7 Official Opinions of the Compliance Board 216 (2011)

Closed Session Procedures Written Statement Generally

Written statement to be completed by presiding officer or
ratified by presiding officers signature prior to closed session.
Written statement may, but need not, reflect identities of
members voting to close. Written statement must be
informative
Exceptions Permitting Closed Sessions Personnel, 10-508(a)(1)
Within Exception Discussion of individuals.
Administrative Function
Discussion of members own committee assignments, within
administrative function
Discussion of reorganization of departments, outside the
administration function
Exceptions Permitting Closed Session Property Acquisition, 10-
508(a)(3) Discussion of sale of public bodys property, outside
exception
June 27, 2011
Complainant: Respondent:
Craig ODonnell Queen Annes County Commissioners
We have considered the complaint of Mr. Craig ODonnell
(Complainant) that the County Commissioners of Queen Annes County
(Commissioners) violated the Open Meetings Act (the Act) with respect
to certain meetings of the current Commissioners in early 2011 and of the
former Commissioners in 2009 and 2010. We have also considered the
Commissioners response admitting some alleged violations and denying
others.
We shall set forth the facts and our conclusions in our discussion.
216
7 Official Opinions of the Compliance Board 216 (2011) 217
I
Discussion
A. Allegations concerning the adequacy of closing statements in 2011
Complainant alleges that the closing statements for meetings held on
December 28, 2010, January 4, 11, and 25, 2011, February 22, 2011, and
March 1, 2011 are variously deficient because (1) the signature of the
presiding officer appears to have been stamped; (2) only a citation to the
relevant statutory exception is given as the reason for the closed session; (3)
the statements do not identify the commissioners who made and seconded the
motion to close; (4) the cited exceptions did not apply to the discussion; (5) the
closing statements do not contain the amount of detail required by the Act; and
(6) the Commissioners impermissibly discussed contract matters. These
allegations mostly require us to apply 10-508 of the State Government Article
(SG), which sets forth the reasons for which a public body may close a
meeting involving a function covered by the Act and the procedures for doing
so.
1. The use of a signature stamp. The Commissioners state that County
staff has on occasion, utilized a stamp signature of the President of the County
Commissioners on the closing statement. Noting that the Act does not
prohibit that practice, they nonetheless state that future closing statements will
bear an original signature.
The Act does not require the presiding officer to sign the closing statement.
It does, however, require that officer to conduct a recorded vote on the
closing of the session and make a written statement of the reason for closing
the meeting, including a citation of the authority [under SG10-508], and a
listing of the topics to be discussed. SG 10-508. As we have noted, the
closing statement is an accountability tool, 4 OMCB Opinions 188, 196
(2005), and the Act requires the presiding officer, and the presiding officer
alone, to complete it. The most efficient way for a public body to establish
compliance with that requirement, (and to avoid creating suspicion), is for the
presiding officer to sign the statement when generating it, and we commend
the Commissioners undertaking to follow that practice. We discuss other
aspects of the presiding officers responsibility in Section B.
2. The sufficiency of the statement of the reason for closing the
meeting. Complainant alleges that the closing statements violate the Act
because the reason for closing the meeting is simply given in the form of a
citation to the statutory exception invoked as a basis for the closing. The
Commissioners respond that they used the form statement recommended by us,
7 Official Opinions of the Compliance Board 216 (2011) 218
that they provided more detail under the heading Topics to be discussed, and
that they will in any event provide more detail in the future.
SG 10-508(d)(2)(ii) requires the presiding officer to make a written
statement before the public body meets in closed session, of the reason for
closing the meeting, including a citation of the authority under [SG 10-508],
and a listing of the topics to be discussed. We have found that a closing
statement which contained no reason for closing substantially complied with
SG 10-508(d)(2)(ii) because the reasoning was implicit in the information
disclosed elsewhere on the form. 4 OMCB Opinions 188, 195 (2005).
The Commissioners various topics statements, as quoted by Complainant,
read with the statutory reference, convey the subjects discussed in the various
closed sessions in enough detail for the Complainant to question whether the
discussion actually fell within the claimed exception. For instance, when
claiming the exception provided by 10-508(a)(3) for the discussion in a
closed session of matters pertaining to the acquisition of property, the
Commissioners identified the property. Nonetheless, to comply fully with the
Act, the closing statement should state the reason the public body voted to
close the meeting, and we commend the Commissioners undertaking that their
presiding officer will follow this practice in the future.
3. The failure of the closing statements to identify the commissioners
who made and seconded the motion to close. While SG 10-508 (d)(2)
requires the presiding officer to conduct a recorded vote on the closing of the
session, it does not require the officer to record on the closing statement the
identities of the people who made and seconded the motion to close. We do
not find any violation of the Act in this regard.
4. The applicability of the cited exceptions to the discussions held. SG
10-508 permits a public body to close a session for any of 14 specific
exceptions to the general requirement that public business within the scope of
the Act be conducted in the open. Complainant alleges that six meetings were
closed to discuss matters not within the exception claimed on the closing
statement. We take them in chronological order.
December 28, 2010 meeting. The Commissioners met in closed session to
discuss Boards, Commissions, addendum to employee contract. They cited
SG 10-508(a)(1) (the personnel exception), which permits a public body to
meet in closed session to discuss:
(i) the appointment, employment, assignment,
promotion, discipline, demotion, compensation, removal,
resignation, or performance evaluation of appointees,
employees, or officials over whom it has jurisdiction; or
7 Official Opinions of the Compliance Board 216 (2011) 219
(ii) any other personnel matter that affects 1 or more
specific individuals [.]
The minutes of the open session additionally cite SG 10-503(c) and state
that the Commissioners went into closed session for the purpose of
conducting an administrative function meeting. SG 10-503(a) provides that
the Act does not apply generally to a public body meeting to carry out an
administrative function except as provided in subsections (b), which is not
relevant here, and (c). Subsection (c) provides that a public body which closed
a public meeting to carry out an administrative function must include certain
information, notably a phrase or sentence identifying the subject matter
discussed, in the minutes for the next public meeting. The Commissioners
open-session minutes state: The Board discussed an addendum to an
employment contract and what Boards and Commissions they would serve
on.
Complainant alleges that the Boards and Commissions discussions
involved the Commissioners own assignments, that the summary and closing
statements contradict each other, and that if [the Commissioners] are going
to use 10-503 as a cover for a private debate over [ assignments], they cannot
tell the public they are closing under 10-508(a)(1) to discuss boards and
committees. He further alleges that the employment matter had to do with the
shifting positions of two particular employees, that the reassignment of them
was not confidential and should not have been confidential in light of the
prominence of the positions, and that the minutes were insufficient because
more information appeared in news accounts.
We begin with the commissions and boards discussion. The personnel
exception stated by SG 10-508(a)(1)(i) includes the discussion of the
appointment or assignment of appointees or officials over which the
public body has jurisdiction and so encompasses a public bodys assignment
of its own members to boards and commissions. However, a public body
conducts an administrative function when it discusses its own organization,
and SG 10-508 does not apply. 7 OMCB Opinions 142 (2011). We do not
fault the Commissioners for unnecessarily disclosing on a closing statement
the topic of their administrative discussion.
SG 10-503 does apply when the public body has closed a public meeting
to conduct an administrative function, but the Commissioners complied with
that provision by amply disclosing the assignments they made during their
closed session.
The discussion of addenda to the contracts of two particular employees also
falls within the SG 10-508(a)(1)(ii) exception for any other personnel matter
that affects 1 or more specific individuals. That exception, like the other
7 Official Opinions of the Compliance Board 216 (2011) 220
exceptions, does not evaporate when the matter discussed would be of
particular interest to the public. The allegation that the Commissioners
discussed two individuals in prominent positions thus does not state a violation
of the Act. Nor were the Commissioners required to identify the person or
persons discussed. See 6 OMCB Opinions 127, 136 (2009). We do not find
violations with respect to the December 28, 2010 closing statement.
January 4, 201 meeting. The Commissioners closed a meeting under the
personnel exception to discuss an addendum to an employees contract and
a new employee contract. Complainant alleges that the minutes of the next
public meeting did not contain any information on what occurred at the closed
session. The Commissioners acknowledge that SG 10-509(c) required them
to make certain disclosures. They admit that they omitted those disclosures
from the minutes of the next meeting. They further identify the individuals
and contracts discussed, confirm that only those personnel matters were
discussed, and state that they are committed to correcting any and all
deficiencies noted. We trust that this information will be available to other
citizens reviewing the January 4, 2011 minutes. Because the Commissioners
have admitted this violation, we need not discuss it further.
January 11, 2011meetings. The Commissioners met in three non-public
sessions. They held the first session before convening publicly to discuss
administrative matters regarding board and commission appointments.
Although the Act did not apply to that meeting, they later included the topic
on a closing statement completed during the open session they held later that
morning. They also disclosed in the minutes of the open session that they had
reviewed various board appointments. Although the Commissioners use of
a SG10-508 closing statement for a separately-held administrative function
meeting could indeed cause confusion, we again do not fault the
Commissioners for disclosing more information than required.
The January 11, 2011 closing statement also reflected the closing of the
public meeting under the personnel exception to discuss the appointment of
a new finance director and administrator. As fully disclosed in the minutes
of the open session, that discussion occurred at the third session of the day.
The appointment of the two employees in question fell within the personnel
exception. The administration of an oath to the new County Administrator was
an administrative task, and the Commissioners complied with SG 10-503(c)
by disclosing it in the minutes. We do not find any violations of the Act with
respect to these two closed sessions.
The second closed session on January 11, 2011 is more problematic. The
minutes of the open session state that the Commissioners discussed the
elimination of a position and voted to approve that the Sheriffs department
... fill three vacant positions. With respect to the first topic, the
7 Official Opinions of the Compliance Board 216 (2011) 221
Commissioners inform us that they discussed whether to eliminate the position
of chief operating officer, soon to be vacated by the appointment of that
employee as County Administrator. The extent to which this discussion
involved his performance or that of other employees or prospective employees
is unclear. The elimination of a position, while it is vacant, likely involves
the setting of policy, rather than the discussion of information specific to a
particular individual. Even where the discussion involves a position held by
so few employees that everyone knows whose positions are being discussed,
the discussion must be held in an open meeting unless it involves the
performance or other attributes of those individual employees. 3 OMCB
Opinions 335, 337 (2003). The exception thus does not apply where anyone
in the position would be affected by the action being considered. Id.
The second topic, the action on permitting the Sheriffs Department to fill
three vacancies, appears to implicate budget matters, as it is unclear at best
whether the vacancies in question would be filled by employees over whom
the Commissioners have jurisdiction under the exception. The open minutes
also do not report a discussion of specific individuals in this regard. We again
refer the Commissioners to the principles set forth in 3 OMCB Opinions 335,
supra.
January 25, 2011 meeting. The Board met initially in a closed session. The
minutes of the subsequent open session disclose that they met for the purpose
of conducting an administrative function meeting; Pursuant to [SG] 10-
508(a)(1) .... The minutes state that they discussed board appointments and
reorganization. As explained above, the Commissioners could have held a
closed session to discuss board appointments without completing a closing
statement. However, the reorganization discussion by its terms appears to
involve a policy question not qualifying as an administrative function. Also
as explained above, the personnel exception does not extend to a discussion
about the elimination of positions without regard to the performance or
attributes of specific employees. The Commissioners have provided us with
the minutes of that closed session and have explained that their discussion
about reorganizing a particular part of the County government in fact involved
a discussion of specific individuals. The Commissioners thus did not discuss
matters outside of the scope of the exception. They did violate the Act by
providing insufficient detail in the summary in the open-session minutes.
February 22, 2011 meetings. The Commissioners met in two closed
sessions. They closed the first under SG 10-508(a)(3), which is the exception
to consider the acquisition of real property for a public purpose and matters
directly related thereto, and disclosed in their open-session minutes that they
had discussed the Matapeake Business Park site. Complainant alleges, and
the Commissioners do not dispute, that the County owns the business park and
that the Commissioners could not have been discussing an acquisition of the
7 Official Opinions of the Compliance Board 216 (2011) 222
site. SG 10-508(a)(3) applies to the acquisition of real property, not the
transfer of real property, 6 OMCB Opinions 35, 39 (2008), and the
Commissioners therefore violated the Act by discussing County property in a
meeting closed under this exception. The exception in SG 10-508 (a)(7) for
consulting with counsel to obtain legal advice would have applied, had the
Commissioners cited it: the open-session minutes disclose his presence, and
the closed-session meetings demonstrate the applicability of that exception.

The Commissioners held a second closed meeting under SG 10-508(a)(3),
which is the exception to consult with counsel to obtain legal advice, and
disclosed in their open-session minutes that they had discussed the Board of
Education budget. The minutes also disclose that the County Attorney
attended the session. The information provided to us demonstrates that the
closed-session discussion fell within the scope of the exception. We
encourage the Commissioners to refer to a discussion or consultation with
counsel to avoid future complaints that a meeting was improperly closed
under this exception.
March 1, 2011 meeting. The Commissioners invoked the personnel
exception to close a session which involved the elimination of positions. They
listed Reorganization Proposal as the topic to be discussed. As discussed
above, that policy issue would not fall within the exception. However, the
Commissioners state in their response that the actual discussion concerned
specific discussions ... on the particular individuals who held the positions
being eliminated. We find that the exception applied, but that the closing
statement was inadequate.
In summary, most of the problems noted above arose from the
Commissioners inadequate disclosures of the bases of, and actions taken
during, their closed session, not from the discussion in closed session of topics
exceeding the scope of any exception. This complaint is a textbook example
of how an unnecessarily-vague description of the topic of a closed session can
lead the public to conclude that the public body has met secretly to discuss a
topic required to be discussed in the open. We reiterate that a public body
should disclose on the closing statement as much information as it can without
revealing the information that the Act permits the public body to keep
confidential. We encourage the Commissioners to look on the Act as
providing mechanisms which, when used properly, can serve to protect them
against unwarranted suspicions. Here, for instance, had the references to
reorganization in meetings closed under the personnel exception instead
specified personnel issues pertaining to specific individuals whose positions
may be affected by the proposed reorganization, Complainant would have had
no basis for alleging that the description was too vague and that the topic
exceeded the scope of the exception.
7 Official Opinions of the Compliance Board 216 (2011) 223
B. Allegations concerning violations by the former Commissioners
Complainant alleges violations with regard to ten meetings held by the
prior Board of County Commissioners (prior Board). Complainant alleges
that the prior Board conducted closed sessions for the purpose of discussing
the acquisition of real property and consulting with legal counsel and discussed
topics outside of those exceptions, and that their open-session minutes lacked
sufficient detail about the actions taken in the closed sessions. None of these
allegations involves the current Commissioners. We shall forego an extensive
discussion of each meeting in the belief that our prospective advice on these
topics will be more productive for all parties.
All ten meetings were closed under SG 10-508(a)(3), pertaining to the
acquisition of real property. Complainant alleges that the references in the
open-session minutes were insufficiently detailed because they contained
sentences such as The Board discussed purchasing parcels of property, or
The Board discussed property in Centreville, or The Board discussed
several parcels of land, or discussed the Matapeake site development, or
discussed the Rural Legacy program and the Courthouse Property. One
closing statement merely cited the statute. Complainant states that the public
was surprised to learn later that the Commissioners had purchased property
from a local judge and that one contract was suddenly voted on in an open
session. One meeting involved a discussion of an upcoming court date, in
a session closed under SG 10-508(a)(7), which is the exception for consulting
with counsel to obtain legal advice.
SG 10-508(d) requires the presiding officer to make a written statement
listing the reason for closing the meeting, a citation of the authorities, and a list
of the topics to be discussed. The new Commissioners assured us in their
response to the allegations pertaining to their meetings that they will provide
that information on future closing statements.
The information on future closing statements should at a minimum
establish the applicability of the exception. For instance, discussed several
parcels does not necessarily mean that the Commissioners discussed
acquiring those parcels, and discussions about the Matapeake site development
and the Rural Legacy Program do not appear to pertain to the acquisition of
property at all. Similarly, the sentence, The board discussed an upcoming
court date does not establish that the Commissioners sought any legal advice.
Also at a minimum, the Commissioners should disclose as much information
as they can without compromising the confidentiality of matters discussed
within the claimed exception. As we stated in 1 OMCB Opinions 16, 17
(1992),
7 Official Opinions of the Compliance Board 216 (2011) 224
The level of detail in the written statement required prior to a
closed session and in the minutes of the ensuing open session
may preserve the confidence of information that led to the
sessions being closed in the first place.
Put another way, the public body may not withhold information unnecessarily.
Although we have often stated that mere boilerplate repetition of the language
of the Act is insufficient, there is no hard and fast rule for how much
information is required in every circumstance. For instance, in some land
acquisition matters, it may be appropriate to withhold all identifying
information from the public eye until an agreement has been reached.
Although the identity of certain land under consideration, or of its seller, might
be of great public interest, the Act does not require the public body to disclose
it.
We stress that the decision of what information should be disclosed on a
closing statement requires a good-faith judgment call by the presiding officer,
who is responsible for preparing it. SG 10-508(d). All of the members of the
public body are responsible for keeping the discussion within the reason stated
in the motion to close the session. SG 10-508(b). For instance, when a
closed-session discussion about a particular purchase of land or proposal of a
business to locate in the County strays into broader policy, as when the
purchase or proposal calls for the Commissioners to adopt generally-
applicable land-use policies, see, e.g., 7 OMCB Opinions 148 (2011), that
discussion very likely has exceeded the scope of those exceptions and should
be conducted openly. Under the Act, the responsibility for complying with the
SG 10-508 closing procedures lies with the members of a public body, not
its staff.
Finally, the members who vote to adopt open-session minutes containing
a summary of a prior closed session in effect certify the sufficiency of that
summary; it is through the approval of minutes that a public body can be said
to accept responsibility for the record of its meetings. 5 OMCB Opinions
105, 112 (2007). The Act thus also makes compliance with the SG 10-509
minutes procedures the responsibility ultimately of the members of the public
body, not of its staff.
OPEN MEETINGS COMPLIANCE BOARD
Elizabeth L. Nilson, Esquire
Courtney J. McKeldin
Julio A. Morales, Esquire