Information policy under scrutiny CA can refuse 'problematic' requests

'This is not phrased well'

Potential cited for misuse of 2-year-old rule

April 07, 1996|By Dan Morse | Dan Morse,SUN STAFF

Consider the following scenario: A member of the U.S. Congress asks a federal agency for some records. A bureaucrat there labels the request "problematic" and kicks it back to Congress, where the membership votes that the curious congressman cannot see the records.

Sound like tough -- possibly illegal -- conditions for the minority?

That's been a policy in place for two years at the Columbia Council, the 10-member elected body that governs the Columbia Association (CA), the huge homeowners association that collects liens from Columbia residents and spends $36 million annually to manage parkland and recreational facilities in the 82,000-resident planned community.

Under the policy, CA staff can refuse to provide a council member with information if they deem the request "problematic." The request then would go back to the full council, where it could be squashed by a two-thirds council majority.

CA officials and some Columbia Council members say it's a practical policy that's never been used to withhold useful information. But national and state experts say it may violate Maryland's open records laws for homeowners associations. And local critics say it's another example of how CA controls its own board of directors, the council.

"Give me a break. Sorry, it doesn't pass the giggle test," said Ellen Hirsch -deHaan, a Florida attorney who represents homeowners associations and serves on the executive committee of the Community Associations Institute, a national trade group for homeowners associations. "The actual policy violates state law."

Michael Mannes, a Baltimore attorney who has represented homeowners associations for 21 years in Maryland, said the policy itself may be legal but could be misused. "Are you asking me as an attorney would I rewrite this?" he asked. "I would say yes."

Lawrence Holzman, a spokesman for the Maryland Homeowners Association, a statewide group that represents individual homeowners, said of the policy: "That's twisted, to say the least. Someone who is on the outs, anything he or she asks for is problematic, because he or she is a troublemaker."

That's the fear of Chuck Rees, a former member of the Columbia Council and a spokesman for the Columbia Municipal League, a group that wants to incorporate Columbia and replace CA with a city government. The policy can enable CA staff -- working with a majority of Columbia Council members -- to stifle dissenting council members, he said.

Mr. Rees said a request he made as a council member -- a request for several years worth of salary records -- led to the policy. "It bothered me a lot," he said of the policy. "I felt like I'd been squelched on a lot of occasions."

The council policy -- labeled its "Information Requests Procedures" -- was the basis last month for a controversial proposal to place additional controls on council members seeking information from other organizations, such as the Howard County school board or even Columbia's village boards.

That new proposal was withdrawn by its council supporters after it encountered widespread public criticism. But the underlying policy -- pertaining to council members' requests from within CA itself -- remains.

The council is composed of one elected official from each of Columbia's 10 villages. It is supposed to monitor all CA functions. Legally, it serves as CA's board of directors.

As such, said Ms. deHaan, members must have unrestricted access to CA's records.

She reviewed a copy of the council's "Information Requests Procedures" and compared it with Maryland laws that give homeowners access to the financial records of their homeowners associations.

Ms. deHaan concluded that the policy is not legal because it is more subjective than state law: It can make it more difficult for a council member to get information from CA than for a Columbia resident to get that same information.

But the policy's supporters -- and there are many on the 10-member council -- say that interpretation ignores the fact that the policy has never been used to deny a council member information.

"Realistically, any council member who wants information will get it," said council Vice Chairman David W. Berson of River Hill village. "Under almost any realistic conditions, I don't think this is going to be binding on anyone."

Even Norma Rose, the Wilde Lake village council member who questions CA finances more than any other Columbia Council member, said the policy has not kept her from obtaining information. And when it was put into place two years ago, she voted for it.

Supporters say the policy gives CA staffers a chance to head off information requests that could take weeks to compile. And council members should recognize such concerns.

"The job of the board of directors is not just to see if you can get the people under you to scurry," Mr. Berson said.

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