Thursday, May 24, 2012

Washington County's Cone of Silence: Secrecy or Sloppiness?

Here's a great case study of how a news report - even if it's not, in the end, significant - can turn up serious problems with a local government's meetings.


A recent news report in the Hagerstown Herald-Mail (found online at the newspaper) referred to a closed session -- more than a year ago -- where the county agreed to provide $100,000 to an unknown business or developer.


[An update to the original story notes that the company probably won't be coming, and according to officials, only $50,000 was approved but they would go "up to" $100,000. The official quoted said the secret meeting was not for the sake of secrecy, but for "confidentiality." Apparently, an offer was made, but no money ever changed hands.

[See "... not likely to come."]



Despite the news that nothing's likely to come of it, that info doesn't change the Open Meetings Act violations that a quick look at their minutes reveals.


Maryland's Open Meetings Act establishes a minimum standard for public disclosure of government business, especially with county and municipal governments. When a group of councilmen or commissioners fails to live up to the minimum, it creates suspicion in the public's mind. It's the old saw: "Where there's smoke, there's fire."

It doesn't appear that the commissioners intended any sleight-of-hand, but it does look like they cut the corners on their closed sessions as a matter of habit.

When something like the supposed $100,000 payment comes to light, it's always important to reach back in time and check the public record. From the article, it seems no one knew about this proposed payment -- or the vote of approval, much less the meeting where the decision was made -- until someone looked at budget documents.

Clearly, there's something wrong if no one outside of a few elected officials and staff people knew about it at all. If one party wants to be anonymous, there isn't necessarily a problem with that. But a confidentiality agreement does not mean keeping the public in the dark.


Was the idea to keep the public in the dark? That's what it looks like at first glance, but as with many things that happen behind closed doors in government, it's not certain unless someone who was there pipes up. It's another example of how, when public business is conducted without sufficient disclosure, people will naturally suspect there's something fishy. Even if it turns out, as it seems here, that there was nothing particularly fishy or unethical going on.

Even without the fishy factor, though, a review of minutes shows the county is in violation of the Open Meetings Act's reporting requirements.


The Open Meetings Act is structured to allow for confidentiality when absolutely necessary, but it is not the governmental equivalent of Maxwell Smart's Cone of Silence. And excessive secrecy will cause citizens to get suspicious.

The place to look for more on this reported 2011 closed session is in County Commission minutes. And since it's described as a closed session, there is a second public document to find and examine called a "closing statement."

In essence, the investigative process is to check the procedural elements: a vote to close? a complete closing statement? do the minutes reflect the motion and vote? is there is a summary of the outcome of the closed session in the minutes?

If any steps are lacking, then the commissioners are not complying with the law.

This situation is an excellent opportunity to go step by step through looking at minutes, identifying problems, filing a complaint, and seeing what comes back.


Washington Co. gets + 1
Washington County puts its commissioners' minutes online, and they get big props for that. The practice is far from universal in Maryland, even though it's the most efficient way to provide public access to minutes, and once the minutes are online, there's no staff time consumed fooling with xerox copies.

Remarkably, the Open Meetings Act has not been amended to require meeting materials to be posted for the public online. You are only guaranteed access to them when you physically appear at their office, like in great-granpa's horse and buggy days.

So, points awarded for a fundamental element of 21st-century transparency.


Meeting Records -- a Minus 2
The documentation reveals a problem; in fact, several.

The closed session summaries in the minutes aren't remotely close to what state law requires. They are uninformative to the point of being useless.

The minutes show, apparently, that this discussion happened on March 1, 2011. We say "apparently" because the minutes are so bad, it's not possible to tell by reading what was discussed on a given date and why. Or for that matter, if they simply decided to talk about something without even trying to complete the required documents - the same boilerplate shows up several times in March and April.

The pertinent pages in the minutes are linked here as PDF files.

Then there are "closing statements," which are supposed to detail at the time of the closed session, various facts about it. <<GONG>> ... linked here, also PDFs, taking just two as a sufficient example.

No good.

Typically, the remedy is to file a complaint with the Open Meetings Compliance Board. Its members will determine whether there were violations and they suggest ways to improve minutes or other meeting materials. They are not a disciplinary body.


Any citizen who wants to file a complaint only has to have a reasonable belief that the Open Meetings Act was violated, and a general idea of when the violation occurred. It is then up to the public body to demonstrate that it was doing what it must.

The more details in a complaint, the better. A specific date is helpful, but it's not necessary for obvious reasons. If a public body makes a regular practice of dodging the law, you're not going to have specifics. A range of dates can work. The public body is required to cooperate with the Open Meetings Compliance Board. (No, they don't always cooperate completely; sometimes they "forget" material facts or documents they really ought to turn over to the Compliance Board). They should identify and turn over information that applies to the complaint.

Obviously, you can't say, "A secret meeting sometime between 2000 and 2009 ..." but you can say, "Minutes show 6 closed sessions in Spring 2011 where the commissioners talked about a 'proposal to locate a business.' At one of them, apparently, action was taken by the county council which went unreported in minutes. This involved a commitment of $100,000 to a developer" -- or whatever the case may be.


What's Expected Under the Law?
The trouble revealed here by a simple review of minutes is far more serious than a sincere attempt to lure a business to the county gone slightly off-track. Maybe that was badly handled, creating the impression that something untoward was going on.

Looking at the documentation the commissioners offer in their minutes, it's a very good guess that every closed session, for any reason, for any number of years, fails to meet the state's legal disclosure standard.

Two specific things have to show up in minutes whenever there's a closed session.

1. Acting to Close a Meeting.
Recording the motion and vote to close the session; citing one or more of the 14 exceptions allowed for confidential, closed-door discussions; each topic to be discussed; and a meaningful reason that the public must be denied their right to observe. Minutes will typically indicate the time the closed session began and ended, and often, though it is not required at this point, who was going into the room.

The statute then expects the public body to talk about only the items it identified, and only within the bounds of the law. They can't, for example, discuss legislation, zoning matters or policy or decide to talk about an extra item while they're at it.

2. Summarizing the Closed Meeting.
Once there's been a closed meeting, there has to be a published summary of all the topics discussed; all the actions taken whether by formal vote or by consensus (since the law does not prohibit voting behind closed doors); who was there. When there is a vote, who voted how must be reported. A motion does not have to be reported verbatim, but should be summarized accurately.

All this has to show up in (a) the minutes of the day the closed session was held or (b) in the minutes of the next open session of the public body. If it's missing, the law's being broken. If it's months later, ditto.

3. The Standalone Closing Statement
And when there is a closed session, right when it's closed, the governmental body must create a closing statement with certain specific information on it, including a record of the vote held at the time.


The Closing Statements
Two sample closing statements, linked above, show what's termed "uninformative boilerplate." They are so broad they are meaningless.

Click here to get them. It might help to print them out and follow along.

They contain the following violations:

The sentences with the [x] boxes next to them aren't statutory citations. The statement has to contain the actual section of the Open Meetings Act, for example, "10-508a(1)" ... which applies to a discussion of a particular person as a "personnel" matter.

There are no Topics. The language of the statute (which is what you see next to each [x] can't simply be repeated as if it's a specific topic.

The Reasons just parrot the sentences next to the checkboxes, and in turn, the law itself.

The closing statements need to be detailed enough that someone can read one and understand what was going on. Instead of "Personnel" as the Topic, for example, "Annual evaluation of the town manager" explains what's up without giving away any secrets. To pretend the town manager never gets a job evaluation is absurd; by mentioning the individual's position, in fact, informs the public that Joe the Town Manager is being supervised by his bosses, the town council. That's not giving away anything confidential.

You can't just say "legal advice." You can't just say "litigation."

While March 1 might have been the day when the $100,000 incentive was discussed, the minutes show that there were about 4 different occasions where it might have been. None of them offer any of the required detail on the topics, reasons or actions taken. If the public is reduced to guesswork, then the materials aren't up to snuff under the law.


The Minutes
The selections from the minutes, linked at Scribd, run from March 1 to April 12. Red boxes outline the sections which report both (1) the action to close the meeting and (2) the summary for the public record.

You can see, by reading each one, that they do identify who was present in the closed sesion. They do not, however, identify any Topics, Reasons, or Actions taken, or contain the specific exception(s) being used to justify the secret discussions.

There's a lot of verbiage, but no information. Lt's like a bureaucrat's idea of transparency. The facts have to be there so the public has an understanding of the public business being conducted, and so the public can decide if the closed session was legitimate or solely for convenience. There has to be a real need for confidentiality, not just a notion that it's convenient to bar the public.


The Complaint
A complaint was filed alleging various violations related to the minutes and to the closing statements. When an opinion appears, I'll follow up.


Reviewing the Minutes, Meeting By Meeting


Click here to see them.

March 1: unspecified "personnel" and the unspecified "proposal to locate" a business in the county.

March 8: unspecified "personnel" and unspecified "collective bargaining."


March 15: unspecified "personnel" and unspecified "proposal to locate."

  • Is this the same "proposal" discussed March 1, or a different one?


March 22: Yet more "personnel" and another unspecified "proposal to locate."

  • Is this yet another new proposal, or is it the one from March 1? March 15?


March 29: "personnel" -- "legal advice" -- "litigation."

  • By now, the pattern should be clear. You'll get no information, just the most generic of subjects.


Limits on Legal Advice
Luckily, there's a lawyer or two listed as present on March 29, because you can't close a meeting for "legal advice" without having an attorney on hand and actually asking legal questions. A lawyer delivering a briefing or report as an agent for the county or town is not giving "legal advice."

It is OK for a citizen to file a complaint, based on the lack of information, saying that he or she thinks the legal advice excuse was bogus. Essentially, if there is no detail provided on the closing statement or minutes, the closed session was illegally convened anyway; and the public has the right to question what really went on in any case. It just has to be a complaint in good faith; it's OK if your understanding of the law isn't perfect.


April 5: Whenever there's a site visit in minutes, it's worth making sure that there was proper public notice. Even a "luncheon" is a public meeting if matters of public business are discussed with a quorum of commissioners present. A PowerPoint is public business. A briefing is public business.

Otherwise, there was no closed session.

Checking to make sure the site visit had proper public notice is an exercise left to the reader.



April 12: Yet another business proposal.
This meeting raises interesting questions because it was a joint meeting. The Hagerstown mayor and council should have their own minutes of both the open and closed sessions. One public body can't "cover" for another public body that meets with them (and it's been known to happen). "So and so invited us to meet with them. It's their meeting." Nope, as long as a quorum of both shows up, they're both having a meeting.

A check of the Hagerstown website shows nothing online as far back as April 12, 2011.

So on the followup list -- check to see if the Hagerstown council did everything it has to do with minutes and closing statements.

The April 12 summary also mentions "An individual who discussed a business opportunity proposal" -- but if he or she hasn't asked for confidentiality, they must be named. There is no automatic anonymity in the law created by a closed session. The public body has to be able to demonstrate that the "individual" requested confidentiality, and that the subjects of discussion really merit secrecy.

Even in the case of a "personnel" discussion, if the individual being discussed waives their right to privacy, the session can be conducted in public. By the same token, sometimes a body will claim that "attorney-client privilege" applies. Don't be fooled. The public body, and not the attorney, determines if attorney-client privilege should be invoked.

As a matter of course, the Open Meetings Act expects them to pause and consider whether they really need to close the meeting. Serious consideration, not some sort of slacker action. "Because we can" is not a legitimate reason.

In fact, it's generally true there is no requirement to ever conduct a closed session. For example, the public could well benefit from hearing the legal advice doled out on a policy proposal. A public body can, but doesn't have to, conduct a discussion of union ("collective bargaining") negotiations behind closed doors.


Actions and Votes Must Be Reported
What we do know is that at one of these Washington Commissioners' meetings, someone initiated an "action" to commit $50,000 or up to $100,000. That was never reported in the summary; it's a violation of the Open Meetings Act. But even if they never took the action, failing to be reasonably specific about what they were talking about is a violation too.


  • The public should know, not only about the action, but also that the subsidy or payment was discussed, whether or not any action was taken.


If a citizen focused specifically on this one action, it's sufficient to allege that an action was taken in closed session in 2011, sometime around March, and that the commissioners violated the Act when they went into closed session and when they summarized it. Why? Because they failed to report the substance of the discussion and that the action was taken.


  • The law also requires that who voted how behind closed doors should be reported; this stems from changes effective after the 2011 General Assembly session.



And there's nothing secret about the Open Meetings Compliance Board complaint process. A complaint and the public body's response, as well as the Opinion that's eventually published on the Compliance Board website, are all public information. However, if the public body's response includes closed session minutes, they remain confidential unless the public body "unseals" them.


Take 'em to Court? There are No Real Penalties
The negative publicity involved in a "secret meeting" is probably the punishment a public body has to face.

Some public bodies have been silly enough, in the past, to pay a high-priced attorney to respond to a complaint. A bill for $5,000 because it appeared things were being done on the Q.T. is certainly more effective than the $100 fine a board member faces in lawsuit.


  • A high-priced attorney doesn't guarantee that the public body will "win" the dispute with the complainant.


  • The public body, and specifically the chairman, are the ones responsible for full compliance. The staff have not responsibility, and they can't be handed the responsibility. 

There appears to be a problem with public bodies actually owning up to their violations. Complaints are rarely discussed in meetings; the outcome of a complaint is rarely discussed in a meeting; typically, public bodies will hide behind the "legal advice" exception whenever the Open Meetings Act comes up.

Remarkably, that's allowable as long as the discussion is advice from an attorney. Yet the public bodies seem to get their advice and then fall silent. In these situations, it simply looks like cowardice on the part of the officials. What do they have to hide? That they don't like the law? That they don't want to follow the law? Discussions of that sort do not fall under "legal advice."

So the question, "What happens to us if we ignore the law?" can come up in a closed session. But there's an argument -- and a strong one -- that the public should hear all discussion of a board or commission's attitude toward fundamental public accountability.


You can file suit over willful violation of the statute or failures to comply with what's required by certain sections in the law; there's a chance any decision made in secret might be nullified by the judge. Such suits are very rare. (There was one recently where a decision by the Charles County Board of Zoning Appeals was nullified. See the second bullet item here.) The window for filing the suit is very small -- 45 days. Frankly, it seems pointless.

And the statutory language governing a court action is confusing to a nonlawyer like me. This is what it seems to say:

  • If there was a meeting the public couldn't attend, but was entitled to, someone has 45 days from the time information about the meeting appears in minutes.
  • If there was improper or no notice; if a closed session was illegitimate; 45 days from the date of the alleged violation.
  • If minutes fail to include required information, 45 days from the date of the alleged violation.

Corrections and clarifications welcome.








No comments:

Post a Comment

Post a Comment