1. Marylands Government in the Sunshine Law Overview of the Open Meetings Act Jack Schwartz Assistant Attorney General

2. 2 Topics Covered When does the Act apply? What does it require? Notice Conducting an open meeting Closing a meeting Minutes How is it enforced?

3. 3 Public Body Generally All public bodies: 2+ members Meetings of single official not covered Most public bodies: formal legal creation Formal creation: State law: Constitution, statute, rule, executive order Local law: charter, ordinance, rule, executive order Public body action: rule, resolution, bylaw Local cabinets are not public bodies

4. 4 Informally Created Public Bodies 2+ members from outside government Appointed by: Governor Local government chief executive Official subject to Governors or chief executives policy direction

5. 5 Are These Public Bodies? Corporate board of directors? Typical private corporations, no Government $$ irrelevant Quasi-governmental corporations, maybe Committees/subcommittees of a public body? Maybe: depends on method of creation

6. 6 Meeting Meeting must involve: Convening of a quorum Convening = simultaneous interaction Quorum = majority (unless local requirement says otherwise) Consideration or transaction of public business Entire process covered Social or political gatherings not covered

7. 7 Definition of Meeting As Applied To … Conference calls E-mail, IM Site visits Retreats Joint meetings Majority presence at someone elses meeting

8. 8 Is This a Meeting? Taking the Meyer-Briggs test and discussing effective teamwork? Discussing future meeting agendas? Getting a briefing on population trends over the next decade? Attending a Rotary Club luncheon? Having lunch together before a work session?

9. 9 Topic of Discussion Act applies when a public body is: Legislating or rulemaking Otherwise making new policy, in any form Approving, disapproving, or amending a contract Approving, disapproving, or amending a budget Considering whether to grant a license Considering any zoning matter

10. 10 Excluded from the Act Act usually does not apply when a public body is: Conducting a proceeding subject to judicial review (quasi-judicial function) Engaged in an administrative function Used to be called executive function Licensing and zoning are always covered

11. 11 Administrative Function Not within other defined functions Not creation of new law or policy Administering existing law or policy Problematic when same body wears two hats, executive and legislative

12. 12 Administrative Function, So Act Does Not Apply Policy decision previously made Law or policy document already sets policy Public body now takes prior law or policy and: Applies it to specific situations Figures out operational details

13. 13 Not Administrative Function, So Act Does Apply Policy decision making underway Prior law authorizes policy but does not set it Public body gathers facts, debates, decides what policy should be Act applies to the entire process

14. 14 The Special Case of Budget Preparation Administrative function during preparation phase Quasi-legislative function during formal approval process

15. 15 Administrative Function? Evaluating the Public Works Directors performance? Changing the City Managers contract? Giving a department head preliminary guidance about next years budget? Listening to the Personnel Directors suggestion that a new employee discipline policy be discussed at the next meeting?

16. 16 Last Words on Does the Act Apply? If Act does not apply, none of its requirements must be followed But: maybe other law does apply Charter, ordinance, specific state statute? To officials who dont want the headache of trying to figure this out? Give notice and hold an open meeting

17. 17 Notice of Meetings Timing Reasonably in advance Last-minute meetings okay if needed Content Time, place, open/closed status Agenda optional -- changes in announced agenda okay Method -- any reasonable method okay Common practice: posting where people know to look Retention -- keep for at least a year

18. 18 Conducting Open Meetings Accessible location Reasonable size, convenient for attendees Open to people with disabilities ( ADA compliance) Public observation -- participation optional Cameras/tape recorders may not be barred Documents referred to during meeting -- access determined by other law Public Information Act

19. 19 Closing a Meeting Identifying a specific exception Procedural requirements Public vote, written statement Reason, legal citation, topics

20. 20 Exceptions: the Basics Exceptions to be construed narrowly Stay within cited exception When discussion within exception ends, go back to open session

21. 21 Frequently Cited Exceptions Specific personnel matters Identifiable individuals, not categories of employees Legal advice Active interchange, not passive presence Litigation Property acquisition Procurement

22. 22 Minutes Duty of timely preparation Content: item, action, votes Open meeting minutes To be made available on request Tape recording minutes Closed meeting minutes Sealed Publicly available summary to be extracted

23. 23 Enforcement Open Meetings Compliance Board Simplified complaint procedure Advisory only Circuit court May overturn public bodys action if necessary May award attorneys fees to winning plaintiff May assess civil penalty on defiant members

24. 24 More Information Open Meetings Act Manual (2006) Narrative, text of Act, forms, index Available via Internet or hard copy ($10.00) Compliance Board opinions Internet access: www.oag.state.md.us Click on Open Government E-mail distribution available Requests to kizdebski@oag.state.md.uskizdebski@oag.state.md.us

25. 25 A Closing Maxim The government being the peoples business, it necessarily follows that its operations should be at all times open to the public view. William Jennings Bryan, 1915 (three-time presidential loser)