FRIDAY, NOVEMBER 30, 2012
Maryland Transparency 'n' Accountability
The Idiot's Guide to Maryland Regents Meetings: I
LINK

Who told the regents of the University System of Maryland to go ahead with their secret meetings?

In this post, we find an answer by way of a few detours into the workings of the Open Meetings Act and Maryland's Office of the Attorney General.

There are so many confused and plain wrong notions floating around about this in comments on various blogs and websites it's time for facts. Lightly spiced, in this case, with opinions. So an idiot's guide, if you will.

In the case of the regents, and typically in every other case where secret meetings are going on, it's not all about "undoing the vote" or "was it strictly legal."

It's about how the public is treated as an afterthought by state and local government people. It's about the appearance of secret dealings. It's about eroding the public trust and their right to know, year after year.

It shouldn't be necessary for the press or public to call them on it, but it seems that things deteriorate until finally someone does.

So.
When a "public body" starts swerving all over the road because it doesn't pay attention to the Open Meetings Act, my blood pressure goes up and my eyes bug out. It's no pretty sight.

You've got a right to look at the meeting records.
Full stop.
It's not debatable.

When the university regents held two secret meetings on November 18 and 19, voting in the second to support a move to ditch the ACC in favor of the Big Ten, they very clearly violated the Maryland Open Meetings Act. But not because of their vote.

A quorum was present.
That's a meeting. (And no, it doesn't matter who wanted to have the meeting).

They didn't notify the public of the "emergency" meeting.
They did not notify the media of the "emergency" meeting.
(It's specifically recommended that the news media get a call, fax or e-mail if there's an emergency meeting. That's basic open meetings CYA. And remarkably enough, often ignored.)

All meetings have to begin in open session.
These didn't.

Washington Post reporter Jenna Johnson noticed the skullduggery, and asked about it in a televised press conference (the link to the presser is very annoying and is not given here). Then stuff started to get weird.

The public got upset and the news media yakked more about the Open Meetings Act in three days than they'd heard in the prior three years. Competing explanations came from the UM administrators.

Post blogger Johnson is a standout for her determined coverage. She took the open meeting problem seriously; asked the bigwigs about it during their presser; and went on to create a timeline of who-knew-or-said-what-when.

But even that wasn't enough to derail the regents' idea that they know the law better than anyone else, and can do what they did anytime they like.

UM spokesman Mike Lurie said they didn't have to tell anyone because it "was scheduled as a closed session," or words to that effect.

There were also some vague references to "executive session," a bit of bureaucra-jargon that cannot be found in the Open Meetings Act's text.

Jim Shea, regents' president, said, "According to the Attorney General we followed all the procedures we were expected to follow ..." Shea is one of several attorneys on the board. You have to assume that they are prominent in their profession and wonder why the all the confusion.

Bill Kirwan, the UM system's chancellor, said essentially the same thing (though he has no real connection to regents' open meetings compliance or noncompliance; he is not the chairman of the board).

The remarks went out in a televised press conference. There was a press release dated Nov. 21 which was, I guess, supposed to clarify and mollify; it should be titled "Kinda Right, and a Who'Lotta Wrong" --
"Questions have been raised about the process by which the ... Regents convened in closed session to discuss the University of Maryland, College Park's (UMCP's) move from the ACC to the Big Ten. This board is the governing body of the 12-institution USM; UMCP is the system's flagship.
"Under current USM policies on intercollegiate athletics, UMCP's move to the Big Ten did not require the approval of the USM Board of Regents. However, it was important to both the university and the system that the Board of Regents deliberate on a move of such significant magnitude.
"With the advice and counsel of the Office of the Attorney General, the board convened in closed session and voted to endorse the university's application to the Big Ten.

"Some also are reporting that the USM Board of Regents is not allowed to vote in closed session. That is inaccurate. The Maryland Open Meetings Act does not preclude public boards from taking action in closed session.
"We sincerely regret that the need to deliberate and consider endorsement of the application to move to the Big Ten within a given timeframe has led some to believe that the USM Board may have violated the process by which public boards are allowed to convene in closed session. The board takes its public responsibility seriously and, in continued consultation with the Office of the Attorney General, is vigilant of its processes and procedures."

Well, part is right: there's no law against a secret vote, or any other secret decision, in a properly closed session. There are a couple exceptions to this, and they are spelled out in the Act. Whether secret votes are worth the ill will is another question. Some public bodies have, in their bylaws or enabling legislation, a requirement to hold all votes in public. But the state doesn't require it.

As for the press release, take the rest as gospel at your own risk.

Under the statute, whenever there's a closed session, there are certain procedures and other disclosure requirements; we won't much go into specifics right now, but it's becoming clearer and clearer the regents didn't bother with them.

A press conference after the fact doesn't come within miles of satisfying the regents' legal responsibilities.

The regents are required by law to turn over closing statements from closed sessions on request, within a business day, according to the Open Meetings Compliance Board.

None have surfaced from Nov. 18 and 19. Lurie said in an email over a week later, there are none.
If not provided, law broken, end of story.
If none, law broken, end of story.

Minutes which record the open session convening, and then voting to hold the secret meeting must be prepared and approved.
If none, law broken, end of story.

There also has to be a summary of actions taken, including who voted on what and how.
If none, law broken, end of story.

The summary must be published in the minutes of the same date as the closed session or not later than the "next open session." That would be Dec. 7.
No summary, law broken, end of story.

But We Had Permission!
News reports had it that the "Attorney General" or "AG's office" told UM officials it was OK to have the secret meetings. The UM public relations department and university officials put it out in several flavors and have since told me - and the Baltimore Sun - they have "no further comment."

There's one problem with that: how the Open Meetings Act works.

No one in the Attorney General's Office should be providing advice on the Open Meetings Act except Ann MacNeille, the staff attorney for the Open Meetings Compliance Board.

And by policy, her office provides general advice, not specific advice, and most certainly does not "pre-approve" any public body's desire to hold a closed meeting or provide hints on strategies to elude public discussion of public business.

She does not tell them they don't have to follow this or that procedure.

The loose talk about permissive Attorney Generals led Julie Scharper of the Sun to write:
"Both the board president and Kirwan contend that the board's action in closed session was proper. According to Kirwan, Maryland Attorney General Douglas F. Gansler has said that the Board of Regents did not violate open meeting laws."

But there's a knot in that, too. Written Open Meetings Act complaints are the only way to resolve a dispute about whether a particular public body followed the law in a particular case, and they cannot be submitted until after the fact.

Gansler - any lawyer - could certainly offer an advance personal take on whether or not a public body should try to do something, but it's even less meaningless - or is that more meaningless? - than any offhand legal comment from any member of the Maryland Bar.

Why? Because that's not the way the Open Meetings Act works. Public bodies are supposed to be aware of, and responsible for, behaving correctly under the statute. They can't pass that off onto anyone else.

"Correct" includes having an open session if there's a gray area or judgement call - not the other way around.

It most certainly includes sticking exactly to the items identified in the open meeting as the topics of discussion. Mentioning them later doesn't count.

They - not their attorney, or some other attorney, or Doug Gansler - are the ones responsible for the decision to exclude the public and to conduct (or not) the secret discussion strictly in accordance with state law.

To Scharper's credit, she tried calling Doug Gansler's office. As no one bothered to respond, not even to dispel serious public confusion about whether UM bigwigs would have a personal inside line to Maryland's Attorney General, we can guess that clarity on Open Meetings Act issues is not Gansler's top priority.

I emailed Scharper to find out whether she got Gansler's involvement directly from Kirwan.

No, she took the words at face value from the news conference:
"I was indeed referring to Kirwan's remarks at the news conference. ... he did say 'the Attorney General.' I did not speak with Kirwan for the most recent story. A spokesman said he had nothing to add from his previous statement."

So even though Kirwan misled people and contributed to unnecessary confusion, the press office is ready to say he has nothing to add. No one here is saying the Shea's and Kirwan's intention has been to mislead the public, but that's what happened. So far, the university hasn't even gotten around to saying anyone "misspoke," a one-size-for-all-gaffes word that has become far too familiar.

Folks, it's easy enough to issue a two sentence release, or a tweet, for heaven's sake, which contain the straight dope, rather than hiding behind the tired rhetoric of stonewalling.

The Whodunit.
And finally, the real story is out. We know who gave the advice before (?) the secret meeting. (We still don't know if it was verbal, written, or an e-mail; or precisely when it was solicited.)

Strictly speaking, it should have been offered to Shea, as the regents' presiding officer, and not Kirwan.
That's because, under the statute, the presiding officer is the one responsible for making sure a public body complies with the Act. We can assume for now that it was.

Given that, Bill Kirwan probably shouldn't have spoken for the regents' chairman on this point, any more than a county executive should explain what it is the chairman of a county council meant.

From the confusion comes one lesson: it's clear there's a disconnect: tremendous ignorance, complacency or confusion among the regents and administrators about their statutory obligations and where the lines are. Maybe all three. It would be nice to know which.

According to an email from Lurie on Nov. 27, the advice came from "Thomas Faulk, the chief of the educational affairs division at the Office of the Attorney General, and counsel to the University System of Maryland and the Board of Regents."

He's the house counsel.

Assistant Attorney Generals in a captive relationship to, say, the Maryland Transportation Authority or the Critical Areas Commission have advanced fanciful interpretations of the Open Meetings Act. Other times they have given the wrong advice -- assuming, that is, they were asked - or come up with arcane after-the-fact justifications.

The Opinions of the Open Meetings Compliance Board - see http://www.oag.state.md.us/Opengov/Openmeetings/board.htm - have instances where an Assistant Attorney General has been wrong. Not just wrong on an arcane point, but subtle-as-a-flying-mallet wrong.

Absence of action is more pernicious and might be more common. In at least one case which I witnessed in person, an AAG sat next to the chair of a Critical Area Commission "panel" while a meeting was illegally closed, and said and did nothing. And then claimed they had proceeded according to the law.
And then her superior claimed that the "panel" wasn't really a public body. Oops. Wrong. It is.

And should you see something go right past an AAG, you will be interested (probably not surprised) to learn there is no procedure for a citizen to contact the Office of the Attorney General and alert them. There's no "ombudsman" and no one who handles questions about AAG behavior. Remember, the Open Meetings Compliance Board addresses the behavior of the public body: not the lawyers.

If a county roads employee treats you badly, you can complain to the county administrator or executive. You'll be taken seriously, at least most of the time.

Unlike a low-level county worker, it appears that there's zero accountability to citizens and taxpayers for these AAGs. It's one thing to argue in the interests of your "client." It's another to try to get them off the hook for blowing off the public's right to witness the conduct of public business and coming up with stuff that's just plain wrong.

So now we know the truth. It was not "Attorney General Doug Gansler."

It was not the proper individual within the Office of the Attorney General.

It was an Assistant Attorney General, whose salary is paid by taxpayers, who sits in on all the regents' meetings. And why would he tell them they can't do what they want to do?

So why couldn't Kirwan and Shea simply say from the very beginning, "We asked our attorney, Tom Faulk, who said it was OK."

I don't know why, but it does not make for, as the pundits say, good optics.

THURSDAY, OCTOBER 18, 2012
Maryland's Dreadful Gov't Transparency

Note: My comments in response to Len Lazarick's short article, with some additions that I suppose make it an expanded cross-posting.

Len's article on his visit to the Maryland General Assembly's Joint Committee on Transparency and Open Government, from marylandreporter.com ...

My response:

Be happy to help. My experience has been that the "Transparency Community" in Maryland is fragmented and doesn't talk / communicate enough. There doesn't seem to be a critical mass which supports a Google Group type mailing list. I know of a few folks who monitor FOIA-L out of Syracuse.

Perhaps not unsurprisingly, people tend to focus on either the PIA or to a lesser degree the Open Meetings Act (each one is essentially a fulltime hobby - I don't know of anyone in the state who works a 40-hour week concentrating only on one or the other).

So open meetings are Maryland's red-headed stepchild among all constituencies.

Outreach, Training and Involvement
Citizens know when they're being bamboozled or railroaded, but they don't know they do have an effective tool in the form of a complaint. Bringing something to light is its own virtue, even if there are no real teeth to the law, as Len has pointed out. (In Oklahoma, they can show up and take you, the elected official, out in handcuffs. Someone ask Gov. O'Malley if he thinks Oklahoma is a more progressive state than Maryland).

I have had the opportunity to help/critique open meetings complaints for a few people who are outside my immediate area and I'm always happy to try. They've found me through various Google searches, I guess, or maybe my very occasional blog. I routinely drop notes to writers when I see Open Meetings topics on websites, though to hear back is rare.

I also offered to come and give the journalist-eye's-view to MACO attendees, but was told their setup, where the seminar presented by lawyers, is used for their "continuing education" academy, does not accommodate something like that. That's a shame, and pretty darned shortsighted in my opinion.

As Len points out, there isn't much pain associated with violating the Open Meetings Act and getting caught.

Of the few cases that have gone to court, we see one which would appear to be open and shut now going up for another appeal.

Appeals board broke open meeting law
State court sends WSG case back to county panel
By PAUL S. WARNER, Staff writer

The Maryland Court of Special Appeals sent a case pitting a Washington, D.C.-based defense contractor against Nanjemoy residents back to the county Board of Appeals because the board violated due process protections and the state Open Meetings Act, according to an opinion the court filed Friday.

The opinion, penned by Judge Robert A. Zarnoch, states that the Board of Appeals violated constitutional guarantees of due process and the Open Meetings Act by “conducting a meeting closed to some members of the public at which the merits of the case were discussed, not made a part of the record, but nevertheless relied upon by the Board.”

Considering you might get costs back, and you might get a fine of $100 per member of the public body, who has the time and spare cash to take a flyer on something like this? The complexity of the arguments in the appeal shows just how weak the Open Meetings Act is.

In a word, the law is structured to force the public into court for penalties to be assessed; the penalties are silly; it's a yawning time and treasure sink; and the net effect is that no one bothers. That's the definition of "a chilling effect" on the public's rights.

Yet electeds and appointeds are the same people who are quick to cry out that open meetings complaints "waste taxpayer money" because they themselves elect to pay an attorney to answer the complaint(s). Please note that there is no requirement in the law for attorneys to be involved in the complaint process; and assorted attorneys have come up with some real doozies in their responses over time. I just wish I could bill their rate for some of the same type of wild concepts.

Interestingly, the big penalty a public body pays if it's faced with alert citizens who file complaints is legal budget overrun. On the other hand, that doesn't seem to be much incentive for lawyers to work hard to have public bodies avoid complaints. It seems a little odd, in fact a conflict of interest, for the very attorney(s) who fail to train and advise their clients on the Act's simple requirements to be allowed to bill the same client to answer a complaint. It's just as bad when the attorney who's doing the work is paid by taxpayers because he/she is an assistant AG.

It is true that responding to a complaint through an attorney is a waste of taxpayer money, but not for the reason the electeds and appointeds think it is. First of all, it's.their decision to hand it off to the attorney. Second, it decouples the public body from the consequences of its own actions. The Open Meetings Compliance Board is very clear that final responsibility rests with the presiding officer of the public body. (NOT with a handy attorney.) In my experience, there's very little learned when a body's told to shape up. In one case, electeds in Carroll County have sent out press releases saying a finding of an open meetings violation was not.

This sort of doubletalk should not be permitted. If the county's cutting a check to pay a fine for a violation, it's a lot harder to claim that you've been vindicated in your innocence.

If the purpose of the Compliance Board is education, then the most educational way to handle this would be to require the presiding officer to pen the response ... including a sworn affidavit from the official that the work is their own, and not ghosted by that handy attorney ... it's a small thing, but perjury gets more attention than failing to tell the public that there was a secret vote.

If the purpose is to inflict a little pain when there are potential violations, perhaps a mandatory personal appearance in Baltimore by the presiding officer would be useful. Gas is expensive and there's a dollar value to everyone's time.

I've proposed (in a letter to the OMCB) that every public body be required to hold a public meeting in which they discuss any complaint and the subsequent Opinion in an open forum, within 30 days of receiving the Opinion. This is educational, and again, surely results in some pain for those found violating the Act.

The length of service of the attorneys or members of the public body has no correlation with the ability to comply with the law. That points to totally inadequate training. And frankly, if penalties are somehow made more likely and more, well, punitive, the length of time the public officials or others have been exposed to the law's requirements should factor in. For example, a mayor who's been in office 20 years has, absolutely literally, no excuse for ever finding a complaint on his or her desk about the Mayor and Council's handling of meetings.

Under the rubric of "legal advice" public bodies are allowed to talk in closed session with their attorneys about Open Meetings complaints and opinions. This serves no good purpose, and I can document at least one occasion where the "legal advice" exception was abused to discuss a parliamentary ploy to avoid any action in open session on an open meetings question.

Is that the law we want? A one-sentence amendment ends the opportunity for that abuse in the future: "Any discussion of an Open Meetings Act complaint or Opinion, including legal advice, shall be held in open session before members of the public; and no exception in this Act shall be construed to apply."

The Crux
Anyway, the real question is a structured approach to this hydra-headed monster by the citizen community.

You can find about 100 sunlight organizations nearby, and they all focus on the federal government. As far as I can determine, there is simply nothing in Maryland which acts as an open meetings clearinghouse. MD-FOG is still on the books somewhere but it's moribund. The press association has dropped its support of open meetings training for journalists, as far as I can tell, and the ability to ask the MDDC for an atty's take on something has been gone for several years -- if not in theory, certainly in practice.

The efforts to make legislative workings more transparent through Web technology doesn't seem to have a deep connection with the Open Meetings Act itself. This doesn't see like it would be difficult to put together, but there's a blind spot, it seems.

It's a mystery to me why journalism schools in Maryland don't train their students about the state's Act and require some real-world experience: monitor a local public body, evaluate the notice and minutes processes they use, and file a complaint.

This is basic journalistic forensics, and given the low open meetings standard in the state, it's embarrassingly easy to strike pay dirt. But I'm not sure I've ever seen anything out of Capital News Service which deals with the Maryland Open Meetings Act. Why not?

I've tried -- maybe too half-heartedly, and maybe from too far afield at a weekly paper -- to open conversations with professors at the university. Crickets.

I've tried -- again, maybe not hard enough -- to locate pro bono legal help for some possible future Open Meetings lawsuits. I don't have any in mind, but there may come a time. Again, crickets.

Awards
MDDC, the press association, has an yearly "FOIA Award." Sometimes it is not awarded at all. Open meetings stuff gets shoehorned into that category. Why not a separate "Maryland Open Meetings Act" award? It should involve actual reportorial work, not just editorials. I'll put up $200 a year for the first prize.

Too Big for a Handful of People
As far as the Open Meetings Act, also, it covers such a broad area that each subdivision presents its own set of challenges.

I am certainly concerned about the newly-trendy "P3s" - public-private-partnerships, where as we say with the MDTA, the RFP and vetting process is almost 100 percent in secret because the Open Meetings Act is not explicit about them; and once the P3 has been set up, it would take a court case to pry the clamshell open.

An incomplete list -- there are probably 6,000 public bodies in this state and most get no scrutiny. But there are:

State agencies, as in pieces of the executive branch.
State "Commissions."
The Legislature.
State "Authorities." -- Like the MDTA or the NMWDA
State quasi-public "Corporations" -- Like the BDC or the Maryland Broadband Coop.
Local governments (councils, commissioners)
Local "Authorities"
Local Zoning bodies.
Local Property Tax Assessment Appeals Boards.
Cities and towns.

The Violations
Meeting notice gets a lot of attention, but in my experience, is not the most significant problem. Ongoing substantive violations which result in withholding required information are more common. All other things being equal, if a public body has a videotape of a meeting, or keeps extensive and accurate minutes, then the notice problem(s) are mitigated somewhat.

But a body that's conscientious (if rote) about notice, yet does a lousy job with the other records, does real damage to the public's rights. For example, it's not uncommon to take months, or even a year, to approve minutes. Why? This is not a difficult concept or a difficult process.

I have seen an Assistant Attorney General sitting right next to a meeting chairman, while he failed completely to close a session in the legally required fashion. Not a peep from the lawyer. In other words, their attorney allowed them to break the law. There should be consequences for attorneys who condone this. There should be requirements for them to speak up. Otherwise, it's a wink-and-a-nod and the public be damned.

I have read fantastical legal arguments concocted by an Assistant Attorney General hoping to dismantle or otherwise limit the scope of the law. This should never happen. It should be considered a serious ethical breach under the Bar Association's rules.

Do your best to wiggle out, but don't do it while ignoring the plain language in the Act which says it is to be strictly construed to favor open meetings.

Creative public bodies hoping to keep you away from their meeting records will often conflate the Open Meetings Act and the PIA, because the Maryland Public Information Act is hostile to the public and provides no recourse when something is conveniently classed, by the bureaucrats or lawyers, as "predecisional," or "attorney-client privilege," or some other such jive. The MDTA has pretty much written the book on this, and has also come out on the short end more often than not.

Where to Start
Therefore the Act needs to specifically address meeting materials in order to compensate for a poorly written Public Information Act -- what they are, when and how they are available. For example, if something "is incorporated in these minutes" then it's available, for free, immediately upon request, because, like it says, they're part of the minutes; it does not require a separate PIA request.

In my opinion, the most effective place to start is to make sure that minutes *and closing statements* are placed on a website in a searchable electronic format by all public bodies. If they can't do that, then they are to be provided, for free, within one business day. If the public body wants to make xeroxes and mail them, then they bear the cost. The lo-to-no-cost alternatives include faxing; scanned/emailed documents; or emailed documents in the original file format -- most likely Microsoft Word.

So we seem to be starting from scratch again. Maybe that's not a bad thing. But it appears we need a nonprofit advocacy/think-tank framework, no matter how small it may start off.