Friday, December 16, 2011

If You're Not at the Meeting, You Have a Right to Understand What Went On Anyway

You don't have to go to every government meeting to follow what your state and local government is doing.

Minutes, including the summary of what went on in a closed session, have to have enough detail so someone can read them and understand what was going on. There are any number of ways a public body, like the county commissioners, can violate the law with their minutes.

Links to the full Compliance Board opinions are at the end.

Two of the most common violations happen to be tardy minutes/no minutes and minutes with inadequate closed-session summary information. The OMCB has repeated this 15 different times in the recent past. You'd think, perhaps, MACO and MML's experts would seize upon this simple, easy-to-understand issue as one that can be flogged into public officials. (And, ditto, the people who head up state agencies). The Maryland Association of Counties and the Maryland Municipal League are lobbying, educational and professional associations for local governments; generally, they have been no friend to transparency. The rote excuse is that it "costs money."

Recently someone sent me a note about a county's attorney citing a 1995 Compliance Board opinion to justify delaying minutes for many months. Citing (95-3) is a clue someone is either ignorant of the Act, is blowin' smoke on the public payroll and simply doesn't care, or has been asleep for the past 16 years. The OMCB's opinions on various matters evolve -- rather slowly --  over time to reflect changes in the statute or in some cases, I'd guess, a degree of stubbornness among public bodies who simply make the same mistakes again and again.

Looking only at complaints which deal with illegally delayed minutes from the latest two volumes of Opinions ... it's clear the OMCB has gone over this ground many times and continues to do it. I have collected some of the OMCB's more recent opinions.

For example, this couldn't be clearer:

7 OMCB 80 
Creation and Approval of Minutes
'The Open Meetings Act requires that written minutes of a meeting of a public body such as the Town Council be prepared “[a]s soon as practicable after a public body meets.” §10-509(b). The minutes should be in a format that includes at least the information required by the Act – that is, each item considered at the meeting, any action that the Town Council took on an item, and each vote that was recorded. §10-509(c)(1). Minutes should also includes certain basic information concerning any closed sessions. See §10-509(c)(2). 

'Although special circumstances may occasionally result in some delay, preparation and approval of minutes should normally occur on a cycle that parallels the public body’s meetings – that is, the public body should ordinarily review and approve minutes for a meeting at the next subsequent meeting. See 6 OMCB Opinions 85, 87-88 (2009). Once draft minutes are adopted by a public body, they are to be open to public inspection during regular business hours. §10-509(d).
'Extended discussion of the circumstances of this matter is unnecessary as the Town has admitted that the Town Council had fallen nearly seven months behind in the review and approval of its minutes. Accordingly, we find that the Town Council violated the Act to prepare, review, and approve minutes on a timely basis. It is to be hoped that the initiative that the Town has undertaken to bring its minutes up to date will bring the Council into compliance with the Act.'
7 OMCB 118 
Talks about public bodies that "forget" to do minutes:
'There appears to be no dispute that the Peer Review Group was a “public body” for purposes of the Open Meetings Act. The response conceded that the Peer Review Group did not take the Act into account in holding its meetings, with the result that it neither prepared nor retained minutes and other documentation required by the Act. The response contended that these deficiencies were not intentional and asserted that the final report of the Peer Review Group, available on the Department of Transportation website, disclosed “its investigation process, information considered, its findings and the reasons behind those findings.”'
'Given the general admission in the response, there is no need to belabor the past defects in the meeting practices of this now defunct public body.
'However, two observations concerning minutes may be worthwhile. The first concerns the relation of the panel’s report to what is required under the Act. The publication of a final report, however comprehensive, does not satisfy the requirements of the statute for the preparation and retention of minutes. §10- 509. Even if a report issued at the end of a public body’s existence were to contain everything that would have appeared in minutes, contemporaneous minutes prepared in accordance with the Act will make that information available on a more timely basis. This may be critical to those members of the public who wish to keep current on the activities of a public body, when unable to attend its meetings.'

6 OMCB 164
Find a Way to Approve Minutes
'Minutes of every meeting governed by the Act must be prepared, even if the meeting is limited to procedural matters. 5 OMCB Opinions 50, 53 (2006).'The Open Meetings Act does not require a public body to post its minutes on a website. 3 OMCB Opinions 340, 343 (2003). However, the Act does make clear that minutes of open meetings “are public records and ... open to public inspection during ordinary business hours.” § 10-509(d). Because the Nominating Commission has no central office, the practice of making minutes available online appears an appropriate one.'... a recording does not satisfy the Act’s requirement for written minutes. § 10-509(b).
'The Act requires that the minutes of a meeting be prepared “[a]s soon as practicable” after a meeting. As a general rule, we have advised that minutes are to be available on a cycle paralleling a public body’s meetings. 6 OMCB Opinions 47, 51 (2008). However, we have also recognized that special circumstances might justify a delay. Id. However, when a public body only meets periodically, it is obligated to find a method to ensure that minutes are available to the public with reasonable promptness. 6 OMCB Opinions 85'

6 OMCB 85
Says to have:'... minutes ... prepared “[a]s soon as practicable after a public body meets.” § 10-509(b). As a general rule, minutes should be available on a cycle paralleling a public body’s meetings, with the only lag time being hat necessary for drafting and review; however, special circumstances occasionally might result in a limited delay. 5 OMCB Opinions 14, 17 (2006). As we have previously advised, the “soon as practicable” standard: permits a public body to take a reasonable amount of time to review draft minutes for accuracy and to approve the minutes.... The Act allows practical circumstances to be considered and does not impose a rigid time limit. ...
'However, we have also cautioned that routine delays of several months would be unlawful. 3 OMCB Opinions 340, 342 (2003) (six-week delay did not violate Act); 4 OMCB Opinions 1 (2004) (15-week delay unreasonable).
'In this case, we find that the nearly four-month delay in the availability of the Board of Zoning Appeals’ minutes violated the Act. We recognize that when a public body only meets periodically, as the need arises, assuring that the public has access to the minutes of its public meetings in a timely manner poses special challenges. Nevertheless, a public body is “obliged to find a way to meet the Act’s requirement that open session minutes be available with reasonable promptness.” 4 OMCB Opinions at 4. The Board of Appeals should follow the Town’s attorney advice to implement a process by which minutes can be approved by mail when a future meeting is not scheduled.'
And while we're at it, what happens if there's an illegally-closed session?

7 OMCB 264
Public Body that Conducts an Illegal Discussion 
in Closed Session Should Release Minutes
'While the Act does not require the County Board to disclose the minutes of properly-closed sessions, the County Board should disclose any minutes of discussions that it conducted in closed sessions, but should have conducted in public.'

Craig O'Donnell