Wednesday, June 6, 2012

Washington County Responds

The response, put together by the legal staff at the Washington County office, is here:

June 1, 2012

Open Meetings Compliance Board
200 Saint Paul Place
Baltimore, Maryland 21202-2021

Re: Complaint concerning the Board of County Commissioners of Washington County

Dear Board Members:

This serves as a response to your letter of May 8, 2012, enclosing a complaint alleging violations of the Open Meetings Act by the Board of County Commissioners of Washington County filed by Craig O’Donnell.

Please be aware that the Board takes its obligations under the Open Meetings Act seriously and endeavors to comply with both the spirit and the letter of the law. The Board routinely makes its agenda (which includes notice of proposed closed sessions) and open session minutes available on the County’s website, and citizens may watch meetings in real-time or via an archival copy over the internet.

The Board has never, to our knowledge, received a complaint alleging violation of the Act.

Therefore, the assertions and speculations contained in Mr. O’Donnell’s complaint are troubling. For your review, I have enclosed copies of the agendas, closed session statements, closed session minutes, and open session minutes for all dates referenced by Mr. O’Donnell.

Mr. O’Donnell’s complaint arises from an economic development matter that the Commissioner’s considered in closed session. As you know, State Gov’t 10-508(a)(4) authorizes a public body to meet in closed session to “consider a matter that concerns the proposal for a business or industrial organization to locate, expand, or remain in the State.” In the instant circumstance, the Board met in closed session to consider negotiating strategy to attract a prospective business to the County including the offer of a conditional economic development incentive should the business decide to locate in the County.

The incentive was never expended, as the business ultimately located elsewhere. Should the business have located in the County then the Commissioners would have had to consider and authorize the incentive in open session prior to any expenditure of funds . That never occurred because the contingency giving rise to the incentive never materialized.

Thus, Mr. O’Donnell’s assertion that the Board “voted, in a 2011 closed session, to pay $100,000 to an unknown party” is false. Moreover, the identity of the potential business was subject to a confidentiality agreement, as is common during site selection proceedings, so the specific identity of the business that was considering locating in the County need not be disclosed.

There was no violation of the Open Meeting Act in this circumstance.

Mr. O’Donnell next complains, generally about the closed session statements and the Board’s meeting minutes. In so doing, Mr. O’Donnell urges you to find a violation by complaining of the lack of certain information, even though that information is not required by the Act. For instance, Mr. O’Donnell alleges that “the participants should be identified by topic in cases where multiple topics are discussed in a single closed-door session.”

The Act has no such requirement. Section 10-509(c)(2)(iv) requires open session minutes to include “a listing of the topics of discussion, persons present, and each action taken during the session.” The Act speaks in pluralities, e.g., “topics of discussion” and “persons present,” and has no requirement that attendees be itemized by topic.

In contrast, the drafters of the Act clearly knew how to require specificity when it was desired, as (c)(l) requires the minutes to reflect “each item that the public body considered” and “each vote that was recorded.”

Likewise, the closed session statements are modeled upon that set forth in the Attorney General’s Open Meetings Act Manual. Neither it nor the Act itself requires a separate statement per topic of discussion, only that the statement have a “reason” for closing the meeting, including a citation of the authority under this section, and a listing of the topics [emphasis added] to be discussed.” 10-508(d)(2)(ii).

The statements identify that the meeting is closed pursuant to authority granted in $0-50S(a) of the State Government Article and then excerpt from that the section the specific statutory provision that is the basis for the closed session. Thereafter, the topics of discussion are listed, in accordance with the requirements of 10-50S(d)(2).

Moreover, a review of the closed session minutes will indicate that the Board considered only matters authorized for closed sessions. While in closed session, the Board engaged in administrative functions as allowed by 10-503(a)(i) or considered matters allowed by 10-508, or reached a consensus on personnel matters or board appointments that, when applicable, were then enacted during a subsequent open session.

Finally Mr. O’Donnell’s comments regarding the Board’s mid-day recess for lunch is speculative and wholly unsupported by any facts.

Nothing prohibits a body from taking a recess during a meeting, for lunch or any other reason. Furthermore, no business was conducted during lunch, and the Commissioners were free to do whatever they pleased for lunch. Even if they chose to dine together, the Act does not apply to a “social gathering,:,” 5 10-503(a)(2).

Conversely when the Commissioners attend a luncheon function as a public body advance public notice is given and the attendance is subsequently acknowledged in the open minutes (see, for example, February 22, 2011, or March 15, 2011, among others).

In conclusion, we believe that the Board has complied with the Act and will continue to do so. We do acknowledge, in hindsight, that the listing of topics for discussion on the closed session statements could be clearer and more explicitly set forth. Therefore, in an attempt to provide even greater transparency to local government operations, the Board has enhanced its Open Meetings closed session statements and open meeting minutes, several recent copies of which are enclosed for your review.

Thank you for your consideration of these matters. Please contact me if  you require any additional information that would be helpful to your deliberations.


John Martirano County Attorney

Kirk Downey Assistant County Attorney