Two bills to beef up requirements of the Open Meetings Act got preliminary approval in the House of Delegates Wednesday, but one had been watered down in the Health and Government Operations Committee.
Del. Dan Morhaim’s bill to increase potential penalties for illegally closing meetings were reduced and any fines imposed would be imposed on the public body as a whole, not the individual members. The fine, which is now capped at $100, would range from $250 to $1,000.
Morhaim had originally proposed fines of $1,000 to $10,000 on individual members of the offending body. The Baltimore County delegate said the amendments were made at the request of the Maryland Association of Counties and the Maryland Municipal League.
Despite those changes, Morhaim said the bill contained two significant improvements in the law.
One would require that the public body acknowledge its violation of the Open Meetings Act at its next public meeting and that a majority of the public body’s members must sign and return to the Open Meetings Compliance Board a copy of the board’s opinion finding a violation. These new provision are intended to “shame” the public body into future compliance with the act.
Another provision would allow the findings of the Open Meetings Compliance Board to be admitted in evidence for any lawsuit filed over a violation.
Training course required
The House also approved a bill by House Minority Leader Tony O’Donnell that requires at least one member of a public body or its staff to take the online training course on the Open Meetings Act. The two-hour course explains how the act works, the requirements for public notice of a meeting and the other provisions in the law.
At least one group that had supported Morhaim’s original bill was unhappy with the changes.
In an email message sent to the members of the House of Delegates, Nancy Soreng, the president of the League of Women Voters in Maryland, complained “that the bill has been amended so that not only would the Attorney General be required to defend the body that violated the law, but the taxpayers who were wronged in the first place would be required to pay the fine.”
“There is no justice in fining people who broke no law and letting lawbreakers go penalty free,” Soreng said. “We urge the House of Delegates to prevent this egregious outcome by amending HB 331 to make it clear that the members of the offending body pay the fine.”
However, having passed its second reading, the bill is no longer open to amendment in the House, which will take a final vote on the bill shortly.
Allowing the OMCB’s findings to be admitted into evidence in court will create problems. The findings can’t be adequately tested after the fact, so you are admitting evidence that is not completely subject to evidentiary safeguards. Do the proponents really think a Court will allow the OMCB”s ‘findings’ to be dispositive in a subsequent legal action?
Who will pay the fine IF assessed by the judge?! The taxpayers. The members of public bodies who violate the Open Meetings Law would get off without any real negative consequences. Teeth will get kicked out of the OML if Morhaim’s bill passes into law — specifically the ability for courts to impose fines on INDIVIDUAL members of public bodies who intentionally violate the law (not those who accidently violate it).
The groups that oppose adding penalties to the OML assert that public officials almost never violate the law intentionally. But when they do violate it, these groups incorrectly think, it is an inadvertant violation because the OML is so complex. Not so. Officials who scoff the law to meet in secret do so because they want to hide issues that are unpopular with the public. The Biosolids Task Force comes to mind.
And finally, because it’s on my mind, I see HB331 has changed the fines if a court finds violations from $1000 and $10000 to $250 and $1000.
That’s not even adding a molar to the existing law.
So picture how this and HB139, if enacted, would work together.
Oh, and a question: the law says the OMCB, the OAG and “other interested organizations or persons, shall develop and conduct education programs on (the law) for the *staffs and attorneys* of public bodies; the MML; MACO.”
I can understand mandatory training for attorneys attached to a public body,though this does not mandate it;
I have no clue why training the “staff” of a public body would matter — per my previous comment;
and why in the would would the “attorneys and staff” of MML and MACO get training? Are they now public bodies?
That last makes as much sense as requiring the training for all EMTs and volunteer firemen, or “persons who serve on a jury,” or any other arbitrary group — “professional sports teams” — you can imagine.
These amendments are a great argument for taping/webcasting voting sessions, because they make no sense and it would be interesting forthe public to know how they came about.
The House also approved a bill by House Minority Leader Tony O’Donnell
that requires at least one member of a public body or its staff to take
the online training course on the Open Meetings Act.
Looks like the amendment makes the law meaningless in two ways.
1. "or its staff" — the Compliance Board has always been clear that responsiblity rests on the members of the public body and NOT on the staff. That's why, as in the case of the UM Regents nov 18-19 secret meetings, the argument that they asked the "Office of the Attorney General" for advice is not exculpatory. The decisin is not with their in-house attorney(s). It is first and foremost the Chairman's responsiblity; but each *member* is responsible for their vote to close.
That's also why Morhaim's bill didn't change the fine setup to penalize the public body's secretary or admin assistant or attorney.
2. An amendment would allow the MML Course on the Open Meetings Act as a substitute. That course is ineffective. They've given it for years, and it doesn't stop the epidemic of fundamental violations. At one point I suggested that they need to have a reporter as one of the instructors, because having lawyers lead it doesn't reflect the practical considerations elected officials will run up against.
I was told it's for-credit and they won't change their formula. So it's better to have a structured, yet ineffective course than real training.
Do they charge for their Academy classes?
Leave it to MACo and the MML to have this bill watered down. It takes a quorum of elected officials to violate the Open Meetings Act so the fines should be significant and a provision should be made for The Etics Commission can levy the fines.