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Secrecy of state’s Noridian decision raises questions

ANNAPOLIS — Sunday night’s decision by a state panel to fire the primary contractor on the health exchange website raises questions about whether it complied with the Maryland Open Meetings Act.

The board of the Maryland Health Benefit Exchange called the meeting on Saturday, posting a small notice on the agency’s website. It did not notify the press of the unusual weekend evening meeting.

Dr. Joshua M. Sharfstein, the state’s secretary of Health and Mental Hygiene, maintained Monday that the board complied with the law.

“We are advised by the Office of the Attorney General,” Sharfstein said, adding that the board is interested in public transparency.

“We’re always happy to improve,” Sharfstein said.

The board voted in closed session to end its contractual relationship with Fargo, N.D.-based Noridian Healthcare Solutions. The board did not return to open meeting to announce the decision. Instead, it waited until Monday afternoon to issue a statement.

That raised questions from one expert on open meetings laws.

“Typically you would close your meeting and have a conversation with your lawyer about taking a legal action or a disciplinary action or an action in anticipation of litigation. Then you would go back to the open portion of the meeting and vote,” said Lucy Dalglish, dean of the Philip Merrill College of Journalism at the University of Maryland, College Park.

The Maryland Open Meetings Act requires that all meetings of a public body, even those conducted by phone, be held so that the public can observe. The law requires adequate notice. Such notice can be a simple post on a website, but it also can include notifying reporters who typically cover the agency.

“Maybe it wasn’t adequate notice, but they gave you notice,” Dalglish said. “These days, something on a publicly viewed website is probably going to be viewed as ‘reasonable.’ However, on the website they should have told you why they needed to close the meeting.”

Allen Dyer, an Ellicott City attorney and former member of the Howard County School Board, said adequacy of the notice does raise questions because the agency has used email to notify the media and public of past board meetings.

“They’re doing something different that is not in accordance with their standard procedure,” Dyer said.

State law does allow boards to go into closed session under 14 limited circumstances, such as to consult with an attorney regarding potential litigation. It is not immediately known what exemption the board invoked to go into a closed meeting.

Sharfstein said the board went into closed session almost immediately and remained in a closed meeting until adjourning without additional public comment at about 9 p.m.

A state Open Meetings Compliance Board ruling in 2000 found that “the exception is a relatively narrow one, limited to the give-and-take between lawyer and client in the context of the bona fide rendering of advice.”

The same board also determined in 1993 that “once the legal advice is obtained, the public body may not remain in closed session to discuss policy issues or other matters. The exception for consultation with counsel may never be invoked unless the lawyer is present at the meeting.”

Dyer said he believes that the board should have taken the vote to end the Noridian contract in an open setting.

Reporter Alissa Gulin contributed to this article.

Statement for Closing a Meeting (Text)