7 Official Opinions of the Compliance Board 170 (2011)

Public Body Determined not to be a public body Attorney

Generals Committee on Campaign Finance
May 19, 2011
Complainant: Respondent:
Craig ODonnell Attorney Generals Advisory
Kent County News Committee on Campaign Finance
The Open Meetings Compliance Board has considered your complaint that
the Attorney Generals Advisory Committee on Campaign Finance (ACCF)
violated the Open Meeting Act by holding several meetings in the fall of 2010
by failing to provide proper notice of its meeting and failing to prepare
minutes in accordance with the Act. Because the Compliance Board finds that
ACCF is not a public body subject to the Act, there was no violation.
I
Complaint and Response
The complaint alleged that ACCF repeatedly violated the Open Meeting
Act by its failure to provide proper notice of its meeting and to provide
minutes of the meeting. The complaint contends that the Attorney General is
either subject to the policy direction of the Governor, or is subject to the
same requirements under the Act as the Governor as provided in 10-
502(h)(2).
1
In a timely response submitted on behalf of ACCF, Jeffrey L. Darsie,
Assistant Attorney General, first argued that the ACCF was not created by any
formal legal instrument enumerated in 10-502(h)(1). Second, he argued that
10-502(h)(2) cannot be interpreted as applying to the Attorney General for
two reasons: (1) because the Attorney General is elected independently and is
not subject to the policy direction of the Governor; and (2) ACCF was not
appointed by the Governor but was appointed by the Attorney General. He
noted that because the Attorney General is elected independently of the
Governor, the Attorney General may make policy recommendations to the
General Assembly or to the State Board of Elections.
All statutory references in this opinion are to the State Government Article
1
unless otherwise noted.
170
7 Official Opinions of the Compliance Board 170 (2011) 171
II
Analysis
The ACCF was formed by the Attorney General so that the Attorney
General could receive insights from knowledgeable individuals on campaign
finance issues. The Attorney General, based on the work of the ACCF, could
then inform the General Assembly of suggested amendments to the campaign
finance laws and the State Board of Elections could consider revisions of its
regulations that relate to campaign finance. The ACCF consisted of twelve
individuals: four state legislators, two employees of the State Board of
Elections, a former federal regulator, two members of the Attorney Generals
Office, and the counsels of the Maryland Republican and Democratic State
Central Committees.
2
If an entity is not a public body, it is not subject to the Open Meeting
Act. The term public body means a multi-member entity established in one
of three ways. First, it may be created by any of several formal legal
enactments. 10-502(h)(1). Second, it may be appointed by the Governor
or chief executive authority of a political subdivision or appointed by an
official who is subject to the policy direction of the Governor or chief
executive authority, but only if the appointees include at least two individuals
from outside the government. 10-502(h)(2)(i). Third, it may be appointed
3
either by a public body in the Executive Branch of State government, the
members of which were appointed by the Governor or by an official who is
subject to the policy direction of the public body, but only if the entity includes
at least two individuals who are neither members of the appointing entity nor
employees of the State. 10-502(h)(2)(ii).
A. Inapplicability of 10-502(h)(1)
The ACCF was not created by one of the formal means listed in the
definition of a public body including a law, Executive Order, rule, or
resolution. 10-502(h)(1). Rather, the ACCF was an informal body of
individuals asked to provide the Attorney General with advice on campaign
finance issues.
The response from Assistant Attorney General Darsie on behalf of ACCF
2
does not state specifically the number of times the ACCF met in 2010.
The ACCF included at least two individuals from outside of the
3
government, counsels to the Republican State Central Committee and the
Democratic State Central Committee.
7 Official Opinions of the Compliance Board 170 (2011) 172
B. Inapplicability of 10-502(h)(2)(i)
The ACCF would have been a public body had it been appointed by
the Governor. 10-502(h)(2)(i). The complaint urges us to construe
Governor to mean the Attorney General. We decline to do so as we are
bound by the language of the statute as applying to boards, commissions or
committees appointed by the Governor and not the Attorney General.
In addition, the ACCF would have been a public body had it been
appointed by an official who is subject to the policy direction of the
Governor. 10-502(h)(2)(i). In 4 OMCB Opinions 132 (2005), we examined
the meaning of whether someone serves at the policy direction of the
Governor or a chief elective authority. In that complaint, we considered
whether or not an advisory body created by the Prince Georges County
Planning Board was a public body because it was appointed by an official who
is subject to the policy direction of the chief executive authority of the
political subdivision. We found that while the members of the Planning
Board were appointed by the County Executive, the chief executive authority
for Prince Georges County, the Board was not subject to the policy direction
of the County Executive. We noted that:
[U]nlike a county department head or a position
in which the appointee is expected to carry out
policies on behalf of the chief executive authority,
the duties of the Planning Board are designated
under State and local law, and the members owe
a fiduciary duty to the Planning Board on which
they serve. In our view, the Planning Board is not
subject to the policy direction of the county
executive as contemplated by the 2004
amendment to the Act.
4 OMCB Opinions at 138 (emphasis added and internal citations omitted).
The Attorney General is not appointed by the Governor. Section V, 1
of the Maryland Constitution establishes the Attorney General as an
independent official elected by the voters of Maryland. As a state
4
See Dan Friedman, Magnificent Failure Revisited: Modern Maryland
4
Constitutional Law from 1967 to 1998, 58 Md. L. Rev. 528, 560-561 (1999)
(Explaining a proposal at the Constitutional Convention of 1967-1968 to eliminate
statewide elective offices such as the Attorney General that was rejected and noting
that [c]urrently, neither the comptroller nor the attorney general is dependent on the
governor for his or her position. Because each of these elected officials has his or
(continued...)
7 Official Opinions of the Compliance Board 170 (2011) 173
constitutional officer, the Attorney Generals duties are set forth in the
Maryland Constitution. Md. Code Ann., Const. Article V, 3. The Attorney
5
General is charged under the Constitution to:
(1) Prosecute and defend on the part of
the State all cases pending in the appellate courts
of the State, in the Supreme Court of the United
States or the inferior Federal Courts, by or against
the State, or in which the State may be interested,
except those criminal appeals otherwise
prescribed by the General Assembly.
(2) I n v e s t i g a t e , c o mme n c e , a n d
prosecute or defend any civil or criminal suit or
action or category of such suits or actions in any
of the Federal Courts or in any Court of this State,
or before administrative agencies and quasi
legislative bodies, on the part of the State or in
which the State may be interested, which the
General Assembly by law or joint resolution, or
the Governor, shall have directed or shall direct to
be investigated, commenced and prosecuted or
defended.
(3) When required by the General
Assembly by law or joint resolution, or by the
Governor, aid any States Attorney or other
authorized prosecuting officer in investigating,
commencing, and prosecuting any criminal suit or
action or category of such suits or actions brought
by the State in any Court of this State.
(...continued)
4
her own constituency, the attorney general and comptroller have every reason to act
independently, and little impetus to follow the governor. ).
There are state constitutional officers that are elected statewide such as the
5
Governor, Attorney General and Comptroller and state constitutional officers that are
elected locally such as a states attorney, sheriff, clerk of the court, register of wills,
or orphans court judges. See Md. Code Ann., Const. Article IV, 25 (election of
clerks of the court); Article IV, 40 (election of orphans court judges); Article IV,
41 (election of register of wills); Article IV, 44 (election of sheriffs); Article V,
7 and 9 (election and duties of states attorneys); Article VI, 1 and 2 (election
and duties of Comptroller).
7 Official Opinions of the Compliance Board 170 (2011) 174
(4) Give his opinion in writing
whenever required by the General Assembly or
either branch thereof, the Governor, the
Comptroller, the Treasurer or any States
Attorney on any legal matter or subject.
Md. Code Ann., Const., Article V, 3(a). While this constitutional provision
provides that the Governor can direct the Attorney General to investigate
criminal and civil actions in the State and to aid any States Attorney
investigation, commencing, and prosecuting a criminal suit, this direction
relates to the legal business of the state and not the policy direction that the
General Assembly intended in 10-502(h)(2)(i). See Md. Ann. Code, State
Government Article (SG) 6-106(a) (the Attorney General has general
charge of the legal business of the State).
Rather, the policy direction in 10-502(h)(2)(i) relates to those in the
Executive Branch who are supervised by and serve at the pleasure of the
Governor. SG 3-302(The Governor is head of the Executive Branch of the
6
State Government and shall supervise and direct units in that branch.); SG
8-203(a)(The head of each principal department is a secretary, who shall be
appointed by the Governor with the advice and consent of Senate.). Indeed,
the list of the principal departments within the Executive Branch does not
include the Attorney General. See SG 8-201(listing the principal departments
of the Executive Branch).
7
C. Inapplicability of 10-502(h)(2)(ii)
In the 2003 Annual Report of the Open Meetings Compliance Board, we
6
recommended a legislative change in the OMA to expand the definition of public
body to include a board, commission, or committee appointed by an official of the
executive branch Report at p. 4. This expansive definition could have included
all officials in the Executive Branch including those who are not appointed directly
by the Governor. The General Assembly, however, chose not to adopt this definition
but instead limited 10-502(h)(2)(i) to those Executive Branch officials subject to
the policy direction of the Governor, a narrower group of officials. Compare
Eleventh Annual Report of the Open Meetings Compliance Board p. 4 (2003) and
Senate Bill 111 (2004), introduced at the request of the Compliance Board. This
change was enacted as Ch. 440, Laws of Maryland 2004.
Our conclusion that the Attorney General does not serve at the policy
7
direction of the Governor is consistent with the conclusion the Court of Appeals has
reached on whether the county sheriffs, also state constitutional officers, are not local
government officials and not subject to control of the chief executive authority of the
political subdivision. Rucker v. Harford County, Maryland, 16 Md. 27, 281 (1989).
See also 91 Opinions of the Attorney General 48 (1991) (Harford County Council
lacks the authority to establish a merit system for the Sheriffs office).
7 Official Opinions of the Compliance Board 170 (2011) 175
Finally, the ACCF was not was not a public body under the
component of the
definition in 10-502(h)(2). The ACCF was appointed not by a public body
within the Executive Branch of government but rather by an individual, the
Attorney General. Furthermore, as noted previously, the Attorney General is
a State constitutional officer, not part of the Executive Branch of State
government as that term is used in the Open Meetings Act.
III
Conclusion
Because the AACF was not a public body under the Open Meetings
Act, neither the substantive nor the procedural requirements of the Act applied
to the meetings of the AACF in the fall of 2010. Thus, no violation occurred.
8
OPEN MEETINGS COMPLIANCE BOARD
Elizabeth L. Nilson, Esquire
Courtney J. McKeldin
Julio A. Morales
The Open Meetings Compliance Board was advised for the purposes of this
8
complaint by Amanda Stakem Conn, Assistant Attorney General at the Maryland
Department of Planning, because the Opinions and Advice Division which normally
serves as counsel to the Board had contact with the ACCF. Ms. Conn had no contact
with the ACCF or other assistant attorney generals that staffed the ACCF.