CHESTERTOWN - Did the University of Maryland Regents break the law in November in their rush to tackle a berth in the Big Ten?
Yep. Big time, according to a Feb. 26 opinion from the Open Meetings Compliance Board.
The OMCB, “we find that the Board [of Regents] violated the Open Meetings Act in multiple respects.”
Most significantly, the regents were talking about things that they couldn't legally discuss without allowing the public in: “Even on the basis of the limited information that the Board [of Regents] has provided to us about those meetings, ... some part of the Board's discussion should almost certainly have been conducted in open session.”
The OMCB asked for the regents' closed-session minutes or recordings to help determine precisely what topics were discussed. The Compliance Board keeps them confidential but can use the information to make its decisions.
The regents said they have none. So the OMCB sacked the regents there. One purpose of detailed closed session minutes is to assist if a complaint is filed.
“Twitter Defense” a Flop
The public wasn't informed of the two planned meetings. Nevertheless, the regents claimed, since rumors were circulating, they didn't have to notify the public. As predicted in a Kent County News analysis last week, this “Twitter Defense” didn't fly.
“Here, the Board issued no public notice ... but points to media accounts of the meetings” and says they were good enough.
“We find this line of reasoning both unpersuasive and irrelevant [because] such information as the press was able to report did not enable the public to attend the meeting.”
Also, “information about the meeting of a public body transmitted through leaks or obtained by 'happenstance' does not relieve the public body of its affirmative duty to provide notice.”
And more: “the Compliance Board rejects the arguments made in the Board of Regents' responses that its failures to comply with the Act were 'at worst technical' ... The Board itself has an affirmative duty to comply with the Act.”
The OMCB opinion follows complaints filed in December, and a January response by the regents' lawyer, Thomas Faulk. The 24-page response was over 7,000 words long.
Opinion 8 OMCB 137 is unusually long and detailed. The language of the Open Meetings Compliance Board is generally dry. In the world of an OMCB Opinion, however, this one contains some blunt talk.
The complaints alleged there was no notice; that meetings were held in secret without proper procedures; and the minutes following the meetings were lacking legally required details.
The complaints also alleged that the two meetings covered topics that are not legally handled if a meeting is held behind locked doors.
The regents admitted in a Dec. 7 press release that they did not notify the public or follow the proper closing procedures, but said everything they talked about was legal.
The OMCB didn't agree.
In supplying their conclusions, the OMCB went step-by-step through the basics.
“When deciding whether discussion of a particular matter in closed session is permitted, a public' body must strictly construe the enumerated exceptions in favor of open meetings,” the board wrote.
So it appears the regents went beyond the bounds of the law, “given the Board's own description of its November 2012 meetings and of the pervasive impact on the University from a change of athletic conferences, it is apparent that the closed session discussions could not have been limited to an informational briefing on topics unrelated to future Board policy.”
The OMCB also shot down the claims that “negotiations” or “contracts” are to be handled outside public view.
“We note first the Act does not include a blanket exception for all discussion by a public body relating to proposed contracts or ongoing negotiations. ... Nor does the Act permit closed meetings whenever the public body believes there may be economic or competitive reasons not to discuss an agreement in open session.”
“Broad and Unwarranted”
The regents argued that exceptions related to business relocation and procurement might have been used.
“We disagree with the Board's contention that the agreement ... to join the Big Ten Conference implicates either the business relocation or procurement exceptions.
“An agreement to join an athletic conference is not the type of economic development initiative that the business relocation exception was meant to cover.
“Interpreting the exception to reach this kind of agreement would make it potentially applicable to any contract ... This could be said of virtually any contract involving the delivery of goods or services in Maryland or in any local jurisdiction. So broad and unwarranted an interpretation violates the Act's directive to strictly construe its exceptions in favor of open meetings.”
As for procurement, the exception “is specifically confined to a particular stage of the procurement process [and] not expressive of a general policy to shield all contract talks from public view, even concerning sophisticated, important, or lucrative agreements.”
The OMCB said that specific legal advice or a discussion of a possible Atlantic Coast Conference lawsuit could have been done privately under existing exceptions.
The Compliance Board also dove momentarily into the legal weeds, saying “under exception (13), the Board was entitled to consider in private session those aspects of the Big Ten agreement that would have involved disclosure of confidential commercial or financial information if discussed in open session.”
A footnote cited opinions by attorneys general about the interaction of the Public Information Act with the Open Meetings Act as far back as 1978.
It also warned the claim of “'legally confidential' must be determined according to an objective test, not simply what is asserted to be confidential by the party supplying the information. ... Without any specific knowledge of what commercial or financial information the Big Ten may have provided or President [Wallace] Loh may have shared with the Board, we are unable to say whether, or to what extent, exception 13 may have been an appropriate basis for closing the two sessions.”
Locking Out the Public
The Compliance Board was not pleased by the regents' excuse for their failure to follow the law when closing the meetings.
The “response tacitly admits these violations, again attributing them to erroneous legal advice from the Assistant Attorney General advising the Board [Faulk]. At the same time, however, the response seeks to minimize the significance of the violations by arguing that, even had the Board 'strictly' complied with the notice and vote for closure provisions of the Act, 'the public would not have enjoyed any additional or more prompt access to the information discussed.'”
The Compliance Board took it down to brass tacks: “We take issue with the Board's suggestion that the Act's closing procedures were unimportant in light of the nature of the discussions that followed.
“The requirement to conduct a recorded vote on closing a meeting makes the individual members of a public body accountable ... Here, no record exists.”
Based on the likelihood that the secret meeting covered more ground in secret than is legal, the OMCB said, “a clear articulation beforehand of the reasons for closing a meeting may be useful to members of the public body who participate in the closed session, allowing them to limit their remarks to matters within the relevant exception.”
And the regents' response “does not say whether members were advised at the time which of the specific exceptions to the Act's open session requirements justified closing the meeting, or whether any guidance or parameters for the members' discussions were communicated.”
Considering that officials later told the press that closed sessions are always permitted for negotiations, contracts or “financial matters,” it appears unlikely they had any guidance.
The regents' one page of minutes for the two dates failed the test, said the OMCB, because “it fails to identify by name everyone who attended the closed session. ... The closed session summary of each meeting, for example, fails to name either President Loh or Athletic Director [Kevin] Anderson as 'persons present,' though they were key participants in one or both meetings.”
The Compliance Board wasn't impressed when the regents said the only minutes available for the two secret meetings were “meeting notes” published in early December. The notes did not even rise to the standard required for an adequate summary of the backroom confabs.
So unless a regent wants to go on record about the topics discussed, or someone happens to have a tape recording, the public and the Compliance Board are forever in the dark about what went on.
The OMCB wrote, “One purpose of the requirement to prepare and maintain closed-session minutes is to aid in the complaint process. With that in mind, we believe that closed-session minutes should, generally speaking, be sufficiently detailed to serve this purpose.”
It is difficult to shake the notion that Loh and Chancellor William Kirwan set out to accomplish one thing: keep the public in the dark about their Big Ten big deal and leave no records.
It's a sad reflection on leadership at the University System of Maryland, and UMCP. It's also unlikely to result in any consequences for anyone involved, unless a disgruntled alumnus goes to court.
A suit must be filed within 45 days; the plaintiff has to prove the lawbreaking was deliberate; and each regent might suffer, at most, a $100 fine.
On their part, the regents, through attorney Faulk, promise to be good in the future and correct their procedures.
But the OMCB said, “the revised procedures largely re-state the notice and closing procedures of the Act and include a proposal to provide a public call-in number for meetings held via conference call,” the OMCB wrote. “In our view, those procedures are consistent with the Act and the Board should follow them.” And also observed the steps are no more than the minimum the statute demands.
Kirwan and Loh were particularly adamant in the Nov. 19 televised news conference that everything had been aboveboard and legal.
Their Dec. 7 apology for forgetting to notify the public didn't help their situation. The 7,000-word argument flopped.
In the end, the regents issued a 114-word press release Feb. 27.
“The Maryland Open Meetings Compliance Board on Tuesday, February 26, 2013, issued an opinion that the University System of Maryland Board of Regents violated the Open Meetings Act with respect to two meetings. During these meetings (November 18 and 19, 2012), the board discussed issues related to the University of Maryland, College Park joining the Big Ten athletic conference.
“As the advisory opinion notes, the board consistently relied on advice from the Maryland Office of the Attorney General (OAG) to meet all legal requirements with regard to these meetings.
“With the guidance of the OAG, the board has revised its procedures to ensure transparency and compliance with all aspects of the Open Meetings Act.”