HCPSS Might Have Violated The Open Meetings Act

I have been reading the accounts of the Howard County Public School System Board regarding the approval of Superintendent Foose’s contract renewal. I also watched the video of the meeting. (It took hours to get through it because it kept buffering, stuttering, and restarting). My ears hurt from the high decibel cheering of the audience.

I have looked at what the Maryland Open Meetings Compliance Board (here) and the Attorney General (here) have to say on the topics of the public being excluded, the room being filled and guards demanding that “these doors stay shut.” While these specific facts have not previously been considered, it would appear that HCPSS violated the Open Meetings Act by their deliberate actions to exclude the public. Those with first hand knowledge might want to file a complaint in addition to your online posts and letters to the editor.

Here is the relevant excerpt from the Maryland Attorney General’s Open Meetings Act Manual:

OPEN MEETINGS ACT MANUAL

OFFICE OF THE

MARYLAND ATTORNEY GENERAL

BRIAN E. FROSH

ATTORNEY GENERAL

EIGHTH EDITION (NOVEMBER 2015)

PREPARED by:
OPINIONS and ADVICE DIVISION
200 SAINT PAUL PLACE
BALTIMORE, MARYLAND 21202
(410) 576-6327

WEBSITE: WWW.OAG.STATE.MD.US

E-MAIL: OPENGOV@OAG.STATE.MD.US

 

 

A. The right to “attend” a meeting

Section 3-303(a) provides: “Whenever a public body meets in open session, the general public is entitled to attend.” That means that members of the public may come to a meeting and observe it. With one exception pertaining to the closing of a meeting (see Chapter 5), it does not mean that they are entitled to speak. See City of New Carrollton v. Rogers, 287 Md. 56, 72 (1980) (“While the Act does not afford the public any right to participate in the meetings, it does assure the public right to observe the deliberative process and the making of decisions by the public body at open meetings.”). So, unless the public body is governed by laws that require the particular public body to receive public comment, the decision of whether to allow members of the public to speak is up to the public body. Ordinarily, the management of the public comment period is up to the presiding officer. See, e.g., 9 OMCB Opinions 232, 233 (2015) (stating that the Act does not regulate the presiding officers’ decisions on whether to allow a member of the public to speak). Complaints about the manner in which a presiding officer conducts a public comment period thus do not state Open Meetings Act violations. 8 OMCB Opinions 84, 85 (2012).

The ability to “observe” does not mean that the public body must provide to the audience copies of the documents being reviewed by the members. However, the public must be given a grasp of what is being discussed and acted on. The Compliance Board has advised that an oral summary or general description of the documents in question will ordinarily serve this purpose. See, e.g. 9 OMCB Opinions 206, 212-13 (2015). Requests for records fall under the Public Information Act, with the exception of the meeting documents discussed in Chapter 6.

B. Size of the meeting space

Providing a “place reasonably accessible” to people who would like to attend the meeting includes holding the meeting in a room large enough to hold them. 3 OMCB Opinions 118, 120 (2001). The Compliance Board has stated that “a public body would violate the Act if it had reason to expect a large crowd but nevertheless deliberately chose to meet in too small a space when a suitable, larger space was available.” Id. Public bodies may include in their meeting notices a request that members inform staff of their intention to attend the meeting, and the Compliance Board has recommended that practice for public bodies without regular access to large meeting rooms. 9 OMCB Opinions 206, 211 (2015).

C. Access to the meeting space

As explained by this office and the Compliance Board, the public must be provided with access to the meeting. A public body thus may not meet in a juvenile detention center that does not permit the general public to enter, see 78 Op. Att’y Gen. 240 (1993), or at a private business that likewise is closed to the public. See 8 OMCB Opinions 188 (2013), cf. WSG Holdings, LLC v. Bowie, 429 Md. 598 (2012) (in applying open meetings provisions of a landuse law, holding that members of the public were improperly excluded from site visit to private property). A meeting may be held at a restaurant so long as the public is provided with places to sit and the members’ discussion is audible. See 8 OMCB Opinions 111, 114 (2012) (“the Act does not prohibit a public body from having a meal during a meeting; does not prohibit a public body from meeting in a private meeting space to which there is access to members of the public at no cost to them; and does not regulate the members’ choices of food and drink”). Members of the public who attend public meetings may be required to cooperate with the security procedures for the building in which the meeting is held. 9 OMCB Opinions 296 (2015).

The ability to gain access to the meeting space must be provided to all who wish to attend. Thus, “a public body may not deny, through its choice of meeting site, the right of a person with a disability to observe an open meeting,” 1 OMCB Opinions 237, 239 (1997), may not restrict attendance to people who pay an admission fee, 8 OMCB Opinions 18, 25 (2012), may not restrict attendance to people on an invitation list, 7 OMCB Opinions 49 (2010), and may not exclude the press. 2 OMCB Opinions 67 (1999); see also 9 OMCB Opinions 290, 291 (2015) (meetings to be open to press and public “on equal terms”). The Court of Appeals has explained that “any action taken by the public body which discourages public attendance at the meeting to any substantial degree would likely violate the Act’s provisions.” City of New Carrollton v. Rogers, 287 Md. 56, 69 (1980).

 

Update: Due to the overwhelming number of people reading this post and some of the questions raised on Facebook, here is the information on the complaint procedure of the Compliance Board.

 

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3 thoughts on “HCPSS Might Have Violated The Open Meetings Act

  1. You can file a complaint based on the news reports. You don’t have to be there, You don’t have to be an expert. News reports of doors being held closed, police barring entry, or people turned away are presumptively correct and can be submitted as the facts behind the complaint.

    There was a complaint quite recently involving Pocomoke City. They excluded citizens and reporters and did not move to a larger room or reschedule. They broke the law.

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  2. One more thing: while boards are allowed to discuss personnel *evaluations* in closed session, they are *never* allowed to discuss the details of contracts outside of a public meeting. (The sleazy and not-exactly-illegal workaround in Maryland is to exchange emails about it, though if a series of emails involving all board members turn up where they are discussing a contract, that can be a de facto violation of the Act.)

    Furthermore, with contracts, a “mere ceremonial vote” on a contract without discussion, as apparently occurred here, is a violation of the Act. Why? Because a vote without discussion presumably means that the outcome was decided beforehand outside a public venue.

    That’s the part of the news report that strikes me, especially because employment contracts are public information to begin with.

    From the SUN:

    “Board member Vaillancourt attempted to introduce a motion to discuss Foose’s contract before the vote, but it was rejected by a majority of the board.

    After the vote, she and fellow member Bess Altwerger said they did not support renewing Fosse’s contract because of what Altwerger called a “serious breach of public trust in the school system resulting from Dr. Foose’s leadership.”

    The fact that the majority of the school board voted *not to discuss the contract at a public meeting* is pretty much evidence of a wilful violation of the Open Meetings Act in the service of a ceremonial ratification of a previously-agreed outcome.

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