Day ... Whut?

It's been a long time, but today I got the Compliance Board opinion on the Critical Area Commission complaint. That's a ya-hoo.

I also got their opinion on another complaint having to do with a Kent County-Chestertown-private entity board ... that's a boo-hoo, though it's still grist for asking why local governments feel like they need to do things secretly.

Some weeks back, Pete Heck got a response to his complaint that yes, Chestertown's Mayor and Council held three illegal meetings last spring.

Day 33 - Read Some Minutes

One way to see if your local government is obeying the law (and coincidentally engaged in good government) is to read some minutes.

Some Maryland counties (and some cities and towns) have Web sites with minutes. (Since they all use Word for their documents you might imagine it would be easy enough to make a practice of posting minutes on the Web.)

Some convert them to PDF files.

The Act requires that minutes are kept; approved without delay; and made available to the public - which can mean that you can go get copies, it doesn't necessarily mean they are in electronic form.

Here is my list of counties (and Baltimore City) Web sites; note that some call their minutes "Journals"; some put agendas up but not minutes; and so on.

Maryland Counties

Allegany County Government Online

Anne Arundel County

Baltimore County Government

Baltimore City Council Journal

Calvert County

Calvert Previous Agendas 2007

Caroline County

Caroline County Minutes

Carroll Govt

Cecil County

Cecil Minutes

Charles County Government

Charles Co Minutes

Charles Co BoardDocs Public

Dorchester County

Dorchester Meeting Minutes

Frederick County

Frederick County Minutes

Garrett County Online

Garrett Public Meeting Minutes

Harford County

Harford County Council

Howard Co

Howard CC Journals

Montgomery County

Prince Georges : Home Page

PG Action Agendas

Queen Annes Minutes

St. Marys County Government

St. Marys Minutes

Somerset?
Somerset County Library - Your Library Link (No county government web site)

Talbot County County Council

Washington County

Washington Co Minutes

WICOMICO COUNTY

WICOMICO Minutes

Worcester County

Worcester County Mins

Day 22 - Other Matters

It seems like an appropriate time to mention the term "Executive Session."

Pete Heck has received the Town of Chestertown's response (actually, their consultant attorney's response) to his complaint about three secret meetings held in April to discuss a contract with a group called the Eastern Shore Land Conservancy.

Basically, they didn't bother to give public notice of the meetings, and they also talked about contractual matters in closed session (not legal); they approved a contract in closed session (not legal).

Hilarious reading ... Mr. Barroll, the attorney, keeps referring to "Executive Session" in caps as if it means something. In fact, for more than a year, the words "executive function" (too often confused with the generic term "executive session") have been removed from the law; the term was changed to "administrative function" to make it clear that a so-called "executive session" exemption from conducting business in public can only be used when the public body is acting to "administer" the laws or rules that it has jurisdiction over - and when the discussion does not fall under one of the 14 exceptions that the law provides for.

To quote from the Open Meetings Act Manual's 4th Edition - 2004 - which was frequently misunderstood:

The scope of the Act is determined in part by the “function” carried out by the
public body. If, at a meeting, a public body is engaged in an “advisory function,”
“legislative function,” or “quasi-legislative function,” the Act applies.

and

The term “executive function” is more amorphous, for its definition speaks very
broadly of “the administration of” a State or local law or regulation. §10-502(d)(1).
Applying this exclusion requires two distinct steps. First, the public body must consider whether the matter to be discussed falls within the definition of any of the other defined functions. If so, then the executive function exclusion is ruled out. If not, the public body must consider whether the matter to be discussed involves the development of new policy, or merely the application of an already-established law or policy. The executive function exclusion covers only the latter.

The Compliance Board has issued more than two dozen opinions examining the executive function exclusion in various contexts.

This wasn't clear enough, so the legislature changed the Act itself to remove the term "executive function" and replace it with Administrative Function.

The Manual (6th Edition) now says:

2. Functions excluded.
The Open Meetings Act does not apply, however, to every possible item of public business. With an important exception to be discussed below, it does not apply when a public body is carrying out an “administrative function,” a “judicial function,” or a “quasi-judicial function.” §10-503(a)(1). If the Act does not apply, a public body is free, but is not required, to comply with the Act’s provisions on notice, openness, and the like.

Of the activities that are outside the scope of the Open Meetings Act, the definitions of judicial function and quasi-judicial function are straightforward. A judicial function is “the exercise of any power of the judicial branch of the State government,” except rulemaking. §10-502(e). A quasi-judicial function is “a
determination of ... a contested case” under the Maryland Administrative Procedure Act or any other administrative proceeding subject to judicial review under Title 7, Chapter 200 of the Maryland Rules. §10-502(i).

The term “administrative function,” defined in §10-502(b), is new, but the underlying concept is not. In legislation enacted in 2006, the General Assembly changed the former term “executive function” to “administrative function” but kept the definition the same. This change in terminology, recommended by the Compliance Board, is aimed at avoiding the confusion that arose between “executive function,” the term previously used in the Act, and “executive session,” commonly used to refer to any closed meeting. The change, however, does not affect the interpretation of the exclusion. In other words, all prior judicial and Compliance Board interpretations of the executive function exclusion are preserved and may be used in applying the “administrative function” exclusion.

The Compliance Board has described the executive function – now termed the administrative function – exclusion as “the most bedeviling aspect of Open Meetings Act compliance ....” Applying this exclusion requires two distinct steps. First, the public body must consider whether the matter to be discussed falls within the definition of any of the other defined functions. If so, then the administrative function exclusion is ruled out. §10-502(b)(2). If not, the public body must consider whether the matter to be discussed involves the development of new policy, or merely the implementation of an already-established law or policy.

The administrative function exclusion covers only the latter. Public bodies should be particularly careful about aspects of the contracting process, which might seem administrative in character but are a quasi-legislative, not an administrative, function.

The Compliance Board has issued numerous opinions examining this exclusion in various contexts. References to these are included in Appendix H to this manual.

In counties that have not adopted a form of home rule, in home rule counties without a county executive, and in many municipalities, the legislative body exercises administrative functions as well. The applicability of the Act will depend on which role the body is playing. In a commissioner county, for example, the early phases of the budget preparation process correspond to activities of the county executive in a charter home rule county; these budget preparation activities are, therefore, part of the administrative function, rather than the quasi-legislative function of budget review.

Similarly, a county board of education carries out some activities within the administrative function exclusion and some that are not excluded. The Compliance Board has given extensive guidance on this matter in an opinion involving the Board of Education for Howard County.

A ruling concerning the Centreville Town Council explains the meaning of "administrative" well (see 5 OMCB 42) or:

As we have frequently recited, determining whether a matter constitutes
an executive function involves a two-part analysis. We first ask whether the topic of
discussion falls within the definition of any other defined function. If it does, the
analysis is over, because an executive function “does not include” a topic within
another function. If the topic is not within another defined function, we then ask
whether it involved “the administration of” existing law. If not, it cannot be an
executive function. See, e.g., 5 OMCB Opinions 7, 8 (2006).

Implicit in the second step are two subsidiary points: there must be an identifiable
prior law to be administered, and the public body holding the meeting must be vested with legal responsibility for its administration. If either is not true, the public body is not engaged in the function of administering law, as required by the definition. 4 OMCB Opinions 163, 165 (2005).

That opinion involved a responsibility (filling a school board vacancy) vested by law solely with the Governor. The school board itself, we held, was not engaged in an executive function when it met to discuss its process for making recommendations to the Governor. As we put it, “While it is entirely reasonable for the Governor to solicit input from the County Board in making his decision, the County Board could identify no responsibility assigned by law to it that it was administering [at the meeting].” 4 OMCB Opinions at 166.

In other words, an "executive session" cannot be created from thin air because the "executive" - a Mayor, or the County Commissioners - decided to close a meeting, and referring to the generic "Executive Session" in response to a complaint is referring to nothing at all.

Day 13 ... and Counting

Still waiting to receive the response that the CAC is required to provide.

Days 9 to 12

Now we wait. The Compliance Board sends a letter (which I've gotten a copy of) to the public body that you are complaining about, and the body has 30 days to answer.

Day 8: The Supplement

A few days passed before I could get an answer about the minutes that the Critical Area Commission was or was not keeping. When I got the "Final Report" of the Panel, I added this [the text of the Final Report will be put here, as soon as I figure out how to post a file, for the curious].

To: Open Meetings Compliance Board
via e-mail/W. Varga

Mr. Varga,

this replaces the email of August 1 -- a supplement to my Critical Area Commission complaint filed July 30. Please excuse any spelling errors as I am between deadlines.



After July 30, I attempted to find out how minutes were kept and when they would be available and I did not have all the information from the CAC by Aug. 1.

At the time all I has was from Mary Owens of the Critical Area Commission, who provided the following comment:

Commission staff do not prepare minutes from panel meetings. Our short time frame for reviewing amendments simply doesn’t allow it. ... There will be a Panel Report distributed tomorrow afternoon (after the morning Panel meeting) that summarizes the Panel’s discussions from both days ...

However, I did not receive a copy of the Panel Report until today (Monday 8/6). The report is attached. The question is whether it serves the purpose of minutes, and whether the procedures the CAC has used in the Report violate the law.

Minutes Requirements:

The Act requires that minutes be kept. It may be that a "Panel Report" generally satisfies the minutes requirements though not called "minutes."

Disclosures in Minutes:

The Act requires certain public disclosures when closed sessions are held by a public body; the information is to be included in the minutes of the next regular meeting of the public body.

In the case of this Panel, the closed "Legal Advice" session was held on July 30. The meeting was adjourned to be continued on August 1. Considering the breadth and depth of the Panel Report, it would be logical for the information on the July 30 closed session to be included. As far as I am aware, there was no closed session on Aug. 1. However, if there was, I believe it violated the Open Meetings Act. The CAC should clarify this question.

Panel Report:

The Panel Report contains no mention of the closed session held 12:15-12:45 p.m. on July 30. I need not repeat the minimum disclosure required under the Act.

I am under the impression, based on the Panel discussion following the closed session Monday, that more than a legal Q&A went on behind closed doors. The Panel Report gives me no information with which to try and reach a conclusion, and in fact if the Panel Report is taken at face value, the Panel never had a closed session.

As I understand it, the Panel Report is presented to the full CAC and is used in the full commission's deliberations. Information in the Report is used to determine how the full CAC votes. And I am told that it is rare for the full CAC to do anything but ratify the Panel recommendation. I believe it taints the CAC decision in this case (and in all others where unreported closed sessions formed part of a Panel meeting) for the full CAC to accept what is in fact a report created by an illegal process.

If the CAC thinks of each Panel Report as minutes, it broke the law by failing to detail the closed session.

If the CAC does not think of each Panel Report as minutes, it broke the law by failing to keep minutes and failing to disclose certain information about the closed-door session. It may also be breaking the law by failing to adopt minutes that comply with the Act and make minutes available to the public.

Of course, it is possible that CAC has some other procedure in place.

A brief search of the CAC Web site does not reveal any explanation of the minutes procedures CAC follows or how it makes them accessible. As a result, I can't figure out which of the two possibilites CAC abides by, or whether there's a third policy in effect. The OMCB has ruled that a Public Information Act request is not necessary to obtain documentation generated when a public body complies with the Open Meetings Act. Does the CAC wait until a PIA request arrives to release minutes? I do not know.

I have not received a reply to a email sent to Shirley Massenburg, CAC Administrator, asking for clarification on where minutes from the full CAC meetings are and how they are kept. They are not on the Commission's Web site; neither are the Reports; this appears to be very poor public policy.

I would appreciate if the OMCB could clarify this and perhaps make suggestions to the CAC on better ways to allow the public access to their proceedings.



-- Craig O'Donnell

Day 7: The Main Complaint

Here's the complaint as submitted to the Open Meetings Compliance Board. As long as a citizen thinks, in good faith, that the Act has been violated, he-she is entitled to file a complaint by letter, e-mail or fax.



Open Meetings Compliance Board
William Varga, Attorney General’s Office/by e-mail
200 St. Paul Place / Balto, MD 21202

re: Critical Areas Commission

Gentlemen:

I attended the Critical Areas Commission Drayton Manor Growth Allocation meeting at 10 a.m., Monday, July 30. Notice is on the Critical Area Commission Web site at: http://www.dnr.state.md.us/criticalarea/aboutthecommission.html#panel

At about 12:17 p.m., Chairman Gary Setzer turned to the audience, and said that he was going to close the meeting for legal advice under 10-508-(a)7. That was the entire "procedure" he followed.

At no time did the CAC attorney stop the chairman and guide him through the legally required procedure. The meeting was closed for about ½-hour. Once the meeting was re-opened, the chairman did not offer any explanation for the closed session. (While not required, it would have been a great courtesy to the 25 citizens present for the panel briefly to explain the legal points it had wished to clarify. The panel was courteous enough to explain several other items during the course of the meeting that they felt the general public would not necessarily know).

At adjournment, I asked their lawyer, Asst. Attorney General Saundra K. Canedo, for a copy of her business card and to see the written statement. I told Ms. Canedo that I had not heard a vote taken to close the meeting, in fact, no motion was made at all.

She began to refer to a copy of the Open Meetings Manual in a binder she carried. I asked to see the written statement and she said she did not have it. She did not ask me to wait while she got it from Mr. Setzer. I said that I would likely file a complaint.

At this meeting:

1. No motion to close was made.

2. No vote was taken and recorded.

3. No Topic was given, verbally. No Reason was given, verbally.

4. No written statement was prepared and signed by the presiding officer; and

5. I am unaware that anyone took meeting minutes.

I cannot determine the procedure CAC uses to report closed sessions to the public in minutes: meeting schedules and agendas are on their Web site but minutes are not. Given the inattention to procedure at this meeting, I assume that the panel has neglected to keep minutes.


Craig O’Donnell

Days 4, 5 and 6

Because I work at a weekly that publishes Thursday, it's difficult for me to do much here on Mondays through Wednesdays.

However I did receive some e-mail from the CAC, and spoke with some people there in an attempt to find out more about their Open Meetings compliance. That information will follow, along with the two parts of my complaint filed last week.

A supplement was sent in Monday when it became apparent that the "Panel Report" from July 30 (dated Aug 1 and called the Final Report) did not include a single mention of the closed session that was illegally staged. What that means, in essence, is that the "Panel Report" cannot be considered "minutes" under the law because required items are missing; so the CAC violates the law by not keeping minutes.

If CAC claims these reports serve the purpose of minutes (a public body's "minutes" don't have to be called "minutes") they have violated the law by failing to include required elements.

Day Three: The Elements

On the OAG's Web site (link to the left) is the Manual, along with its appendices. Relatively new is Appendix B, a Compliance Checklist "revised October 2006." It's the best way to get an overview of requirements. It says:


COMPLIANCE CHECKLIST

A footnote says: These items are merely synopses of the exceptions. The actual text of an exception should be considered carefully before a meeting is closed on that basis.

For all meetings covered by the Act, did you:

A. Provide proper advance notice?

B. Arrange for minutes to be taken?

For closed meetings covered by the Act, did you also:

A. Identify one or more of the following grounds for closing the meeting?

1. a specific personnel matter;

2. protection of personal privacy on a matter unrelated to public business;

3. acquisition of real property;

4. a proposed business relocation or expansion;

5. the investment of public funds;

6. the marketing of public securities;

7. obtaining legal advice;

8. consulting about litigation;

9. collective bargaining;

10. public security;

11. scholastic, licensing, or qualifying examinations;

12. criminal investigations;

13. other legal requirement; or

14. preliminary discussion of procurement issues.

B. Record a majority vote in favor of closing the meeting?

C. Prepare, at the time of the vote, a written statement of the reasons
and legal basis for closing the meeting and the topics to be
discussed?

D. Keep the closed-session discussion within the scope of the
exception that you cited?

E. Include in the minutes of the next open meeting a statement of the
time, place, and purpose of the closed meeting; a record of the
vote to close the meeting and the authority to do so; and a listing
of the topics discussed, the persons present, and the actions
taken?

For a meeting recessed into closed session to conduct an administrative function, did you include in the minutes of the next open meeting a statement of the date, time, place, and persons present and a phrase or sentence identifying the subject matter discussed at the closed session?

After a meeting, did you file and maintain records in accordance with the record retention requirements of the Act?

Day Two: Who Responds? Who Pays?

After receiving the complaint, the Board will say the law was violated and why; or not, and why not. There's no penalty for breaking the law, except being embarrassed in public and maybe, if you do it enough, being asked by voters to find another career.

If the citizen is rich, or a lawyer, they can also sue in court for infractions. The maximum fine is $100, assuming the judge decides to impose one (I think it's per member of the body, but honestly, I don't know; and I'm not sure anyone has ever bothered to sue).

In a court case the judge could also void the public body's secret decision or impose various other penalties. This is unclear and lacking a pro bono group willing to go to court on these issues there probably won't be much precedent set this way. If you're going to sue, make sure you do it within 45 days of the violation. (Ummm, if the decision was secret ... and doesn't appear in later minutes ... exactly how does someone know that the 45-day clock is ticking? Thank the Legislature for this piece of high-brainpower lawmaking.)

In the long run, since the Compliance Board can't impose any real penalty, the thing that hurts is that the "public body" pays some lawyer -- often the one who didn't tell them about the Act, or whose bad advice led to the complaint -- $60, $100, $whatever$ per hour to respond to the formal complaint.

The lawyer hates it because it's a dumb citizen bothering them and responding isn't sexy work. But oddly enough, the lawyer gets paid for the bad advice when he/she gives it, and then paid to answer complaints.

(The law does not require a lawyer to respond to a complaint, and as far as a lesson in learning the law, the body's presiding officer would be a better choice. But why make your head hurt, when you can use the lawyer you've got and the taxpayer foots the bill for the expert?)

The public body will sometimes argue in general that anyone who files a complaint is "wasting taxpayer money" and public officials' time.

The only response to this silliness is that (a) the taxpayer is the source of everyone's salary, and (b) the taxes that get paid are part of a good-faith social contract between the public and officials that there will be open government and that the public body and its staff will obey the law.

In the end it is faster, simpler and cheaper to "err on the side of openness" -- which the Act says is what's supposed to happen -- and talk about the minimum necessary if something must be confidential -- than to go looking for reasons to exclude the public. Very few things that local governments do really, really, really have to be done behind closed doors.

Day One: I Search for My Jaw

In my work -- writer for the Kent County News in Chestertown MD -- I have become familiar with the Maryland Open Meetings Act. Our reporters have had some issues, some big, some little, with local "public bodies" such as the Kent County Commissioners, the Town of Chestertown, Town of Rock Hall, the county Public Library, the county Community Center Authority, and so on. (Kent County has five incorporated towns: Chestertown, Millington, Betterton, Galena, Rock Hall).

The requirements in the law are pretty simple: vote and document the reason for closing a meeting to the public; discuss only the issues identified in the motion; don't talk policy at any time; and report on the discussion in general terms in late minutes the public can read. (Detailed minutes must be kept for one year, but don't have to be made available to the public).

That's the gist of it. Simple.

In some cases, especially where there were glaring procedural errors, the paper has filed complaints with the Open Meetings Compliance Board in order to serve notice that government is being scrutinized.

As I looked harder at the law (which is brief, and accompanied with a fairly good Open Meetings Act Manual on the Attorney General's Web site) and looked at compliance, I realized that I needed a standard of comparison for our local jurisdictions.

The Att'y General does not have any "best practices" nor an ombudsman; the only way to resolve anything is for a citizen or organization to file a formal complaint. This leads to an adversarial climate, since inevitably the person responding on behalf of the "public body" is a lawyer. The three-member Compliance Board is also, of course, lawyers.

The statewide pace of complaints is about 2 a month; with a couple hundred "public bodies" meeting multiple times a month in Maryland, it's clear people aren't looking at what goes on. The OAG's position is that lack of complaints is "good news" about compliance.

I began looking at Maryland counties, and at some towns or cities. I specifically chose Talbot County (near Kent on the Eastern Shore, but much larger) and Centreville (the next county seat south of Chestertown) as the guinea pigs for initial scrutiny.

I also began to look at how counties were putting their notices, agendas, and minutes on the Web and copied, where available, the public information they had placed online beginning 1/1/07 until about 7/1/07. I figured six months' material would give anyone enough material to discern patterns.

Why start a dry and dull blog? Well, open government's really important. Dick Cheney and Dubya and their boys and girls are the best advertisement there is.

I'm not sure it's dry and dull. And it shouldn't be left to the lawyers. In Maryland every citizen has the right to file a complaint by fax, mail or e-mail. Open meetings problems are most certainly ignored by Maryland's media, except on rare occasions. Even in cases where the media might mention an irregularity, it's not always followed by a complaint. That astonishes me.

Take Preston, Md., where two of the three town councilmembers were holding meetings whenever they wanted to, telling no one, and screwing up to the point that a special recall election was held and out they went. The local paper mentioned the secret meetings; but no complaint ever went to the Attorney General.

But what got the blog out of the back of my mind and onto a page was the Md. Critical Area Commission "panel" or subcommittee meeting I attended on July 30.

At that meeting, the chairman suddenly said: "According to the state open meetings act ... I'm closing the meeting for legal advice." The two dozen members of the public were sent packing.

The CAC is one of Maryland's most influential bodies; it determines what development can occur within 1,000 feet of tidal waters. Millions of dollars ride on its decisions. Sprawl follows (or doesn't follow) its decisions.

And they don't know the law.

Unfortunately, the chairman neglected to follow the law; worse, the Executive Director of CAC, an Assistant Attorney General, and the Chairwoman of the 29-member full Commission were there. None said, "Umm, there's a procedure here ..."

And that indicates to me that they don't know jack, or perhaps care jack, about the Open Meetings Act; by extension, they're dissing the public.

I'm back in Kent County but my jaw, still missing, is somewhere in Annapolis.

The result Monday was the Land Speed Record for filing a complaint: in by e-mail at 4:30 and acknowledged by the state Attorney General in a letter Aug. 1.

The complaint/response/opinion usually takes about 6 weeks.

MD:OMA is a place for analysis and opinion, and documenting not-yet-rectified problems with things such as a jurisdiction's minutes. There isn't a central clearinghouse for issues and information, although the Maryland-Delaware-DC Press Association does its part from time to time.

The Kent County News only covers Kent County; we don't generally get involved with statewide news and we do not have a staff of "investigative reporters." Where there are Kent open meetings issues, the paper addresses them.

In blundering around, trying to learn more and find examples of excellent compliance, I've found a lot of questionable practice around the state. That's what I plan to look at here.

For the record, the Kent County News itself and Chesapeake Publishing Company aren't associated with my blog. These are my personal research findings, own exasperated groans, and personal conclusions.

But by walking through the Critical Area Commission complaint I just filed, I hope to make it easier for every Maryland resident, every citizen, to understand how this works; that it's easy to be a watchdog; it's important to be a watchdog; and no, your local government probably isn't following the state's very minimal openness requirements. Go look and ask and find out.

I hope that other reporters or citizen activists will speak up too.