7 Official Opinions of the Compliance Board 105 (2011)
Public Body Determined not to be: informally created
committees appointed by Library President
Meeting Determined not to be a meeting: Mere attendance at
another entitys meeting, at which the public bodys own
public business was not considered
March 10, 2011
Complainant: Respondent:
Mr. Craig ODonnell Kent County
Kent County News Library Board of Trustees
The Board has consolidated into one case the complainants three
complaints that the Board of Library Trustees of the Kent County Library
(Library) violated the Open Meetings Act (the Act) in 2010. The
complainant alleged that the Librarys former Board had violated the Acts
procedures for giving notice of meetings, closing meetings, and keeping
minutes. In its response, the Library Board, now composed entirely of new
members, conceded numerous violations. On February 17, 2011, our counsel
held an informal conference, see 10-502.5 (e) of the State Government Article
(SG), with the complainant, the Librarys counsel, and several current
trustees. As a result of that conference, only two issues remain open for our
consideration:
(1) Whether the Act applies to meetings of the Library Boards Finance
Committee and other committees; and
(2) Whether the Library Board must follow the Acts procedures when
a quorum of the Librarys members attend another public bodys meeting.
We shall address each in turn.
105
7 Official Opinions of the Compliance Board 105 (2009) 106
I
The Librarys Finance Committee
A. Background
You allege that a quorum of the three-member Finance Committee met
privately and without public notice and thereby violated the Act. In its
response, the Library denies any such meeting, and it became apparent in the
conference that the current Library Board members have no knowledge on the
subject. We do not resolve factual disputes and therefore will not address your
allegation that the Finance Committee did not follow the Acts procedures.
However, in light of both parties belief that the Finance Committee is a public
body subject to the Act, we believe some general observations on the
applicability of the Act to future Library Board committees might be helpful.
Our view is premised on the current bylaws, which the Library Board
adopted on November, 22, 2010. Those bylaws contain the following
provisions on the creation of committees:
1. There shall be such standing committees as the Board may
desire. They shall be appointed by the President for one year,
and each committee shall consist of a chairman and at least one
other member. The President shall be, ex officio, a member of
all standing committees.
2. Special committees may be appointed by the President at any
time, such committees to serve at the pleasure of the Board.
It does not appear from the information before us that the Finance
Committee was created by resolution.
B. Discussion
To determine whether the Act applies to a certain event, we first ask, Is
the entity conducting the meeting a public body as that term is defined by the
Act? 6 OMCB Opinions 155, 157 (2009). To answer that question, we refer
to the definition in 10-502(h) of the State Government Article (SG), which
sets forth two alternative approaches for determining whether a particular
multi-member committee is a public body. City of Baltimore Development
Corp. v. Carmel Realty Associates, 395 Md. 299,323, 910 A.2d 406 (2006);
see also 6 OMCB Opinions 140, 142-143 (2009). The first approach, set forth
in SG 10-502(h)(1)(ii), requires us to look to the formal mechanism, or legal
authority, which created the entity. 6 OMCB Opinions at 142-143. The
7 Official Opinions of the Compliance Board 105 (2009) 107
second approach, set forth in SG 10-502(h)(2), requires us to look to facts
such as the person or entity making the appointment. SG 10-502(h)(2) is
subject to an exception in SG 10-502 (h)(3) for certain subcommittees.
Under the first approach, an entity is a public body if it is created by the
State Constitution or statute, local charter or ordinance, executive order of the
Governor or the local chief executive authority, or a rule, resolution, or bylaw
.... SG 10-502(h)(1)(ii). We interpret SG 10-502(h)(1)(ii) literally, that is, to
include as a public body a committee created by a bylaw or resolution, but
not a committee merely created under or as authorized by a bylaw or
resolution. While the distinction we draw between by and under may
seem fine, interpreting 10-502(h)(1)(ii) in such a way as to include every
multiple-person entity created under the laws and documents listed there
would cast such a broad net as to render the second approach unnecessary.
That result would be inconsistent with Carmel Realty, where the Court of
Appeals applied the principle that statutes should not be interpreted so as to
render words superfluous and concluded that SG 10-502(h)(2) introduces a
different set of public bodies other than those described in 10-502(h)(1). 395
Md. at 323-25. To apply 10-502(h)(1), therefore, we simply look at whether
one of the listed laws or documents created the entity in question.
On the facts before us, the Librarys bylaws are the only potential
mechanism for the creation of committees such as the Finance Committee,
and they do not themselves create a Finance Committee or any other
1
committee. Instead, they authorize the Library Board to create standing
committees and the president to create special committees, in both cases
without the adoption of a resolution. We conclude that the Librarys Finance
Committee, which was not created by its bylaws, and which does not appear
from the facts before us to have been created by resolution, does not
constitute a public body under the first approach.
As explained in the Librarys bylaws, the Library Board itself was created
1
by the mechanism of a County law: The Board of Library Trustees is the governing
body for the Kent County Public Library, having been established and supported by
the Kent County Commissioners pursuant to [the Education Article of the] Maryland
Annotated Code ..., 23-401. These laws do not create a Finance Committee or
other committees.
7 Official Opinions of the Compliance Board 105 (2009) 108
Under the second approach, SG 10-502(h)(2)(i) , a public body includes:
2
any multimember board, commission, or committee appointed
by the Governor or the chief executive authority of a political
subdivision of the State, or appointed by an official who is
subject to the policy direction of the Governor or chief executive
authority of the political subdivision, if the entity includes in its
membership at least 2 individuals not employed by the State or
the political subdivision....
We need not apply SG 10-502(h)(2), because SG 10-502(h)(3) excludes
subcommittees from its definition of public body. SG 10-502(h)(3)
provides: Public body does not include:.. except as provided in paragraph
(1) of this subsection, a subcommittee of a public body as defined under
paragraph (2)(i) of this subsection.... So, even if the Library Board were to
meet the definition of public body under SG 10-502(h)(2)(i) (a
determination we do not reach), its Finance Committee would not be included
in that definition. SG 10-502(h)(3).
C. Conclusion
We find that the Finance Committee is not a public body subject to the Act.
We caution, however, that a committee consisting of four Trustee members
a quorum of the Library Board - would very likely be deemed to act as the
Library Board itself, as would a committee of three Trustee members meeting
in the presence of a fourth. See 6 OMCB Opinions 155, 158 (2009) (finding
that the presence of a quorum of Council members at a subgroup meeting
result[ed] in a meeting of the Council).
II
The Trustees Attendance at a Meeting
Convened by Another Public Body
A. Background
You alleged that the Library Board violated the Act when a quorum of the
Library Boards members attended a meeting of the County Commissioners
SG 10-502(h)(2)(ii) and (iii) do not pertain to local-government entities.
2
They include as a public body the Maryland School for the Blind and certain
entities appointed by an entity in the Executive branch of State government, the
members of which are appointed by the Governor, or by an official subject to such
an entitys policy direction.
7 Official Opinions of the Compliance Board 105 (2009) 109
and discussed library business without following the Acts procedures. The
Library responded that the meeting was conducted by the County
Commissioners and that the Library Board merely attended without conducting
its own business. On the facts presented to us, we do not find a violation of the
Act. We shall explain.
B. Discussion
The Maryland courts have addressed whether a public body has conducted
a meeting within the scope of the Act when a quorum of its members has
attended another entitys meeting. See City of New Carrollton v. Rogers, 287
Md. 56, 410 A.2d 1070 (1980); Ajamian v. Montgomery County, 99 Md. App.
665, 639 A.2d 157, cert. denied, 334 Md. 63 (1994). So have we. See, e.g.,
3 OMCB Opinions 278 (2003); 1 OMCB Opinions 120 (1995). These cases
contain useful illustrations of when a public bodymeets within the definition
of 10-502(g) and must therefore follow the Acts procedures, and when its
members attendance at another entitys event instead falls under SG 10-503,
which excludes from the Acts scope a chance encounter, social gathering, or
other occasion that is not intended to circumvent this subtitle.
In Rogers, the Court held without lengthy discussion that the City Council
had not conducted a meeting when a quorum of its members attended a civic
associations meeting to address questions about a possible annexation of
property. 287 Md. at 81. That event, the Court concluded, was instead an
other occasion falling within SG 10-503. In Ajamian, a quorum of the
County Council attended a closed meeting of the County Democratic Central
Committee. 99 Md. App. at 671-72. At that meeting, the Council President
responded to a request for a briefing on various councilmanic redistricting
plans. A discussion about the plans ensued, and the Central Committee voted
to support the plan proposed by the redistricting commission. The Council
members neither joined the discussion nor voted. Id. The trial court found
that there was no vote, no deliberation by councilmembers, no meeting
to deliberate and decide, no intention to evade the law, no evidence that
the law was in fact evaded, and no factual basis for a finding of violation of
[the Act]. Id. at 680 (internal punctuation omitted). The Court of Special
Appeals upheld those findings of fact, and affirmed the trial courts judgment
that the Council had not violated the Act.
In 1 OMCB Opinions 120 (1995), we distilled Ajamian into these
principles:
[M]embers of a public body do not violate the Act merely by
attending a meeting of an entity that is not itself subject to the
[Act], even if the topic of discussion relates directly to a matter
7 Official Opinions of the Compliance Board 105 (2009) 110
before the public body. ... The crucial point [of Ajamian] was
that the Act applies only if the public body itself separately
conducts public business, as distinct from the proceedings of the
larger group. If interaction among the members of the public
body does not occur, and the larger group is not a mere
subterfuge to evade the law, no violation occurs.
Id. at 121. There, we concluded that various election boards had not violated
the statute when a quorum of each had attended a closed meeting of a private
association of election personnel, because there was no evidence that any
individual board had conducted public business at the meeting. Id.
We applied Ajamian again in 3 OMCB Opinions 278 (2003). There, a
quorum of the Commissioners of Queen Annes County allegedly violated the
Act by attending a closed meeting of the county-level Republican State Central
Committee. At that meeting, the Council President raised the subject of
amending the ordinance on filling Commissioner vacancies and solicited input
from the group. Contrasting that conduct to the Ajamian Council Presidents
mere response to a request for information, and noting that we lacked facts on
the conduct of the other Commissioners, we concluded that the result
depended on whether the other Commissioners participated:
If the other Commissioners did not participate, as in Ajamian,
then the Act did not apply. If, however, other Commissioners
did participate, then the situation was outside the reasoning of
Ajamian and would have been a meeting subject to the Act and
violative of it, because of the failure to comply with the Acts
various obligations.
Id. at 282.
Here, it does not appear that the Library Board separately conduct[ed]
public business, as distinct from the proceedings of the County
Commissioners, when the Library Board attended the County Commissioners
meeting. We accordingly conclude that the Library Board did not itself
conduct a meeting on that occasion.
C. Conclusion
We conclude that no violation of the Act arose from the attendance of a
quorum of the Library Trustees at the County Commissioners meeting in
question. We emphasize, however, that the applicability of the Act to a public
bodys attendance at another entitys meeting depends on what transpired at
the meeting. Here, our determination assumes that the Library Board
7 Official Opinions of the Compliance Board 105 (2009) 111
members did not interact on separate Library business at the meeting in
question.
III
Summary Conclusion
The Library Board did not violate the Act with respect to either of the
issues before us. We commend the parties participation in the conference and
the new Library Boards undertaking to adhere to the Act.
OPEN MEETINGS COMPLIANCE BOARD
Elizabeth L. Nilson, Esquire
Courtney J. McKeldin
Julio A. Morales, Esquire
