;' \


Pursuant to §1 O-S02.4(e) of the State.Government Article the Board su mits
this annual repon, covering the period July 1. 2002. through Jun 2003.
Activities of the Board
A. Fmflllcia/ "nd Support Activities
No funds were specifically appropriated for the CoinpIi ce Board i the
Budget Bill for fiscal year 2003. The Attomey General's 0 e bas bome the
incidental costs of copying and malling Board-related documen s. The Boa r is
grateful to the Attorney General's Office for this assistance.
Indeed. the Board wishes to aelmowledge more generally th ongoing support
ofthe Attorney General's Office, especially the informed and dedic ted
of Assistant Attorneys Qeneral Jack Schwartz and William Varga, W 0 have provided
the Board with essential advice and guidance. In addition, all of e recordkeepEg
and other clerical and administrative support for the Board ar provided, with
outstanding professionalism, by Ms. Kathleen Izdebski and Ms. C tol 0' BrockiJ. of
the Opinions and Division of the Attorney General's Office The cost to
Board would have been significant had it been requ·ircd to ob these supp
services elsewhere.
B. Complaints and Opinions
From July 1,2002 through June 30,2003, the Compliance B ard received 11
complaints alleging violations of the Open Meetings Act. S01ne 0 the complauS.m
alleged more than one violation. Nine comp!amfS were pending on une 30, 20°1"
I For eight ofthcse. an opinion was sUbs:cquently issued. The othel" campi' bas been held as
inactive at the .requc::st of the complainant, pending submission of addjticmal inf1 tiOD.
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11 ch Anunal Reporr of the Open MeetiD2S CompliaDce Board 1
Table 1 below indicates that, as in prior years, complaints from
predominated. Complaints from reporters and editors rose shar ply from last year's
single complaint from this source,
Citizens 12
Government Officials 2
News Media 7
Table 1
As Table 2 indicates, the complaints were fairly evenly divided t>etween enrittes in
municipalities and those at tile county level, including library and chool boardsJ One
complaint involved ajoint meeting between a board of county cc mmissioners Irmd a
school board.
Jurisdiction Number
State o
County 5
School Board 3
LibrarY Board 1
Municipality 13
Table 1
During the reporting period, the Board issued 16 opinions. In six opinipns,
. the Board found a vi.olation of the Act. Violations tended to 'oncc:m the
, Four of lb. opinions in to complaints filed during .... p<loedmg ""'"', J. of
1hcoe was ullUSUal, in that It addressed. public body's request that we recons der • prior 0100.
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ADnuaJ Re urt ottbe 0 en MeetiD· S Com lisuce Board 3
procedural requirements for closing a meeting and specifying c rtain in
minutes. In only one instance did the Board find that discussio in a closed meeting
should have been open.
Although it is impossible to estimate the incidence ofunrep rted the
Compliance Board believes that the low number of known viola: ons reflects OWl crall
compliance with the law by public bodies at all levels of ovemment. This
conclusion is funher supported by the fact that only a handful of pen Meetings Act
issues have been brought to court. (One recent case is discuss d in Part n of this
report.) Overall compliance is undoubtedly furthered by the 0 gojng educational
efforts of the Academy for Excellence in Local Governan e, the Mar.t,land
Association of Counties, the Maryland Municipal League, an the Office of the
Attomey General. '
The Act calls u on us to discuss in particular "compl . ts concCID1D . the
eason eBS fthenoticeprovidedformeetin s." §10-S02.4(e) 111. n genbral.
notice issues ve not been a focus of complaints. probably becau e the Act is
flexible in allowing a range of notice methods. That is, the Act a lows notice tb be
given by "any ... reasonable method," including posting at a pubIi location neaz\ the
site of the. meeting. l11US. the General Assembly left considerable . scretion to sach
public body as to the method of public notice. As long as a pub . c body the
notice or takes one of the other steps set out in the law in a timely nner, the Bqard
will not find a violation of the notice requirement.:! PubHc bodi s do face notice
problems, however, when they call a meeting on short notice, d lay a previ04sly
scheduled meeting, or decide to open a meeting that had previous! been schedu[ed
as a closed meeting. The Compliance Board's guidance is that the ublic be
told of unexpected scheduling developments as soon as practica le. by whatever
rneans are feasible under the circumstances.
3 III addition, tbe notice requirements of tne Act, like the rest of the Act, are cnd Jy
inapplicable to an "executive function. It
11 'II Annual Re ort of the 0 4
, Legislative Cha.nges
The Compliance Board is to report annually "any re ommendati JS for
improvements to the provisions" of the Act. § 1 O .. S02.4(e)(2)(v)Our diScuss10n of
three issues follows.
Issue: Citizen advisory groups
Under § 10 .. 502(h)(2)(i). the tenn "public body·' extends t infonnal1y cljeated
committees and that include at I. east . two indivi llalS itom OU/
government, but only if the are "appolnted by the G erno! or the chief
executive authority ofa political subdivision of the State." In opinion in
August, we were obUged to conclude that a planning committee or certain P1and
use in Anne Arundel County was not a public bodyan.d, hence, W s not subject 0 the
Act, because the 'members had been appointed not by the Co ty Executi
,e but
instead by the head of the oounty parks department.
In our view, this restriction does not reflect wise pubH policy. It i vites
evasion of the Act through the chief executive's simple dele tion of appoibting
autho?ty to a interest in observing the de 'bcrations of/mese
often Important adVlsory panels IS hnlced to what they do, regar ess ofwhcther the .
chief executive or a different official appointed them. We ree mmend that I §10-
S02(h)(2)(i) be amended to read as follows: '''Public body' includ s
board, commission. or committee appointed by an official of the xecutive bradch of
the State or of a political subdivision of the Statep if the entity 'ncludes within its
membership at least 2 individuals not employed by the State or a p lineal su.bdiJision
of the State,,,4
.. This proposal is not intended to change the status ofinfo11llalJy bcommillees 0fthis
t)pe of advisory panel. which arc:: not themselves public bodies under t la.w. To lavoid
unintended consequences iUld preserve the status quo in this respect, § 10-S02 )(3), whjch identifies
entities that are Dot public bodies. shoUld also be amended to add, as a new subparagrapb (*), "s
subc01n::mitn;c:: of an entity that is a public body.w: defined in paragraph (2). bparagraph (i) 'fthis
subsectlon." ,
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Issue: Powers a/the Compliance Board
Some observers, noting the Compliance Board's dearth of authority, have
- suggested a legislative grant of addltional powers. Although e have not sFen a
specific proposaJ. we have heard suggestions that the Board be au orized to
a public body that fails to respond to a complaint or to comp 1 a public botly to
provide additional information if a response is deemed inadequ e.
The purely advisory and educational role of the Complian c Board reflects a
legislative compromise that has been generally accepted by th press and pp.bIic
officials, and we are loth to see it altered- To the extent that e Board is given
investigatory or other compulsory authority. or the power to im ose sanctions, the
Board's procedures would inevitably become more fonnal. and m resources
be required. Now is not the time for such a transfonnation of e Board. \je do
recommend one change. however, that is consistent with the Boar '8 traditional!lole.
The amendment is intended to enable the Board. to resolv complaints Lore
effectively, byrc::quiring public bodies to provide the Board with c pies ofdocwrtents
_r that they are obliged to prepare under the Act. Under current la • the Board bay
request these documents but the public body has no duty to p ovide them. We
n::conunend that §lO-S02.5(c)(2) be amended to read as follows:
(i) The public body shall file a written respons to the
can'tplaint within 30 days ofits receipt of the COmplain.
(ii) Upon request of the Board. the pubHc body shall nelude
with its written response any notice of a session, 'tten
statement made before a closed session, mjnutes, d tape
recordings or transcripts that relate to the action of the public
body identified in the complaint.
(iii) The Board shall maintain the confidentiality
minutes and tape recordings submitted by a public body at are
sealed in accordance with §10-S09(c)(3)(iii) of this su.b -tle.
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As the Board has observed in the past, one issu'e con . ues to presept the
greatest difficulty for members of the public, public bodies. and e Board: thelAct's
exclusion for "executive functions." All recognize that this pro 'sion is aIDO bous
and resists easy understanding or application. The Act would be improved if the
"executive function" exclusion were replaced by a narrower Ii 'tation on the reach
of the Act.
Yet, we have found nothing approaching consensus 0 how to sol're the
problem. Consequently, although we would welcome the eneral AsseIl[lbly's
decision to study the issue. we offer no specific recommendatio at this time. I
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