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MARTIN O'MALLEY V1||H|H ELIZABETH L. NlLSON, ESQUIREGOVERNOR JiHSlM CHAIRPERSONANTHONY G.BROWN '^^^^ COURTNEY J. MCKELDINLT. GOVERNOR JULJ0M0RALES) EsQuffiE

S ta t e o f Mary l andOpenMeetings Compliance Board

8Official Opinions ofthe Compliance Board 46 (2012)Re: Maryland Transportation Authority (Craig O'Donnell, Complainant)We have considered the complaintofCraigO'Donnell ("Complainant"), oftheKentCountyNews, that the Maryland Transportation Authority ("Authority") violated the OpenMeetings Act (the "Act") with respect to aclosed meeting it held on September 26,2011.We have also considered the Authority's response.We conclude that theAuthority violated the Act by closing the meeting to the publicwithout first votmgmpublic to do so, without first creating awritten statement ofthe basisoithedecision to exclude the public, andwithout adequately summarizing themeeting inthemmutes of its subsequent meeting.In this opinion,we emphasize that, contrary to the Authority's position, apublic bodymay notvotem secret tomeet in secret. A vote to hold a closed session must instead be

conducted ma meeting open to the public. We also address the Complainant's otherallegations, some ofwhich illustrate the principle thatapublic entity invites suspicionwhenitbypasses the statutory procedures for closing ameeting to the public. Here, the sessionreported m the Authority's closed-session minutes in fact fell within the exception theAuthority had cited as authority for the closing.Other allegations raise topics beyond our authority. We again stress that allegationsthat a public body has failed to send a person copies ofmeeting minutes and closingstatements do not state violations of the Act.Finally, we correct the Authority's stated belief that we decided the status of its

Human Resources Committee inanearlier opinion.Facts

We beginwith the facts pertinent to Complainant's allegations that theAuthority didnot giveproper notice ofthe September26,2011 meeting, didnot hold avote inopen sessiontoconvenemaclosed session, and did not timely prepare awritten statement ofthe basis ofAssistant Attorney General AnnMacNeille, Counsel200Saint Paul Place Baltimore, Maryland, 21202-2021

Telephone Numbers: (410) 576-6327 (888) 743-0023 D.C. Metro (301) 470-7534Telephone forDeaf:(410) 576-6372

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8Official Opinions ofthe Compliance Board46 (2012)March 28,2012Page 3Discussion

A. Whether the Authority complied with the proceduresfor closing ameeting to the publicWe turn first to the related questions ofwhether apublic body that wishes to meet inaclosed session must first vote to do so in an open session and must first create aclosingtoleS'tw' Uthnty Stat6S **? l?s not mteiPretmePlain J^g^ge of*e statuteSS^ f ^PTT10n,mUSt hthdd prior t0 aPublic body voting to hold *closedrnnH^ ti, Authority thus claims that apublic body may meet in aclosed session andS3?S a?k ^-ng ^ d0Sed Session- ^ Authority further asserts that it compliedwith the Act by creatmg its written statement during the closed session.

rqr,nN5Jme^ tbf A(;t>codifled^ Annotated Code ofMaryland, State Government ArticleAttorney General (2010), supports the Authority's interpretation, and we have long madeWeexptZ 0W n Pmi0nS ^ Vte t0 ClSe ame6ting mUSt be heldmmPen m^eting-w ?G ^"Z j5.St?es the Act's fundamental requirement that, "[elxcept as otherwiseexpressly provided in this subtitle, apublic body shall meet in open session'' AsTeleTan!nere, the exceptions expressly provided by the Act appear in SG 10-508(a), which listsS&^aSS*public body ryudiscuss *closed ses*ion- subsiTo"SKn11a C] Jf? ?me Provisions ofsubsection (d)," which sets forth the procedures aShittyM},m Ider t0 Claim mexcePtion- First5 subsection (d) expresslyforbids the holding ofaclosed session unless themembers ofthe body have voted to do so:

(1) Unless amajority ofthe members ofapublic body present and voting votemfavor ofclosmg the session, thepublic bodymaynotmeet in closed session.Then, subsection (d) makes clear that both the vote and the creation of awritten closingstatement must precede the closed session: ^

(2) Before a public body meets in closed session, the presiding officer(i) conduct arecorded vote on the closing ofthe session; and(u) make awritten statement ofthe reason for closing the meetingmcludrng a citation of the authority under this section, and a listing of thetopics to be discussed.

Assistant Attorney General Ann MacNeille, Counsel200 Saint Paul Place Baltimore, Maryland, 21202-2021Telephone Numbers: (410) 576-6327 (888) 743-0023 D.C. Metro (301) 470-7534Telephone for Deaf: (410) 576-6372

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8Official Opinions ofthe Compliance Board 46 (2012)March 28,2012Page 4(3) Ifaperson objects to the closing ofasession, the public body shall sendacopy ofthewritten statement required under paragraph (2) ofthis subsectionto the Board.

Id. (emphasis added); see also Suburban Hospital v. Maryland Health Resources PlanningCommission, 125 Md. App. 579, 589 (1999) (stating the duties to be performed by theE=?i^g?,T "[b]efore aPuhhc body meets in a closed session...."), vacated as moot,364Md.353(2001),The vote to close asession must be held in an open session "to ensure that those whoparticipate in aclosed session are accountable for the decision to close." 3OMCB Opinions4, 6 (2000). The closing statement must be completed before the public body closes itsmeetmg because:theAct grants amember ofthe public the right to object to the closure. Whilean objection does not preclude a closed session, the public body must send acopy to the ComplianceBoard. 10-508(d)(3). Ifthe form were permitted tobe completed after the start of the closed session, the public body wouldeffectively eliminate thepublic's right to evaluate, then and there, the assertedbasis for the public body's decision to close its meeting.

SOMCBOpinions 105,109(2007). Apublicly-held vote will be reflected in the minutes ofthat meeting, and, under SG 10-508(d)(4), the closing statement is amatter of publicrecord. TheAct is violated "if... the [closing statement] is modified during the course oftheclosed session and the presiding officer signs the form at the session's end...." Id at 109And while "nothing in the Act... preclude[s] advance staffwork to ready a[closing] formtor the presiding officer's use[,] the form must "accurately [reflect] the justification at thetime a meeting is closed...." Id.

We have frequently "note[d] that the public body is ultimately responsible for^!^Ce' not e staff-"Id" citing 3 OMCB Opinions 164, 167 (2001); see also, e.g., 7OMCB Opinions 226, 226-27 (2011) ("Neither the presiding officer's duty to make theclosing statement nor the members' duty to confine their closed-session discussions to thelisted topics may be delegated to staff"). The Act does not make the presiding officer'sperformance ofhis orherduties contingent onpublic attendance at themeeting. Instead, theAct s documentation requirements evidence the Legislature's intent that apublic body'sconduct ofpublic business be transparent also to members ofthe public who are unable toattend its meetings.AssistantAttorneyGeneral AnnMacNeille, Counsel200 Saint Paul Place Baltimore, Maryland, 21202-2021Telephone Numbers: (410) 576-6327 (888) 743-0023 D.C. Metro (301) 470-7534TelephoneforDeaf: (410)576-6372

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8Official Opinions ofthe Compliance Board 46 (2012)March 28,2012Page 5a +u TneAutlK>rity violated the Act by voting to close its session in aclosed session. TheAuthority s statement here of its contrary "interpretation" of SG 10-508 raises thepossibility thg: the Authority may have bypassed the SG 10-508(d) procedures in otherinstances. We urge the Authority to comply with those procedures and also to view themas an easy way ofassuring the public that ameeting has been legally closed. We also urgethe Authority's presiding officer to ensure that any closing statements prepared in advanceremain accurate and complete at the time of the vote.

B. Whether the Authority gave adequate notice ofthe meetingWhen a public body meets to perform a function within the Act, it must givereasonable advance notice" ofthe meeting. SG 10-506(a). Complainant states that theAuthority violated its bylaws by holding ameeting on less than 24 hours' notice; that theAuthority should havepublished its hastily-scheduledmeeting by notice to the press and notmerely by aposting on the Authority's website; and that the notice violated the Act becauseit stated that the entire meeting would be closed tothe public.The first two allegations question the timeliness and method ofgiving notice of ameeting scheduled on short notice. We have often reviewed the applicable principles. Seeeg. 7OMCB Opinions 237,238-240 (2011), 1OMCB Opinions 38,39 (1993) and IOMCBOpinions 183, 188-89 (1996). Boiled down, they are:1) the Act "is not intended as abarrier to apublic body's holding ofmeetingson short notice, ifthat timing is needed to deal with urgent public issues," id.2)we do not second-guess apublic body's decision that itneeds tomeet onshort notice unless it appears that the public body has intentionally delayedgiving notice ofameeting itknows itwill hold, see id;3) when the public body mustmeet on short notice, itmust provide "the bestpublic notice feasible under the circumstances,"7OMCB Opinions 238; and4) "'if events require the prompt convening ofa previously unscheduled'It appears from the agenda ofthe Authority's January 23,2012, monthly meetingthat the Authority also began that meeting with a closed session.

Assistant Attorney General AnnMacNeille, Counsel200Saint Paul Place Baltimore, Maryland, 21202-2021Telephone Numbers: (410) 576-6327 (888) 743-0023 D.C. Metro (301) 470-7534Telephone forDeaf: (410) 576-6372

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8Official Opinions ofthe Compliance Board 46 (2012)March 28,2012Page 6meeting, the public body would be well-advised to provide telephone noticetoreporters who are reasonably thought to be interested...." 1OMCB Opinions39 (quoting Open MeetingActManual 15 (1992)).From the background information provided by Complainant, it appears that eventsbeyond theAuthority's control caused theAuthority toperceive anurgent need to discuss theappointment ofits executive secretary, and we will not second-guess that decision. As forbest feasible notice, we repeat, apublic body "would be well advised to provide telephonenotice toreporters who are reasonably thought tobe interested...." Complainant falls easilyinto this category; as theAuthority is aware, he has followed theAuthority'smeetings sinceat least 2009. See 7OMCB Opinions 30 (2010). Some public bodies maintain a list ofthee-mail addresses of people who wish to be notified their meetings, see, e.g., 7 OMCB

Opinions 259,262 (2011), andwe commend suchbulke-mails as an additional method ofgiving notice.We turn to the adequacy oftheAuthority's notice. Under SG 10-506(b), that notice"shall... include the date, time and place ofthe session... and, ifappropriate ... astatementthat apart or all ofameeting may be conducted in closed session."* Ifthe Authority didnotin fact convene thisMeeting at its Broening Highway offices - the closing statement placesthemeeting at "Corporate Center Drive, Hanover, MD" - the notice violated the Act. TheAuthority amply disclosed here that itwould go into closed session; the problem was that itwas required to first hold an open session and did not. Apublic body should give notice ofboth the open session and any closed session itexpects tohold. See, e.g., 3OMCB Opinions

197-99 (2002) (discussing notice practices).3 And, apublic body which posts its meetingnotices online may avoid an accusation, such as the one asserted here, that the posting wasbelated by simply adding theposting date tothenotice.C. Whether minutes and other meeting documents wereproduced in a timelyfashion

SG 10-506, taken by itself, might suggest that apublic bodymay meet entirelyinclosed session. As we have explained, however, SG 10-508 governs the closing ofasession under the fourteen exceptions provided there, and itrequires the presiding officerto follow certain procedures "before the public body meets in closed session...." SG 8 10-508(d). *3We note from the Authority's website that, in conformance with SG 10-506, ithas usually informed the public that part ofameeting might be closed.

AssistantAttorneyGeneral Ann MacNeille,Counsel200 Saint Paul Place Baltimore, Maryland, 21202-2021Telephone Numbers: (410) 576-6327 (888) 743-0023 D.C. Metro (301) 470-7534Telephone forDeaf: (410) 576-6372

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8 Official Opinions ofthe Compliance Board 46 (2012)March 28,2012Page 7ManyofComplainant's allegations concerning the failure oftheAuthority to sendhimtheminutesofthe September26meeting stem from his assumption that theAuthoritywouldhavemet inpublic to closethe session andwouldhavepublicly generated aclosing statementandopen-sessionminutes. As set forth above, theAuthority was required to createaclosingstatement. Under the Act, that document should have been available immediately forinspection at the Authority's offices. We do not know whether the Authority would haveprovided Complainantwith the closing statementhad he appeared at theAuthority's offices.We reiterate (see 7OMCB Opinions 30,34 and 64,66 (2010)) that the Act does notrequire electronic transmission ofminutes or the provision of copies and that we do notaddress Public Information Act ("PIA") issues. A complaint that a public body has nottransmitted minutes thus does not state aviolation of the Act. Likewise, apublic body's

delay in responding to aPIA request for minutes does not prove that the public body wasdilatory inadopting them, and sosuch allegations are not relevant toour consideration ofthatquestion.D. Whether the claimed exception applied

The Authority has provided us with the sealed minutes of its closed session. Thediscussion fell within the exceptionprovided by SG 10-508(a)(l) for the discussion of"theappointment... ofappointees, employees, or officials over whom [the public body] hasjurisdiction. ..." The exceptions in subsection (a), however, are "subject to" theproceduresset forth in subsection (d). Had the Authority followed those procedures, the exceptionwould have applied.E. Whether the summary of the closed session was adequate

SG 10-509(c)(2) provides:Ifapublic body meets in closed session, the minutes for its next opensession shall include:(i)a statement ofthe time, place, and purpose of the closed session;(ii) a record of the vote ofeach member as to closing the session;(iii) a citation of the authority under this subtitle for closing the session;and(iv) a listing of the topics ofdiscussion, persons present, and each actiontaken during the session.

AssistantAttorneyGeneral AnnMacNeille,Counsel.200 SaintPaul Place Baltimore, Maryland, 21202-2021Telephone Numbers: (410) 576-6327 (888) 743-0023 D.C. Metro (301) 470-7534Telephone forDeaf: (410) 576-6372

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8 Official Opinions ofthe Compliance Board 46 (2012)March 28,2012Page 8

The minutes of the Authority's October 27,2011 meeting include this information:RATIFICATION OF ACTION TAKEN DURING SEPTEMBER 26, 2011CLOSED SESSION MEETINGUpon motion by Ms. Halsey and seconded by Mr. Woodford, Membersunanimouslyapproved the appointment ofHaroldM. Bartlettas theMDTAExecutive Secretary.In short, the minutes state the action taken and the date of the closed session but noneofthe other information required by SG 10-509(c). As the Authority acknowledges in itsresponse, they do not comply with the Act.

F. Whether we in factdecided in 7OMCB Opinions 176 (2011) that the Human ResourcesCommittee was notapublic bodyInresponse toComplainant's statement that theAuthority'sHumanResources Committeemayhavemetto consider the appointmentofthe executive secretary, theAuthority states that"the [Open Meetings Compliance Board] previously addressed [Complainant's] concernswith respect to the Human Resources Committee in its May 23, 2011 opinion." TheAuthority further "states that there have not been any changes to the Human ResourcesCommittee since that time, and, as such, the Human Resources Committee is not a 'publicbody' by definition and is not subject to the Act." We have no information that thecommittee held ameeting on the subject ofthe Authority's executive secretary and addressthe allegation only to correct theAuthority's statement.We issued 7OMCB Opinions 176 (2011) onMay 23,2011. There we made clear thatwecouldnot reach anyconclusionon the statusof theHumanResources Committee:

While the documents evidence the creationofaHumanResources Committee,we have no information on how itwas created andwhether the Authority hasadopted aresolution analogous tothat adopted for the Capital committee. Wealso lack information on the creation ofthe Authority's other committees andgroups.Id . at 185.

AssistantAttorneyGeneral Ann MacNeille, Counsel200 Saint Paul Place Baltimore, Maryland, 21202-2021Telephone Numbers: (410) 576-6327 (888) 743-0023 D.C. Metro (301) 470-7534Telephone forDeaf: (410) 576-6372

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8Official Opinions ofthe Compliance Board 46 (2012)March 28, 2012Page 9We then gave direction which we find necessary to repeat here:

In case any of these committees fall within the definition of a public bodyunder the Act, we counsel that the Act's procedures apply even when acommittee has been created tohandle matters forwhichmeetings may properlybe closed.Id. In short, we do not knowwhether the HumanResourcesCommittee is apublic body, andwe onceagain encourage theAuthority tomakethat determination fromits ownrecords andproceed accordingly.

ConclusionThismatter isaclassic exampleofhow apublic bodymight avoid needless suspicion, andalso the expenditure ofits resources on responding to acomplaint to us, by adhering to theAct's procedures for meeting inclosed session. Holding avote toclose a session ina closedsession leaves the interested public in the dark on the very information that theAct requiresthe public body to disclose, such as which members ofthe public body met and why theyexcluded the public. The procedures in the Act provide public bodies with an efficientmechanism for recording and producing this information in documents available to thepublic. We urge the Authority to comply with those procedures; itdid not do so here.

OpenMeetings ComplianceBoard

Elizabeth L. Nilson, EsquireCourtney J. McKeldinJulioA. Morales, Esquire

AssistantAttorneyGeneral AnnMacNeille, Counsel200Saint Paul Place Baltimore, Maryland, 21202-2021Telephone Numbers: (410) 576-6327 (888) 743-0023 D.C. Metro (301) 470-7534Telephone forDeaf: (410) 576-6372