Closed sessions stirring concern

Carroll leaders' private meetings pose legal questions

March 27, 2001|By Brenda J. Buote | Brenda J. Buote,SUN STAFF

Nine days after meeting with Maryland's Open Meetings Compliance Board about conducting business in public sessions, the Carroll commissioners held a private meeting concerning a planned $14 million water treatment plant.

A legal expert said such a meeting, at which the commissioners decided to mail a brochure detailing their rationale for constructing a water treatment plant on Piney Run Reservoir near Sykesville, must be held in public session. In addition, the Maryland open meetings law requires the commissioners to meet in public session to discuss legislative decisions - those that make or change laws.

"It seems to me that the decision to build the wastewater treatment plant and the subordinate decision to mail out a brochure explaining the rationale for that decision is a legislative action, not an executive one," said Alice Lucan, a lawyer for the Maryland-Delaware-District of Columbia Press Association.

"If you look at this intuitively, it seems to me they would want to hold a closed meeting to discuss the political ramifications of sending the notice or to discuss the content of the notice," Lucan added. "Those reasons do not fall under the exemptions of open meetings act."

On Friday afternoon, after hours of public budget discussions, the commissioners met privately without the press or public present and agreed to mail a brochure to 7,000 county residents detailing the decision by Commissioners Donald I. Dell and Robin Bartlett Frazier to move ahead with plans to build a water treatment plant at Piney Run.

"The decision was made as a casual decision," Dell said. "There was no vote taken; we simply reached a consensus."

Both Frazier and Commissioner Julia Walsh Gouge agreed with Dell's recollection of the meeting, although Gouge does not support the three-member board's decision to draw water from the reservoir.

After a reporter for The Sun asked about the closed-door meeting, the commissioners scheduled a public session on the issue.

Elected officials can meet two ways without the public being present. One is by meeting under "executive function," which the Carroll commissioners refer to as "executive session"; the other is to meet in closed session.

Public boards may go into a closed session to discuss personnel matters, land acquisition, legal issues or business prospects.

Under executive function, a public board can convene privately to delegate duties or conduct routine administrative business - which includes almost anything but making or changing laws.

After several inquiries by The Sun, the commissioners discussed the brochure in public session briefly yesterday, but could not agree on what should be included in the mailer.

As it stands, the brochure, written by Frazier in a question-and-answer format, will be sent to residents of South Carroll along with a questionnaire about leaky pipes. More than 350 homeowners in nine subdivisions and 12 scattered sites throughout South Carroll have reported pinhole leaks in their indoor and outdoor copper water pipes.

Jack Schwartz, assistant attorney general and counsel to the open meetings board, would not comment on Friday's meeting.

"I'm not going to state a bottom-line conclusion about the legality or illegality of that meeting," Schwartz said. "However, I would imagine this discussion about the broader issue of the roles of the commissioners play, both executive and legislative, will be addressed by the open meetings board."

The Carroll commissioners met informally with the open meetings board March 14 to discuss 51 possible violations of the 1991 law, which is meant to guarantee that government decisions are made publicly.

At that meeting, Walter Sondheim Jr., chairman of the three-member open meetings board, urged the commissioners to consistently ask themselves and their staff if a good reason exists for closing a meeting. Use of executive privilege should not be a refuge, he said.

"The reason cannot be that there is something you don't want to say in public," Sondheim told the commissioners. "A great deal of the problems that have arisen could be avoided if you started with the assumption that the burden is on closing. Stick to the purpose of the law and let the public know what you are doing."

Said Neil Ridgely, who filed the complaint alleging the 51 violations: "I'm surprised and disappointed by this [private meeting]. I thought they had become sensitized to the issue as a result of their meeting with the open meetings compliance board. It's obvious they just don't get it."

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