Tuesday, February 06, 2007

Open Meetings Compliance Board Opinion

On February 5, 2007, the Open Meetings Compliance Board issued it's opinion on a complaint filed against the Charles County Board of Education. You can view the complete findings here.

The conclusion...

We find that the County Board did not violate the Act in connection with notices of closed sessions or the process by which meetings were closed, except that we are unable to reach a conclusion about the timeliness of the required written statement preceding the closing of a meeting. We are also unable to opine about the lawfulness of closing the August 8, 2006, meeting. With regard to minutes, the County Board violated the Open Meetings Act when it failed to approve minutes of closed sessions that were subject to the Act and did not adequately disclose required information after many of these closed sessions. The County Board did not violate the Act by denying individual members access to minutes of closed sessions or failing to report to the public its votes on motions to unseal minutes of closed sessions.


LegalBeaglette said...

Congratulations and a HUGE “Thank you!” to Mrs. Young for pursuing this on behalf of parents and taxpayers of this county!

I’ve read through the entire Opinion, and have several comments to make about it, but overall I think this elected Board should take it as a clear caution against playing fast and loose with the Open Meetings Act, as has been the practice for years. No matter what the CCPS attorney or Mr. Richmond tells you, the Compliance Board has clearly said, “While staff normally assists a public body in assuring compliance with the Act, we note that the public body is ultimately responsible for compliance, not the staff.”

The ball is yours to play…but you have to adhere to the rules. Which means you have to learn the rules…not be guided by “what we’ve always done.”

LegalBeaglette said...

The Compliance Board Opinion makes clear that “the minutes of a public body become such only after the public body itself has had an opportunity to review and correct the work of whoever prepared the draft minutes.”

My understanding is that the BoE has not prepared draft minutes, or reviewed draft minutes, or approved draft minutes, for its executive sessions. So…it follows (for my wee brain, at least) that THERE ARE NO MINUTES. Notes (that no one has ever seen?) typed into a laptop by the secretary, maybe…but those are not minutes, correct?

So I’m confused. How can the Compliance Board refer to them as “sealed minutes” when, by its own definition, they are not minutes? How can a Board member, ANY elected Board member, be refused access to what the secretary has in her laptop…because they are not minutes, and if they are not minutes, they cannot be “sealed minutes.” I think this Compliance Board Opinion virtually compels the elected BoE to print, review and approve draft minutes for those executive sessions, and THEN they can be “sealed minutes.”

The Compliance Board asserts, “it is through the approval of minutes that a public body can be said to accept responsibility for the record of its meetings,” and “nothing in the Act would preclude the members of a public body from approving minutes of meetings held by the body’s predecessor membership.”

If I were a newly elected Board member, I certainly would not want to participate in a vote of approval for minutes of a meeting I did not attend!

Sounds to me like Mr. Schwartz, the CCPS attorney, should have acknowledged Mrs. Young's concerns when she raised them, and acted to correct them then instead of dumping this whole matter onto the unsuspecting and inexperienced new board members.

Anonymous said...

That synopsis doesn’t fairly represent the content of the Opinion, does it?

You meet for that 12 o’clock executive session…where? I’ve been to Board meetings, and arrived early, and the only “room across the hall” from the large public boardroom I know of was generally empty. When Board members entered the large room after that executive session, they walked in from the right, behind the dais. I don’t think the Compliance Board should have assumed that we know where you meet…because I know this member of the public doesn’t!

As for “no evidence before us that the County Board’s process…sent a message that public attendance would not be welcome.” Well…the CCPS “Agenda and Meeting Information” web page states:

“The Board meets the second Tuesday of most months during the school year. The public portion of the meeting begins at 1 p.m. The public is invited to attend Public Forum, a time for county residents to address any education issue before the Board, which is generally held at 1 p.m. Speakers are given three minutes and must sign up to speak prior to the start of Public Forum.”

Where is the mention of the 12 o’clock executive session? It’s clear “the public” is invited to attend Public Forum…but I don’t see the welcome mat for ANY portion of the executive session, to include the vote, or any opportunity to review an agenda for your executive session topics.

Anybody want to become Bishop Berkeley? I think we need one!

LegalBeaglette said...

“Anybody want to become Bishop Berkeley?”

Love it! LOL How about a “Bishop Berkeley Society?” That way lots of us could play.

This county government, and this school system, have too long treated parents and taxpayers with a presumption that we’re stupid. I do hope this is a wake-up call – to Mr. Richmond, Mr. Schwartz, and the elected Board of Education. This county IS changing, and some of us aren’t as na├»ve and uneducated as you seem to think we are.

LegalBeaglette said...

I note your Quote of the Day today: A bully is not reasonable - he is persuaded only by threats.
Marie De France

Is that what it takes? Threats? Does the school system need to be threatened with lawsuits, complaints to the Attorney General, Letters to the Editor, whatever, to motivate it to comply with the law? Actually, not just “threatened” – but for a few people, like Mrs. Young, to follow through? It’s not like she didn’t give them the opportunity to address these issues before she left office. It seems to me she tried her best to correct these things.

LegalBeaglette said...

“How can a Board member, ANY elected Board member, be refused access…”

Having read through the Opinion further, I don’t think that question hinges on whether we’re talking about “notes” or “minutes.” The Compliance Board Opinion refers to a case -- King v. Ambellan, 173 N.Y.S.2d 98, 100 (N.Y. Sup. Ct. 1958). Looks to me like refusing Mrs. Young and Mrs. Abell access to this – we’ll call it “information” so we don’t wrangle over whether they’re notes or minutes, okay? – might very well have been against the law.

Mrs. Abell – could you keep us posted on this please? I know I’m interested on how the CCPS attorney explains the Opinion of the Compliance Board to the BoE…and keenly interested on what bearing he tells you this King v. Ambellan case has on Board member access to the records of the public body to which they are elected.

LegalBeaglette said...

Whoa! I just read the local rag. “But the compliance board on Feb. 5 also cleared the school board of any wrongdoing on six other complaints brought by former school board member Margaret Young.” Maryland Independent, 2/9/07, A-5

Nominations for the “Dim Bulb” award, anyone?

Cleared of “any wrongdoing?” That’s FAR too expansive a statement, I think! One has to wonder if Ms. Rabe bothered to read the Opinion!

Anonymous said...

Buy on the rumor; sell on the news.
Wall Street Proverb

Just don't get your news from the Maryland Independent! [Yuk, yuk, yuk] :)

Jennifer Abell said...

He didn't explain it, yet. There was no mention of the what so ever. The executive session was jam packed up until we went into public session and then the public session was adjourned in the middle of the agenda due to the weather. I'll keep you posted.

LegalBeaglette said...

"The executive session was jam packed..."

With people or with items to discuss?

If it was discussion content, that's curious...there was nothing listed under the Executive Session agenda in Board Docs.

Is there an expectation that you will hold an executive session every month, an hour before the public session, and anybody who wants to know what the Board will be discussing during that executive session must show up and ask to view the form referenced in the Compliance Board Opinion? Is that how it is supposed to work?

Jennifer Abell said...

Yes, I meant there was discussion most of the time and we had to recess for the photographer to take a Board picture.

Yes, there is Executive or "closed" session every month prior to the Board meeting Public or "open" meeting. I am uncertain if you can request the agenda topics electronically, verbally, or if they have to be in person at that time. I do know that the public is invited to attend the beginnings of the session where someone motions to go into "closed" session, someone seconds the motion, and we take a vote. After that the public would be asked to leave the room until the closed session is adjourned.