Maryland's Dreadful Gov't Transparency

Note: My comments in response to Len Lazarick's short article, with some additions that I suppose make it an expanded cross-posting.

Len's article on his visit to the Maryland General Assembly's Joint Committee on Transparency and Open  Government, from marylandreporter.com ...

http://marylandreporter.com/2012/10/18/committee-asks-for-recommended-changes-in-open-meetings-act/

My response:

Be happy to help. My experience has been that the "Transparency Community" in Maryland is fragmented and doesn't talk / communicate enough. There doesn't seem to be a critical mass which supports a Google Group type mailing list. I know of a few folks who monitor FOIA-L out of Syracuse.

Perhaps not unsurprisingly, people tend to focus on either the PIA or to a lesser degree the Open Meetings Act (each one is essentially a fulltime hobby - I don't know of anyone in the state who works a 40-hour week concentrating only on one or the other).

So open meetings are Maryland's red-headed stepchild among all constituencies.

Outreach, Training and Involvement

Citizens know when they're being bamboozled or railroaded, but they don't know they do have an effective tool in the form of a complaint. Bringing something to light is its own virtue, even if there are no real teeth to the law, as Len has pointed out. (In Oklahoma, they can show up and take you, the elected official,  out in handcuffs. Someone ask Gov. O'Malley if he thinks Oklahoma is a more progressive state than Maryland).

I have had the opportunity to help/critique open meetings complaints for a few people who are outside my immediate area and I'm always happy to try. They've found me through various Google searches, I guess, or maybe my very occasional blog. I routinely drop notes to writers when I see Open Meetings topics on websites, though to hear back is rare.

I also offered to come and give the journalist-eye's-view to MACO attendees, but was told their setup, where the seminar presented by lawyers, is used for their "continuing education" academy, does not accommodate something like that. That's a shame, and pretty darned shortsighted in my opinion.


As Len points out, there isn't much pain associated with violating the Open Meetings Act and getting caught.

Of the few cases that have gone to court, we see one which would appear to be open and shut now going up for another appeal.

Appeals board broke open meeting law
State court sends WSG case back to county panel
By PAUL S. WARNER, Staff writer

The Maryland Court of Special Appeals sent a case pitting a Washington, D.C.-based defense contractor against Nanjemoy residents back to the county Board of Appeals because the board violated due process protections and the state Open Meetings Act, according to an opinion the court filed Friday.

The opinion, penned by Judge Robert A. Zarnoch, states that the Board of Appeals violated constitutional guarantees of due process and the Open Meetings Act by “conducting a meeting closed to some members of the public at which the merits of the case were discussed, not made a part of the record, but nevertheless relied upon by the Board.”

Considering you might get costs back, and you might get a fine of $100 per member of the public body, who has the time and spare cash to take a flyer on something like this? The complexity of the arguments in the appeal shows just how weak the Open Meetings Act is.


In a word, the law is structured to force the public into court for penalties to be assessed; the penalties are silly; it's a yawning time and treasure sink; and the net effect is that no one bothers. That's the definition of "a chilling effect" on the public's rights.

Yet electeds and appointeds are the same people who are quick to cry out that open meetings complaints "waste taxpayer money" because they themselves elect to pay an attorney to answer the complaint(s). Please note that there is no requirement in the law for attorneys to be involved in the complaint process; and assorted attorneys have come up with some real doozies in their responses over time. I just wish I could bill their rate for some of the same type of wild concepts.

Interestingly, the big penalty a public body pays if it's faced with alert citizens who file complaints is legal budget overrun. On the other hand, that doesn't seem to be much incentive for lawyers to work hard to have public bodies avoid complaints. It seems a little odd, in fact a conflict of interest, for the very attorney(s) who fail to train and advise their clients on the Act's simple requirements to be allowed to bill the same client to answer a complaint. It's just as bad when the attorney who's doing the work is paid by taxpayers because he/she is an assistant AG.


It is true that responding to a complaint through an attorney is a waste of taxpayer money, but not for the reason the electeds and appointeds think it is. First of all, it's.their decision to hand it off to the attorney. Second, it decouples the public body from the consequences of its own actions. The Open Meetings Compliance Board is very clear that final responsibility rests with the presiding officer of the public body. (NOT with a handy attorney.) In my experience, there's very little learned when a body's told to shape up. In one case, electeds in Carroll County have sent out press releases saying a finding of an open meetings violation was not.

This sort of doubletalk should not be permitted. If the county's cutting a check to pay a fine for a violation, it's a lot harder to claim that you've been vindicated in your innocence.


If the purpose of the Compliance Board is education, then the most educational way to handle this would be to require the presiding officer to pen the response ... including a sworn affidavit from the official that the work is their own, and not ghosted by that handy attorney ... it's a small thing, but perjury gets more attention than failing to tell the public that there was a secret vote.

If the purpose is to inflict a little pain when there are potential violations, perhaps a mandatory personal appearance in Baltimore by the presiding officer would be useful. Gas is expensive and there's a dollar value to everyone's time.

I've proposed (in a letter to the OMCB) that every public body be required to hold a public meeting in which they discuss any complaint and the subsequent Opinion in an open forum, within 30 days of receiving the Opinion. This is educational, and again, surely results in some pain for those found violating the Act.

The length of service of the attorneys or members of the public body has no correlation with the ability to comply with the law. That points to totally inadequate training. And frankly, if penalties are somehow made more likely and more, well, punitive, the length of time the public officials or others have been exposed to the law's requirements should factor in. For example, a mayor who's been in office 20 years has, absolutely literally, no excuse for ever finding a complaint on his or her desk about the Mayor and Council's handling of meetings.

Under the rubric of "legal advice" public bodies are allowed to talk in closed session with their attorneys about Open Meetings complaints and opinions. This serves no good purpose, and I can document at least one occasion where the "legal advice" exception was abused to discuss a parliamentary ploy to avoid any action in open session on an open meetings question.


Is that the law we want? A one-sentence amendment ends the opportunity for that abuse in the future: "Any discussion of an Open Meetings Act complaint or Opinion, including legal advice, shall be held in open session before members of the public; and no exception in this Act shall be construed to apply."

The Crux

Anyway, the real question is a structured approach to this hydra-headed monster by the citizen community.

You can find about 100 sunlight organizations nearby, and they all focus on the federal government. As far as I can determine, there is simply nothing in Maryland which acts as an open meetings clearinghouse. MD-FOG is still on the books somewhere but it's moribund. The press association has dropped its support of open meetings training for journalists, as far as I can tell, and the ability to ask the MDDC for an atty's take on something has been gone for several years -- if not in theory, certainly in practice.

The efforts to make legislative workings more transparent through Web technology doesn't seem to have a deep connection with the Open Meetings Act itself. This doesn't see like it would be difficult to put together, but there's a blind spot, it seems.


It's a mystery to me why journalism schools in Maryland don't train their students about the state's Act and require some real-world experience: monitor a local public body, evaluate the notice and minutes processes they use, and file a complaint.

This is basic journalistic forensics, and given the low open meetings standard in the state, it's embarrassingly easy to strike pay dirt. But I'm not sure I've ever seen anything out of Capital News Service which deals with the Maryland Open Meetings Act. Why not?

I've tried -- maybe too half-heartedly, and maybe from too far afield at a weekly paper -- to open conversations with professors at the university. Crickets.

I've tried -- again, maybe not hard enough -- to locate pro bono legal help for some possible future Open Meetings lawsuits. I don't have any in mind, but there may come a time. Again, crickets.

Awards

MDDC, the press association, has an yearly "FOIA Award." Sometimes it is not awarded at all. Open meetings stuff gets shoehorned into that category. Why not a separate "Maryland Open Meetings Act" award? It should involve actual reportorial work, not just editorials. I'll put up $200 a year for the first prize.

Too Big for a Handful of People

As far as the Open Meetings Act, also, it covers such a broad area that each subdivision presents its own set of challenges.

I am certainly concerned about the newly-trendy "P3s" - public-private-partnerships, where as we say with the MDTA, the RFP and vetting process is almost 100 percent in secret because the Open Meetings Act is not explicit about them; and once the P3 has been set up, it would take a court case to pry the clamshell open.

An incomplete list -- there are probably 6,000 public bodies in this state and most get no scrutiny. But there are:

State agencies, as in pieces of the executive branch.
State "Commissions."
The Legislature.
State "Authorities." -- Like the MDTA or the NMWDA
State quasi-public "Corporations" -- Like the BDC or the Maryland Broadband Coop.
Local governments (councils, commissioners)
Local "Authorities"
Local Zoning bodies.
Local Property Tax Assessment Appeals Boards.
Cities and towns.

The Violations
Meeting notice gets a lot of attention, but in my experience, is not the most significant problem. Ongoing substantive violations which result in withholding required information are more common. All other things being equal, if a public body has a videotape of a meeting, or keeps extensive and accurate minutes, then the notice problem(s) are mitigated somewhat.

But a body that's conscientious (if rote) about notice, yet does a lousy job with the other records, does real damage to the public's rights. For example, it's not uncommon to take months, or even a year, to approve minutes. Why? This is not a difficult concept or a difficult process.

I have seen an Assistant Attorney General sitting right next to a meeting chairman, while he failed completely to close a session in the legally required fashion. Not a peep from the lawyer. In other words, their attorney allowed them to break the law. There should be consequences for attorneys who condone this. There should be requirements for them to speak up. Otherwise, it's a wink-and-a-nod and the public be damned.

I have read fantastical legal arguments concocted by an Assistant Attorney General hoping to dismantle or otherwise limit the scope of the law. This should never happen. It should be considered a serious ethical breach under the Bar Association's rules.

Do your best to wiggle out, but don't do it while ignoring the plain language in the Act which says it is to be strictly construed to favor open meetings.

Creative public bodies hoping to keep you away from their meeting records will often conflate the Open Meetings Act and the PIA, because the Maryland Public Information Act is hostile to the public and provides no recourse when something is conveniently classed, by the bureaucrats or lawyers, as "predecisional," or "attorney-client privilege," or some other such jive. The MDTA has pretty much written the book on this, and has also come out on the short end more often than not.

Where to Start

Therefore the Act needs to specifically address meeting materials in order to compensate for a poorly written Public Information Act -- what they are, when and how they are available. For example, if something "is incorporated in these minutes" then it's available, for free, immediately upon request, because, like it says, they're part of the minutes; it does not require a separate PIA request.

In my opinion, the most effective place to start is to make sure that minutes *and closing statements* are placed on a website in a searchable electronic format by all public bodies. If they can't do that, then they are to be provided, for free, within one business day. If the public body wants to make xeroxes and mail them, then they bear the cost. The lo-to-no-cost alternatives include faxing; scanned/emailed documents; or emailed documents in the original file format -- most likely Microsoft Word.


So we seem to be starting from scratch again. Maybe that's not a bad thing. But it appears we need a nonprofit advocacy/think-tank framework, no matter how small it may start off.

Washington County: Strike Two

Apparently, there's been more than one discussion of handing $100,000 over to prospective businesses by the Washington County Commissioners.

An incentive approval is described in the July 5 Herald-Mail by reporter Andrew Schotz:

An aerospace company is getting a five-year, $100,000 cash incentive to start operations in Washington County.

Mecaer Aviation Group, or MAG, of Philadelphia will do helicopter and fixed-wing maintenance, repair and overhaul at Hagerstown Regional Airport, according to Washington County Administrator Gregory B. Murray.

The Washington County Board of Commissioners unanimously agreed on Tuesday to give MAG an incentive of $20,000 a year for five years.

Please read the whole article ... it's short.

If this has been handled over two years like the "Cone of Silence" deliberations -- see the earlier blog post -- it's almost certain that we have a pattern and practice of Open Meetings Act violations in Washington County government. Given the extremely poor disclosure found in the minutes associated with the Cone of Silence, it's not even clear how many of these potential incentives the Washington County commissioners have talked about over the past one, two, five years.

That's not transparent local government.

One thing is transparent, however: a "unanimous vote" referred to in Schotz' article is what the Open Meetings Compliance Board refers to as a "ceremonial ratification" of a decision that has been made already. It does not rise to the standard of disclosure found in the law.

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.

Sincerely,

John Martirano County Attorney

Kirk Downey Assistant County Attorney

Washington County: What a Complaint Looks Like

Here's the text of the written complaint that followed a quick investigation of the commissioners' 2011 and 2012 meeting minutes.


The complaint doesn't have to be a masterpiece of legal writing. It only has to lay out the facts as the citizen understands them and point to items which appear to be in violation of the law.




April 30, 2012
Open Meetings Compliance Board
Attorney General's Office
200 St. Paul Place
Balto, MD 21202

Washington County Board: Minutes and Closing Statements Inadequate.

Dear Members of the Board, 

A recent news article noted that Washington County apparently voted, in a 2011 closed session, to pay $100,000 to an unknown party as an incentive to locate a business there. The claim, made more than a year later, is that there was or is a confidentiality agreement. See (A) attached.

We researched the minutes from February through April 2011 and asked for the closing statements from February and March.

None of the required documents shed light on the closed-door discussion(s). In fact, they fall far short of the minimum legally required for closed meetings.

Closing Statements Fail
As the attached closing statements show, the commissioners consistently violated the Act during the period under review (February-March 2011) by:

•Failing to provide a statutory citation
•Parroting the exception(s)
•Failing to give a meaningful Reason for holding any closed session
•Failing to identify the Topic(s) of the closed sessions

The closing statements deliver no information to the public aside from the members of the commission attending (by noting who voted how on the motion to close). They are the quintessential uninformative boilerplate.

Minutes Fail
The minutes we have examined fail to contain the summary information required by statute. In fact, there are no summaries of any of the closed sessions. There is only a rote recapitulation of the statutory wording.

It should be unnecessary to include a laundry list of elements missing from the minutes. The complete absence of a summary is illegal. In essence the minutes simply parrot the already-inadequate closing statement. The lack of any record of the actions taken in closed session is probably the most egregious omission, since the news articles which refer to the closed session obviously refer to an action on at least one of the dates.

In (B), attached, we see that a joint meeting with the city government does not result in a better summary; the closing state-ment supplied, furthermore, is incomplete.

The 3/11/11 minutes merely say:

Commissioner Barr, seconded by McKinley, moved to convene in closed session at 2:30
p.m. to discuss the appointment, employment, assignment, and/or performance evaluation
of appointees, or officials over whom it has jurisdiction; to discuss personnel matters that
affect one or more specific individuals, and to consider a matter that concerns the proposal
for a business or industrial organization to locate, expand, ore remain in the State, in
accordance with Section 10-508 of the State Government Article of the Annotated Code of
Maryland. The motion passed unanimously.

In closed session, the Commissioners discussed the appointment, employment, assignment,
and/or performance evaluation of appointees, or officials over whom it has jurisdiction;
discussed personnel matters that affect one or more specific individuals, and considered a
matter that concerns the proposal for a business or industrial organization to locate,
expand, or remain in the State. Present during closed session were Commissioners Terry L.
Baker, John F. Barr, Ruth Anne Callaham, Jeffrey A. Cline, and William B. McKinley.
Also present were Gregory Murray, County Administrator; and at various times Vicki
Lumm, County Clerk; John Martirano, County Attorney; Norman Bassett, Coordinator-
Office on Disability Issues; Joe Kuhna, Real Property Administrator; Dan DiVito,
Director-Planning Department; Tim Troxell, Director-Economic Development
Commission (EDC), Rob Ferree, Deputy Director-EDC; and Susan Buchanan, Fiscal
Specialist-EDC.

"And at various times" is insufficient. The participants should be identified by topic in cases where multiple topics are discussed in a single closed-door session.

The description gives the public no confidence that the putative Personnel exceptions were properly invoked. There is nothing to show that policy matters and/or departmental organization were not discussed.

And apparently, in this particular closed session, the commissioners agreed to pay the mystery party $100,000 of taxpayer money. There is nothing. The public cannot know because of the poorly handled public record.

Without access to the closed session minutes - if they indeed exist - the public has no idea whether the topics discussed were within the exceptions claimed. Furthermore, the lack of information on the closing statement indicates the public's right to object, at the time of the closing, was repeatedly violated.

Lunch
Minutes indicate a regular recess for lunch, without any additional information on who attended or where it was held. We believe, given the other facts about the commissioners' handling of closed meetings, that there is a very good possibility that a quorum regularly discussed public business during the "recess."

The commissioners' clear failure to understand the procedural and substantive requirements of the Act is a monumental dis-service to citizens. The county's legal advisor(s), whoever they may have been at different closed sessions, have also failed the public by allowing such a situation to persist.

Unfortunately, neither lapse is rare in Maryland. We would like to know when the commissioners and staff were last trained in the Open Meetings Act, and who did the training.



-signature-

Washington County's Cone of Silence: Secrecy or Sloppiness?

Here's a great case study of how a news report - even if it's not, in the end, significant - can turn up serious problems with a local government's meetings.

A recent news report in the Hagerstown Herald-Mail (found online at the newspaper) referred to a closed session -- more than a year ago -- where the county agreed to provide $100,000 to an unknown business or developer.

[An update to the original story notes that the company probably won't be coming, and according to officials, only $50,000 was approved but they would go "up to" $100,000. The official quoted said the secret meeting was not for the sake of secrecy, but for "confidentiality." Apparently, an offer was made, but no money ever changed hands.

[See "... not likely to come."]



Despite the news that nothing's likely to come of it, that info doesn't change the Open Meetings Act violations that a quick look at their minutes reveals.


Maryland's Open Meetings Act establishes a minimum standard for public disclosure of government business, especially with county and municipal governments. When a group of councilmen or commissioners fails to live up to the minimum, it creates suspicion in the public's mind. It's the old saw: "Where there's smoke, there's fire."

It doesn't appear that the commissioners intended any sleight-of-hand, but it does look like they cut the corners on their closed sessions as a matter of habit.

When something like the supposed $100,000 payment comes to light, it's always important to reach back in time and check the public record. From the article, it seems no one knew about this proposed payment -- or the vote of approval, much less the meeting where the decision was made -- until someone looked at budget documents.

Clearly, there's something wrong if no one outside of a few elected officials and staff people knew about it at all. If one party wants to be anonymous, there isn't necessarily a problem with that. But a confidentiality agreement does not mean keeping the public in the dark.


Was the idea to keep the public in the dark? That's what it looks like at first glance, but as with many things that happen behind closed doors in government, it's not certain unless someone who was there pipes up. It's another example of how, when public business is conducted without sufficient disclosure, people will naturally suspect there's something fishy. Even if it turns out, as it seems here, that there was nothing particularly fishy or unethical going on.

Even without the fishy factor, though, a review of minutes shows the county is in violation of the Open Meetings Act's reporting requirements.


The Open Meetings Act is structured to allow for confidentiality when absolutely necessary, but it is not the governmental equivalent of Maxwell Smart's Cone of Silence. And excessive secrecy will cause citizens to get suspicious.

The place to look for more on this reported 2011 closed session is in County Commission minutes. And since it's described as a closed session, there is a second public document to find and examine called a "closing statement."

In essence, the investigative process is to check the procedural elements: a vote to close? a complete closing statement? do the minutes reflect the motion and vote? is there is a summary of the outcome of the closed session in the minutes?

If any steps are lacking, then the commissioners are not complying with the law.

This situation is an excellent opportunity to go step by step through looking at minutes, identifying problems, filing a complaint, and seeing what comes back.


Washington Co. gets + 1
Washington County puts its commissioners' minutes online, and they get big props for that. The practice is far from universal in Maryland, even though it's the most efficient way to provide public access to minutes, and once the minutes are online, there's no staff time consumed fooling with xerox copies.

Remarkably, the Open Meetings Act has not been amended to require meeting materials to be posted for the public online. You are only guaranteed access to them when you physically appear at their office, like in great-granpa's horse and buggy days.

So, points awarded for a fundamental element of 21st-century transparency.


Meeting Records -- a Minus 2
The documentation reveals a problem; in fact, several.

The closed session summaries in the minutes aren't remotely close to what state law requires. They are uninformative to the point of being useless.

The minutes show, apparently, that this discussion happened on March 1, 2011. We say "apparently" because the minutes are so bad, it's not possible to tell by reading what was discussed on a given date and why. Or for that matter, if they simply decided to talk about something without even trying to complete the required documents - the same boilerplate shows up several times in March and April.

The pertinent pages in the minutes are linked here as PDF files.

Then there are "closing statements," which are supposed to detail at the time of the closed session, various facts about it. <<GONG>> ... linked here, also PDFs, taking just two as a sufficient example.

No good.

Typically, the remedy is to file a complaint with the Open Meetings Compliance Board. Its members will determine whether there were violations and they suggest ways to improve minutes or other meeting materials. They are not a disciplinary body.


Any citizen who wants to file a complaint only has to have a reasonable belief that the Open Meetings Act was violated, and a general idea of when the violation occurred. It is then up to the public body to demonstrate that it was doing what it must.

The more details in a complaint, the better. A specific date is helpful, but it's not necessary for obvious reasons. If a public body makes a regular practice of dodging the law, you're not going to have specifics. A range of dates can work. The public body is required to cooperate with the Open Meetings Compliance Board. (No, they don't always cooperate completely; sometimes they "forget" material facts or documents they really ought to turn over to the Compliance Board). They should identify and turn over information that applies to the complaint.

Obviously, you can't say, "A secret meeting sometime between 2000 and 2009 ..." but you can say, "Minutes show 6 closed sessions in Spring 2011 where the commissioners talked about a 'proposal to locate a business.' At one of them, apparently, action was taken by the county council which went unreported in minutes. This involved a commitment of $100,000 to a developer" -- or whatever the case may be.


What's Expected Under the Law?
The trouble revealed here by a simple review of minutes is far more serious than a sincere attempt to lure a business to the county gone slightly off-track. Maybe that was badly handled, creating the impression that something untoward was going on.

Looking at the documentation the commissioners offer in their minutes, it's a very good guess that every closed session, for any reason, for any number of years, fails to meet the state's legal disclosure standard.

Two specific things have to show up in minutes whenever there's a closed session.

1. Acting to Close a Meeting.
Recording the motion and vote to close the session; citing one or more of the 14 exceptions allowed for confidential, closed-door discussions; each topic to be discussed; and a meaningful reason that the public must be denied their right to observe. Minutes will typically indicate the time the closed session began and ended, and often, though it is not required at this point, who was going into the room.

The statute then expects the public body to talk about only the items it identified, and only within the bounds of the law. They can't, for example, discuss legislation, zoning matters or policy or decide to talk about an extra item while they're at it.

2. Summarizing the Closed Meeting.
Once there's been a closed meeting, there has to be a published summary of all the topics discussed; all the actions taken whether by formal vote or by consensus (since the law does not prohibit voting behind closed doors); who was there. When there is a vote, who voted how must be reported. A motion does not have to be reported verbatim, but should be summarized accurately.

All this has to show up in (a) the minutes of the day the closed session was held or (b) in the minutes of the next open session of the public body. If it's missing, the law's being broken. If it's months later, ditto.

3. The Standalone Closing Statement
And when there is a closed session, right when it's closed, the governmental body must create a closing statement with certain specific information on it, including a record of the vote held at the time.


The Closing Statements
Two sample closing statements, linked above, show what's termed "uninformative boilerplate." They are so broad they are meaningless.

Click here to get them. It might help to print them out and follow along.

They contain the following violations:

The sentences with the [x] boxes next to them aren't statutory citations. The statement has to contain the actual section of the Open Meetings Act, for example, "10-508a(1)" ... which applies to a discussion of a particular person as a "personnel" matter.

There are no Topics. The language of the statute (which is what you see next to each [x] can't simply be repeated as if it's a specific topic.

The Reasons just parrot the sentences next to the checkboxes, and in turn, the law itself.

The closing statements need to be detailed enough that someone can read one and understand what was going on. Instead of "Personnel" as the Topic, for example, "Annual evaluation of the town manager" explains what's up without giving away any secrets. To pretend the town manager never gets a job evaluation is absurd; by mentioning the individual's position, in fact, informs the public that Joe the Town Manager is being supervised by his bosses, the town council. That's not giving away anything confidential.

You can't just say "legal advice." You can't just say "litigation."

While March 1 might have been the day when the $100,000 incentive was discussed, the minutes show that there were about 4 different occasions where it might have been. None of them offer any of the required detail on the topics, reasons or actions taken. If the public is reduced to guesswork, then the materials aren't up to snuff under the law.


The Minutes
The selections from the minutes, linked at Scribd, run from March 1 to April 12. Red boxes outline the sections which report both (1) the action to close the meeting and (2) the summary for the public record.

You can see, by reading each one, that they do identify who was present in the closed sesion. They do not, however, identify any Topics, Reasons, or Actions taken, or contain the specific exception(s) being used to justify the secret discussions.

There's a lot of verbiage, but no information. Lt's like a bureaucrat's idea of transparency. The facts have to be there so the public has an understanding of the public business being conducted, and so the public can decide if the closed session was legitimate or solely for convenience. There has to be a real need for confidentiality, not just a notion that it's convenient to bar the public.


The Complaint
A complaint was filed alleging various violations related to the minutes and to the closing statements. When an opinion appears, I'll follow up.


Reviewing the Minutes, Meeting By Meeting


Click here to see them.

March 1: unspecified "personnel" and the unspecified "proposal to locate" a business in the county.

March 8: unspecified "personnel" and unspecified "collective bargaining."


March 15: unspecified "personnel" and unspecified "proposal to locate."

• Is this the same "proposal" discussed March 1, or a different one?

March 22: Yet more "personnel" and another unspecified "proposal to locate."

• Is this yet another new proposal, or is it the one from March 1? March 15?

March 29: "personnel" -- "legal advice" -- "litigation."

• By now, the pattern should be clear. You'll get no information, just the most generic of subjects.

Limits on Legal Advice
Luckily, there's a lawyer or two listed as present on March 29, because you can't close a meeting for "legal advice" without having an attorney on hand and actually asking legal questions. A lawyer delivering a briefing or report as an agent for the county or town is not giving "legal advice."

It is OK for a citizen to file a complaint, based on the lack of information, saying that he or she thinks the legal advice excuse was bogus. Essentially, if there is no detail provided on the closing statement or minutes, the closed session was illegally convened anyway; and the public has the right to question what really went on in any case. It just has to be a complaint in good faith; it's OK if your understanding of the law isn't perfect.


April 5: Whenever there's a site visit in minutes, it's worth making sure that there was proper public notice. Even a "luncheon" is a public meeting if matters of public business are discussed with a quorum of commissioners present. A PowerPoint is public business. A briefing is public business.

Otherwise, there was no closed session.

Checking to make sure the site visit had proper public notice is an exercise left to the reader.



April 12: Yet another business proposal.
This meeting raises interesting questions because it was a joint meeting. The Hagerstown mayor and council should have their own minutes of both the open and closed sessions. One public body can't "cover" for another public body that meets with them (and it's been known to happen). "So and so invited us to meet with them. It's their meeting." Nope, as long as a quorum of both shows up, they're both having a meeting.

A check of the Hagerstown website shows nothing online as far back as April 12, 2011.

So on the followup list -- check to see if the Hagerstown council did everything it has to do with minutes and closing statements.

The April 12 summary also mentions "An individual who discussed a business opportunity proposal" -- but if he or she hasn't asked for confidentiality, they must be named. There is no automatic anonymity in the law created by a closed session. The public body has to be able to demonstrate that the "individual" requested confidentiality, and that the subjects of discussion really merit secrecy.

Even in the case of a "personnel" discussion, if the individual being discussed waives their right to privacy, the session can be conducted in public. By the same token, sometimes a body will claim that "attorney-client privilege" applies. Don't be fooled. The public body, and not the attorney, determines if attorney-client privilege should be invoked.

As a matter of course, the Open Meetings Act expects them to pause and consider whether they really need to close the meeting. Serious consideration, not some sort of slacker action. "Because we can" is not a legitimate reason.

In fact, it's generally true there is no requirement to ever conduct a closed session. For example, the public could well benefit from hearing the legal advice doled out on a policy proposal. A public body can, but doesn't have to, conduct a discussion of union ("collective bargaining") negotiations behind closed doors.


Actions and Votes Must Be Reported
What we do know is that at one of these Washington Commissioners' meetings, someone initiated an "action" to commit $50,000 or up to $100,000. That was never reported in the summary; it's a violation of the Open Meetings Act. But even if they never took the action, failing to be reasonably specific about what they were talking about is a violation too.

• The public should know, not only about the action, but also that the subsidy or payment was discussed, whether or not any action was taken.

If a citizen focused specifically on this one action, it's sufficient to allege that an action was taken in closed session in 2011, sometime around March, and that the commissioners violated the Act when they went into closed session and when they summarized it. Why? Because they failed to report the substance of the discussion and that the action was taken.

• The law also requires that who voted how behind closed doors should be reported; this stems from changes effective after the 2011 General Assembly session.

And there's nothing secret about the Open Meetings Compliance Board complaint process. A complaint and the public body's response, as well as the Opinion that's eventually published on the Compliance Board website, are all public information. However, if the public body's response includes closed session minutes, they remain confidential unless the public body "unseals" them.


Take 'em to Court? There are No Real Penalties
The negative publicity involved in a "secret meeting" is probably the punishment a public body has to face.

Some public bodies have been silly enough, in the past, to pay a high-priced attorney to respond to a complaint. A bill for $5,000 because it appeared things were being done on the Q.T. is certainly more effective than the $100 fine a board member faces in lawsuit.

• A high-priced attorney doesn't guarantee that the public body will "win" the dispute with the complainant.

• The public body, and specifically the chairman, are the ones responsible for full compliance. The staff have not responsibility, and they can't be handed the responsibility. 

There appears to be a problem with public bodies actually owning up to their violations. Complaints are rarely discussed in meetings; the outcome of a complaint is rarely discussed in a meeting; typically, public bodies will hide behind the "legal advice" exception whenever the Open Meetings Act comes up.

Remarkably, that's allowable as long as the discussion is advice from an attorney. Yet the public bodies seem to get their advice and then fall silent. In these situations, it simply looks like cowardice on the part of the officials. What do they have to hide? That they don't like the law? That they don't want to follow the law? Discussions of that sort do not fall under "legal advice."

So the question, "What happens to us if we ignore the law?" can come up in a closed session. But there's an argument -- and a strong one -- that the public should hear all discussion of a board or commission's attitude toward fundamental public accountability.


You can file suit over willful violation of the statute or failures to comply with what's required by certain sections in the law; there's a chance any decision made in secret might be nullified by the judge. Such suits are very rare. (There was one recently where a decision by the Charles County Board of Zoning Appeals was nullified. See the second bullet item here.) The window for filing the suit is very small -- 45 days. Frankly, it seems pointless.

And the statutory language governing a court action is confusing to a nonlawyer like me. This is what it seems to say:

• If there was a meeting the public couldn't attend, but was entitled to, someone has 45 days from the time information about the meeting appears in minutes.
• If there was improper or no notice; if a closed session was illegitimate; 45 days from the date of the alleged violation.
• If minutes fail to include required information, 45 days from the date of the alleged violation.

Corrections and clarifications welcome.

Learn Online: the Open Meetings Act

http://www.igsr.umd.edu/VLC/OMA/class_oma_intro1.php

Yes, online training for the Maryland Open Meetings Act.

There's no requirement in place as far as taking the training, but it's there.

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.