77

6 Official Opinions of the Compliance Board 77 (2009)

Compliance Board Process Neither party has burden of proof;
Legal Advice Fact issue addressed previously by counsel or lack of litigation
not factors in reliance on exception;
Written Statement Topic Description merely reiterating statutory authority
violated act;
Meeting Public bodys attendance at another entitys meeting.
January 30, 2009
Janis Zink Sartucci
The Open Meetings Compliance Board has considered your complaint
alleging that the Montgomery County Board of Education (County Board) violated
the Open Meetings Act in connection with a closed session on September 9, 2008,
and a series of luncheon meetings with the Montgomery County Council. For the
reasons explained below, we find that the County Board did not violate the Act
while meeting with counsel on September 9 concerning certain fees imposed by the
school system or when it attended meetings of the County Council. However, we
find that the County Board did violate the Act in its failure to properly complete a
written statement of the reason for the closing of the meeting on September 9.
I
Complaint, Response, and Supplemental Record
The complaint indicated that, on September 9, 2008, the County Board
conducted two closed sessions without first adopting an open session resolution.
At 9:00 a.m., the members of the County Board reported directly to a conference
room labeled Board Members and Staff Only and proceeded with a closed session.
According to the complaint, the door to the conference room was closed shortly
after 9:00 and the public was denied the opportunity to observe any vote by the
County Board to close the session. At approximately noon, a second closed session
was conducted without a vote to close the meeting.
Following the second closed session, the President of the County Board read
a statement that apparently had been discussed and voted on during one of the closed
sessions that day concerning County Board policy. The statement indicated that
counsel to the County Board was asked for advice as part of a continuing effort to
examine [the County Boards] policy [regarding various school fees]. The
complaint noted that there was no pending litigation relating to curricular fees and
that the County Boards counsel had previously provided advice on this matter,
advice that counsel had shared with a member of the public.
6 Official Opinions of the Compliance Board 182 (2009) 78
All statutory references are to the Open Meetings Act, Title 10, Subtitle 5 of the
1
State Government Article, Annotated Code of Maryland.
A week following submission of the complaint, the complainant submitted
a followup letter including a copy of an e-mail from the County Board which, in
part, repeated the Presidents statement regarding the closed session. The
complainant again alleged that the closed session was used to discuss policy without
an open-session vote to close the meeting to consider curricular fee policy.

The complaint acknowledged that, on August 21,the County Board did vote
to meet in closed session on September 9, adopting a standard form resolution.
However, according to the complaint, the resolution did not state the specific
provisions of the Open Meetings Act that allow the meeting to be closed or the
topics to be discussed ... According to the complaint, the County Board never
voted to discuss curricular fee policies during either closed session.
The complaint also stated that the County Board apparently has been holding
monthly luncheon meetings with the Montgomery County Council. The date, time
and place of [these] meetings are unknown ... [thus, the] public is unable to observe
... as there is no public notice ... According to the complaint, members of the
County Council have revealed that County Board policy discussions have occurred
during the luncheon meetings.
In a timely response, Patrick L. Clancy and Derick P. Berlage, attorneys for
the County Board, argued that the complainant has the burden of proving any
violation of the Open Meetings Act and cited the presumption under the Act that no
violation occurred. As to the September 9 meeting, the response noted that the
session was a regular all day business meeting. Consistent with the County Boards
custom, two closed sessions were scheduled for that day, one beginning at 9:00 a.m.,
the second beginning at noon. A meeting schedule and agenda were available to the
public well in advance of the meeting. The response explained that the nature of the
County Boards duties makes the need for closed sessions fairly predictable.
According to the response, the County Board rigorously followed the Open
Meetings Act before holding its closed sessions on September 9. The County Board
voted on August 21, 2008 to schedule the closed sessions on September 9. Included
with the response was a copy of the County Boards resolution as well as minutes
of the August 21 meeting; thus, in the respondents view, the County Board satisfied
the procedures for closing a meeting under 10-508(d). On September 9, at the
1
scheduled time, the [County] Board gathered in Room 120, a conference room
adjacent to the Board hearing room. The door to the conference room ... initially
remained open, and any member of the public could enter. The response noted that
on days that the County Board is in session, a removable sign is posted indicating,
board members and staff only because members of the County Board sometimes
leave their personnel belongings and other materials in the conference room while
they are in the hearing room. However, [t]o ensure that there is no
6 Official Opinions of the Compliance Board 182 (2009) 79
misunderstanding regarding the intent of the sign, staff has been requested not to
place the sign in its holder unless and until the Board has voted to enter closed
session.
The response also included a copy of the County Boards September 9 open
session minutes, indicating there was a unanimous vote to close the 9:00 a.m. and
noon meetings. Relevant sections of the Act supporting each closed session topic
were specified. The response indicated that the conference room door was closed
only after that vote to close the meeting. At 10:10 a.m., the closed session was
interpreted to start the scheduled public session. At 12:20 p.m. the County Board
returned to the closed session which continued until 2:10 p.m.
As to the substance of the closed session, the response noted that the County
Board discussed personnel matters, consulted with counsel to obtain legal advice,
and deliberated appeals, acting in a quasi-judicial capacity. The response
characterized the allegation that the County Board used the closed session to discuss
policy as pure supposition and inaccurate. The statement read by the President
reflected the purpose of the meeting. According to the response, [i]t is entirely
proper for the Board to obtain legal advice that may bear upon legal issues that have
been raised regarding one of its policies. The response noted that the fact there is
no pending litigation is not relevant. Furthermore, the fact that the County Board
purportedly disclosed its attorneys advice does not in any way prevent the Board
from obtaining new or additional legal advice in closed session. The e-mail
accompanying the complainants second letter merely confirms that the Board
obtained legal advice from its attorneys.
The response acknowledged that the County Council periodically invites the
County Board to attend Council meetings at which Council members question the
County Board on education matters. However, according to the response, these are
not County Board meetings; the meetings are Council meetings and the Council
fully complies with the Open Meetings Act.
The response noted that County Board members do not consider or transact
business during these meetings. Rather, they are present at the Councils request
to respond to Council inquiries. The response disputed the suggestion that an e-
mail from the Council president relied on by the complainant suggested that County
Board policies were deliberated on during these meetings.
Following our receipt of the County Boards response, we received an
additional letter from the complainant. The letter included two photographs taken
by the complainant on September 9, 2008, one marked 8:57 a.m., the second marked
9:05 a.m. The first picture is the County Boards meeting room. The complainant
pointed out a side door that provides access to the conference room and noted that
the door was closed at the time. Thus, she disputed the County Boards claim that
the door remained open until the meeting was closed. The second picture shows the
location of the conference room and the sign limiting access to the room. The
complainant noted that a staff member had announced that then-president Nancy
6 Official Opinions of the Compliance Board 182 (2009) 80
Navarro would be late, at which point the door was closed. When the [County
Board] went into session on the morning of September 9, 2008, the ... entrance[s]
to Conference Room 120 ... were both closed prior to the commencement of any
meeting.
In response to complainants latest letter, the County Board disputed that the
supplemental material negated the previous response. The closed session minutes
indicated that the 9:00 a.m. session began precisely at 9:00 a.m. Assuming
arguendo that the [c]omplainants factual allegations about Picture A are true, they
do not establish a violation of the Act. According to the response, the photos
cannot satisfy the complainants burden of proof in establishing a violation. The
response noted that the time indicated for the photo may or may not be accurate.
And even if accurate, the time indicated is so close to the recorded time, a more
probable explanation is a slight variance between the cameras clock and clock used
by the Secretary. As to Ms. Navarros absence, the response noted that [t]he vote
to close the session could be taken without the presence of the President, because a
quorum of the Board was present.
II
Analysis
A. Burden of Proof
Before addressing the merits of the complaint, we must first address a
preliminary matter raised by the County Board in its initial response as well as its
supplemental response to the complaint. Citing 10-510(c), the County Boards
counsel argued that the complainant bears the burden of proof and there is a
presumption that no violation has occurred. The County Boards reliance on this
provision is not correct. Section 10-510(c) provides that, [i]n an action under this
section, it is presumed that the public body did not violate any provision of this
subtitle, and the complainant has the burden of proving the violation. (emphasis
supplied) While this provision applies in a judicial proceeding governed by
10-510, it has no application to the Compliance Board process. As we have
previously stated:
Neither the presumption against a violation nor the
burden of proof provision in 10-510(c) has any
application whatever to a complaint to the Compliance
Board. There is no burden of proof for a complaint
to the Board. The Board reviews all of the information
submitted to it. If that information is sufficient for the
Board to reach a conclusion about a violation, the
Board will issue an opinion containing that
conclusion.... If the Board cannot reach a conclusion,
either because the information is insufficient or the
evidence available is evenly balanced, the Board will
6 Official Opinions of the Compliance Board 182 (2009) 81
While the complaint described the County Board as conducting two closed
2
sessions on September 9, the County Board apparently considered the noon session as a
continuation of the 9:00 a.m. session, both of which were part of a single business meeting
that day.
issue an opinion explaining the reason for its inability
to reach a conclusion.
3 OMCB Opinions 30, 32 (2000), citing 1 OMCB Opinions 178, 180-81 (1996). As
we recently explained, it normally is the public body, not the complainant, that has
the information ... that is necessary to allow us to fully evaluate whether or not a
violation occurred. 6 OMCB Opinions 69, 72 (2009).
B. Justification for September 9 Closed Session
The gist of the complaint, as it related to the substance of the closed session
September 9, focused on consideration of certain fees; it alleged that the County
Board improperly considered policy matters during the course of the closed meeting
under the pretense that it was receiving legal advice. The Open Meetings Act allows
2
a public body to close a meeting governed by the Act for specified purposes,
provided that certain procedural requirements of the Act are followed. One such
purpose is to consult with legal counsel to obtain legal advice. 10-508(a)(7). Of
course, like all 10-508(a) exceptions, this provision must be strictly construed.
10-508(c). But a public body is entitled to meet in closed session to hear advice
from its lawyer on how to comply with any law affecting its operations. 3 OMCB
Opinions 16, 20 (2000). As long as the County Board limited its discussion to
obtaining legal advice and did not use the exception as a pretense to deliberate on
its position concerning fees, no violation occurred. We agree with counsel to the
County Board that the absence of litigation or the fact that counsel previously
disclosed information as to the legality of certain fees does not limit the ability of the
County Board to meet in closed session for advice on this matter. Nor does the
information before us indicate that the County Board used the occasion for
discussions beyond that permissible under the cited exception.
C. Closure Procedures
As noted above, when a public body closes a meeting under provisions of the
Act, certain procedures must be followed. First, there must be a vote in support of
the closed session in order for a closed session to occur. 10-508(d)(1) and (2)(i).
The public is entitled to observe the process by which a meeting is closed. 6 OMCB
Opinions 9, 13 (2008). The vote of significance is the vote taken on the morning of
September 9, not a vote taken on a prior date such as August 21. We have long held
that the vote to close a session must occur at the meeting being closed, not at a prior
meeting. See, e.g., 1 OMCB Opinions 73, 83 (1994). The complainant and County
Board dispute whether the door to the conference room was open, and thus whether
the public had access to the meeting, at the time that the vote occurred. We cannot
6 Official Opinions of the Compliance Board 182 (2009) 82
While the complaint referred to an open session resolution, a resolution is not
3
mandatory. While the vote must be initiated by a motion, the Act does not require that the
written statement be in any particular form. However, we have often encouraged public
bodies to use the form developed by the Office of Attorney General to help public bodies
comply with requirements of the Act. See Open Meetings Act Manual, App. C.
resolve this dispute. The Compliance Board was not set up to resolve disputed facts.
1 OMCB Opinions 56, 58 (1994). We do note, however, that even had the door been
open, the presence of the sign would discourage public observance. While we
cannot conclusively resolve what occurred September 9, we do acknowledge that the
County Board has instructed its staff not to place the sign by the door unless and
until the County Board has voted to enter closed session. When a vote is conducted
under 10-508(d), it is important that the public understand that it has access to this
part of the meeting if the meeting is to be open in practice, and not just in theory. Cf.
4 OMCB Opinions 147, 152-53 (2005).
In addition to the vote, the Act requires that, before a public body moves into
a closed session, the presiding officer must complete a written statement of the
reason for closing the meeting, including a citation of the authority under [10-508],
and a listing of the topics to be discussed. 10-508(d)(2)(ii). There is no reason that
3
a public body may not rely on staff to provide it with a written statement in advance
of the closed session, provided the document is accurate at the time the meeting is
closed. However, the document must reflect the minimum information required
under the Act.
Here, it appears that the County Board relied on a resolution prepared by the
Superintendent to satisfy the required written statement under 10-508(d)(2)(ii).
However, as it related to closure for legal advice, the focus of the complaint, we find
the statement legally deficient in that it provided no information other than to
[r]eceive legal advice, as permitted under Section 10-508(a)(7) of the State
Government Article. Resolution 333-08, as reprinted in the County Board minutes
(Sept. 9, 2008), p. 1.
The statement must not simply cite the statutory authority, but must disclose
the topic of discussion in order to allow the public to assess compliance by
comparing the cited authority and reported topic. 5 OMCB Opinions 149, 152
(2007). As to identifying the topics of discussion, a public body need not disclose
a level of detail that would undermine the confidentiality permitted by law.
However, we have repeatedly cautioned that merely paraphrasing the statutory
language is insufficient, in that it provides the public no opportunity to weigh
whether the discussion reasonably fits within the cited statutory exception. Id.
(internal citations omitted). Here, the written statement provided the public no
information except that the meeting was closed, among other reasons, for the County
Board to receive legal advice. Thus, in closing the meeting September 9, the County
Board violated 10-508(d)(2)(ii).
6 Official Opinions of the Compliance Board 182 (2009) 83
D. Council Meetings
The complainant argued that the County Board luncheon meetings violate the
Act in that no notice is provided by the County Board, thus, the public is unable to
observe these sessions - - sessions, the complainant suggested, involving policy
discussions of the County Board. The County Board, however, tells us these
periodic sessions are not County Board meetings, but County Council meetings, and
the Council fully complies with the Open Meetings Act. In support of its position,
the County Board cited Ajamian v. Montgomery County, 99 Md. App. 665, cert.
denied, 334 Md. 631 (1994), addressing the attendance of a majority of the
Montgomery Council at a meeting of the Montgomery County Democratic Central
Committee involving, among other things, questions about redistricting plans
pending before the Council. The Court of Special Appeals held that the session was
not a meeting of the Council because Council members did not deliberate anything
at the session.
A public body meets when it convene[s] a quorum of [the] public body for
the consideration or transaction of public business. 10-502(g); 5 OMCB Opinions
28, 30 (2006). There apparently is no question that a quorum of the County Board
attends these sessions. Ajamian is distinguishable in that Council members were
attending a large private political meeting to which all Democratic elected officials
in the county were invited, without any suggestion that Council members interacted
among themselves as to constitute a quorum. The issue is much closer when two
governmental entities with common interests meet.
In a prior opinion, the Compliance Board concluded that the Board of
Education of Prince Georges County was subject to the Open Meetings Act when
it met with the countys legislative delegation to the House of Delegates to discuss
the Boards legislative priorities and to judge legislators reactions. 4 OMCB
Opinions 122, 124-25 (2005) (concluding session was a meeting and that
advocating for a change in law was not outside the scope of the Act.). On the other
hand, in an earlier opinion, the Compliance Board evaluated a meeting attended by
the Garrett County Board of County Commissioners that was initiated by a local
legislative delegation. 2 OMCB Opinions 27 (1998). We recognized that a quorum
of a public body may attend someone elses meeting without incurring an obligation
to follow the Open Meetings Act, so long as the public body itself refrains from the
consideration or transaction of public business. 10-502(g); 2 OMCB Opinions at
28. The County Commissioners, the public body that was the subject of the
complaint, attended merely as invitees; the legislators presumably were interested
in their views. The County Commissioners did not engage in any collective action.
Under these circumstances, we found that no violation occurred.
Given the representation of counsel for the County Board that the sole
purpose in attending these sessions is to answer inquiries from the Council, we
conclude that the County Board was not subject to the Act. If the County Board
used these sessions to lobby the Council or considered actions at the request of the
Council, our answer would differ. But it appears that the County Board itself does
6 Official Opinions of the Compliance Board 182 (2009) 84
not consider[] or transact[] public business during the course of the Council
meetings. Furthermore, we agree with the County Board that the e-mail of the
Council President submitted by the complainant does not support a contrary result.

III
Conclusion
We find that the County Board did not violate the Act while meeting with
counsel during a closed session on September 9, 2008, for the purpose of receiving
legal advice in connection with certain fees charged by the school system. We also
find that the County Board did not conduct a meeting during its sessions with the
Montgomery County Council based on the representation that the County Board
itself avoids considering or transacting County Board business during these sessions.
However, we find that the County Board did violate the Act by failing to produce
a written statement in advance of the closed session September 9 that satisfied the
disclosure requirements of the Act.
OPEN MEETINGS COMPLIANCE BOARD
Elizabeth L. Nilson, Esquire
Courtney J. McKeldin
Julio Morales, Esquire