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16
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Annual Re ort of the 0 en Meetin lianc Board 1
SIXTEENTH ANNUAL REPORT
OF THE
OPEN MEETINGS COMPLIANCE BOARD
Pursuant to 10-S02.4(e) of the State Government Article, the Board
submits this annual report, covering the period July 1, 200 , through Ju1e 30,
2008. . i
. This year's report reflects a change in the composition of the ComplIance
Board. In November, 2007, Governor O'Malley appOinted lizabeth L. Nilson,
Esquire, to serve as Chair, replacing Walter Sondheim, Jr., who passed
in February, 2007. In August, 2008, the Governor appoi ted Julio
Esquire, to replace Tyler G. Webb, Esquire, who retired fro the Board. Mr.
Sondheim and Mr. Webb had served on the Complianc Board sinc its
inception and played a significant role in the success of the ompliance Board
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and its efforts to promote compliance with the Open Meetin Act.
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Activities of the Board
A. Financial and Support Activities
No funds were specifically appropriated for the Compli nce Board in the'
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Budget Bill for fiscal year 2008. The AttorneY Generalis Off ce has borne the
incidental costs of copying and mailing 80ard-relatec;Ldocu ents. i The Bqard
is grateful to the Attorney General's Office for this assistanc . . l
. . lndeed, the Board wis.hes to acknowledge more gene ally the Ongding .
support of the Attorney General's Office, especially d and
involvement o. f .. ormer Assistant General Jack Schwa z and 'ant
Attorney General William Varga, who have provided the d with esse:n ial
advice and guidance. Mr. Schwartz, who retired from the A orney General's
Office on June :30, 2008, had guided the:Compliance Board si ce its inceptibn.
In ad9ition, all of the r.ecordkeeping and -other clerical an
supp6rt for the B.oard are provjded, with outstanding profess onalism, by
Kathleen Izdebski,of the O:pi,n ion s and Advice Division' of the A orney General's
Office. The cost to the Board wouJd have been significant had itbeen requi ed
to obtain tnese support services .elsewhere.
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Annual Report of the Open Meetings Compliancl Board 2
B. Complaints and Opinions
From July 1, 2007 through June 30, 2008, the Compli2 nce Board regeived
17 complaints alleging violations of the Open Meetings I\ct.
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Many Cf the
complaints alleged more than one violation. Four complain s were pending on
June 30, 2008; the opinions in response were issued later. Five opinions were
issued this fiscal year about complaints received prior to JL Iy 1, 2007.
Table 1 below indicates.the categories of complainan 5.
TYPE OF COMPLAINANTS
Number
Citizens 10
Government Officials o
News Media 7
Table 1
As Table 2 indicates, entities at every level of government v ere involved with
complaints. I
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COMPLAINTS BY TYPE OF ENTITY
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Jurisdiction Number
State 3
County 4
2
Local School Board 2
Municioality 6
Other 3
Table.2
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lOne complaint was withdrawn.
2 One filed against a. county. and a ...
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Annual Re ort of the 0 en Meetin 5 Com lianc Board 3
During the reporting period, the Board issued 17 pinions. In \11 of
these, the Board found a violation of the Act. Violations te ded to conce
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, n the
Act's procedural requirements such as procedures for closin a meeting and its
requirements for preparing minutes. All of the Board's opini ns are available at
this Internet location: htt : .state.md.us 0 en v 0 enmeetin s
board.htm.3 - I;
As we have previously observed, although it is impossi Ie to estimatie the
incidence of unreporte. d violations, the Compliance Board b lieves that th} low
number of known violations reflects overall compliance wit the law by
bodies at a" levels of government. This conclusion is furthe supported bl>' the
fact that only a handful of Open Meetings Act issues hav been brought to
court. Overall compliance is undoubtedly fUrthered by the 0 going
efforts of the Academy- for Excellence in Local Governa ce, the Maryland
Association of Counties, the Maryland Municipal League, an the Office olf the
Attorney General. The continued interest of the press in ass rting rights under
the Act also has a salutary deterrent effect. -
The Act calls upon us to discuss in particular "complai ts concerning the
reasonableness of the notice provided for meetings." 10-5 2.4(e)(2)(iiij. In
general, notice issues have not been a focus of complaints, probably
the Act is quite flexible in allowing a range of notice method . That is, Act
allows notice to be given by "any ... reasonable method," in luding at
a public location near the site of the meeting or, as of Jul 1, 2007, an
Inter-r.et website. Thus, the General A?sembly left conside ble discretio1n to
each--iJublic body as to the method of public notice. As Ion a-s a public body
posts the -notice or takes one of the other steps set out in t e law in a tirhely
manner, the Board will not find a violation of the notice req irement. 4
bodies do face notice problems, however, when they call a eeting on
notice, delay a previously scheduled meeting, or decide to op n a meeting;that
had previously been scheduled as a closed meeting. The Co pliance Boalrd'S
guidance _ is that the public should be told of unexp cted schedulling
d,evelopments as soon as practicable, by whatever means are easible underlthe
circumstances. Issues about notice were discussed in the fo lowing opinions:
5 OMCB,Dpinions 165 (2007), 5 OMCB Opinions 182 (2007), OMCB opinions
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3 We thank the Attorney General's Office,for its maintenance the Board's! web
page, which is an important source of information about the 0 en Meetings Act
generally and .about the Compliance Board's procedures.
4 In addition, the notice requirements of the Act, like the re t of the Act, \are
entirely inapplicable to an "administrative function," formerly cal ed an "executive
function." ' ,
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Annual Re ort of the 0 Board 4
184 (20.0.7), 6 OMeB Opinions 1 (20.0.8), 6 OMCB Opinion 9 (20.0.8), 6 bMCB
Opinions 15 (20.0.8), and 6 OMCB Opinions 32 (20.0.8).
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Legislative Recommendations
The Compliance Board is to report annually "imy re for'
improvements to the provisions" of the Act. lo.-5o.2.4(e) 2)(v). The Board
has ,no legislative recommendations of its own this year. owever, we have'
considered a at the request of the House Gove nmentOper tions
Subcommittee as well as several recommendations by a me ber of the p .blic.
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House Bill 349 (2008)
During the 20.0.8 Legislative Session, the House Gove nment Opera ions
Subcommittee requested that the Compliance Board con ider a
proposal that would have amended the Open Meetings Act o' as to prohibit ,a .
pubHc body from. conducting a vote during a closed (House BiIIl' 349
(20.0.8. On February 20., 20.08, we wrote to the Com ittee
concern that, if enacted as initially proposed, the legisl tion would faise
significant interpretative problems. Subsequently, the s onsor of the bill
proposed an amendment that would have restri . ion to a final
and limited the application to sessions closed under the A t to -
acquisition of property (1o.-5o.3(a)(3)) and competitive pr curements (1o.-
508(a)(14)). The Subcommittee requested that we evalu te the ded
proposal during the interim. . . :.
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The Compliance Board reviewed this proposal with repr sentatives the
Maryland-Delaware-D.C. Press Association, the Marylan Associatio .of
Counties, the Maryland Municipal League, and other stakeh Iders. While
Compliance Board supports holding members of bodie accO,untabl 'for
their votes, caution.must be exercised so as toriot compromi the underltin.g
policies of the General Assembly in defining certain i .meetilllgs
legitimately may be closed. While we are symPCitt:ietic to' oal 6f the
sponsor, the Compliance Board remains concerned that the nlEmdedversion
of the bill Would still create problems for public bodies, 'iI, i.t:s:.i ' .. pie,rnentatiorin.,
that, in ,many it not always be to id . ntifY. in ::
what might constitute a final vote. Thus, we cannot s.uPP rt amenc!:fe,d. -:.'
version of the legislation. However, as an .
General Assembly to enact legislation whereby, unde.r .1.0:,,'S 9(c)(2) i a .'
body would be required to report in publicly available' minutes any final rOI,If,all
vote conducted in closed session on a matter governed by 10-5o.8(a) 3)
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Annual Re ort of the 0 en Meetin 5 Com Hance Board 5
(acquisition of property) and (14) (competitive procurement ). We
this approach would result in disclosure to the public of eac member's v9te on
any controversial matter on which a roll call vote was requi ed, while avoiding
the interpretative problems addressed above. While we be ieve this woJld be
an appropriate step, we believe further study is warrante before expahding
this closed under other provisions of 10-S08(a).
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We have been asked by a member of the public, Ms. Michelle Fluss, to
consider endorsing a Ie i ve ro osal modeled in part fter a rovis
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Com , . A px. 1 - 6, to ensure\ that
advisory committees appointed by Executive Branc agen ,'hich incclude
one or more private citizens, be in the public interest and b "fairly balarlced"
in terms of points of view represented and "assure tha the advice\ and
recommendations ... [are] not ... inappropriately influenced by the appoiJilting
authority or by any special interest." Ms. Fluss also reco mended that the
public be kept informed about each advisory committ e's
chairperson's name, purpose, duration, report submission dat s, meeting
location, contact information, and activities via the app opriate
website.
Similar recommendations were considered by the Com
___________ a -afrT;""We decline to take a position on them.
Notice information
Finally, Michelle Fluss requested that we conside recommen(ling
legislation to require a public body include in a meeting not ce posted on\the
website the date on which the notice was posted and that t e notice rellilain
available on the website as an archived document for at least ne year from the
date of the meeting.
The Compliance Board believes this recommendation as it to
inclusion of posting dates, has merit. Unlike a newspaper announcement or
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notice in the Maryland Register, it is not always possible to document when
notice is given via an Internet website or when a notice was a tually on
a bulletin board. Thus, questions arise whether the amount of notice was in
fact reasonable. This could be accomplished by amending 1 -S08(b) to
as follows: I
Whenever reasonable, a notice under this se
shall :
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Annual Re ort of the 0 en Meetin
. (1) be in writing;
(2) include the date, time, and place
(3) INCLUDE THE DATE THAT THE N TICE
WAS POSTED IF NOTICE IS PROVIDED UN ER A
METHOD IDENTIFIED IN SUBSECTION (C)( ) OF
THIS SECTION; and
[(3)] (4) if appropriate, include a stat ent
that a' part or all of a meeting may be conduc ed in
closed session.
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Subsection (c)(3) addresses use of an Internet website or osting notic at a
convenient public location at or near' the place of the sessi n. Under.
law, a public body is required to retain.a copy of a meeting notice for at least
one year after the date of the session.' 10-S06(d). ompliance .. hard
takes no position onthe suggestion that website notices mus be kept avai able
online for the one year period. .
Technical correction
Staff recommended that the reference to a "county c. rter" in the ct's
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definition of "publiC body" be amended to read "county or unic;ipal
Prior to enactment of the State Government Article, the law . fetred to a "local .
charter." The substitution to a "county charter" is believe to.be erromqus"
substitution as part of the code revision process. .
Because the Compliance Board views this change as
amendment, was asked. to .contact Depart ..:! .
Services to request that thiS matter be Included In the De rtmerit's .aI).nUa!, .. , . .' .
corrective bill. The substitution could referto a"countyor.. .. .
. or, returning to the pre-1984 language, a "Iocal . ..! "," j ...... .
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