Transcript Maryland Public Information Act

Maryland’s “Government in the
Sunshine” Law
Overview of the Open
Meetings Act
Jack Schwartz
Assistant Attorney General
Topics Covered
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When does the Act apply?
What does it require?
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Notice
Conducting an open meeting
Closing a meeting
Minutes
How is it enforced?
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“Public Body” Generally
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All public bodies: 2+ members
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Most public bodies: formal legal creation
Formal creation:
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Meetings of single official not covered
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
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2+ members from outside government
Appointed by:
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Governor
Local government chief executive
Official subject to Governor’s or chief
executive’s policy direction
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Are These Public Bodies?
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Corporate board of directors?
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Typical private corporations, no
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Government $$ irrelevant
Quasi-governmental corporations, maybe
Committees/subcommittees of a public
body?
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Maybe: depends on method of creation
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“Meeting”
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Meeting must involve:
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Convening of a quorum
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Consideration or transaction of public
business
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Convening = simultaneous interaction
Quorum = majority (unless local requirement
says otherwise)
Entire process covered
Social or political gatherings not covered
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Definition of “Meeting” As
Applied To …
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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”?
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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
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Act applies when a public body is:
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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
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Act usually does not apply when a
public body is:
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Conducting a proceeding subject to judicial
review (quasi-judicial function)
Engaged in an “administrative function”
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Used to be called “executive function”
Licensing and zoning are always
covered
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Administrative Function
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Not within other defined functions
Not creation of new law or policy
Administering existing law or policy
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Problematic when same body wears two
hats, executive and legislative
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Administrative Function, So
Act Does Not Apply
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Policy decision previously made
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Law or policy document already sets policy
Public body now takes prior law or
policy and:
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Applies it to specific situations
Figures out operational details
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Not Administrative Function,
So Act Does Apply
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Policy decision making underway
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Prior law authorizes policy but does not set
it
Public body gathers facts, debates,
decides what policy should be
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Act applies to the entire process
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The Special Case of Budget
Preparation
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Administrative function during
preparation phase
Quasi-legislative function during formal
approval process
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Administrative Function?
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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?”
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If Act does not apply, none of its
requirements must be followed
But: maybe other law does apply
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Charter, ordinance, specific state statute?
To officials who don’t want the
headache of trying to figure this out?
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 Give notice and hold an open
meeting 
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Notice of Meetings
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Timing
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Content
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Time, place, open/closed status
Agenda optional -- changes in announced agenda
okay
Method -- any reasonable method okay
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Reasonably in advance
Last-minute meetings okay if needed
Common practice: posting where people know to
look
Retention -- keep for at least a year
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Conducting Open Meetings
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Accessible location
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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
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Public Information Act
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Closing a Meeting
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Identifying a specific exception
Procedural requirements
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Public vote, written statement
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Reason, legal citation, topics
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Exceptions: the Basics
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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
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Specific personnel matters
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Legal advice
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Identifiable individuals, not categories of
employees
Active interchange, not passive presence
Litigation
Property acquisition
Procurement
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Minutes
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Duty of timely preparation
Content: item, action, votes
Open meeting minutes
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To be made available on request
Tape recording ≠ minutes
Closed meeting minutes
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Sealed
Publicly available summary to be extracted
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Enforcement
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Open Meetings Compliance Board
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Simplified complaint procedure
Advisory only
Circuit court
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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
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Open Meetings Act Manual (2006)
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Narrative, text of Act, forms, index
Available via Internet or hard copy ($10.00)
Compliance Board opinions
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Internet access: www.oag.state.md.us
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Click on “Open Government”
E-mail distribution available
Requests to [email protected]
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A Closing Maxim
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“The government being the people’s
business, it necessarily follows that its
operations should be at all times open
to the public view.”
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William Jennings Bryan, 1915
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(three-time presidential loser)
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