Tuesday, December 11, 2012

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.

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