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Regents gambling with Open Meetings? - MyEasternShoreMD: Kent County News

Regents gambling with Open Meetings?

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Posted: Wednesday, January 2, 2013 11:28 am

ANNAPOLIS - The two secret mid-November meetings concerning the Terps' move to the Big Ten set up loud protests from a segment of their very loyal fan base. People felt they had been left out of the decision.

But the University System of Maryland regents also brought Maryland's Open Meetings Act to the attention of many, many people who never knew it existed.

Remarkably, ongoing press reports about meetings held without public notice led the regents to apologize on Dec. 7 for violating the law.

In a news release, they admitted they did not give any public notice of either meeting, and they did not follow the statutory procedure for closing the meetings to the public: “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.”

By then, Pikesville resident Ralph Jaffe already had filed with the Open Meetings Compliance Board, alleging the Nov. 18 and 19 sessions were illegal.

Jaffe ran as a write-in Democrat for Senate in the last election and write-in for governor in 2010, espousing government transparency. He wrote:

“Members of the Open Meetings Compliance Board –

“I believe that 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.

“In my opinion this is a violation of the Maryland Open Meetings Act. I am therefore asking you to enforce the aforementioned act and require the University of Maryland Board of Regents to conduct the vote again in open session.”

The UM regents had until the end of December to reply to the compliance board about Jaffe's contentions.

Meanwhile, it appears the regents also have violated the law's requirement for adequate minutes.

Beyond the missing notice and a vote conducted in secret, one very important statutory requirement for any meeting, open or closed, is the minutes.

Any closed session must be summarized for the public, and certain information must be included. If that's missing, the Open Meetings Act has been violated.

On Dec. 3, the regents posted a set of “draft meeting notes” from November on the Web as part of the agenda for a Dec. 7 board meeting.

These summaries of the secret meetings take up less than a page.

The first was conducted Sunday by conference call.

“The Board held a Special Meeting on November 18, 2012 in Executive Session via conference call at 4:30 p.m.

“Those on the call were: Chairman Shea, Regents Attman, Florestano, Gooden, Hance, Hershkowitz, Johnson, Kelly, Kinkopf, McMillen, Michaux Gonzales, Gossett, and Young; Chancellor Kirwan, Vice Chancellors Raley and Vivona; Ms. Doyle; other USM office and institutional staff and Assistant Attorney General Thomas Faulk.

“Chairman Shea noted that the meeting was in closed session and the regents were advised by Assistant Attorney General Faulk regarding the confidentiality and other legal issues pertaining to the closed session.

“The regents were briefed on the proposal for UMCP to move from the ACC to the Big Ten.

“The regents were briefed on the status of an ICA review for Towson State University.”

On the next day:

“The Board held a Special Meeting on November 19, 2012 in Executive Session at 8:30 a.m. The meeting was held at UMB, Saratoga Building, 220 Arch Street, Baltimore, in the 14th floor conference room.

“Regents participated in the meeting via conference call and in person. The regents continued the discussion from November 18 on the details of the Big Ten proposal to UMCP to join the league.

“The regents were provided with additional detail regarding the proposal for the UMCP move from the ACC to the Big Ten. After discussion, thirteen regents endorsed the UMCP application to the Big Ten; one regent did not endorse the application.

“The meeting adjourned at 10:30 a.m.”

Participants were Sunday's regents, plus another, Reid; Shea, Kirwan, Doyle and Faulk; Associate Vice Chancellor Moultrie was there while Raley and Vivona were not; and the “other USM office and institutional staff.”

After obtaining the minutes, the Kent County News sent a followup written complaint Dec. 5. It alleged items were insufficiently detailed or missing entirely from what the regents called their “meeting notes.” Under the law, these are minutes, no matter what title is on the piece of paper.

•The summary has to record the vote to hold a closed session. The minutes fail to record a motion and vote to close the meeting, and report who voted how.

Rather, Chairman Shea simply declared “the meeting is closed.” It is illegal for a meeting to be called as a closed session with no public notice. (Apparently, this was done in advance in an email to the regents in the days preceding the meeting. However, Moultrie and Faulk have never supplied a copy of the email despite multiple requests starting Nov. 21.)

•There is no specific statutory citation for each closed session topic, which the law requires.

For example, they can't simply say “closed to discuss legal advice.” They must also reference the specific exception in the law. “Legal advice” is 10-508(a)7, for example.

•The topics were “UMCP to move from the ACC to the Big Ten” and an “ICA review for Towson State University.”

A topic must be meaningful, not jargon or boilerplate, in order to satisfy the Open Meetings Act. The general public has no idea what an “ICA review” is. And “move to the Big Ten” is too vague. There would have been specific topics associated with the move, such as “terminating contract with the ACC.”

•The summary must supply a reason for barring the public for each particular subject. The minutes fail to give any reason for keeping the public out of earshot of debate on either topic.

•All people attending the closed session must be specifically identified.

The minutes fail here. The boilerplate “other USM office and institutional staff” does not fulfill the legal requirement.

Minutes that are so sketchy tend to raise questions. So there is the question of whether officials from the Big Ten were included on the phone calls and simply left off the minutes.

•Who voted how is to be recorded. A mere “thirteen regents endorsed the UMCP application to the Big Ten; one regent did not endorse the application” does not provide the legally necessary information on the motion and vote.

•Any action in the closed session has to be identified. What action, if any, was taken at the Sunday meeting? The regents say none, but one is missing: the adjournment motion and vote.

Nobody knows from the summary when the Sunday meeting was adjourned, who moved to adjourn, and who voted how.

•The regents could not legally “continue” their meeting to an unannounced future time.

Sunday's confab had to be adjourned, because closed sessions cannot be “continued” to another day. (They can sometimes be continued until later in the day at the same uninterrupted meeting, but that is not the case here.)

For Monday, the regents clearly state: “The regents continued the discussion from November 18 on the details of the Big Ten proposal to UMCP to join the league.”

So this too was an illegally held meeting. To be legal, this second meeting requires separate meeting notice; convening in open session; and a properly handled vote to close the session to the public.

News reporters were fooled on Nov. 19 because there was no public notice. After all, by Sunday night, word had leaked out about the Big Ten discussion.

As explained by reporter Jenna Johnson of the Washington Post, “On Monday morning starting at 9 a.m., ... reporters staked out the site of a (previously announced) education committee meeting at the student center at the University of Baltimore. ... We had been led to believe by senior officials that the campus would be the location for a regents meeting to discuss the high-stakes athletic move. ... But it turned out that the regents met elsewhere. ... Shortly after 11 a.m., regent Patricia Florestano arrived in Baltimore for the committee meeting and told reporters that she had just driven from 'a full board meeting' ....”

Years ago, Chestertown's mayor and council “continued” a closed session, were caught, and in Opinion 5 OMCB 184, the Open Meetings Compliance Board ruled that every closed session must begin with public notice and an open meeting. That did not happen here.

Instead, an unannounced board meeting on Arch Street just before the scheduled committee meeting at the Student Center on Mt. Royal Avenue looks like deliberately trying to avoid the press and public.

What's more, the very idea that this was an “emergency” does not seem to hold up. The committee meeting announcement, a news release dated Nov. 14, listed a start time of 9:30 a.m.

Two days later the regents' press office announced, “The start time for the Monday, November 19 public session of the ... Board of Regents Committee on Education Policy has been changed. The meeting will begin at 10:30 am.”

No reason for the time change was supplied.

The regents' response to the complaint is due this month.

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