A recent decision from the Maryland Open Meetings Compliance Board
dealt, in part, with the "legal advice" exception to the Open Meetings Act and
may have sent a message that the exception is being more loosely interpreted.
The Compliance Board allowed recent closed meetings in Carroll
County to stand based on both the "executive function" and the "legal
advice" exceptions in the law. Let’s look at the legal advice part of this
decision.
In 1995, the Compliance Board ruled that public bodies receiving
advice from their lawyers could close their meetings only to receive legal advice, but not
to discuss it or to make substantive decisions. At that time the board, addressing a
complaint against the Ocean City City Council said,
"A decision by the Council that the City Attorney was to draft an ordinance
amounted to a preliminary decision that the perceived problem required a legislative
response. This decision was a key component of the legislative process at work here, and
the absence of a vote or debate preceding the decision is not proof against an Open
Meetings Act violation. The press and public would have found this decision to have been
of keen interest. It was required to have been made in open session, however inconvenient
the council might have perceived this requirement. That the decision was instead made in
closed session violated the Open Meetings Act."
In the recent Carroll County Case the board, on June 28,
responded to a complaint filed by Jim Lee, editor of the Carroll County Times, regarding
closed meetings of the Carroll County Board of Education. Jim was complaining about the
exception for legal advice being used as a "catch-all when [the county board] wants
to avoid public discussion of an issue."
Unfortunately, the Compliance Board held that most of the
meetings were properly closed. The Board of Education was in the midst of a
"complicated settlement proposal" and it was "unsurprising" that they
would meet to receive legal advice on several occasions. In two instances where the Board
of Education admitted the discussion was broader than legal advice, the Compliance Board
found only that the Board of Education should have provided notice that it was relying on
that exception prior to the meeting.
Jim Lee did win the ruling that the Board of Education misused
the "legal advice" exception when a staff member conveyed legal advice obtained
from outside counsel and no lawyer was present at the closed meeting. The Compliance Board
held that the "legal advice" exception may never be invoked unless the lawyer is
present at the meeting.
That’s a disappointing conclusion, one that reflects the
attitude that if the lawyer is in the room, the meeting may be closed. This ruling gives
rise to the question of whether the Open Meetings Compliance Board is bowing to that
position. |