CHESTERTOWN - Since the Internet was abuzz with rumors of the Terps moving to the Big Ten Conference, the University of Maryland regents didn't have to notify the public about meetings.
That's their position, outlined in a Jan. 22 letter to the Open Meetings Compliance Board.
It could be called “the Twitter Defense.”
After reading the argument by the regents' attorneys, Frank LoMonte, executive director of the Student Press Law Center in Arlington, Va., took a different view.
“To say that it's not a violation of the Open Meetings Act because the media managed to get information from other sources is like saying it's not robbery if I take your wallet because you've got more money in your savings account. What the Regents did was slam-dunk illegal and even they've realized they have no legitimate defense,” he wrote.
LoMonte's Feb. 5 email continued, “Maryland entered into a confidentiality agreement with the Big Ten on October 2 [and that] completely demolishes the excuse that this meeting [on Nov. 18] was a time-sensitive emergency."
The move to the Big Ten was orchestrated by College Park President Wallace Loh and UM System Chancellor William Kirwan, with the Board of Regents involved at the very last moment.
"Any emergency was a creation of the Big Ten and of Maryland. They had two months to engage in secret back-room negotiations, and anytime during that two months they could have properly announced a public meeting and briefed the public. If the Big Ten was insisting that Maryland break the law as a condition of joining the conference, then that's a club that Maryland should want no part of joining,” said LoMonte.
Washington Post reporter Jenna Johnson also is tracking the regents' actions. She obtained the October nondisclosure agreement between Loh and the Big Ten. She sent the Public Information Act request in November; it was emailed to her at the end of January, and put on her Campus Overload blog Feb. 4.
It says, in part: “Unless required by law ... neither the Conference nor Maryland shall ... disclose to any person that (a) the conference or Maryland are or may be contemplating this Transaction with each other or any other person or (b) any of the terms ....”
Since the Open Meetings Act requires public discussion of public business unless it fits into one of 14 fairly narrow, fairly strict categories, it is obvious the agreement does not and cannot control how the regents behave when conducting a meeting.
Even if the regents could fit their meetings into one of the categories, a certain amount of disclosure in public immediately before a closed meeting is required by law, too.
Notified by the Net?
In its complaint, the Kent County News alleged specific violations of notice, lack of required written closing statements, and minutes without legally required information.
Assistant Attorney General Thomas Faulk's letter devotes many pages to saying there really was notice.
On Nov. 15 the regents were told, he wrote, “that negotiations with the Big Ten were taking place ... And if a proposal developed over the weekend, an executive session to update the Board would be held” on Monday, Nov. 19.
Faulk claims rumors on the Internet and in “the press” made an earlier meeting necessary: “The Board's leadership decided to utilize the opportunity of a pre-existing meeting of the Board's intercollegiate athletics working group, which had been set for Sunday afternoon,” or Nov. 18.
For technical reasons, this athletic working group is not required to give public notice, so no one outside university administrators knew of it.
Faulk was “copied on the communications expanding that meeting to include the full Board.” He told the regents the public did not have to know about it: “The fact that the Board would meet in closed session on this particular day was also vetted and approved by the Attorney General's Office.”
Faulk then included dozens of quotes from newspaper and online news reports – it seems word was leaking out despite the secrecy. He said that made it imperative to come up with different meeting times and locations late on Nov. 18, Sunday night.
“Attorney General Faulk was consulted ... in response to inquiries from USM staff, he approved the logistics” of not only having, but changing the Nov. 19 meeting without notifying the public.
Then, he uses the Twitter Defense: the Internet makes public notice unnecessary.
The “exigent circumstances” of the deal “did not stop the press from learning in advance” about planned meetings “or from learning in near-real-time what occurred.”
As a result of the Internet rumor mill, Faulk argues, “Notice of the November 18 and 19 meetings, therefore, in fact occurred.”
Based on past Opinions, the Compliance Board won't buy that.
The response claims, since there were rumors, some reporters somewhere already knew when and where the meetings were and what was going on. Perhaps through those timely tweets from regents.
So, the reasoning goes, some unidentified “public” was notified on sports blogs. How? Someone getting leaked insider info.
Yes, the rumor mill, blogs and sports cable channels were the way the regents let the public know they planned to have a couple very quiet meetings, thus saving the public money on the time it takes to make up and post legally sufficient meeting notice. His argument comes very close to saying only silly, uninformed reporters dashed from place to place trying to figure out where the regents were meeting and why.
By this logic, if Loh told his wife he had to go to a meeting, it counts as “public notice.” You know, she might tell a neighbor. Or text them, after all.
A Contingent Contract
A recent email from the College Park press office throws doubt on Faulk's argument, reported last week, that the regents weren't required to take a vote. So a contract wasn't really being approved Nov. 19.
When Loh signed the contract there was a contingency attached.
Brian Ullmann, communications office assistant vice president, wrote in a Feb. 18 email, “The contract was signed Sunday evening, contingent upon two things: Endorsement by the Board of Regents and approval by the Presidents of the Big Ten. Both of those things happened on Monday morning.”
No endorsement, no contract, no Big Ten Terps.
Faulk said Loh signed “prior to the Board's meeting on November 19 ....” and so the second early-morning secret meeting made no practical difference. All the regents did was “endorse” Loh.
And, even if endorsement “were considered a vote (which it was not), that action had no legal effect.”
It appears Faulk is hewing very close to a literal, legalistic interpretation of the word “vote.” The response goes on at great length about Loh's ability to sign contracts on his own. It is absolutely silent on the contract approval being “contingent.”
It is quite possible Loh, Kirwan or the regents avoided a “vote” precisely because they thought it conflicted with the Open Meetings Act. Of course, since it was a secret meeting, only they know.
But “action” by a body is not limited to a formal motion and vote. The intention to “vote” does not define a public meeting. The Compliance Board has said so many times. So “endorsement” was final approval, it seems.
Faulk has help on the response. Either the regents or UMCP hired law firm DLA Piper. By number of attorneys, it is the world's largest law firm, and its aid does not come cheap. The Kent County News sent a Public Information Act request Jan. 29 asking for bills for DLA Piper's work; it had not been acknowledged as of Feb. 19. Nor has the newspaper received the signed, dated signature page of the contract Loh signed Nov. 18.
For Part One, see "No Vote."