Tag Archives: Open Meetings Act

Council Attorney: Council Did Not Violate Open Meetings Act

By Adam Pagnucco.

On Tuesday, I wrote a post asking whether the county council had violated the state’s Open Meetings Act by posting two charter amendments on its agenda the morning of their vote. County council attorney Bob Drummer wrote me the email below explaining why the council did not violate the law.

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Adam,

I’m reaching out to you about your Aug. 4 post in Seventh State asking if the Montgomery County Council is in compliance with the Maryland Open Meetings Act because of two potential ballot proposal that were added to the Council agenda and posted on the Council’s web page on the morning of Aug. 4.

Your post misses the point of the Open Meetings Act. The Act requires the Council to provide reasonable notice before conducting an open meeting. The Act goes on to require the Council to post an agenda for the meeting for public viewing if it has been determined at the same time as the notice of the meeting. If an agenda is not determined at the time of the notice, it should be posted at least 24 hours in advance (Md. Code Ann., General Provisions Article, Sec. 3-302.1(a)). Sec. 3-302.1(b) provides an exception for an emergency meeting. It appears that you only read these sections and made some incorrect assumptions from this selective reading.

Let me explain. Notice of the August 4 meeting was posted more than 24 hours before the meeting. The notice included an agenda. The agenda included a discussion and action on 2 possible Charter Amendments concerning the composition of the Council – one by petition and one by Councilmember Glass. In your blog, you complained about the late addition of 2 alternative Charter Amendments proposed by Councilmembers Riemer and Navarro concerning the composition of the Council. First, the public had ample advance notice that the Council was going to discuss possible Charter Amendments concerning the composition of the Council. More importantly, the final provision of the Section you mistakenly relied on, Sec. 3-302.1(e) states:

(e) Alteration of agenda. — Nothing in this section may be construed to prevent a public body from altering the agenda of a meeting after the agenda has been made available to the public.

This section expressly authorizes a public body to alter the agenda of a meeting after the agenda has been posted. The two proposals that you question were just that – alterations of the agenda after it was posted. If your reading of the statute was correct, a public body would never be able to change the agenda at the last minute, and a Councilmember would never be permitted to move to amend a resolution or bill before it at the meeting if notice of the proposed amendment was not provided to the public at least 24 hours in advance. Such a reading would make the Open Meetings Act unworkable. The main purpose of the Open Meetings Act is to ensure that almost all (except for permitted closed meetings) legislative decisions by a public body are made in public. The purpose of the notice and agenda requirement is to ensure that the public has the opportunity to watch (or at least hear) the meeting. The notice and agenda requirement is not designed to hamstring a public body into strictly following a posted agenda without any flexibility to modify it.

The two proposals you question in your post are referenced in the Council’s media advisory that was distributed and posted to the Council’s web page on the evening of Aug. 3. The advisory generally describes the proposals and notes that the Council staff reports will be available on Aug. 4. You can view the advisory here: https://www2.montgomerycountymd.gov/mcgportalapps/Press_Detail.aspx?Item_ID=25673&Dept=1. Moreover, as you reported in your subsequent Aug. 4 post in the Seventh State, the Council did not approve either of the ballot proposals.

I also want to take this opportunity to remind you and your readers that all Council and committee meetings are televised on County Cable Montgomery and are streamed on Facebook and YouTube. In addition, individuals without internet or cable access can listen to Council and committee meetings on the call in line.

As always, we appreciate you following Council deliberations and getting the word out about important public policy issues that impact Montgomery County residents.

Robert H. Drummer
Senior Legislative Attorney
Montgomery County Council

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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.

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Republican Board of Elections Members Violated the Open Meetings Act

According to an opinion by the Open Meetings Compliance Board, the three Republican members of the Montgomery County Board of Elections violated the Open Meetings Act when they held a private conference call. As readers may recall, this call took place during the heated debate over the movement of early voting locations to less Democratic areas in the County.

From the opinion’s conclusion:

We have concluded that three voting members, a majority of the voting members of the elections board, constitute a “quorum” for purposes of the Act such that a conference call among three voting members constituted a meeting subject to the Act. We have recognized that applying the Act’s quorum definition to the elections board is complicated, and this matter posed the unusual circumstance in which the public body’s own definition, when applied, did not secure the public’s right to observe every stage of the public body’s consideration of public business. Although we can see that the board members might reasonably have relied on the bylaws provision when they conducted the board’s business among themselves, we nonetheless find that the conference call violated the Act. We therefore direct the elections board to the acknowledgment requirement in $ 3-211. We have not commented on how the elections board must transact business under the elections laws.

You can read the full letter here:
Open Meetings Compliance Letter on Paul E. Bessel’s Complaint

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Mayor Al Lang’s Cronyism and Plans for Secret Meetings

Cronyism and secrecy appear to be hallmarks of Town of Chevy Chase Mayor Al Lang’s administration.

Cronyism

Previously, I reported how Election Board Member Anthula Gross resigned from the Board after the election due to threats of lawsuits under the Ku Klux Klan Act during the Board’s deliberation over certification of the election. Gross has now revealed that Lang is the one who exerted pressure on the Board.

Lang replaced Gross with Robert Charrow without putting out a call to the community for anyone else to apply, as had been the past practice under the prior mayor that Lang had strongly supported. Charrow has refused to answer questions about whether he was the one who gave Lang advice over the KKK Act or other election law matters, telling the public that it is “none of your business.”

According to a report on the Town’s unofficial listserv, Al Lang and Fred Cecere now want to create some sort of finance or budget committee. Again, Lang also would not agree to allowing advertising the committee publicly and considering other Town residents beyond those he and Councilmember Fred Cecere, his ally, have already identified, so more cronyism appears in the works.

Secret Meetings

Lang and Cecere along with their ally, Councilmember John Bickerman, have  trumpeted their commitment to transparency. In a post-election statement to the Town, Fred Cecere expressed strong support for the Open Meetings Act. During the campaign, Bickerman also emphasized his commitment to transparency, and Lang promised a “new openness” in his 2014 election statement.

Yet Cecere said publicly that he did not think open meetings of the new finance committee would be needed and pointed to a technical exception in the Open Meetings Act. Bickerman, an attorney, also did not express any qualms about the closed meetings. Lang stated that he thought that the committee would be a “working group” and did not commit to open meetings, though said he would consult the Town Attorney.

The Open Meetings Act seemingly prohibits efforts to skirt the law by calling municipal committees “working groups.” It certainly appears to violate the spirit of the law. Even if citizens cannot participate, they have a right to observe this sort of meeting and it needs to be advertised in advance. These are not meetings about contract negotiations, personnel, or legal matters which require secrecy and are normal exceptions under the Act.

Indeed, one wonders why Councilmember Kathy Strom, also an attorney, even had to express her strong concerns about openness and adherence to the law with all of this piety regarding transparency by Lang, Cecere, and Bickerman. Why the hunt for technicalities in the law? However, even after Strom raised it, Lang would not commit firmly to an open process and neither Cecere nor Bickerman urged him to open up the meetings.

Lang and Bickerman continue to refuse comment, let alone publicly own, their participation in the unethical stealth campaign to elect Cecere. Now, all three seem to have the instinct to appoint only their friends to meet illegally in secret for Town business. As Anthula Gross recently put it:

[W]e’ve all just had a wonderful civics lesson. Conduct a secret, stealth campaign, assume office and appoint one’s cronies to continue the secrecy in governing.

Let’s hope the Town Attorney sets them straight soon.

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