The Talbot County Charter states, “No business may be transacted…except in public session.” The 1977 Maryland Open Meetings Act (“OMA” or Act) similarly requires that “public bodies meet in open session” unless the Act expressly provides otherwise. The goal of the Act is to require “that public business be conducted openly…to ensure the accountability of government to the citizens.”
In February the County Council, led by President Corey Pack, refused to respond at all to inquiries about actions taken behind closed doors, insisting that information would be released only via a formal Public Information Act (“PIA”) request. When that request was filed, the Council then refused to release any of the key documents that would reveal what transpired—the ten emails and eight texts that are still being withheld—claiming executive privilege (which is discretionary) and refusing to explain (as required by law) why releasing those texts and emails would harm the public interest.
The handful of documents that were released, together with a cryptic list of materials being withheld, were nevertheless enough to reveal that the County Council had identified a specific policy question to resolve, had collectively deliberated on that topic via numerous text and email exchanges over 36 hours, and had voted on a policy decision—all without the public even knowing about it. (The decision was not unanimous, but we still do not know who voted which way.)
On that basis I filed a complaint with the Maryland Open Meetings Compliance Board (“OMCB”). In response, the County argued that, on the grounds of a number of technical issues, it had not “held a meeting,” and so, in effect, the public had no right to know how it had come to its decisions or who had voted in what manner.
On July 1, the OMCB found that the Talbot County Council “violated the Act when it did not provide the public with an opportunity to observe its deliberations on its position…” (The Board did not address the Charter violation, as it is not in their purview, but as the issues are the same, I believe that violation is confirmed as well.)
On Sunday, July 7, Mr. Pack replied with quite an extraordinary commentary published in both the Talbot Spy and Star Democrat. It seems he’s doubling down on a bet that people won’t try to follow what really happened, or don’t care.
Mr. Pack’s missive actually has some superficial appeal to common sense, if one were to accept his inaccurate representation of the issues and is unfamiliar with the back-story and the OMCB’s opinion. But let’s review some of his charges one-by-one.
First, Mr. Pack goes on the offensive, claiming that the County Council is the victim here. He said ““I believe the OMCB is using Talbot County in an attempt to further its own agenda. For the OMCB to use a made up violation of the Act to further its own political agenda is shameful.” (He did not use the words “witch hunt.”) In fact, the OMCB has no political agenda. It is composed of three independent attorneys experienced in governmental law and all appointed at different times by Governor Hogan.
One signer was formerly the city attorney of Annapolis and later the Anne Arundel County Attorney. Another is the current Anne Arundel County attorney who has practiced in that office for fifteen years. The Chair of the OMCB is the city attorney for the City of Havre de Grace. If anyone knows the practicalities and mores of local government as they relate to the need for transparency while getting business done efficiently, these three attorneys do. They analyzed the Talbot matter in a detailed 7-page opinion.
Secondly, Mr. Pack three times stated outright that all of the text and email communications central to the matter (and still secret) were between just two members. (“Discussions were not in the form of group email but in fact were one-on-one…” “For the OMCB to conclude that talking to each other one-on-one constitutes a meeting of the elected body is absolutely preposterous.” “To consider communications between two elected officials….”) This misinformation is of great importance, as the quorum for a “meeting” is three members. And in fact, as the County’s own list of withheld materials makes clear and as the OMCB opinion examines in detail, at least six communications were indeed “group emails” involving all five council members.
Third, Mr. Pack said, “Never has the Board communicated its intentions to consider electronic communications within its purview.” The OMCB opinion is replete with citations of prior discussions and warnings concerning use of emails in conducting public business, including the 1996 Opinion referred to by Mr. Pack which included this statement from the Attorney General: “To be sure, email could conceivably be the medium of exchange when a quorum of a public body has convened.” The matter is addressed in Open Meetings Act training sessions.
Forth, Mr. Pack stated his belief that “Citizens trust public officials to gather the best information they can when making decisions about [citizens’] welfare….” In my opinion, civic trust will be much better fostered when the Council releases the texts and emails which it proclaims (without explanation) cannot be shared because it would endanger the public interest; when informal inquiries yield straight answers; when citizens do not have to go through the PIA process (at some expense) to get information that should be readily available; when the council listens to all sides on important matters, rather than any single interest group; and when council elections are free of fabricated charges and fabricated spokesmen.
Fifth, Mr. Pack claimed, “In my 10 years on TCC there has never been a deliberate attempt to evade the OMA”…. “This council and councils before, understand the importance of an open and transparent elected body, and…have always taken steps to ensure we stayed in compliance with current law.”
I believe Mr. Pack would have us forget that on May 4, 2016 the OMCB sent to him— then as now, President of the Council—a notice of violation of the Act, a violation that could hardly have been inadvertent. This makes two in three years.
It should not be hard for the Talbot County Council to abide by the Maryland Open Meetings Act, and no one is trying to interfere with normal activity of government. The over-wrought claim that this recent opinion “will dramatically harm day-to-day operations across the State of Maryland” (“across the nation”!) and that it will “cripple elected bodies” is simply a diversion to avoid facing the actual violation at hand.
And since the secretive proceedings in February have been found to constitute a meeting, aren’t the text and email communications tantamount to the public discussion that would have played out at the front of the Bradley room? They should be released forthwith.
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.