7 Official Opinions of the Compliance Board 112 (2011)

Closed Session Procedures Written Statement Practices in

violation: preparing written statement before or after
meeting; topic description reiterating statutory authority;
and failure to record vote
Minutes Practices in violation: inadequate description /
violation
Exceptions Collective Bargaining Outside Exception
Discussion of whether to recognize a particular union or
employee representative
Personnel Outside exception Sheriffs appointees to sheriffs
advisory committee not invoking discussion of individual
county employees
Public Safety Outside exception Discussion about Sheriffs
advisory committee, not bearing on public safety
March 10, 2011
Complainant: Respondent:
Kevin Spradlin Allegany County Commissioners
The Potomac Highlands Dispatch
On behalf of the Potomac Highland Dispatch, Kevin Spradlin filed a
complaint suggesting that the initial meeting of the new Board of County
Commissioners for Allegany County on December 17, 2010 violated the Open
Meetings Act, particularly with respect to closure of the meeting for the
purpose of discussing personnel or public safety matters. The County Attorney
responded on behalf of the County Commissioners, denying that any violation
occurred.
For the reasons set forth below, we find that the Commissioners violated
the Open Meetings Act by failing to create a written contemporaneous closing
statement that documented their vote to close the meeting and their reasons for
closing the meeting. In addition, we find that the public minutes of the closed
session inadequately described the topics of discussion. Finally, the
Commissioners discussion with the Sheriff concerning an advisory committee
to be appointed by the Sheriff was not an appropriate subject for a closed
112
7 Official Opinions of the Compliance Board 112 (2011) 113
meeting under the Act. We are unable to determine whether the meeting was
properly closed for the other topics of discussion based on the information
provided to us.
I
Background
The three newly elected County Commissioners for Allegany County were
sworn into office on December 16, 2010. They immediately issued a notice
that they would meet the next morning with the County Administrator, the
County Attorney and the newly-elected Sheriff. The notice stated that they
would meet in executive session to discuss matters related to Public
Safety/Public Security.
The next day, the Commissioners met as advertised and voted to close their
session. The County Attorney has, pursuant to 10-502.5(c), provided us with
a copy of the sealed minutes of that closed meeting as well as a public
description of the closed session that was apparently made a part of the public
minutes of the next meeting of the Commissioners on December 30, 2010,
1
pursuant to 10-509(c)(2). In addition, the County Attorney indicated in his
response, the discussion during the closed meeting concerned the Sheriffs
creation of a committee to advise him on certain matters, the use of County
property by certain federal agencies, and a request by members of the police
department for representation by the Maryland Classified Employees
Association.
II
Discussion
The complaint suggested that the series of events on December 16 and
17 violated the Open Meetings Act, without alleging a particular violation.
We discuss the most pertinent requirements of the Act.
Notice
The complaint does not appear to be questioning the reasonableness of the
notice of the meeting under the circumstances. Moreover, the notice clearly
This document is entitled Statement Regarding Executive Session Held on
1
December 17, 2010 at 10 AM. In a supplemental response, the County Attorney
confirmed that this document had been created after the closed session.
7 Official Opinions of the Compliance Board 112 (2011) 114
indicated that a closed session would take place, as the Act recommends. 10-
506(b)(3).
Recorded Vote, and Closing Statement
Before a public body closes a meeting, it is to meet in open session, take
a recorded vote on the proposal to close the meeting, and make a written
statement that describes the reason for closing the meeting, including a citation
of legal authority, and a listing of the topics to be discussed. 10-508(d)(2).
2
If a person objects to closure of the meeting, the public body is to send a copy
of the written statement to the Compliance Board.
According to the response, the Commissioners first met in open session on
December 17 in order to vote on the motion to close the meeting. However,
it appears that no written closing statement was created. While a document
prepared after the meeting for inclusion in the minutes states that the motion
was passed, lists the participants in the meeting, and essentially quotes three
statutory exceptions to the open meetings requirement, it does not satisfy the
requirements of 10-508(d) for a written statement.
First, the document was not created coincident with the decision to close
the session. This is not a technical point, as the propriety of a closed meeting
can turn on whether the subsequent discussion deviated from the purposes
announced in public for closing the meeting. In this case, the advance notice
of the meeting cited one exception for closing the meeting while the statement
created for the minutes recites three reasons. A closing statement created after
a closed session has happened would create confusion as to the purpose for
which the meeting was closed and the actual discussion that took place. As we
have said before, after-the-fact justifications are ineffective. See, e.g., 1
OMCB Opinions 96, 99 (1994).
Second, it is not clear from the statement created for the minutes precisely
how the commissioners voted on the motion to close the session i.e., whether
the vote was unanimous or by a 2-1 margin. This is also not a technical point.
The recording of the vote is to ensure that the officials who choose to close a
meeting are accountable for that decision. 3 OMCB Opinions 4, 6 (2000).
Finally, in describing the reasons for closing the meeting, the statement
prepared for the minutes quotes or closely paraphrases three statutory
Many public bodies use a form provided in Appendix C of the Attorney
2
Generals Open Meetings Act Manual for this purpose. While it is not necessary to
use that particular form, it does cover all of the elements required by the Act.
7 Official Opinions of the Compliance Board 112 (2011) 115
provisions. This would not be adequate for a closing statement. As we have
said previously, a closing statement need not be so detailed as to compromise
the confidential purpose for which the meeting is closed, but saying nothing
beyond the statutory language deprives the public of the information to which
it is entitled. 5 OMCB Opinions 33, 35 (2006).
In any event, the Commissioners violated the Act by failing to create a
written closing statement at the time they voted to go into closed session on
December 17.
3
Public Minutes of Closed Session
When a public body closes a meeting, or part of a meeting, it is to include
in the public minutes of the next open meeting certain information about the
closed session in particular: a statement of the time, place, and purpose of the
closed session; a citation of the legal authority for closing the session; a listing
of the topics of discussion, persons present; and a record of any votes taken.
10-509(c)(2). The written statement concerning the closed session included
in the public minutes complies with the statutory requirements, except that it
fails to describe the topics of discussion other than to quote or paraphrase the
language of the cited exceptions. As prior opinions have stated, the
description must be more informative than simply parroting the statutory
language. 4 OMCB Opinions 76, 78 (2004).
Content of Closed Session
The complainant appeared most concerned about whether the subject
matter of the meeting was a proper basis for a closed session. The County
Attorney provided us with a copy of the sealed minutes of that session,
pursuant to 10-502.5(c)(2)(ii), and summarized the discussions during the
closed session in his response to the complaint. We note that each of the
4
exceptions for closing a meeting is to be strictly construed in favor of open
meetings. 10-508(c).
We understand that an objection was made by a member of the public to
3
closure of the meeting during the initial open session. If the Commissioners had
created the required closing statement, they would have been obligated to send it to
the Compliance Board as a result of that objection. 10-508(d)(3).
In justifying the closed sessions, the response relied on exceptions to the
4
open meeting requirement of 10-508. We thus do not consider whether any of the
discussions would have fallen under the rubric of administrative function and as
a result, not been subject to the Act at all, although that possibility seems unlikely.
7 Official Opinions of the Compliance Board 112 (2011) 116
The response indicates that one portion of the closed session concerned a
discussion with the Sheriff of individuals to be appointed by the Sheriff to
advise him about certain public safety matters. From our review of the sealed
minutes it does not appear that this discussion fell within any of the stated
exceptions. It does not fit the personnel action exception in (a)(1), as it was
not a discussion about individual employees of the County; rather, it was about
possible appointees to an advisory board of the Sheriff. Nor did the discussion
directly concern collective bargaining negotiations, the deployment of police
staff, or anything related to emergency plans. In our view, the Commissioners
violated the Act in closing this portion of the meeting.
Second, the response states that there was a discussion of the use of certain
buildings for law enforcement purposes and matters related to federal agencies
and states that, under federal law and a written agreement with the federal
agencies, any further disclosure related to that matter would be a violation of
National Security. Without citation to federal law or a copy of the agreement,
we cannot evaluate this claim. Nor are the sealed minutes enlightening. What
we can say is that the exceptions cited in the written statement included in the
public minutes do not appear to apply to this discussion. If federal law would
bar disclosure of the content of this discussion, the appropriate exception
would be 10-508(a)(13), which allows closure of a meeting to comply with
a specific constitutional, statutory, or judicially imposed requirement that
prevents public disclosures about a particular proceeding or matter.
Finally, the response states that there was also a discussion of a request by
certain members of the police department for representation by the Maryland
Classified Employees Association. The closed session minutes are
exceedingly cryptic on this issue and we are therefore unable to reach a
conclusion as to whether the session was properly closed under this exception.
However, it is notable that the exception relates to the conduct of negotiations
or discussions related to negotiations not to discussions as to whether to
recognize a particular union or employee representative.
III
Conclusion
In summary, we find that the Commissioners violated the Open Meetings
Act by failing to create a written contemporaneous closing statement that
documented their vote to close the meeting and their reasons for closing the
meeting. In addition, we find that the public minutes of the closed session
inadequately described the topics of discussion. Finally, the Commissioners
7 Official Opinions of the Compliance Board 112 (2011) 117
discussion with the Sheriff concerning an advisory committee to be appointed
by the Sheriff was not an appropriate subject for a closed meeting under the
Act. We are unable to determine whether the meeting was properly closed for
the other topics of discussion based on the information provided to us.
OPEN MEETINGS COMPLIANCE BOARD
Elizabeth L. Nilson, Esquire
Courtney J. McKeldin
Julio A. Morales, Esquire