Friday, February 15, 2013

Terpworld IV Part B: 'No Vote' Don't Matter

Fallout from the University of Maryland Terps' move to the Big Ten Conference -- something conducted in secrecy -- has continued to bring attention to Maryland's Open Meetings Act, typically an obscure topic with no media profile to speak of.

For example, in recent videotaped testimony on General Assembly HB 331 (a bill which would make some minor changes in the statute) one person explained that she was chagrined because she graduated from the state's University System, now the poster child for evading the law.

A news article -- excerpts below -- looks at the regents' response to the first of two complaints the November secret meetings generated. Read it all.

In essence, the regents' attorney argues that no law was broken because no vote was required or taken. These guys were just sitting around talking. Well, sitting on their phones talking on Sunday, and sitting around talking on Monday.

No one has found out when the contract was signed, though the January 22 letter responding to a couple of Open Meetings complaints hints that it must have been sometime on Sunday, Nov. 18. Perhaps it was that evening.

Response letter: Scribd
If the contract was signed after Secret Meeting #1 and before Secret Meeting #2, the question becomes, why was Secret Meeting #2 held secretly? You might suspect it was to pave the way for a nice smooth press conference later on the morning of Nov. 19, rather than for any legitimately confidential purpose.

Public document requests for the signed contract from at least two newspapers (a national one and a local one) haven't been successful, so far, in turning up anything. It's as if the contract was deliberately hidden away so no one could find it through the usual document request procedure without a nice, long delay.

CHESTERTOWN - After they broke the law in two November meetings, the University of Maryland Board of Regents faced a pair of complaints to the Open Meetings Compliance Board. In a Jan. 22 letter, the university system responded. Their two unannounced meetings were right in the middle of the controversial Big Ten conference switch. The administrators didn't notify the public of Nov. 18 and 19 secret confabs.

At first, they denied any obligation to hold public meetings in a news release Nov. 21:

“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.”
In a Dec. 7 press release, College Park President Wallace Loh and Chancellor William Kirwan admitted wrongdoing:
“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.”
They said the public wasn't going to hear anything more because Open Meetings Act complaints had been filed. But they also insisted there were no other violations, and the regents have been silent since Dec. 7.

The 24-page letter tries to back up the claim.

Was the Non-Disclosure a Pretext?

Jenna Johnson at the Washington Post obtained the Big 10-College Park nondisclosure agreement. It was signed Oct. 2. The PDF is here, and it sure looks like standard stuff.

All through the uproar that followed the decision and secret meetings, the NDA was brought up as the reason it was all so secret. Though, as Johnson points out, the NDA did not exclude the Board from seeing the materials. From their various public statements and the Jan. 22 letter, Wallace Loh and William Kirwan of UMCP and the UM System, respectively, appear to have made a decision to keep the regents in the dark until the last possible moment. And then they were stuck, because there was a deadline and the regents had to be informed, and so there were hush-hush meetings.

If the contract was signed after Secret Meeting #1 and before Secret Meeting #2, the question becomes, why claim that the nondisclosure agreement applied to everything? If nothing else, a blanket claim was misleading to everyone.

An NDA Doesn't Trump State Law

And also, #3 in the NDA says: "Unless required by law ... neither the Conference nor Maryland shall ... disclose to any person that (a) the conference or Maryland are or may be contemplating this Transaction with each other or any other person or (b) any of the terms ...."

Since the Open Meetings Act requires public discussion of public business unless it fits into one of 14 fairly narrow, fairly strict categories, we can see that the NDA does not and cannot control the regents' behavior when conducting a meeting.

Even if the regents could fit their meetings into one of the categories, a certain amount of disclosure in public immediately before a closed meeting is required by law too.

So the excuse seems unconvincing.

Still TBD: Will Anyone Sue?

Unfortunately, despite the many UM law grads, it seems no one has gone the whole hog, suing the regents over the secret proceedings.

Generally, there is a 45-day statute of limitations on suing for an alleged violation of the Open Meetings Act. The language found in the law is a masterpiece of nonclarity for anyone in the general public:

(2) If a violation of § 10-506, § 10-508, or § 10-509(c) of this subtitle is alleged,
the person shall file the petition within 45 days after the date of the alleged violation.
506 is the Notice Requirement; 508 is the Closed Session Procedure Requirement; 509 is the Minutes Content Requirement.
(3) If a violation of § 10-505 or § 10-507 of this subtitle is alleged, the person
shall file the petition within 45 days after the public body includes in the minutes of an
open session the information specified in § 10-509(c)(2) of this subtitle.
505 is called "Open Meetings Generally Required" and 507 governs Public Attendance.
(4) If a written complaint is filed with the Board in accordance with § 10-502.5
of this subtitle, the time between the filing of the complaint and the mailing of the
written opinion to the complainant and the affected public body under § 10-502.5(g) of
this subtitle may not be included in determining if a claim against a public body is
Normally, the 45 days would have been roughly to January 1, 2013 (starting Nov.18/19). However, if the suit alleged violations of 10-505 and -507, the clock would be running from around Dec. 8 or 9, when the minutes of the secret meetings were publicly available.

To this non-attorney, it seems that the clock stopped anyway when the two complaints were filed in early December, and after the Opinion is issued, anyone could file a suit (though they would have to move quickly).

Whether that will happen is an interesting question. Open Meetings Act lawsuits in Maryland, in its 22-plus-year history, are practically unknown.

Crossposted at Daily Kos.

Tuesday, February 5, 2013

Terpworld IV: the Response

The UM regents defend their Open Meetings Act irregularities to the Open Meetings Compliance Board.

The Student Press Law Center writes about the University of Maryland regents' response to open meetings complaints filed in December.

The PDF file of the regents' response is here: