Earlier I spoke before the Mayor & City Council (M&CC) of Ocean City to express my concerns that they had violated Maryland’s Open Meetings Act (Act).
I followed up with letters to the editor providing my concerns.
I noted that for 18 months, the M&CC and a committee of three council members met secretly in closed sessions dismantling the previous pier franchise ordinance, negotiating amendments and rewriting a new ordinance agreement, as well as drafting a resolution to establish how revenue from the new Agreement would be dedicated to the Boardwalk.
The public was kept totally in the dark about the new pier franchise agreement and resolution until they appeared on the town’s website just five days before first reading on Dec. 2, 2019.
For over 18 months, the M&CC kept this important matter with its significant financial implications from public view and scrutiny, violating the Open Meetings Act on multiple occasions.
I requested that the M&CC repeal the new pier franchise ordinance. Upon repeal, I wrote there should be an independent audit and appraisal to determine the true value of the franchise, and that any new agreement should be renegotiated and adopted in full public view.
My requests were ignored.
I then filed complaints with Maryland’s Open Meetings Compliance Board. Independent of me, another Ocean City resident also filed complaints.
The Compliance Board agreed with most of our allegations, as evidenced by their opinion dated June 3, 2020, titled 14 Official Opinions of the Compliance Board 49 (2020).
The Compliance Board found “…that the Council violated the Act over a period of time by secretly conducting public business that the Act required it to discuss publicly and by failing to disclose to the public either the fact of the discussions or the creation of a negotiating committee until after the Council had decided the terms of the franchise and ordinances.”
The Board noted that “The Council’s violations were not trivial.”
They further wrote that “…it appears that the combined effect of the closed-door discussions and lack of disclosures was to entirely deprive the public of any information about the Council’s meetings on the franchise matters until after the Council had decided them.”
The board reminded the council that they had provided similar guidance as early as 1995, as a result of earlier complaints about drafting an ordinance in a closed session.
In the interest of full disclosure, I served on the City Council when that opinion (1 OMCB Opinions 145 (1995), was rendered.
I participated in the closed sessions leading up to that earlier violation. While the board found a violation in 1995, they point out in this most recent matter, “Here, by contrast, the discussions were numerous, lengthy and far-reaching.”
Under the Open Meetings Act, there are 15 exceptions permitting a public body to go into closed session, such as considering acquisition of real property for public purpose, or consulting with counsel to obtain legal advice.
In their most recent opinion, the compliance board gave examples where the council indicated initially that they were going into closed session to seek legal advice and yet there were lengthy discussions about the pier franchise, but no legal advice was requested or sought.
The board wrote that “…the closed-session minutes show that the council’s closed-door discussions far exceeded the legal advice exception and, often, did not involve legal advice at all.”
The council used closed sessions to negotiate a sole-source, so-called “contractual” matter, clearly a violation of the act.
The board wrote that there is no exception to go into a closed session for “’negotiation issues’ as such.”
There was no competitive bidding involved in these eighteen months of secret meetings.
The board wrote “…we find no part of the Council’s closed-door discussions about the pier franchise fell within the procurement exception.”
But, even more notable is when they added, “Thus, except to the extent that parts of the Council’s closed-door discussions about the pier franchise might have fallen within the legal advice exception, the Council violated the Act at every closed meeting at which it discussed the pier franchise.”
Quite revealing is the fact the compliance board found violations of Sections 3-305(d) and 3-306(c) of the Act to be “…numerous and substantial.”
While the non-quorum, three-council member committee or “work group” that led the negotiation discussions in behalf of the full council may not be a “public body” as such, the board cautioned that appellate courts in Maryland “…have to some extent promoted function over form in determining whether an entity is a ‘public body’ under the Act.”
The board further wrote “…the structuring of an entity to exclude it from the Act’s definition of ‘public body’ does not always mean that the entity or event is immune from the Act’s open meeting requirement; the courts have also considered the facts on issues such as the actual function played by the entity or the conduct of business by fewer than a quorum as an evasive device…”
The board added, ”The Council failed to disclose even the existence of the work group, which was created during a closed session. Given that secrecy, a member of the public could understandably conclude,…that the Council created or used this work group as a device to avoid public discussion of the business at hand…”
The board further wrote, “Our guidance is this: A public body’s secret creation of committees to address public business that is subject to the Act, coupled with the public body’s secret consideration of that business, at the very least goes against the stated policy of the Act to increase the public’s faith in government.”
The Open Meetings Compliance Board wrote an extended “Conclusion.”
However, it can be summed up by their leading statement: “For approximately eighteen months, the Council excluded the public from meetings that the public was entitled to observe and withheld from the public information that the public was entitled to have.”
Thus, a victory for transparency in local government!
Vincent dePaul Gisriel Jr.