The Potomac Highlands Dispatch
Phone: 301-264-3147
Email: [email protected]
P.O. Box 651
Mount Savage, MD 21545
State board: Commissioners violated Open Meetings Act
* Allegany County elected leaders are cited for multiple
violations in advisory ruling stemming from Dec. 18 event
By Kevin Spradlin
PhDispatch.com
MOUNT SAVAGE, March 14 -- The state's Open Meetings Compliance Board took issue with multiple elements surrounding the Allegany County Board of Commissioners and its decision to conduct an executive session.
At issue is a closed-door meeting conducted on Dec. 17, the commissioners' first full day in office. The newly elected commissioners, who were sworn in at 7 p.m. on Dec. 16, had already announced earlier that day their plan to meet with newly elected Sheriff Craig Robertson and others.
The meeting, Commission President Mike McKay repeated after the swearing-in ceremony, would not be open to the public. The agenda was released on the afternoon of Dec. 17 and indicated the discussion would center around public safety and public security. Statements by McKay, Commissioner Bill Valentine and County Administrator David Eberly, however, did not appear to support that premise - one of 14 specific reasons how a public body can close an otherwise public meeting under the state's Open Meetings Act.
PhDispatch.com and The Potomac Highlands Dispatch filed a complaint with the state's Open Meetings Compliance Board shortly after the executive session took place as scheduled. The complaint largely questioned whether the subject matter of the meeting was a proper basis for a closed session.
In a letter received today, compliance board members Elizabeth L. Nilson, Courtney J. McKeldin and Julio A. Morales said the commissioners "violated the Open Meetings Act by failing to create a written contemporaneous closing statement that documented their vote to close the meeting and their reasons for closing the meeting."
"The response (from the county) indicates that one portion of the closed session concerned a discussion with the sheriff of individuals to be appointed by the sheriff to advise him about certain public safety matters," the board wrote. "From our review of the sealed minutes it does not appear that this discussion fell within any of the (14) stated exceptions. In our view, the commissioners violated the Act in closing this portion of the meeting."
From the complaint, however, and from the county's initial and subsequent responses, the compliance board went further. Rudd had informed the compliance board that discussion included "the use of certain buildings for law enforcement purposes and matters related to federal agencies and states that, under federal law and a written agreement with the federal agencies, "'any further disclosure related to that matter would be a violation of national security.'"
"Without citation to federal law or a copy of the agreement," the board wrote, "we cannot evaluate this claim. Nor are the sealed minutes enlightening. What we can say is that the exceptions cited in the written statement included in the public minutes do not appear to apply to this discussion. If federal law would bar disclosure of the content of this discussion, the appropriate exception would be para. 10-508(a)(13) ..."
"In addition," the board wrote, "we find that the public minutes of the closed session inadequately described the topics of discussion. Finally, the commissioners' discussion with the Sheriff concerning an advisory committee to be appointed by the Sheriff was not an appropriate subject for a closed meeting under the Act."
Members of the compliance board requested a sealed copy of the commissioners' minutes from the executive session. In County Attorney Bill Rudd's letter to the board, however, Rudd noted the closed-door meeting discussion included "the sheriff's creation of a committee to advise him on certain matters, the use of county property by certain federal agencies and a request by members of the police department for representation by the Maryland Classified Employees Association."
* The board found the commissioners did not create, when the vote took place to close the meeting on Dec. 18, a document that describes the reason for closing the meeting. The document was not prepared until after the Dec. 18 meeting.
"This is not a technical point," the board ruled, "as the propriety of a closed meeting can turn on whether the subsequent discussion deviated from the purposes announced in public for closing the meeting. In this case, the advance notice of the meeting cited one exception for closing the meeting while the statement created for the minutes recites three reasons. A closing statement created after a closed session has happened would create confusion as to the purpose for which the meeting was closed and the actual discussion that took place."
"As we have said before, after-the-fact justifications are ineffective."
* "Second, it is not clear from the statement created for the minutes precisely how the commissioners voted on the motion to close the session - i.e., whether the vote was unanimous or by a 2-1 margin. This is also not a technical point. The recording of the vote is to ensure that the officials who choose to close a meeting are accountable for that decision."
* "Finally, in describing the reasons for closing the meeting, the statement prepared for the minutes quotes or closely paraphrases three statutory provisions. This would not be adequate for a closing statement. As we have said previously, a closing statement need not be so detailed as to compromise the confidential purpose for which the meeting is closed, but 'saying nothing beyond the statutory language deprives the public of the information to which it is entitled.'"
"In any event, the commissioners violated the Act by failing to create a written closing statement at the time they voted to go into closed session on Dec. 17."
* At the commissioners' next public meeting, on Dec. 30, McKay read from a prepared statement a lengthy legal citation of why the meeting was closed. The compliance board ruled that was insufficient.
"The written statement concerning the closed session included in the public minutes complies with the statutory requirements, except that it fails to describe the topics of discussion other than to quote or paraphrase the language of the cited exceptions. As prior opinions have stated, the description must be more informative than simply parroting the statutory language."
* Also: "The response states that there was also a discussion of a request by certain members of the police department for representation by the Maryland Classified Employees Association. The closed session minutes are exceedingly cryptic on this issue and we are therefore unable to reach a conclusion as to whether the session was properly closed under this exception."
"However, it is notable that the exception relates to the conduct of negotiations or discussions related to negotiations - not to discussions as to whether to recognize a particular union or employee representative."
McKay says violations are 'live and learn' situation
By Kevin Spradlin
PhDispatch.com
MOUNT SAVAGE, March 16 -- Allegany County Commission President Mike McKay blamed his administration's violations of the state's Opening Meetings Act on a "learning curve."
The Maryland Open Meetings Compliance Board, in a letter dated March 10, said the commissioners had multiple violations to the act of conducting an executive session on Dec. 17 with Sheriff Craig Robertson.
"We're talking the first day of our administration," McKay said, noting they were sworn in only on Dec. 16. "And obviously, we were wrong."
McKay disputed that since the commissioners were new, the board's ruling was a reflection on County Attorney Bill Rudd, who originally advised the commissioners the executive session was properly called and conducted.
"If this thing had come out that said we did nothing wrong, I think your question would be a little bit changed," McKay told PhDispatch.com. "This advisory board feels that that was not a reason to go into executive session. Going forward, we're going to have to be careful and make sure we don't violate (the Open Meetings Act). What we thought was a valid reason for meeting in executive session - obviously, it wasn't."
McKay said the new commissioners, elected in November, received pre-swearing-in familiarization by county staff. Formally, each commissioner attended training on complying with the Open Meetings Act at the Maryland Association of Counties winter conference in January.
There, McKay said he learned a simply axiom.
"Just as with the Sunshine Law, when in doubt, don't," McKay said. "if you feel that you're violating it in any respect, then you shouldn't be having that meeting. At that time on the 16th when we (met), we thought we were within the rights of what we were supposed to be doing. I think it's a live an learn situation."
He said the commissioners have taken PhDispatch.com's caution to heart. The Dec. 17 closed-door meeting is the only executive session in the commissioners' three months in office. Conversely, McKay noted, the Allegany County Board of Education meets in executive session on a regular basis for what he said were extended periods of time.
McKay said he was glad the issue was challenged.
"I think that was good," he said. "In this case, we found out we shouldn't have done that. I think (executive sessions) need to be used as sparingly as possible."
McKay discussed the county's intent to follow through on Cumberland resident Marc Nelson's plan to create transparency committee. The idea is expected to be discussed at Thursday's public work session at 4 p.m.
McKay said Nelson provided the commissioners with names of potential committee members for the planned five-member advisory panel.
Once the group's work is done, "we'll take those recommendations under advisement," McKay said. "we may throw out all of them. We may put all of them into effect or we may pick and choose."
Bob Malamis photo