No real consequences for violating the Open Meetings Act
“Scot-free” is the best way to describe the repercussions to a public body that illegally closes a public meeting in Maryland
Above: Front page of the 2015 Annual Report of the Open Meetings Compliance Board.
As the old saying goes about government transparency (or the lack of it): “Sunlight is the best disinfectant.”
But when the Baltimore Development Corporation meets this Thursday following yesterday’s ruling that it broke the law by ejecting reporters from three previous meetings, it is not likely that the press or public will get more than a slim extra ray of informational sunshine.
That’s because the Maryland Open Meetings Act has only the mildest of consequences for offending agencies such as the BDC.
Public shaming seems to be pretty much it.
According to the Maryland Open Meeting Compliance Board’s published guide, the penalties for a violation of the Act are:
• A member of the public body must summarize the opinion at the body’s next open meeting, and
• A majority of the members of the public body must sign a copy of the complaint and submit it to the Compliance Board.
Even this written acknowledgement, though, has little weight because the Act specifies that it is not an admission to a violation. It merely “signifies their acknowledgement they have received the opinion,” the guide explains.
The compliance board is not empowered to enforce the Act, only to issue opinions on complaints, said its chairman, Annapolis attorney Jonathan A. Hodgson, who wrote the BDC opinion.
“I can only refer you to the Act itself,” Hodgson said to The Brew by phone today.
Under Wraps: Port Covington TIF
The five-page opinion issued by Hodgson and another member of the compliance board, April C. Ishak, stemmed from a complaint filed by The Brew, the Baltimore Business Journal and the Baltimore Sun.
The three news organizations said the BDC’s board of directors and chairman, Arnold Williams, improperly barred reporters from attending two meetings on a matter of intense public interest, the application for public TIF (Tax Increment Financing) bonds for the Port Covington project pushed by Under Armour CEO Kevin Plank.
The media outlets argued that the issues discussed at two meetings of the BDC’s Project Review and Oversight committee on March 9 and March 15 should have been open to the public. A subsequent March 21 meeting was also closed to the public.
The BDC’s full board of directors unanimously approved the Port Covington TIF application to Mayor Stephanie Rawlings-Blake on March 24.
How did the BDC justify the exclusion of the media?
With legal counsel from a private attorney, William E. Carlson of Shapiro Sher, BDC chairman Williams argued that the closed sessions of the meetings concerned the marketing of public securities, an area where public bodies are exempt under Section 10-508(a)(6) of the Act.
But when the compliance board reviewed the minutes of the meeting, it found the subject matter discussed did not come under the exemption.
No fines by Compliance Board
The Brew has asked BDC President William Cole to release the minutes of the March 9, 15 and 21 meetings, but has not received a reply.
Neither Cole nor BDC spokeswoman, Susan Yum, have responded to our phone message and email requesting comment on whether the opinion will result in any more openness at BDC board meetings.
UPDATE: Arnold Williams, the Chair of BDC’s Board of Directors, provided this comment today:
“We appreciate the guidance of the Open Meetings Compliance Board, and BDC will continue to strive to comply with the Maryland Open Meetings Act.”
Williams released the minutes from the closed-door meetings, which are now posted on the BDC’s website.
The Open Meetings Act, as it happens, does not require an agency to release any minutes – even in cases where the media was found to be barred improperly. In cases where the exclusion cited was for the marketing of public securities, the agency may not be required to release the minutes until after the securities have been marketed.
As for fines and/or civil or criminal penalties, media organizations have the right to seek those in Circuit Court, according to the law.
In the rare event that an Open Meetings case goes to court and the complainant wins, there are consequences for a “public body that willfully meets with knowledge that the meeting is being held in violation of [the Act].”
“After considering the public body’s financial resources and ability to pay the fine, the court [not the Compliance Board] may impose a fine of up to $250 for the first violation and $1,000 for each subsequent violation within three years.”