Friday, November 30, 2012

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.


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.


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."

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 - 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.

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