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Published on December 4th, 2012 | by Len Lazarick

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Penalties needed for violations of Open Meetings Act, citizens say

State House dome in 1995 from a helicopter by Tom Darden.

State House dome in 1995 from a helicopter by Tom Darden.

By Len Lazarick
Len@MarylandReporter.com

The biggest problem with the Open Meetings Act is the lack of any penalty for public bodies that violate the law.

That is the most frequently cited issue in dozens of responses MarylandReporter.com received when it requested comments about problems with Open Meetings law back in October.

A similar problem was cited with the Public Information Act, which establishes the rules for release of documents and electronic information by government agencies. The Joint Committee on Transparency and Open Government is holding a hearing Tuesday morning on the Public Information Act, as it did Oct. 17 on the Open Meetings Act, when the chairman requested suggestions about how to improve the act.

Act is “weak and weasel-worded”

Both acts are “weak and weasel-worded compared to other states,” said reporter Andy Schotz, who’s experienced many a closed meeting.

The problem is long-standing. Since its creation in 1990, the Open Meetings Compliance Board can find a public body in violation of the law but can do nothing but issue an opinion and send the body a letter advising it to change its ways.

Beyond that, the only recourse for someone who files a complaint is to go to court to enforce the law, which only rarely happens. A judge can overturn a decision made in a closed meeting and establish other penalties for violating the law, and even award court costs and attorney fees. But the burden for pursuing the action falls entirely on the complainant.

The main recommendation coming out of the responses is that the legislature establish penalties for violating the act, much as the State Ethics Commission can fine public officials for failure to file disclosure statements – a penalty also rarely imposed.

Associations fought penalty provisions

Certificate of Completion for Open Meetings Course

This is Certificate of Completion for the online Open Meetings course developed by the attorney general’s office and the University of Maryland.

When the Open Meetings Act underwent a major revision in 1990, media and good government types had pushed for penalties and stronger enforcement powers for the compliance board. The move was resisted by all the major associations of public officials – the Maryland Association of Counties, the Maryland Municipal League and the Maryland Association of Boards of Education.

The associations won that fight and no fines or penalties were placed in the law. As one respondent familiar with open meetings enforcement in other states put it, those states that have fines and other penalties for illegally closing meetings rarely if ever impose them.

But raising the issue of penalties again would certainly grab the attention of public bodies in the state. Even the possibility of a small civil fine for improperly closing a meeting or failing to disclose the topics discussed behind closed doors might gain more compliance with the act, especially from boards that repeatedly violate it. The law might also permit the office of the attorney general to sue public bodies for violations of the act, rather than putting the entire burden on people who have been shut out.

Other recommendations: training course, web calendar

Here are some other recommendations for the committee that are less drastic but might foster greater compliance and greater openness in government.

  •       Require all members of public bodies to take the online training course in the Open Meetings Act created this year by the attorney general. The course provides a good overview of the act, and has short quizzes on sections of the act. After completing the course, it even issues a “certificate of completion” that members of public bodies should be required to have. It takes less than two hours to complete.
  •      Establish a more uniform way of giving notice of public meetings, said several respondents. Public bodies should be required to post notice of an upcoming meeting on the home page of their websites, if they have one. Another recommended that the state have a single calendar on the Internet that lists all meetings of public bodies by day and topic. The biweekly Maryland Register has a limited list, but it is not uniformly used and difficult to find. The office of the Secretary of State might maintain such a calendar, since it already publishes the Maryland Register
  •     There were many other proposals for small improvements in the law. But one overarching suggestion was that the Joint Committee on Transparency and Open Government conduct a series of hearings next year in which it invites anyone interested in the law to testify.

This year’s hearings got little public attention before or after the meetings, and the committee could be more proactive in looking for ways to improve both the Open Meetings Act and the Public Information Act. There are much more serious problems with the enforcement of and compliance with the Public Information Act, respondents agree.

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  • C O’Donnell

    Series of hearings, a very good idea, along with a comprehensive review of the kinds of complaints filed under the Open Meetings Act to determine where the problems and loopholes actually are in practice.

    Since Asst AG’s are often the ones opposing citizens when a complaint is filed, I don’t understand how the OAG could sue public bodies. Let’s just say that I have been unimpressed by the complaint responses from more than one AAG. Also by the lack of understanding of both the public’s rights and the public body’s obligations on the part of these AAGs.

    This is one very compelling reason for “legal advice” on the Open Meetings Act to be set aside, like zoning and licensing matters are, to be conducted only in public session. If the AAGs or staff attorneys are giving bad advice, then the record should reflect that. Moreover, the public can form an opinion about how well the officials and electeds understand the law and how closely they intend to follow its “strict construction” language.

    And anyway, secret advice about public transparency is, plainly put, contradictory. It makes legislators look stupid or hypocritical.

    While it is rarely directly stated, in some of the MDTA-related Opinions in the past 3 years you can see that the Compliance Board isn’t very happy about AAGs that concoct novel legal arguments or attack the complainant. There was also a Montgomery County complaint (school board?) where a costly lawyer from a private law firm wrote a response that attacked the complainants without addressing the issues. The OMCB made short work of that as well.

    Public bodies routinely insulate themselves from “losing” by assigning an attorney to argue for them. They rarely, if ever, answer a complaint, even though they are the responsible parties. The fix here is (1) require the presiding officer of the public body to author the response … not likely … or (2) require a public open meeting within 30 days of an issued Opinion where the Opinion is discussed with the public *by the members of the public body.*

    Given this, the Compliance Board also needs some level of fact-finding authority. For example, if a complainant says that they had a problem seeing minutes and files a complaint, the attorney for the public body can simply deny it. Yet any comment by the attorney on the original incident, between a clerk and a citizen, is hearsay and should be rejected. If there is doubt, the assumption should be that the complainant’s version is factual.

    As a practical matter, the fix is pretty simple. Citizens who suspect there will be open meetings problems should use a phone or cheap video camera so there is an irrefutable record of behavior at a meeting by the public body, or by a turbulent staff member.

    But these are the weeds. Top-down fixes will help some, but not always.

  • cwals99

    Thank you for moving this issue forward. Maryland is in need of openness and transparency if we are to build a strong democratic system in the state. The fact that politicians react to criticism in that regard with a series of policy that looks good but falls short of meeting the objective needs to end. We all read the headlines…..some great progressive policy that moves Maryland Forward….but when you look under the hood you see nothing.

    As a government watchdog I have made my way through all of the websites for the State of Maryland and I am looking at Baltimore, and in both cases what I see is a great front page with not so meaningful portals. When I do a Freedom of Information I am generally told that nothing exists as if that is OK.

    We are at a fork in the road in America regarding Democracy. With wealth inequity it will become easy for these 1% to roll all over democratic principles…..they are now! Or, we as a nation can wake our collective political selves and exercise our civic duties to make democracy strong. We see our unions rising up in arms……we see Europe and the Middle East rising up in arms…..let’s see the citizens of Maryland make Democracy Now the new social club!!!

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