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Editorial: Upping the ante on Open Meetings

Imagine that you were caught going 30 in a school zone — but instead of a fine or a court date, you are told to go back a block, retrace your route and take it a little slower this time.

That’s essentially the penalty a public entity faces for violating the state’s Open Meetings Act. Yes, there is the potential that any action taken behind closed doors will be deemed void. However, the risk is miniscule, given the “do-over” rule sanctioned by the state’s highest court. While the closed-door action may violate the law, the entity can make things right simply by going back and doing things right.

With such low stakes, it’s no wonder the Open Meetings Act could easily slip the collective minds of otherwise well-meaning public servants — even knowledgeable, legally sophisticated public servants like those on the University System of Maryland’s Board of Regents — when faced with a high-stakes decision like, say, shifting from the Atlantic Coast Conference to the Big Ten.

The lack of an enforcement mechanism was one of the main complaints aired last fall at hearings held by the General Assembly’s Joint Committee on Transparency and Open Government. Now, one member of that committee has proposed raising the ante.

Del. Dan K. Morhaim, who also chairs the Government Operations subcommittee, is working on a bill to give enforcement powers to the three-member Open Meetings Compliance Board. The delegate told MarylandReporter.com’s Len Lazarick this week that he envisions fines on the offending public entity, ranging from $1,000 for a first offense and up to $10,000 for a third strike. He also wants to require a signed acknowledgment of the violation from the offending entity’s members.

It’s unclear whether the delegate’s proposal would stand much chance in the General Assembly, a body whose appetite for such measures is like a camel’s appetite for water: It can wait a long time between sips.

Like the Office of the State Prosecutor (created in 1976, given full subpoena powers in 2008), Maryland’s current Open Meetings Act is a product of the scandal-plagued Watergate era. Passed in 1977, the “sunshine law” was overhauled in 1991. Among the changes that year was the creation of the compliance board. Even now, the board has no budget allocation to call its own, which could present challenges if enforcement obligations are added to its current investigative and educational roles.

While that detail — and many others — have yet to be fleshed out, we see Del. Morhaim’s proposal as a starting point for a much-needed debate about the strength and vitality of the law.

The foundation of the Open Meetings Act is the notion that the public’s business ought to be conducted in public. If that foundation is to stand, there must be consequences for neglecting or chipping away at it.