Is the Council Violating the Open Meetings Act?

By Adam Pagnucco.

This morning, MoCo residents woke up to find two brand new items on the council’s agenda that were not present late last night. Both of them are proposed charter amendments, which are among the most significant issues considered by any council. The suddenness with which they appeared, and the utter lack of opportunity for input by residents (they are being considered for action at this very writing!) raises questions about whether the council is in compliance with the state’s Open Meetings Act.

The proposed amendments both concern the council’s structure and are being considered along with the 9 districts petition and an amendment that appeared yesterday adding two seats. One amendment proposed by Council Member Hans Riemer specifies that one of the four at-large members would be elected as council president and would be regarded as a separate office for the purpose of term limits. In other words, if an incumbent council member runs for council president and wins, he or she would be entitled to three more consecutive terms. (Let’s remember that Riemer himself is term limited.) The other amendment, proposed by Council Member Nancy Navarro, would create “at-large districts” for at-large members. Each at-large member would have to reside in one of four “at-large districts” and all voters in the county would be able to vote to for all four of them. The system is not unlike school board districts, in which residency requirements are in effect but all voters vote for all school board members.

Regardless of the merits of these proposals, the timing of their sudden appearance on the agenda might conflict with notice requirements in the state’s Open Meetings Act.

In the 2016 regular session of the General Assembly, the Open Meetings Act was modified with the passage of HB217. The text of the bill provided that public bodies should publish agendas for open meetings in a timely fashion. The bill stated:

3–302.1.(A)(2) If an agenda has been determined at the time the public body gives notice of the meeting under § 3–302 of this subtitle, the public body shall make available the agenda at the same time the public body gives notice of the meeting.

3–302.1.(A)(3) If an agenda has not been determined at the time the public body gives notice of the meeting, the public body shall make available the agenda as soon as practicable after the agenda has been determined but no later than 24 hours before the meeting.

The bill allowed an exception to the above provision. It went on to state:

3–302.1.(B) If a public body is unable to comply with the provisions of subsection (A) of this section because the meeting was scheduled in response to an emergency, a natural disaster, or any other unanticipated situation, the public body shall make available on request an agenda of the meeting within a reasonable time after the meeting occurs.

None of these provisions apply to today’s meeting. There is no emergency (aside from perhaps a political one!), there is no natural disaster and the discussion of council structure was far from unanticipated. The question here is whether HB217 applies to major changes to an agenda or the mere provision of an agenda only.

Some last-minute changes to an agenda are unobjectionable. For example, if the council wanted to make a morning addition to its consent calendar recognizing National Guitar Day, no one would have a problem with it. (Hint, hint: it’s February 11.) But these charter amendments are issues of enormous consequence. The nine district amendment has been discussed in public for months. Council Member Evan Glass has talked about his idea of adding district seats for almost a year. Both appeared on the council’s agenda yesterday and are ripe for consideration in an open meeting.

Even if the Navarro and Riemer proposals are eventually found to not violate state law in litigation – and make no mistake, litigation is a definite possibility if they are passed! – they certainly violate the spirit of the law. Both are major last-minute additions to the agenda with no public vetting of any kind unlike Glass’s idea, which he discussed with the charter review commission. Opponents are sure to pounce and offer them as prime exhibits of why scheming politicians are not to be trusted and therefore deserve political decapitation. How does this help the council’s case against nine districts?

The council should have united behind a common alternative as they did with their counter to Ficker’s charter amendment on taxes. Instead, they are showing a decided lack of respect for public input by placing a hugely important item on the agenda just an hour before a vote. Folks who want to blow up the county’s governance should rejoice. Those who don’t should shake their heads at the machinations of Rockville.

Update: After this post was published, a council staff attorney outlined his reasoning for why the council did not violate the open meetings act.