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)