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Editorial Advisory Board: When the third time is not a charm

Editorial Advisory Board: When the third time is not a charm

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The Maryland Open Meetings Act requires all public bodies to meet in open session unless there is a compelling reason to do otherwise. As noted in the public policy statement of the Act, “[i]t is essential to the maintenance of a democratic society that, except in special and appropriate circumstances: public business be performed in an open and public manner; and citizens be allowed to observe the performance of public officials and the deliberations and decisions that the making of public policy involves.”

Although the Open Meetings Act has existed since 1977, Christopher Mahoney, the Managing Editor of the Baltimore Business Journal, said recently, “Baltimore City government has a shameful reputation for conducting way too much of its business behind closed doors.” He should know. This past summer, the Journal successfully petitioned the State Open Meetings Law Compliance Board, which was created in 1991, after its reporter, Kevin Litten, was barred from a closed session of the Baltimore Development Corp. on July 25, 2013.

This was the third time in six months that the Compliance Board ruled that Baltimore city government violated the Act and it did not hide its frustration in its opinion, writing, “it appears that the board members unanimously adopted a motion to close a meeting without knowing why they were doing so, let alone informing the public.”

Kevin Litten is not the only reporter who has banged his head against the proverbial closed door of city government. On July 25, 2013, the Compliance Board ruled that the Baltimore City Finance Board also violated the Act by excluding Luke Broadwater of The Baltimore Sun, as well as Stephen Janis and Melissa Roeder of Fox 45, from a meeting on May 20, 2013, when it granted approval for the legislation authorizing the financing of the controversial Harbor Point real estate development project through the City’s Tax Increment Financing Policy. The Finance Board conceded that it failed to file a “written statement” in compliance with the Act, which requires a presiding officer to specify in advance both the reasons for closing a meeting and the topics to be discussed.

Noting that the Finance Board’s post hoc written statement was not even in substantial compliance, the Compliance Board went to great lengths to explain the requirements of the Act because it was not confident that “the Finance Board fully understands how and why to comply with the ‘written statement’ requirement of the Act.” Although Mayor Stephanie Rawlings-Blake was not present at this meeting, she serves as the president of the Finance Board.

That opinion came on the heels of yet a third highly publicized and controversial violation. On May 20, 2013, the Compliance Board ruled that the Baltimore City Automated Traffic Violation Enforcement System Task Force violated the Open Meetings Act in three respects when it failed to give reasonable advance notice of its meetings, met in a place that was not reasonably accessible to the public, and failed to prepare timely minutes.

The Task Force met on March 20th at the Anne Arundel County headquarters of the Brekford Corp., the city’s new vendor. A video on the Sun’s website shows a Brekford official barring members of the media from entering the building, claiming it was a “secure facility.” Sounding more like a hospital committee cloaked with a peer review privilege, the Task Force went so far as to recommend that the city “restrain media access” to future task forces to enable “frank, productive conversations.”

These repeated violations demonstrate not only a problematic pattern of secrecy, but a lack of understanding of the most fundamental provisions of the Open Meetings Act. Notably, the Compliance Board has insufficient authority and no budget of its own while the monetary penalties for violating the Act are weak. The Open Meetings Compliance Board may issue advisory opinions, but has no enforcement power. Beyond that, an aggrieved party must file a complaint in the circuit court where a judge may issue injunctive relief, void a final action, and grant attorney’s fees. The burden rests on the complainant and, not surprisingly, few cases have been filed.

The Act was amended in 2013 and now requires each public body to designate at least one employee, officer or member to receive educational training, which may easily be fulfilled by taking an online course on the Attorney General’s website. This is a welcome amendment, as it appears that the City Law Office has failed to explain the basic provisions of the law to public officials, boards and task forces. In addition, a public body that violates the Act must now summarize the opinion at its next public meeting and members must sign a copy of the opinion and return it to the Compliance Board, thereby requiring officials to publicly acknowledge the error. Finally, a circuit court judge now has the discretion to admit the often detailed and well-written opinions of the Compliance Board into evidence, and may impose a fine of $250 for a violation (up from $100) and a subsequent fine of up to $1,000 for a second violation that occurs within a 3-year period. Characteristically, these financial penalties remain woefully inadequate.

We do not cast stones solely at Baltimore city. Our column of Jan. 6, 2013, “Board of Regents should tell all on the Big Ten,” expressed alarm that the Board of Regents of the University System of Maryland repeatedly — and possibly knowingly — violated the Act when it conducted secret meetings over a two-day period to approve the university leaving the Atlantic Coast Conference to join the Big Ten. Other public bodies have broken the law as well. The Compliance Board’s most recent Annual Report states that it resolved 32 complaints in fiscal 2013 and issued opinions in 24 of those cases.

This is such a widespread and serious problem that we devote a second column in a year to express our longstanding advocacy that the Act needs to be strengthened. This is a clarion call to the General Assembly.

The Joint Committee on Transparency and Open Government, which was created in 2011, consists of six senators and six delegates who are charged with providing continuing legislative oversight regarding transparency and open government. Although they are required to report to the legislature as of December 1st of each year, this year’s report is not available at this writing.

We urge Senate Joint Committee Chair Bill Ferguson, D.-Baltimore City, and House Joint Committee Chair Kumar P. Barve, D.-Montgomery, to take this charge most seriously and hold public meetings so that members of the press corps, watchdog groups and private citizens can make recommendations to further improve the Open Meetings Act. The Legislature should consider granting the Compliance Board both subpoena power and enforcement power. And similar to the State Ethics Commission, which can fine public officials for failure to file disclosure statements, the Legislature should also examine whether the Compliance Board should have the authority to fine officials who violate the Act. These violations would undoubtedly come to a screeching halt if officials were held personally liable for fines or faced possible misdemeanor charges for repeated or willful violations.

The government’s lack of transparency inevitably and inherently breeds distrust of our public officials. Just as a court may take a negative inference against a party for repeated discovery failures, it is fair to assume that our government has something to hide when it violates the Open Meetings Act.

As the Court of Appeals noted in City of Baltimore Development Corporation v. Carmel Realty Associates, the Act was intended to make the entire deliberative and decision-making process open to the public and ”’should be construed as to frustrate all evasive devices.’” It is incumbent upon the Bar to demand compliance with the Act.

Editorial Advisory Board members Kevin F. Arthur, Elizabeth Kameen and Ferrier R. Stillman did not participate in this opinion. 

Editorial Advisory Board

James B. Astrachan, Chair

Kevin F. Arthur

Wesley D. Blakeslee

Phillip J. Closius

Arthur F. Fergenson

Caroline Griffin

Elizabeth Kameen

C. William Michaels

Gale Rasin

William Reynolds

Norman Smith

H. Mark Stichel

Ferrier R. Stillman

Christopher West

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