CHESTERTOWN - After they broke the law in two November meetings, the University of Maryland Board of Regents faced a pair of complaints to the Open Meetings Compliance Board. In a Jan. 22 letter, the university system responded.
Their two unannounced meetings were right in the middle of the controversial Big Ten conference switch. The administrators didn't notify the public of Nov. 18 and 19 secret confabs.
At first, they denied any obligation to hold public meetings in a news release Nov. 21: “We sincerely regret that the need to deliberate and consider endorsement of the application to move to the Big Ten within a given timeframe has led some to believe that the USM Board may have violated the process by which public boards are allowed to convene in closed session. The board takes its public responsibility seriously and, in continued consultation with the Office of the Attorney General, is vigilant of its processes and procedures.”
In a Dec. 7 press release, College Park President Wallace Loh and Chancellor William Kirwan admitted wrongdoing: “The board and USM officials acknowledge and sincerely regret that the public notice and closing procedures required by the Maryland Open Meetings Act were not followed with regard to the two sessions.”
They said the public wasn't going to hear anything more because Open Meetings Act complaints had been filed. But they also insisted there were no other violations, and the regents have been silent since Dec. 7.
The 24-page letter tries to back up the claim. It addressed complaints by Pikesville resident Ralph Jaffe and the Kent County News.
The regents did not respond themselves, but through Assistant Attorney General Thomas Faulk.
In the letter, he promises they will be good from now on: “Despite the fact that the meetings involved matters which the Open Meetings Act permits to be discussed in closed session, and despite the fact that the public was fully and timely informed of what transpired at those meetings, the Board is committed to scrupulously adhering to the Act's requirements” in the future.
On Nov. 18, the regents debated joining the Big Ten Conference, according to the letter: “The Regents had many questions for President Loh, and they had a good, robust discussion about the UMD/Big Ten Contract.”
Then on Nov. 19, they were asked to “endorse” the Terps' jump. But they did not hold a “vote” on whether to join the conference. They just “endorsed” – the regents' word – a contract Loh had already signed.
Throughout the letter, Faulk referred to actions cleared with the attorney general's office or the regents' counsel. He is their counsel. References to the “attorney general's office” do not mean Doug Gansler, Maryland's Attorney General, or Gansler's staff, but Faulk or perhaps a colleague also working for the regents.
Faulk was at both meetings. He either missed the obvious or was giving advice at variance with the Open Meetings Act and the many opinions issued by the Open Meetings Compliance Board in the past 22 years.
In the days leading up to the two meetings, he gave the regents the advice on whether or not to tell the public they planned to meet, as far as can be determined from the few documents that the regents have made available.
An Illegal Vote?
Jaffe is a retired teacher who has been a Democratic write-in U.S. Senate candidate. He heard of the two secret meetings through news reports and penned a short letter of complaint almost immediately afterward.
He wrote, “the recent vote ... to approve the University of Maryland switching its athletic conference membership from the ACC to the Big Ten Conference was done illegally.” He asked the OMCB to “require the University of Maryland Board of Regents to conduct the vote again in open session.”
According to Faulk, Jaffe is wrong. The regents did not have to vote to approve the conference change. Instead, he said, policies allowed Loh to decide and sign contracts on his own.
Loh and Kirwan set up a conference call late Sunday, Nov. 18. At this meeting, the regents talked about “the economics of the UMD/Big Ten Contract and potential exit fee that UMD might have to pay ... (and) the prospective possible uses of funds received from the Big Ten.”
When did Loh sign the Big Ten dotted line? The letter doesn't say, only that it was “prior to the Board's meeting on November 19 ....”
Maybe he signed before the Sunday meeting started; perhaps sometime Sunday evening in an undisclosed location. Whichever, the deal got sealed before the Monday meeting.
Thus, Faulk says, the early-morning secret meeting Nov. 19 made no difference. All the regents did was “endorse” what Loh had done. And, more: even if a contract endorsement “were considered a vote (which it was not), that action had no legal effect.”
The letter goes on to explain in great detail how UM system presidents can enter into contracts. Faulk cites various bits of statute, bylaws and so on.
But if Loh already signed, there would be little point in hiding from the press and public Nov. 19. It does not explain why they had a second meeting out of public sight, what the topics were - or why, in fact, secret meetings were necessary at all.
And finally, Faulk also asserts, in summary, the “Board activities were proper for a closed session.”
He lists four or five of the 14 exceptions found in the statute, claiming that they could, or might, have been appropriate to cite when the two secret meetings happened.
Unfortunately, none of these were mentioned in an open session on either day. Nothing to justify the closed sessions was put in writing at the time. This legal mandate is clearly stated in the Open Meetings Act.
A formal opinion from the three-member Compliance Board is expected by March 1.
(Part II will examine the regents' response to specific allegations by the Kent County News.)