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.
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