Thursday, October 18, 2012

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 ...

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.


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.

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