Last week, Baltimore officials did something that one would have thought impossible: They made mistrust of City Hall arising from gratuitous attacks on the Office of Inspector General (OIG) worse.
As if it wasn’t bad enough that City Council President Nick Mosby and his wife, State’s Attorney Marilyn Mosby, orchestrated a campaign to discredit IG Isabel Mercedes Cumming, one of the few city officials who excels at her job.
Or that City Solicitor James L. Shea chaired a meeting of the IG Advisory Board in August obviously intended to rattle Cumming and place her on the defensive.
No, the Scott administration saw fit to administer the coup de grâce to its own credibility, first by violating the notice requirement for the meeting of the advisory board scheduled to discuss the performance review of the IG, and then by denying the violation.
The board gave one day’s notice of the meeting. The law requires at least seven. The agenda posted with the notice stated that there would be a vote on whether to go into closed session to discuss the performance review, as permitted by the Maryland Open Meetings Act.
The board postponed the meeting only after The Brew reported the violation.
Mayor Brandon Scott took part in the dissembling about the notice violation, leaving residents to wonder if any local official can be trusted to protect the independence of the OIG – independence that voters hardwired into the City Charter by a ballot measure passed in 2018.
7-Day Rule is Crystal Clear
Subtitle 6 of Article 1 of the City Code establishes various procedural requirements for meetings of city boards and commissions. The subtitle contains no general statement of applicability. Each requirement describes the boards and commissions that it applies to.
Section 6-4(a)(1) governs public notice of meetings. It applies to “each board or commission established by the Baltimore City Charter or the Baltimore City Code.” That includes the IG Advisory Board, established by the charter. The provision requires at least seven days’ notice of a meeting.
Shea’s chief of staff, Stephen Salsbury, contacted The Brew after the story was published, claiming that the notice requirement applies only to “boards or commissions in control of any department, bureau, or other agency in the executive and administrative branch of the government of the City of Baltimore,” citing the language in Section 6-1(a) of the subtitle.
Salsbury argued that the notice requirement does not apply to the advisory board because it is not in the executive and administrative branch of city government.
He is wrong. Section 6-1(a) has nothing to do with notice of meetings. It sets forth the requirement for open meetings and specifies when boards and commissions within the scope of the requirement may go into executive session.
In other words, the law enacted by the City Council provides that the city’s open meetings requirement applies only to a specific category of boards and commissions, but that the notice requirement applies more broadly. It is presumed as a matter of law that the Council intended the distinction, and city officials therefore are required to adhere to it.
It is worth noting that the city website also contradicts Salsbury, correctly referring to Section 6-4(a)(1) as governing the notice of IG advisory board meetings. I have no idea what he was thinking when he claimed that Section 6-4(a)(1) does not apply to notice of IG Advisory Board meetings.
The Open Meetings Compliance Board would never approve one day’s notice for a long-anticipated meeting of a public body.
Finally, if the law department is right (it is not) that city law does not require a specified period of notice, then the notice requirement for advisory board meetings would default to the minimum requirement under state law for all public bodies, which is that there must be “reasonable” advance notice.
The state Open Meetings Compliance Board would never approve one day’s notice for a routine, long-anticipated meeting of a public body.
Indeed, this language is from a decision of the compliance board itself: “For example, notice of a meeting one day in advance is insufficient when a public body could have anticipated the need for the meeting earlier.”
Under the Radar
Did Shea believe that he could persuade the compliance board that one day’s notice of a follow-up meeting was reasonable under the circumstances? I doubt it.
I believe city officials hoped that their action would slip under the radar, and no one would pick up on the violation.
Mayor Scott then denied that a notice violation occurred on the C4 and Bryan Nehman WBAL radio show.
Perhaps, but I believe that he also did it to prevent action taken at the meeting from being nullified because of failure to comply with the notice requirement.
Why the Rush?
Why would the Scott administration give such short notice of an important meeting on a controversial topic and then go to such embarrassing lengths to deny that they did anything wrong?
It raises suspicions about another potential violation of the law by the advisory board.
The board must vote at the meeting, now scheduled for October 28, on whether to go into closed session to discuss the annual performance evaluation of the IG.
The Open Meetings Act allows the board to go into closed session to discuss the performance of the IG. But it does not allow the board to go into closed session to discuss the criteria by which her performance will be evaluated. Big difference.
The criteria by which the IG’s performance will be evaluated by the board must be discussed in open session.
At the end of the August meeting, Cumming asked the board about the format of the performance review.
Chairman Shea offered no details other than to say that it was his intent to provide “thoughtful, reflective, helpful feedback.”
An admirable sentiment, but a professionally done performance evaluation is based on specific criteria. The adoption of explicit criteria is especially important for the IG because the criteria must be crafted to avoid interference with her independence.
A decision on the criteria by which the IG’s performance will be reviewed must be discussed and made in open session.
Can the Board be Trusted?
I suspect that the heated rush was aimed at getting the performance review finished before questions could be asked and answered in public about how the evaluation would be done, and on what criteria it would be based.
The postponement gives the public time to demand that the board put the horse before the cart.
Questions on the process should be asked and answered before the board goes into closed session on October 28 to complete the review.
The advisory board is not required to go into closed session to discuss the performance of the IG; it is a matter of discretion. In fact, the IG has the right to object to closing the session.
If I were her, I would consider doing so. I would like to know who says what. Openness and transparency might prove to be her biggest allies.
• David A. Plymyer retired as Anne Arundel County Attorney in 2014 after 31 years in the county law office. He can be reached at firstname.lastname@example.org and Twitter @dplymyer.