrutiny. But there are:

State agencies, as in pieces of the executive branch.
State "Commissions."
The Legislature.
State "Authorities." -- Like the MDTA or the NMWDA
State quasi-public "Corporations" -- Like the BDC or the Maryland Broadband Coop.
Local governments (councils, commissioners)
Local "Authorities"
Local Zoning bodies.
Local Property Tax Assessment Appeals Boards.
Cities and towns.

The Violations
Meeting notice gets a lot of attention, but in my experience, is not the most significant problem. Ongoing substantive violations which result in withholding required information are more common. All other things being equal, if a public body has a videotape of a meeting, or keeps extensive and accurate minutes, then the notice problem(s) are mitigated somewhat.

But a body that's conscientious (if rote) about notice, yet does a lousy job with the other records, does real damage to the public's rights. For example, it's not uncommon to take months, or even a year, to approve minutes. Why? This is not a difficult concept or a difficult process.

I have seen an Assistant Attorney General sitting right next to a meeting chairman, while he failed completely to close a session in the legally required fashion. Not a peep from the lawyer. In other words, their attorney allowed them to break the law. There should be consequences for attorneys who condone this. There should be requirements for them to speak up. Otherwise, it's a wink-and-a-nod and the public be damned.

I have read fantastical legal arguments concocted by an Assistant Attorney General hoping to dismantle or otherwise limit the scope of the law. This should never happen. It should be considered a serious ethical breach under the Bar Association's rules.

Do your best to wiggle out, but don't do it while ignoring the plain language in the Act which says it is to be strictly construed to favor open meetings.

Creative public bodies hoping to keep you away from their meeting records will often conflate the Open Meetings Act and the PIA, because the Maryland Public Information Act is hostile to the public and provides no recourse when something is conveniently classed, by the bureaucrats or lawyers, as "predecisional," or "attorney-client privilege," or some other such jive. The MDTA has pretty much written the book on this, and has also come out on the short end more often than not.

Where to Start

Therefore the Act needs to specifically address meeting materials in order to compensate for a poorly written Public Information Act -- what they are, when and how they are available. For example, if something "is incorporated in these minutes" then it's available, for free, immediately upon request, because, like it says, they're part of the minutes; it does not require a separate PIA request.

In my opinion, the most effective place to start is to make sure that minutes *and closing statements* are placed on a website in a searchable electronic format by all public bodies. If they can't do that, then they are to be provided, for free, within one business day. If the public body wants to make xeroxes and mail them, then they bear the cost. The lo-to-no-cost alternatives include faxing; scanned/emailed documents; or emailed documents in the original file format -- most likely Microsoft Word.


So we seem to be starting from scratch again. Maybe that's not a bad thing. But it appears we need a nonprofit advocacy/think-tank framework, no matter how small it may start off.

Washington County: Strike Two

Apparently, there's been more than one discussion of handing $100,000 over to prospective businesses by the Washington County Commissioners.

An incentive approval is described in the July 5 Herald-Mail by reporter Andrew Schotz:

An aerospace company is getting a five-year, $100,000 cash incentive to start operations in Washington County.

Mecaer Aviation Group, or MAG, of Philadelphia will do helicopter and fixed-wing maintenance, repair and overhaul at Hagerstown Regional Airport, according to Washington County Administrator Gregory B. Murray.

The Washington County Board of Commissioners unanimously agreed on Tuesday to give MAG an incentive of $20,000 a year for five years.

Please read the whole article ... it's short.

If this has been handled over two years like the "Cone of Silence" deliberations -- see the earlier blog post -- it's almost certain that we have a pattern and practice of Open Meetings Act violations in Washington County government. Given the extremely poor disclosure found in the minutes associated with the Cone of Silence, it's not even clear how many of these potential incentives the Washington County commissioners have talked about over the past one, two, five years.

That's not transparent local government.

One thing is transparent, however: a "unanimous vote" referred to in Schotz' article is what the Open Meetings Compliance Board refers to as a "ceremonial ratification" of a decision that has been made already. It does not rise to the standard of disclosure found in the law.