Maryland’s “Government in the Sunshine” Law

1. Maryland’s “Government in the Sunshine” Law Overview of the Open Meetings Act Jack Schwartz Assistant Attorney General

2. Topics Covered • When does the Act apply? • What does it require? • Notice • Conducting an open meeting • Closing a meeting • Minutes • How is it enforced?

3. “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

4. 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

5. 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

6. “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

7. Definition of “Meeting” As Applied To … • Conference calls • E-mail, IM • Site visits • Retreats • Joint meetings • Majority presence at someone else’s meeting

8. 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?

9. 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

10. 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

11. 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

12. 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

13. 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

14. The Special Case of Budget Preparation • Administrative function during preparation phase • Quasi-legislative function during formal approval process

15. 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?

16. 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

17. 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

18. 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

19. Closing a Meeting • Identifying a specific exception • Procedural requirements • Public vote, written statement • Reason, legal citation, topics

20. Exceptions: the Basics • Exceptions to be construed narrowly • Stay within cited exception • When discussion within exception ends, go back to open session

21. Frequently Cited Exceptions • Specific personnel matters • Identifiable individuals, not categories of employees • Legal advice • Active interchange, not passive presence • Litigation • Property acquisition • Procurement

22. 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

23. 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

24. 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

25. 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)