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Editorial Advisory Board: Board of Regents should tell all on the Big Ten

The Board of Regents of the University System of Maryland is hoping that the controversy over its admitted violation of the state’s Open Meetings Act will just go away or that the public will tire of it in the glow of what it may believe are the benefits that will accrue to the university by leaving the Atlantic Coast Conference to join the Big Ten.

Regardless of whether it was a good decision or not on the merits, we hope the issue does not go away. Our analysis of the issues suggests to us that the Board’s vote was not merely a statement of opinion by people whose approval was not necessary. We believe that the vote was not only unlawful but may have been knowingly so because of the legal sophistication of many Board members, and that the multiple violations of Maryland law that accrued over two days of secret meetings may have well been in service of an agreement with the Big Ten whose non-disclosure provision was material to the agreement.

The Open Meetings Act was violated by the repeated failure to follow the procedures for closing a meeting even if it could be closed in part. None of the 14 statutory exceptions to openness has been cited as allowing any part of the meeting to be held in secret, and we find none that apply. Certainly no authority exists for keeping the entire two-day affair secret.

Perhaps, in the new spirit of openness pledged by Chancellor Kirwan, the public should be given much more information about what happened, and why it happened, than explanations that we find cursory and unenlightening. We take on face value the chancellor’s pledge and we call upon him to act promptly to fulfill it.

What the public has been told leaves us mystified. One of the claims is that the university did not need the regents’ approval of the Big Ten agreement and sought it only because the agreement was so high-profile. The purpose of this claim is manifest: if the vote was unnecessary and is a nullity, the agreement stands.

The vote was not unnecessary. The Board of Regents’ bylaws state that “the Board is responsible for the management of the University System and has all the powers, rights, and privileges that go with the University.” Whether nor not the Board had to vote on the Big Ten agreement, by doing so it was exercising its plenary authority over the University System. That decision was made when the matter was placed before the Board and a vote was called.

No reasonable governing authority would not have voted on a matter of this importance to the institution it was charged with overseeing. Chancellor Kirwan was right in calling for the regents’ review and approval. Even if he was not right, he called for it and the Board exercised its powers to act on his call. The Big Ten would have insisted upon it, as would any television or cable network worth its salt, as a condition for bidding on a package that included our viewing area. Thus, the vote bound the University System and if nullified the approval disappears. Welcome back to the ACC.

Narrow privilege

The regents and Chancellor Kirwan also have floated the supposed bar of attorney-client communication as preventing any in-depth disclosure to the people of Maryland. We question this statement as well.

First, the Open Meetings Act itself sets forth the exception that will apply for attorney-client communications. The exception is very narrow: It allows non-disclosure of only those communications “between a lawyer and the public body that actually involve rendering legal advice, not where a lawyer is serving in an alternative capacity such as acting as a business agent.” The law “requires that the issue be one on which the body seeks and obtains the advice of the lawyer.” We are entitled as a matter of law to know who asked whom what, when, for what purpose, and who participated in the discussion.

Lawyers know what the public does not: that stating “attorney-client privilege” is not a self-operating incantation behind which all may be hidden. The Board has to justify attorney-client privilege, as if it were preparing a privilege claim in a court of law. In all the chancellor’s talk about openness, nothing has been done to tell the public everything that can be told, even if privilege covered part of what went on behind closed doors.

Or tell everything: The owner of privilege has the right to waive it. The Board of Regents could vote today to waive privilege and let the people of this state know what happened. The regents then would be acting as stewards of the public interest.

Nor is it clear that advice was given, or whether Chancellor Kirwan may already have waived the privilege. Kirwan is quoted as saying the group was merely “confused” and “overlooked” its responsibilities under the law, and that the Board and its advisers never thought of notifying the media or the public of the meeting. That doesn’t sound like any advice was sought or given.

Nothing in this column should come as a surprise to any of our loyal attorney readers. We are all attorneys as well. So, too, are many of the regents, including the chair of the Board, who also chairs one of Maryland’s most prestigious law firms. Another Board member is a former president of the Maryland State Bar Association. These men and women had a duty to provide their full legal learning to their service on the Board of Regents. The Bylaws state: “All Board meetings shall be conducted in accordance with” the Open Meetings Act of the State of Maryland.

They knew, and if they did not, we the people of this state have a right to know how that could have come about.

The regents are fine men and women who give of their time and apply their expertise for the benefit of this state. Yes, they made an egregious mistake, admittedly violating the law. We hope and trust that they will do the right thing now and “go naked” in revealing all, to the public and not just the investigators. The investigation should proceed in the public eye as well in order to engender confidence that an admitted violation of a law to keep public business public is also handled publicly.

It is regrettable that the Maryland Attorney General appears to be on all sides of this problem, having had one of his assistants advising the Board at the illegally-secret meetings. We trust that the Attorney General will immediately tell the public what he will do to ensure that the investigation goes forward at full speed and is handled without partiality for anyone, including his own employee. We suggest that, in the future, the General Counsel of the University System be the sole legal body advising the Board at meetings on attorney-client issues, including the applicability of the Open Meetings Act.

Patent risks

Although lost in the general pooh-poohing of this issue by the Board and the chancellor, the risks are patent: That if the vote is void, the approval is void. That if the contract is illegal by requiring confidentiality, then it is void. All it takes is one person with standing, and this is a liberal state in that doctrine as in so many others, and the Big Ten deal could go up in smoke.

We trust that the courts will not be cowed by predictions of doom if they rule as the law dictates. After all, if we sell our souls for the rich purse of commercial athleticism, and as a consequence trample on our basic rights of a free and open government, what have we gained?

Editorial Advisory Board members Frederic Smalkin, Christopher West, Wes Blakeslee, Norman Smith and Elizabeth Kameen did not participate in this opinion.

Editorial Advisory BoardJames B. Astrachan, Chair

John Bainbridge

Wesley D. Blakeslee

Eric Easton

Arthur F. Fergenson

Elizabeth Kameen

C. William Michaels

William Reynolds

Frederic Smalkin

Norman Smith

H. Mark Stichel

Ferrier R. Stillman

Christopher West