Are Closed Meeting Procedures Shunted
Off Lightly?

      Let’s be clear about this. The procedures required under Maryland law to close a meeting are tedious, though not difficult. One must suppose there are reasons for that.
     According to Assistant Attorney General Jack Schwartz, the closure procedures were made explicit and transparent so that public bodies would focus on whether they had a basis for closing the meeting. And, one supposes, if public bodies are required to tell us what they’re doing while a meeting is closed, perhaps we can all do a better job of monitoring our government agencies.
     But one has to wonder whether the procedures sections of the Maryland Open Meetings Act are working at all.
      Here’s what is required. (And if you don’t know this, clip it out and put this section of this column in your wallet/purse.)

• Notice in advance of the likelihood of a closed session, when it is known in advance.

• A public, recorded, majority vote of a quorum to close a meeting, taken immediately before the meeting, and not several days before.

• Issue of a public written statement that includes the reason for the closure, the legal authority authorizing a closed meeting, and a list of topics to be discussed. A citation to the Open Meetings Law is not sufficient.

• At the next open meeting, issue minutes that include the time, place and purpose of the closed session, a record of the vote of each member as to closure, a citation to the authority for closure, plus a list of the topics discussed, the people who were present, and any action taken during the session.

     This year, so far, your MDDC Access Hotline has handled about half a dozen calls regarding closed meetings, most of them including procedural failures.
      In addition, the Open Meetings Compliance Board has issued three opinions ruling that a public body failed to follow proper procedure.
     In March and April of this year, the mayor and commissioners of Elkton failed to follow any of the procedures correctly for closing two meetings, according to board opinions issued in April and June.
     The Montgomery County Board of Social Services violated the procedures rules in two respects last January; it failed to keep minutes during the closed session because of "sensitive topics" and it failed to provide the public with a reason for the closure and a citation to the law.
     When considering most of the violations over the years, "significantly more involve procedural failures than substantive failures," according to Assistant A.G. Schwartz. "There is a shortfall in attention to the act’s procedural requirements."
     Schwartz observes that it is fairly easy to reduced the requirements to a form that can be filled in and issued when the substantive issues justify closure. He added that neither the MDDC Access Hotline nor the Compliance Board has an accurate statistical sampling of public bodies; he would rather assume the procedures are followed correctly most of the time.
     I assume they are not, yet no one protests. And if they do, what are the consequences?
     Recently the board observed that "[u]nder the Act, the Compliance Board has no authority to compel remedial or other actions; it is limited by law to the issuance of advisory opinions like this one."
     So, in effect, there is no penalty. An Open Meetings Act lawsuit is rare, and I would venture a wild guess that none has resulted in penalties for procedural violations.