CHESTERTOWN — With about 75 separate and distinct Open Meetings Act violations in less than three years, the Maryland Health Benefit Exchange Board of Trustees probably holds the statewide record. The Washington Post reported May 21 it’s something of a laughing matter to them.
The MHBE is a public corporation, separate from state government — but controlled by governor’s office staff and Gov. Martin O’Malley appointees. Since 2011, it has been responsible for creating Maryland’s health insurance website.
That has been a costly failure estimated at $161 million or more. Formal state and federal audits are not expected to be complete until 2015.
This spring, the MHBE fired the original website contractors and hired consulting firm Deloitte to adapt Connecticut’s health insurance software.
The new website must be working by Nov. 15.
The Kent County News began looking at the board’s meeting documents in late 2013, then filed a complaint in March with the Open Meetings Compliance Board. It became apparent that many required documents were missing entirely.
Beginning with their first meetings in mid-2011, Chairman Joshua Sharfstein and the MHBE trustees racked up an impressive number of violations of just two sections of the Open Meetings Act.
And the total grows if botched public notice is added.
The Kent County News alleged the MHBE did not prepare the mandatory public, written closing statements for many of its meetings.
Also, the board failed to give the public the required written summary of each closed meeting it held.
Then, when it placed three documents with summary information on its website, the summaries were not sufficient to meet legal requirements, the newspaper has alleged.
Because of the large number of meetings involved, the compliance board divided its review into two parts. An opinion has not yet been issued for the second.
The agency’s April 25 response letter to the compliance board was signed by Sharfstein and Assistant Attorney General Kristine Hoffman. It denied violating the Act.
The OMCB did not agree.
It examined six categories of possible violations. In a 13-page opinion published May 9, the review board concluded the MHBE violated the law in four of them.
Sharfstein, through the MHBE press office, declined to be interviewed for this article. Media contact Alison Walker emailed, “we will let our response to the complaints speak for itself.”
In comments caught on tape at the MHBE May 20 meeting, Sharfstein reviewed the opinion. The law requires a public discussion whenever an Open Meetings Act violation is found.
He minimized the seriousness of the failures.
Sharfstein told the board members “the board has a very strong record of transparency and public engagement ... this board does a terrific job of public engagement, it really in many ways serves as a model.”
Sharfstein seems to confuse quantity of meetings with quality of disclosure; in fact, very little has been revealed to the media or public about dozens of contracts the MHBE board has approved between mid-2011 and June 2014.
According to Post reporter Jenna Johnson, on May 20 the MHBE didn’t appear very serious about the public’s right to observe and understand public business.
Johnson wrote May 21 about the board’s handling of a closed session:
“‘I have a very specific thing in here to read before we go,’ Sharfstein said dramatically, prompting laughter from board members and exchange officials. He said the board needed to meet privately to hear legal advice regarding real estate and the procurement of services to assist with the Web site’s replacement, among other things.
“‘Is that good?’ Sharfstein asked L. Kristine Hoffman, an assistant attorney general who advises the board. She told him to cite the part of the law that allows such a meeting.”
Retired audit professional Charlie Hayward has written on the exchange’s problems for news website Maryland Reporter.
He said in a May 22 email, “The [Post] story had a bitter end when it covered what I interpreted to be palpable sarcasm from Sharfstein and the board counsel. The hubris of these people is remarkable.” Hayward added, “It may have been irony rather than sarcasm, in which case ‘hubris’ would not be correct.”
The two areas where most violations occurred involve documenting the purpose of closed sessions, and later summarizing the topics discussed and actions taken.
Every closed meeting must be have its own “closing statement” prepared in public immediately before any closed-door discussion.
Of 49 closed meetings held between June 2011 and April 2014, there were 27 where no statements exist. That is a 55 percent failure rate.
Of statements that were found, they were often blank, or nearly so.
Every closed meeting also must be summarized, in regular minutes, so the public can understand what went on and whether anything was decided, approved or voted on.
Of 49 meetings, one summary met statutory requirements. The board failed to follow the law nearly 98 percent of the time.
Each time the MHBE left out a summary, the public was kept in the dark about why money was spent and who it was going to.
Beyond the dozens of individual violations in just two categories, the OMCB identified specific recent incidents of breaking the law.
During Feb. 23 and March 7, 2014 board meetings, there were closed sessions.
The earlier meeting was held on a Sunday night. For Feb. 23, the board posted meeting notice on its website on Saturday afternoon, Feb. 22 for the “emergency” meeting. The “board’s use of its website as the sole way of publishing a meeting” was not legally sufficient, the OMCB wrote.
“Only by happenstance would a reporter or other person interested in the Board’s meetings check the MHBE website on a Saturday evening to see whether the Board would be meeting that Sunday,” wrote the OMCB. “Last minute meetings require the public body to make extra efforts to get the word out to the press, and ideally to the members of the public, who follow its activities.”
That wasn’t the only failure that day.
The “Board was also required to notify the public that it intended to close every part of the meeting except the vote on a motion to convene behind closed doors. ... the notice was inadequate.”
While there is a written statement for closing on Feb. 23, the MHBE “did not state its reason for excluding the public from its discussion.”
At the Sunday night meeting, the MHBE voted to fire website contractor Noridian. The vote was held in secret.
The compliance board explained that the law is not entirely clear, but that voting in secret while claiming to have met for “legal advice” is on shaky ground. “A public body may receive legal advice in a closed session but then must act on that advice in an open meeting unless another exception or law provides that the decision itself may be kept confidential,” the OMCB said.
The MHBE’s March 7 documentation fell short. The “closing statement also omits the reason ... the public is entitled to be told why the discussion must be conducted behind closed doors. We find that the Board also violated the Act in this regard.”
The OMCB also examined a Dec. 6 meeting, called to discuss then-executive director Rebecca Pearce’s resignation email. It may or may not have been exempt from the Open Meetings Act.
The compliance board called it “a regrettable difficulty” in the statute’s definition of an “administrative function.” The Dec. 6 meeting did not necessarily have to be called or publicized as an open meeting.
Since the statute is unclear, the compliance board wrote, an employee evaluation or resignation could be either administrative or a personnel matter covered by the Open Meetings Act, so there was no meeting violation.