Marylands Government in the Sunshine Law Overview of the Open Meetings Act Jack Schwartz Assistant Attorney General.

Maryland’s “Government in the Sunshine” Law

Overview of the Open Meetings Act

Jack SchwartzAssistant Attorney General

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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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“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

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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

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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

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“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

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Definition of “Meeting” As Applied To … Conference calls E-mail, IM Site visits Retreats Joint meetings Majority presence at someone

else’s meeting

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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?

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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

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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

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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

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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

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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

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The Special Case of Budget Preparation Administrative function during

preparation phase Quasi-legislative function during

formal approval process

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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?

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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

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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

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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

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Closing a Meeting Identifying a specific exception Procedural requirements

Public vote, written statement Reason, legal citation, topics

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Exceptions: the Basics Exceptions to be construed

narrowly Stay within cited exception When discussion within exception

ends, go back to open session

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Frequently Cited Exceptions Specific personnel matters

Identifiable individuals, not categories of employees

Legal advice Active interchange, not passive

presence Litigation Property acquisition Procurement

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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

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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

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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 [email protected]

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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)