A state lawyer and several media law experts say Maryland's Indian Affairs Commission violated the spirit, if not the letter, of the state's open meetings law by acting on an Indian tribe's petition for state recognition.
At a meeting Monday night, the Maryland Commission on Indian Affairs approved its official response to questions that have been raised about its decision to recommend that the state recognize the Piscataway Conoy Confederacy & Subtribes.
Another Indian group claims to be the true Piscataway tribe.
The MCIA refuses to discuss in public what questions were posed by former Housing Secretary Patricia Payne in a March 28, 1998, letter. At the recent meeting in Crownsville, members would not release a copy of its long-awaited response letter or openly discuss its contents.
Instead, MCIA Chairman Leland A. McGee, who drafted the response, brought copies in sealed envelopes which he distributed to members as the meeting started. He told members they could not discuss any "substantive" changes during the public meeting.
Commissioners then resorted to a sort of code in discussing the response letter. For example, one member told McGee she had a problem with the "p word" before the word "evidence" in a portion of the letter.
The commission voted to strike the offensive adjective and in similar fashion made other wording changes to the five-page letter before approving it on a 4-1 vote. Commissioner Norris C. Howard, Jr., who earlier in the meeting proposed adjourning to a private session, cast the dissenting vote.
"A public meeting is certainly not one in which you go in to watch commission members talk in code with each other," said Rebecca B. Daugherty, freedom of information director for the Washington-based Reporters Committee for Freedom of the Press.
"That's silly game-play, to try to violate the spirit of the law without violating the letter of the law," Daugherty said. "It's just silly for them to do that. They kind of cross the line when they decide to talk in code, I think."
State law generally requires that public business be done in public.
Eric B. Easton, who teaches media law at the University of Baltimore School of Law, said he can't say if the group did anything illegal. But he said it certainly appeared to thwart the intent of the open meetings law.
"Public meetings laws and open records laws throughout the country were designed to make transparent the basic processes of government so the public can know what's going on," Easton said. "It's supposed to put an end to the smoke-filled, back room decision making."
Kimberly S. Ward, an assistant attorney general in that office's opinions and advice division, also said the MCIA's actions appeared to violate the spirit of the state's open meetings law.
"Certainly we want our public officials to perform their duties in a public manner so our citizens can observe it," Ward said. "I would think that speaking in codes would not be allowing our citizens to observe our public officials performing their duties."
She said a complaint could be filed with the state's open meetings compliance board, but said that body has no authority to punish the commission if it was found to have violated the law.
McGee and Philip J. Deters, an assistant attorney general who advises the MCIA, said the letter responding to Payne had to be kept confidential because Housing Secretary Raymond A. Skinner has determined that Payne's letter is "pre-decisional and deliberative" and therefore not subject to public release.
However, Deters acknowledged no legal requirement that the letter be kept secret and that Skinner could release it if he chose. Skinner, through his deputy, has previously rejected a request by The Sun for a copy of Payne's letter.
Skinner was reportedly out of town yesterday and not available for comment. Deputy Housing Secretary Marge Wolf did not respond to telephone calls yesterday afternoon seeking her comment.
Easton said the "pre-decisional, deliberative" exception to the public records act is "so outrageously broad that it can swallow up almost anything virtually anything is pre-decisional."
Tribal leaders with both the Piscataway Conoy Confederacy & Subtribes and the Piscataway Indian Nation, a rival group that opposes state recognition for the PCCS, have said they favor public release of the Payne letter and see no reason for the secrecy shrouding the MCIA's deliberations on the issue.
Daugherty said there is no excuse for state officials to refuse to release the records or discuss the matter in public since those affected want the issue to be dealt with publicly.
"It's despicable that you would use an exemption [to the public records act] that you don't have to use to protect information about people who simply don't want the information protected," Daugherty said. "It's just secrecy for the sake of secrecy. It does not serve any purpose."