All of us humans–youngsters and adults alike–have on occasion “done something wrong,” rarely intentionally, often just unthinkingly. Then suddenly we realize with a jolt that we erred, and, worse, we may be found out. What to do, what to do? Deny it? Hide it? Hope no one notices, and it just blows over? Or simply step up, take responsibility and set the matter right.
As described in prior columns, it’s pretty clear–though not yet proven–that in late February the County Council violated the County Charter by conducting public business behind closed doors. Like a penny-ante Watergate burglary, the original topic (certain letters) was of modest consequence and has since become moot. But the five-person Council’s reaction to having its misstep called out reveals a great deal about this Council and its leadership.
(In this matter, “the Council” manifests itself exclusively through the County Attorney, Mr. Kupersmith, who is the sole spokesperson and point of contact on this issue. Without doubt he is not acting independently, but works to some degree at the direction of “his client” – although just who that is very ambiguous.)
The County Council does not deny that it violated the Charter requirement that public business only be handled in public. Neither has it been willing to confirm that fact. Messrs.’ Pack and Kupersmith simply refused to respond to the original letter of inquiry and tell the citizens of Talbot County what happened here. Instead, they forced a formal PIA request and are now misusing inapplicable exceptions to disclosure requirements of the Maryland Public Information Act (“PIA”) as an excuse for not coming clean.
The Preface to the PIA begins thus: “The Maryland Public Information Act is based on the enduring principle that public knowledge of government activities is critical to the functioning of a democratic society….” But the Talbot County Council is trying to withhold the dispositive information (seventeen text and email messages sent within 24-hours) based on a provision of the PIA whereby the custodian (Mr. Kupersmith) “may deny the right of inspection…but only if disclosure would be contrary to ‘the public interest’.” [Emphasis in original PIA Manual, p. 3-27.] In other words, withholding the information is discretionary, and it is impermissible unless the public’s interests will be harmed.
How can it be contrary to the public interest for the County Council to withhold from the voters and citizens of Talbot County knowledge of what those emails and texts said? They were the basis of a secret vote-–indeed, they probably expressed the voting–that resulted in official County action, when what the Charter required was a public meeting. Who really decided to withhold this information from us? Certainly not Mr. Kupersmith acting alone. Was a decision deferred to Mr. Pack? Was the decision made by an actual vote of the Council—and if so, was it again a 3-2 vote? And is the difficulty being compounded, since discussions about disclosure are themselves happening in the dark?
The only other rationale Mr. Kupersmith asserts for withholding the emails and texts is “executive privilege,” something Donald Trump did not invoke in the Mueller investigation. The “executives” who have determined they must withhold this information, must keep it secret are our five Council Members, not Mr. Kupersmith. The Council is perfectly entitled to waive any such privilege (that is, assuming it really pertains, which is doubtful) if they are willing to let voters and citizens know what’s going on.
Fortunately, there is a PIA Ombudsman to whom a complaint is being submitted; he or she can provide an independent assessment of whether or not secrecy should prevail here. (It may be awhile until we hear any result however, and the Ombudsman’s conclusions are only advisory, and not legally enforceable.)
Finally, the State of Maryland also has an Open Meetings Act (“OMA”) designed to ensure “that public business be conducted openly.” However, I am pretty sure the County Council expects to sidestep this worry on a technicality: as the OMA Manual explains, “the Act only applies when a public body ‘meets.’ The Act does not govern whether a particular public body must conduct public business in a meeting.” In our case, it appears the County Council never had any sort of meeting, and all of the public’s business was handled in secret through the seventeen text and email messages exchanged within a 24-hour period—so, voila, no problem with the OMA!
(However, there is an Open Meetings Compliance Board to whom this matter is being referred also. Why? Because there are several references in the OMA Manual and Compliance Board opinions suggesting that the prior standard (dating back to 1996) could be open to reconsideration in light of changing technology. (One opinion states that the “result would be different” if the members were able to “use e-mail for ‘real time’ simultaneous interchange.” And “Under the functional approach taken by the Court in ______, an online discussion in which a quorum of the public body participates on a near-simultaneous basis might well be deemed to meet this element of the ‘meeting” test’.”) So, we’ll see if the Open Meetings Compliance Board believes now is a good time for a change in policy given how the Talbot County Council evaded both the Open Meetings Act and the requirements of our County Charter.)
Dan Watson is the former chair of Bipartisan Coalition For New Council Leadership and has lived in Talbot County for the last twenty-five years.
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