People who know me, realize that I seldom write a Letter to the Editor, in fact in the last 10 plus years on the Talbot County Council, I probably have submitted maybe one. This is because I believed that most issues would be worked out over the course of time or the topic just didn’t warrant a written reply. But recently, the Talbot County Council received an opinion from the Open Meetings Compliance Board (OMCB/the Board) that has such far reaching implications as to how elected officials can communicate with one another, that I simply cannot stay quiet. The Board’s over-reaching decision will “dramatically” harm the day to day operation of local governments across the State of Maryland. No one is objecting to transparency in government, but the question is at what expense to impede the legitimate operation of local governments?
The question arose with the OMCB about whether emails between elected officials in Talbot County constituted “a meeting” where a quorum of the Talbot County Council participated. Members of the Talbot County Council over the course of two days had contacted each other to discuss a matter pending before the Maryland General Assembly. Those discussions were not in the form of a “group” email, but in fact were one on one, just as if the members had met over a cup of coffee. This is a practice which has happened countless times over the lifetime of the Talbot County Council and indeed happens every day throughout the State of Maryland and across the nation. For the OMCB to conclude that elected officials talking to each other “one on one” constitutes a meeting of the elected body is absolutely preposterous!
Elected officials must have the freedom to speak to each other to flush out ideas and gather a better understanding of each member’s position. Since the creation of sub-categories of government – counties, cities and towns – it has been an understood practice to have independent deliberations of those elected officials. I can’t believe when the General Assembly created the Open Meetings Compliance Board, it could have imagined that the Board would be so far reaching as to consider communications between two elected officials as constituting a meeting of the elected body.
In fact, in 2016 during its annual meeting, the Board discussed whether the Open Meetings Act should be amended by the General Assembly to address electronic communications. But instead of taking the matter before the proper authority, the OMCB chair “suggested” to the members of the Board that “the Board may discern whether the public body is using email as a means of conducting business and interpret the Act accordingly.”
Open Meetings training has been presented at State and Municipal conventions for elected officials since this 2016 Board decision, but never has the Board communicated its intentions to consider electronic communications within its purview. Nor has the Board ever sought direction from the General Assembly as to whether the “suggestion” of the Board chair was in fact correct. I believe that the OMCB is using Talbot County in an attempt to further their own agenda to prevent the use of electronic communication by local elected officials. For the OMCB to use a made-up violation of the Act to further its own political agenda is shameful. If members felt so strongly about the use of electronic communication, then they should have gone to the General Assembly for a change in the law, as they started to do in 2016. In fact, in a 1996 Opinion of the Attorney General, it was ruled that the exchange of emails between members of a planning commission spanning over two days, were not simultaneous communication and thus not considered to be a meeting.
In the Board’s most recent letter to the Talbot County Council, it did not stop with redefining a meeting and a quorum. The Board went further to state that a public body cannot assert its administrative function when independently discussing whether to give an opinion on matters before the General Assembly. This means that whenever a Council member picks up the phone to call one another to get their opinions on a piece of legislation, they must first announce that they are calling the other members of the Council and then invite them to listen in on the call. I think telephone party lines went out of style in the 1950s. The Board went further with its conclusions, stating that communications spanning over a 24-hour period constituted “near-simultaneous electronic discussions, among a quorum.”
A decision of this kind will nearly cripple most elected bodies and will severely limit the free exchange of ideas and deliberations between members. Citizens trust public officials to gather the best information they can when making decisions about their welfare, whether this information is gathered in a public setting like a meeting, or with the public official talking with his or her colleagues to better understand an issue. Conducting business today is based on the convenience of the technologies available to us.
The Talbot County Council has taken every precaution to make sure it is in compliance with the Open Meeting rules and procedures. The Council has already made adjustments to the announcement of its Closed Session agenda items to stay in compliance of the Act. The Council prepares signed Statements for Closing the Meeting of each Closed Session in accordance with the Open Meeting Act and as Council President, I assure that only those items stated on the Closed Session agenda are discussed. As required, the Council gives notice of their Closed Sessions and welcomes a member of the local press to sit in on the beginning of the Closed Session vote, to hear openly the items on the agenda to be discussed. The Council has also included a brief summary of the Closed Session deliberations at the end of the Open (public) Session minutes. In my 10 plus years as a member of the Talbot County Council, there has never been a deliberate attempt to evade the Open Meetings Act or to deceive the public trust. This Council, and Councils before, understand the importance of an open and transparent elected body and working with County staff have always taken steps to ensure we stayed in compliance with current law.
This decision by the OMCB will not just negatively affect Talbot County, but every county and municipal body in the State of Maryland – we all will suffer from this gross over-reach. Clearly, this issue warrants further examination by the OMCB and the Maryland General Assembly if elected officials in our towns, cities and counties are to be able to do their jobs in an efficient manner.