Open Meetings is Really the Law in Maryland and You Cannot Make Up Exceptions

Maryland has an Open Meetings Act to insure that citizens can observe government agencies in action. Some people in government may think they can create exceptions but they are not allowed to do that.

For example, yesterday morning the president of the MoCo Board of Elections said at a public meeting of a County Council committee that the three Republican members of the Board of Elections got together privately before an official meeting of the Board, to work out their strategy before they met with the other members of the Board. This is illegal.

I have filed a complaint with the Maryland Open Meetings Act Compliance Board to help explain this to the Board of Elections and all others. A copy of my complaint is below.

Paul M. Bessel
3700 Marble Arch Way
Silver Spring MD 20906
(email) besselpaulm@comcast.net
(phone) 240-669-8587

October 1, 2015

Open Meetings Compliance Board
c/o Attorney General's Office
200 St. Paul Place
Baltimore, MD 21202
OpenGov@oag.state.md.us

To the Maryland Open Meetings Compliance Board:

I am filing this complaint against the Montgomery County Board of Elections, based on public statements made by the President of that Board at a public meeting this morning.

I have no animosity against the President or Members of this Board of Elections and I am willing to concede that those members of the Board who participated in the acts which will be described below may have acted in good faith and they thought they were permitted to do what they did. I am only seeking a decision of the Open Meetings Act Compliance Board that a violation occurred to assist the Montgomery County Board of Elections and any other groups similarly situated, to know what their legal responsibilities are concerning the Open Meetings Act.

This morning, October 1, 2015, from about 10am to about 12 noon, the President and Members of the Montgomery County Board of Elections were testifying before the Government Operations and Fiscal Policy Committee of the Montgomery County Council. The subject of their testimony and the details of the decisions of the Board of Elections that were being questioned is not relevant to this Open Meetings Act complaint.

What is relevant is that during this hearing, held with a number of members of the public present in addition to all the members of the Board of Elections, the President of the Board of Elections, James Shalleck, stated that before reaching a decision on the question of where early voting locations would be placed in Montgomery County during the upcoming elections, the three Republican members of the Board, constituting a quorum since a quorum of this Board consists of a majority and there are five voting members, met separately and without notice to anyone so that they could formulate the position they would take on this subject when the Board of Elections met to make its decision formally. The President of the Board of Elections said that he believed that so long as this informal pre-meeting was held with just the Republicans members of the Board of Elections, and no formal decisions were made, it did not contravene the Maryland Open Meetings Act.

A video recording of the meeting this morning, at which these statements were made by the President of the Board of Elections, is available.

In Compliance Board Opinion No. 01-2, issued January 12, 2001, concerning the complaint of Andrew B. White, Chairman, Montgomery County Fire Board, the Maryland Open Meetings Act Compliance Board ruled that:

    “Under the Open Meetings Act, a meeting occurs when a quorum of a public body convenes for the consideration or transaction of public business.” (Italics added) ... As we [the Open Meetings Act Compliance Board] have explained, even information-gathering at the earliest stages of policy formation is part of the consideration ... of public business....And as the Court of Appeals has observed, every step of the process ... constitutes the consideration or transaction of public business.” [internal quotation marks deleted for ease reading]

The opinion continued:

    “Four of the seven voting members of the Commission were present for the discussion concerning the proposed IECS regulations, a matter schedule to come before the full Commission. This group interaction about a Commission item of business invokes the Open Meetings Act, for in these circumstances neither the members nor the Chairman may shed their Commission identity as if it were an uncomfortable garment.”

These principles enunciated by the Maryland Open Meetings Act Compliance Board apply precisely to the incident this morning. The President of the Montgomery County Board of Elections, with all the other members of the Board sitting beside him and in a public meeting that was televised and video recorded, that he and the other Republican members of the Board had met privately and without any notice before an official Board of Elections meeting to decide on the joint position they would take when the Board met officially. This was a violation of the Maryland Open Meetings Act, even if the President and the other members present did not think they were doing anything wrong. The Maryland Open Meetings Act Compliance Board should assist them by stating that they acted in violation of the law and provide guidance how they can avoid such violations in the future.

Sincerely,
[signed]
Paul M. Bessel

copy to:    James Shalleck, President, Montgomery County Board of Elections
        Counsel to Montgomery County Board of Elections
        both at the following email address: elections@montgomerycountymd.gov