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Maryland’s “Government in the Sunshine” Law. Overview of the Open Meetings Act Jack Schwartz Assistant Attorney General. Topics Covered. When does the Act apply? What does it require? Notice Conducting an open meeting Closing a meeting Minutes How is it enforced?.

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maryland s government in the sunshine law

Maryland’s “Government in the Sunshine” Law

Overview of the Open Meetings Act

Jack Schwartz

Assistant Attorney General

topics covered
Topics Covered
  • When does the Act apply?
  • What does it require?
    • Notice
    • Conducting an open meeting
    • Closing a meeting
    • Minutes
  • How is it enforced?
public body generally
“Public Body” Generally
  • All public bodies: 2+ members
    • Meetings of single official not covered
  • Most public bodies: formal legal creation
  • Formal creation:
    • State law: Constitution, statute, rule, executive order
    • Local law: charter, ordinance, rule, executive order
    • Public body action: rule, resolution, bylaw
  • Local cabinets are not public bodies
informally created public bodies
Informally Created Public Bodies
  • 2+ members from outside government
  • Appointed by:
    • Governor
    • Local government chief executive
    • Official subject to Governor’s or chief executive’s policy direction
are these public bodies
Are These Public Bodies?
  • Corporate board of directors?
    • Typical private corporations, no
      • Government $$ irrelevant
    • Quasi-governmental corporations, maybe
  • Committees/subcommittees of a public body?
    • Maybe: depends on method of creation
meeting
“Meeting”
  • Meeting must involve:
    • Convening of a quorum
      • Convening = simultaneous interaction
      • Quorum = majority (unless local requirement says otherwise)
    • Consideration or transaction of public business
      • Entire process covered
    • Social or political gatherings not covered
definition of meeting as applied to
Definition of “Meeting” As Applied To …
  • Conference calls
  • E-mail, IM
  • Site visits
  • Retreats
  • Joint meetings
  • Majority presence at someone else’s meeting
is this a meeting
Is This a “Meeting”?
  • Taking the Meyer-Briggs test and discussing effective teamwork?
  • Discussing future meeting agendas?
  • Getting a briefing on population trends over the next decade?
  • Attending a Rotary Club luncheon?
  • Having lunch together before a work session?
topic of discussion
Topic of Discussion
  • Act applies when a public body is:
    • Legislating or rulemaking
    • Otherwise making new policy, in any form
    • Approving, disapproving, or amending a contract
    • Approving, disapproving, or amending a budget
    • Considering whether to grant a license
    • Considering any zoning matter
excluded from the act
Excluded from the Act
  • Act usually does not apply when a public body is:
    • Conducting a proceeding subject to judicial review (quasi-judicial function)
    • Engaged in an “administrative function”
      • Used to be called “executive function”
  • Licensing and zoning are always covered
administrative function
Administrative Function
  • Not within other defined functions
  • Not creation of new law or policy
  • Administering existing law or policy
    • Problematic when same body wears two hats, executive and legislative
administrative function so act does not apply
Administrative Function, So Act Does Not Apply
  • Policy decision previously made
    • Law or policy document already sets policy
  • Public body now takes prior law or policy and:
    • Applies it to specific situations
    • Figures out operational details
not administrative function so act does apply
Not Administrative Function, So Act Does Apply
  • Policy decision making underway
    • Prior law authorizes policy but does not set it
  • Public body gathers facts, debates, decides what policy should be
    • Act applies to the entire process
the special case of budget preparation
The Special Case of Budget Preparation
  • Administrative function during preparation phase
  • Quasi-legislative function during formal approval process
administrative function15
Administrative Function?
  • Evaluating the Public Works Director’s performance?
  • Changing the City Manager’s contract?
  • Giving a department head preliminary guidance about next year’s budget?
  • Listening to the Personnel Director’s suggestion that a new employee discipline policy be discussed at the next meeting?
last words on does the act apply
Last Words on “Does the Act Apply?”
  • If Act does not apply, none of its requirements must be followed
  • But: maybe other law does apply
    • Charter, ordinance, specific state statute?
  • To officials who don’t want the headache of trying to figure this out?
    •  Give notice and hold an open meeting
notice of meetings
Notice of Meetings
  • Timing
    • Reasonably in advance
    • Last-minute meetings okay if needed
  • Content
    • Time, place, open/closed status
    • Agenda optional -- changes in announced agenda okay
  • Method -- any reasonable method okay
    • Common practice: posting where people know to look
  • Retention -- keep for at least a year
conducting open meetings
Conducting Open Meetings
  • Accessible location
    • Reasonable size, convenient for attendees
    • Open to people with disabilities ( ADA compliance)
  • Public observation -- participation optional
  • Cameras/tape recorders may not be barred
  • Documents referred to during meeting -- access determined by other law
    • Public Information Act
closing a meeting
Closing a Meeting
  • Identifying a specific exception
  • Procedural requirements
    • Public vote, written statement
      • Reason, legal citation, topics
exceptions the basics
Exceptions: the Basics
  • Exceptions to be construed narrowly
  • Stay within cited exception
  • When discussion within exception ends, go back to open session
frequently cited exceptions
Frequently Cited Exceptions
  • Specific personnel matters
    • Identifiable individuals, not categories of employees
  • Legal advice
    • Active interchange, not passive presence
  • Litigation
  • Property acquisition
  • Procurement
minutes
Minutes
  • Duty of timely preparation
  • Content: item, action, votes
  • Open meeting minutes
    • To be made available on request
    • Tape recording ≠ minutes
  • Closed meeting minutes
    • Sealed
    • Publicly available summary to be extracted
enforcement
Enforcement
  • Open Meetings Compliance Board
    • Simplified complaint procedure
    • Advisory only
  • Circuit court
    • May overturn public body’s action if necessary
    • May award attorney’s fees to winning plaintiff
    • May assess civil penalty on defiant members
more information
More Information
  • Open Meetings Act Manual (2006)
    • Narrative, text of Act, forms, index
    • Available via Internet or hard copy ($10.00)
  • Compliance Board opinions
    • Internet access: www.oag.state.md.us
      • Click on “Open Government”
    • E-mail distribution available
    • Requests to kizdebski@oag.state.md.us
a closing maxim
A Closing Maxim
  • “The government being the people’s business, it necessarily follows that its operations should be at all times open to the public view.”
    • William Jennings Bryan, 1915
      • (three-time presidential loser)