By Adam Pagnucco.
In a recent memo to the county council, County Executive Marc Elrich cited Open Meetings Act violations by the planning board as a reason to oppose the board’s Thrive 2050 plan. The county executive is right to be concerned about those violations, but he should also be concerned about the violations that have occurred in his own administration.
The Open Meetings Act is a state law setting requirements for governmental entities in Maryland to hold open meetings. The Office of Maryland’s Attorney General summarizes it this way:
The Open Meetings Act is a Maryland statute. It states the goal that “public business be conducted openly and publicly” and sets as the policy of the State that, except in certain “special and appropriate circumstances,” the public “be provided with adequate notice of the time and location of meetings of public bodies, which shall be held in places reasonably accessible to individuals who would like to attend these meetings.”
There are important details in the act, including the definition of covered public bodies, rules for determining quorums and appropriate subjects for closed sessions including “personnel discussions about particular individuals, the receipt of legal advice from the public body’s attorney, and subjects that must be kept confidential under other laws” such as proprietary business information. Generally speaking, meetings that do not fall under these exceptions are expected to be open to the public.
Last March, county resident Gray Kimbrough filed a complaint with the Open Meetings Compliance Board, which investigates violations of the act, alleging “violations by 60 public bodies under the purview of the Office of the County Executive.” The board published an opinion in August which did not agree with all of Kimbrough’s allegations but nevertheless found numerous violations of the act. The board wrote:
As we explain below, we find that many of the Complainant’s assertions fail to allege a violation of the Act, and we lack sufficient details in several other instances to determine whether a violation has occurred. But we also conclude that several bodies violated the Act, by failing to provide reasonable advance notice of meetings, by failing to provide the public information on how to access virtual meetings, by failing to retain meeting notices, by failing to make agendas available to the public or by failing to do so in a timely manner, and by failing to prepare minutes or post them online when it was practicable to do so.
The board’s opinion is 7 pages long and makes clear that the county admitted many violations of the act while leaving many other allegations unresolved. In addition to the hyperlink above, the opinion is stored on this site and can be downloaded below.
Open Meetings Compliance Board Opinion 163 (2022)
So what happens when the act is violated? According to the Office of Maryland’s Attorney General, there are two modes of redress. The first involves the Open Meetings Compliance Board, whose authority is described in this way:
First, you may file a complaint with the Open Meetings Compliance Board to seek an advisory opinion on whether the public body violated the Act. The public body then has 30 days in which to respond, and the Compliance Board usually issues an opinion within 30 days after that. The Compliance Board has no budget of its own and does not have investigative powers. Its three members are appointed by the Governor and serve without compensation. The Compliance Board’s procedures are posted at http://www.marylandattorneygeneral.gov/Pages/OpenGov/Openmeetings/default.aspx. It does not address Public Information Act complaints.
The Compliance Board’s opinions are not enforceable orders; that complaint route instead is a way of seeing that the public body gets relatively prompt guidance on how to comply with the Act. However, when the Compliance Board finds a violation, a member of the public body must summarize the opinion in the next open meeting, a majority of the members must sign a copy to acknowledge that they have received it, and the violator is identified on the webpage used by the Compliance Board for publishing its opinions. The public body must send a signed copy of the opinion to the Compliance Board. The Compliance Board route is free and also faster and more informal than litigation.
If you don’t find that process to be satisfactory, you can sue. Guess who has to pay your lawyer?
Because of this absence of enforcement, violations of the Open Meetings Act are almost as common as jaywalking. The compliance board’s website lists hundreds of investigations with many of them finding violations of law. Just in the last four years, the board found violations at the City of Rockville Planning Commission (2019), Montgomery College (2018), the Montgomery County Council (2021), the Montgomery County Housing Opportunities Commission (2020, 2021, 2021, 2021) the Montgomery County Revenue Authority (2019, 2021), Park and Planning (2022, 2022) and the Village of Chevy Chase Section 3 (2021). The rest of the state has seen many, MANY more violations.
Former Planning Board Chair Casey Anderson was docked a month’s pay and eventually fired for mixing cocktails in his office after hours. Meanwhile, what has happened to the hundreds of public officials cited on the state’s website for breaking state law on open meetings? Basically nothing. And so repeat violations are common. The Housing Opportunities Commission, for example, was found to commit at least 9 violations spread across 4 different investigations in 2020 and 2021.
Open Meetings Act violations are now being used as political weapons by opponents and supporters of the Thrive 2050 plan but the issue is much bigger than tactical politics. Let’s state this plainly: it’s obvious that there is no true accountability for breaking the Open Meetings Act. The General Assembly should amend the law to include real teeth, such as genuine investigative powers for the compliance board and actual discipline for individual violators – especially serious and repeat violators. Otherwise, open meetings in Maryland will continue to be regarded more as an option than a requirement.