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9 OMCB 131: Complaint About Closed Meetings of the MHBE

9 OMCB 131: Complaint About Closed Meetings of the MHBE

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Published by Craig O'Donnell
Maryland Health Benefit Exchange Board is whomped again on its dismal compliance with Open Meetings Act requirements.
Maryland Health Benefit Exchange Board is whomped again on its dismal compliance with Open Meetings Act requirements.

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Published by: Craig O'Donnell on Aug 05, 2014
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08/07/2014

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MARTIN O'MALLEY MONICA J. JOHNSON, ESQUIREGovernor A &. » ChairANTHONY G. BROWN fa $Kjj WE Wanda Martinez, Esqi ireLt. Governor fj£ ST. iW JJMAMATA POCH, ESQUIRE
State of MarylandOpen meetings compliance board
9 Official Opinions of the Compliance Board 131 (2014)Re: Maryland Health Benefit ExchangeCraig O 'Donnell, ComplainantJuly 30, 2014This opinion addresses the second and third complaints of four complaints byCraig O'Donnell ( Complainant ) that the Maryland Health Benefit Exchange Board( MHBE Board ) has violated the Open Meetings Act in numerous ways since itsinception in 2011. The Compliance Board addressed the first complaint last May in 9OMCB Opinions 110 (2014). In the interest of providing MHBE with a prompt advisoryopinion on its closed-meeting practices, the Compliance Board also addressed thedisclosure practices complained of in the later complaints.Here, we will address the remaining allegations in the second complaint, which arethat the MHBE Board discussed in four closed meetings matters that the Act required itto discuss in open session. As will become evident, our resolution of this complaint ishampered by the shortcomings in disclosures, as found in our prior opinion. We willwork with what we have and state our conclusions as we go along.We will also address the allegation in Complainant's third complaint that theMHBE Board's response to the first complaint did not disclose all of the matters that theMHBE Board discussed in its December 6, 2013 closed session.I. The Second ComplaintA. Applicable principlesThe same broad principle applies to each meeting: Except as otherwise expresslyprovided in [the Act], a public body shall meet in open session. State Government1 The MHBE's disclosure violations pertained to the disclosures it was required to make about itsclosed meetings. The minutes of many of its open sessions in 2013 are unusually detailed.
Assistant Attorney General Ann MacNeille, Counsel200 Saint Paul Place Baltimore, Maryland, 21202-2021Telephone Numbers: (410) 576-6327 (888) 743-0023 D.C. Metro (301) 470-7534Telephone for Deaf (410) 576-6372
 
9 Official Opinions of the Compliance Board 131 (2014)July 30. 2014Page 2Article § 10-505. The Act expressly provides that some functions are excluded from theAct. For example, as explained in 9 OMCB Opinions 110, a meeting held solely toperform an administrative function is excluded from most provisions of the Act. TheAct also expressly provides that a public body may meet in a closed session to discusstopics that fall within one or more of the fourteen subjects that the General Assembly hasdeemed appropriate for closed-door discussion. See § 10-508(a), (d). However, before apublic body may meet behind closed doors to discuss one of those fourteen subjects, or exceptions, the public body must vote publicly on a motion to exclude the public fromthe discussion, and its presiding officer must make a written statement of the reason forclosing the meeting. § 10-508(d). In that statement, the presiding officer must alsodisclose the topics to be discussed and the statutory exception relied upon as authorityfor closing the meeting. The written closing statement then effectively serves as a setagenda for the closed session: the members of the public body may not discuss topics thatthey did not disclose before the closed session, and their discussion of those topics maynot exceed the scope of the exception they claimed. See § 10-508 (a), (d). The exceptionsare to be strictly construed in favor of open meetings of public bodies. After themeeting, the public body must disclose, in the minutes of the next open session,information that discloses what was actually discussed, who attended the closed meeting,and what actions the public body took. See § 10-509(c)(2).Here, we address whether the MHBE Board's closed-door discussions exceededthe scope of the exceptions and topics that its presiding officer listed on the closingstatement that its members adopted for each of the four meetings. To address thatquestion, we rely on the minutes that the MHBE Board adopted for each closed session.By statute, these minutes are sealed to the public but available to us for the purposes ofaddressing complaints. We are to maintain the confidentiality of these minutes, §10-502.6(c) (iii), and we therefore refer to them only in general terms. Ordinarily, we wouldrely also on the disclosures made in the closing statements and subsequent open-meetingminutes. However, as found in 9 OMCB Opinions 110 (2014), the MHBE Boardroutinely failed to make these disclosures, and it did not make them for these meetings.We therefore lack a contemporaneous statement of the topics that the members expectedto discuss and the members9 reasons for excluding the public from each discussion. Wewill rely instead on the partial disclosures that the MHBE Board made in a later summaryof the events of its closed meetings and the additional information contained in theMHBE Board's response to the complaint.
 
9 Official Opinions of the Compliance Board 131 (2014)July 30.2014Page 3B. The March 12, 2013 meetingThe minutes of the open session that immediately preceded the March 12 closedsession reflect the members' vote to close the meeting under two exceptions: §10-508(a)(1), the exception that permits a public body to discuss personnel actions regardingemployees or officials under its jurisdiction, and §10-508(a)(14), the exception thatprovides that a session may be closed before a contract is awarded or bids are opened,[to] discuss a matter directly related to a negotiating strategy or the contents of a bid orproposal, if public discussion or disclosure would adversely impact the ability of thepublic body to participate in the competitive bidding or proposal process. The MHBEBoard's summary of this meeting discloses that [t]he Board adjourned to closed sessionto discuss procurement related to business process consultant and certain licenses. Thesummary further reports that the MHBE Board awarded a Noridian change order for 13and Informatica license purchases and certain functionality related to the call center, anda Xerox change order, awarded a contract for business process consulting services toSeamon Corporation, considered changes to PMO resources, and discussed PMOpersonnel decisions and performance of individuals in the PMO. The MHBE Board's response elaborates on this information. It states that theBoard discussed the Program Management Office (PMO) contract and staffing needs ofthat contract and considered its PMO resource needs and the performance of resources,including the continuation or discontinuation of various contracts with PMO vendors, andwhat procurement decisions might result, including the potential for litigation. Theresponse also states the MHBE Board's reasons for excluding the public. As to thepersonnel topics, the response states that the discussion pertained to assignment,removal, and performance evaluations of PMO resources over which the MHBEexercised control. As to the contract matters, the response states, the discussions wereconducted in closed session to ensure that if the ultimate decisions were made to issuenew RFPs or re-issue the existing RFPs, the procurement processes would not have beencompromised by public discussions of evaluations of proposals or recommendations forawards. Further, the response states, the MHBE Board considered it necessary topreserve the ability to solicit proposals from other entities, for each of theseprocurements, and [c]conducting these discussions publicly might have revealedinformation that had the potential to adversely impact future procurements, if it provednecessary to pursue that option. The sealed minutes and the response report that a motion was made in opensession to close the meeting under the § §10-508(a)(l) personnel exception, the §10-508(a)(14) procurement exception, and two exceptions that, according to the minutes,

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