Tuesday, March 6, 2012

4 + 3 = (no, really) 7

Seven members of the eight-person Maryland Transportation Authority board were in a room.

It sounds like the start of a joke, but no, it really happened, on May 5, 2011

And that’s a quorum, according to the Open Meetings Compliance Board, and almost anyone else you’d care to ask. Just count noses. Perhaps the joke is, the MDTA didn’t see it that way. Seven of eight members weren’t a quorum, because the MDTA called it a “Capital Committee meeting,” replied the board’s legal staff.

In the nine-page Opinion 8 OMCB 8 published Jan. 30, the Compliance Board addressed a series of issues.

Seven at One Blow
First of all, it’s a meeting of the full board if three members from the Finance Committee happen to sit in to hear a presentation or briefing. It has never been necessary for a board or commission to plan to vote, in order to fall under the legal definition of a meeting. And a quorum, attending a meeting of another entity, is not exempt from the law either.

The opinion provided citations at length. Briefly, the OMCB said, “The fact that a quorum may have been created unexpectedly does not exempt the discussion of public business from the Act's requirement that it be conducted openly.

“Accordingly, we have concluded that a briefing on public business, ‘even if limited in scope and devoid of discussion,’ given to an ‘accidental quorum’ of a public body's members, constituted a meeting as defined by the Act.” To be legally open requires proper public notice and, later, proper minutes – neither were supplied by the MDTA board on May 5.

The Kent County News filed complaints in the fall of 2011 as part of an ongoing investigation of the MDTA board’s meeting records. They alleged multiple violations of the public’s right to adequate information under the Open Meetings Act.

Complete and accurate MDTA minutes are essential because the meetings are difficult and expensive for citizens to attend. While the members routinely call in by speakerphone, the MDTA does not provide a way for the public to listen in remotely.

Often, no one from the public or the media is there. The MDTA routinely approves millions of dollars in spending at its meetings. Even when someone does go, the MDTA board elects to conduct many closed sessions. Some information about the secret discussions is required to be published, but MDTA minutes often fall short of the minimum.

And until the December 2011 Capital and Finance Committee meetings, the MDTA claimed the public was not entitled to attend those gatherings anyway.

Better Minutes Needed
The MDTA also needs to pay attention to what it provides in minutes and how quickly they were available to the public, according to the opinion. May 5 meeting minutes were not approved for two months, even though all MDTA minutes are typically approved at the following monthly meeting, and there was no apparent reason for a May delay.

The MDTA’s response was the complaint included a “specious conspiracy theory” about the unusual delay. The OMCB replied, “We … observe that no provision of the Act make a public body’s opinion of a citizen’s character or opinions relevant to our inquiry of whether the public body complied with the Act.”

Since the MDTA’s response did not answer the Compliance Board’s questions about the delay, the opinion said, the MDTA was again in violation of the law. When presented with a complaint, public bodies are required to submit facts to show there has been no violation.

Minutes Vague, Incomplete
The complaint identified multiple 2011 MDTA Board, Capital and Finance Committee meetings where minutes appeared to be deficient, without enough detail.

For example, on June 23, 2011, the full board minutes report, “… Members unanimously voted to move into Closed Session pursuant to Section 10-508(a)(7) … to consult with legal counsel to obtain advice regarding an Open Meetings Compliance Board decision issued May 23, 2011 regarding the MDTA Capital and Finance Committees. At 9:15 a.m., motion was made by Mr. Michael Whitson and seconded by Mr. Lewin, with the unanimous approval of the Members to return to Open Session.”

The law requires the minutes to list everyone attending the closed session. The MDTA routinely did not, only listing people who were there when the meeting was called to order. So on June 23 it seems 28 people attended the closed session, plus the MDTA board members.

If the number gets too big, the idea of a closed session erodes, the Compliance Board wrote. “As a general matter, while closing a session to receive legal advice from counsel (is allowed) the attendance of people other than members and appropriate staff of the public body may call into question the applicability of that exception to the discussion actually held.”

The Compliance Board used Finance Committee June 9 minutes as an example. There was a closed session, without legally sufficient information about it: “We have reviewed both the June 9 minutes and the minutes of the July 7 meeting for compliance …. Neither set complies … because neither lists the attendees at the closed session held on June 9. Additionally, the June 9 minutes list the purpose behind closing the session but do not state what topics were actually discussed or action taken, if any.”

The opinion goes on to state, “the fact that members voted to go into closed session for a certain reason is not a substitute for information on what actually occurred there.”

The Compliance Board also addressed whether the MDTA discussed contracts in closed session illegally. They wrote, “We stress that … the public body must be able to identify a tangible connection to a particular procurement in which the public body expects to engage or participate ….” in order to bar the public. “Negotiating a contract” is not sufficient.

Also, “to the extent that the Authority and these two committees have discussed contract amendments, sole-source contracts, and memoranda of understanding in closed sessions under circumstances which neither establish an adverse impact on a competitive bidding or proposal process nor satisfy another exception, they violated the Act.

“When such a discussion would have an adverse impact … we encourage the Authority to provide the public with sufficient information in its closing statements and closed-session summaries to demonstrate the applicability of the exception.”

Mystery Missing Member
In the same opinion, the Compliance Board rejected the complaint that a vacant position changed the number of board members making a quorum. As long as no more than four members gather, it is not a meeting of the full board. (However, it could be a meeting of the Finance or Capital Committees).

Related to the vacancy, the board said it could not offer a decision on whether a member’s resignation should be included in minutes. Isaac Marks resigned in July 2010 to take on work for the judicial branch; the MDTA’s minutes are silent on what happened to him. His name simply vanished from members listed at meetings.

In every other case in recent years where a member has left the MDTA Board, the minutes include a mention of the change.

A press release issued on April 27, 2011, mentions the vacancy has been filled by A. Bradley Mims, but neglects Marks’ resignation.

The MDTA press office did not return phone calls or e-mails seeking comment by press time.

The MDTA Board has eight members; seven seats are filled. The chairwoman is Secretary of Transportation Beverley Swaim-Staley. Kent County resident Art Hock was appointed to the board in October. According to the MDTA website, other members are Peter J. Basso, Rev. Dr. William C. Calhoun Sr., Mary Beyer Halsey, Michael J. Whitson, Walter E. Woodford Jr. and Mims.