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UM Regents OMCB Opinions July 2013

UM Regents OMCB Opinions July 2013

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Published by Craig O'Donnell
Findings of violations of Maryland's Open Meetings Act on multiple occasions in 2012 and 2013.
Findings of violations of Maryland's Open Meetings Act on multiple occasions in 2012 and 2013.

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Published by: Craig O'Donnell on Jul 15, 2013
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07/15/2013

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tf£6ENCS
MARTINO'MALLEY
Governor
ANTHONY
G.
BROWN
Lt.
Governor
ELIZABETH
L.
NILSON,ESQUIRE
Chair
COURTNEY
J.
MCKELDIN
JULIO
MORALES,
ESQUIRE
iiff
ill
State
of
Maryland
Open
meetingscompliance
board
July9,2013
James
L.Shea,
Chair
Office
of
theBoardofRegents
UniversityofMaryland
330Metzerott
Road
Adelphi,Maryland20783
Re:
UniversitySystem
of
Maryland
Board
of
Regents
DearMr.
Shea:
Enclosed
please
findthe
Compliance
Board's
opinion
in
thismatter.
cc:Craig
O'Donnell
ThomasFaulk,Esquire
ElizabethNilson,Esquire
CourtneyJ.McKeldin
JulioA.Morales,Esquire
Verytrulyyours,
AimMacNeille
AssistantAttorneyGeneral
Counsel,OpenMeetingsComplianceBoard
AssistantAttorneyGeneralAnnMacNeille,Counsel
200SaintPaulPlace
Baltimore,
Maryland,21202-2021
Telephone
Numbers:
(410)
576-6327
(888)
743-0023
D.C.Metro
(301)470-7534
TelephoneforDeaf(410)576-6372
 
MARTIN
O'MALLEY
WlllE^^W
ELIZABETH
L.
NILSON,
ESQUIRE
Governor
yffij
^filj
JEtf
Chair
ANTHONY
G.
BROWN
*B%0Zqg^
COURTNEY
J.
MCKELDIN
Lt
Governor
JULIOMORALES,ESQUIRE
Stateof
Maryland
Open
meetingscompliance
board
9
OfficialOpinions
of
theComplianceBoard
1(2013)
Re:UniversitySystem
of
MarylandBoardofRegents
{Craig0
'Donnell,
Complainant)
July9,2013
TheOpen
MeetingsComplianceBoard
has
consolidated
and
considered
two
complaints
of
Craig
O'Donnell
("Complainant")that
the
University
System
of
Maryland
Board
of
Regents
("the
USMBoard")
and
its
standing
committeeshave
consistentlyoperated
in
violation
of
the
OpenMeetingsAct("theAct").
Introduction
Complainantalleges
thatin
2012
the
USM
Board
andits
standingcommitteesfailed
to
properlynotice
their
meetings,
provided
inadequateclosingstatements,discussedmatters
in
closedsessionthatshould
have
been
open
to
the
public,
and
failed
both
to
keep
properminutes
of
the
closed
meetingsand
to
provide
an
adequate
public
summary
of
the.closed
sessions.The
complainant
also
asserts
that
two
standing
committees,theCommittee
on
Organization
and
Compensation("Organization
Committee")
andthe
Committee
onAuditandInstitutional
Assessment
("Audit
Committee"),
improperlyconducted
public
business
exclusivelythrough"executivesessions,"
withoutfollowing
any
of
the
Act's
requirements.
In
all,the
two
complaints
referto43
meetings
and32
closedmeetings.
The
USM
Boardsubmitted
a
response
in
which
it
explains
how
it
intends
to
change
some
practices,
argues
that
two
committees
areforthe
mostpart
"exempt
from
theAct"
by
viitue
of
the
functions
they
perform,
and
addresses
the
allegations
ona
generalized
basis.1
Inthe
The
USM
Board
states
thatComplainant's
"myriad
'detours'
and
apparently
randomly
organizedcriticisms
make
specificresponsessometimes
difficult
or
impossible."
Weare
notpersuaded.Complainant
identified
the
dates
of
themeetings
in
question
andthe
provisions
of
theActhedeemedtohavebeenviolated,andthedocumentstowhichhereferredestablisheda
reasonablebasisforhisallegationthatthesestandingcommitteesmetonthose
dates
totransact
public
businesssubject
to
the
Actwithout
complying
with
the
Act.
That
thecomplaint,
in
the
USM
Board's
view,
"suffersorganizationally"
is
beside
the
point.
We
encouragepublic
bodies
to
addresstheallegationstheyunderstand
and,
otherwise,
identify
with
specificity
those
that
they
do
not.
For
example,Complainantalleged
that
the
Intercollegiate
Athletics
WorkingGroup
violated
the
Act
by
meetingwithoutgiving
notice.
TheUSM
Board
disputes
Complainant's
AssistantAttorneyGeneral
Ann
MacNeille,Counsel
200Saint
Paul
Place
Baltimore,
Maryland,
21202-2021
Telephone
Numbers:(410)
576-6327
(888)743-0023
D.C.
Metro(301)
470-7534
.
T\n„-F/A
1
A"\
CnC
£")T\
 
9
OfficialOpinions
of
theComplianceBoard
1
(2013)
July9,2013
Page
2
meantime,wehaveissuedourconclusionsregardingComplainant's
other,
morediscrete,
complaintsabout
the
USM
Board
and
variousstandingcommittees.
See
8
OMCB
Opinions
138
(2013),
8
OMCB
Opinions
166
(2013),
8
OMCB
Opinions
180
(2013).2
Here,
wewillavoidrepeatingtheguidancegiveninthoseopinionsandconcentrateon
areasthatwehavenotalreadyaddressed.Wewillstateourconclusionsinthediscussion.We
will
address
the
allegations
by
example
inthe
expectation
thatthe
USM
Board
will
use
this
opinion
as
guidance
for
its
future
meetings
and
not
as
a
mere
tally
of
past
violations.Particularly,
we
will
urge
the
USM
Board
to
re-evaluate
its
practice
of
closing
meetings
under
the
provision
of
the
Act
that
excludes
from
the
Act
a
public
body's
performance
of
the
"administrative
function."
Background
A.TheBoardofRegentsanditsStandingCommittees
The
Board
of
Regents
is
required
byits
bylaws
to
hold
at
leastsixregularmeetings
each
year.Bylaws
of
theBoard
of
Regents
of
the
University
System
of
Maryland,Article
VII,
§1.
Theregents
also
meet
in
committees.The
USM
Board's
bylaws
establish
six
"Standing
Committees":theAuditCommittee,
the
Committee
on
EducationPolicy
and
Student
Life,
the
Committee
on
Finance,theCommittee
of
theWhole,the
OrganizationCommittee,
and
the
Committee
on
Advancement.
Id.,
Article
IX,§1.
The
number
of
regentsserving
oneach
Committeevaries,
butall
meetings
of
theStandingCommittees
"shall
be
conducted
in
accordancewith
theStateOpenMeetings
Act
"
Id.,
§11D.The
bylaws
also
provide
for
a
Committee
onEconomic
Development
and
Technology
Commercialization
("Development
Committee").
The
committeesmeet
the
definition
ofa
"public
body"
under
the
Act,
see
State
Government
Article
("SG")
§
10-502(h)(ii)(5),
and,
like
theUSM
Board
itself,
are
subject
toit.
The
duties
that
the
USM
Board's
bylaws
assign
to
the
Audit
Committeeinclude
"rendering]
advice
and
assistance
to
theBoard
of
Regents
in
fulfillingits
fiduciaryresponsibilities
for
overseeing
adequacy
of
and
compliancewithinternal
controls,"
"recommending]
to
the[USM]Board
theselection
andscope
of
work
of
the
independent
externalauditor
of
the
University
System
of
Maryland,"
and
"reviewing]
and
recommending]
tothe
[USM]
Boardthescopeoftheinternalauditfunction."
The
Organization
Committee's
duties
are
setby
the
bylaws
in
sevensections.
The
first
twosectionsprovide:
"implied
conclusionthatthisworking
group
is
subject
to
the
Act"butprovides
no
information
on
how
the
"working
group"
was
created.
If
thegroupwas
created
bya
USM
Board
resolution
or
bylaw,
for
example,
itisapublic
body.
AlthoughComplainantfiledthesecomplaints
first,
we
wereable
to
resolve
thelater
ones
earlierbecause
they
involved
far
fewer
entities,
meetings,
and
alleged
violations.

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