School board assailed over secret meeting

January 15, 2003|By Andrew A. Green and Jonathan D. Rockoff | Andrew A. Green and Jonathan D. Rockoff,SUN STAFF

The Baltimore County Board of Education's division into two groups last week to discuss the system's finances without public disclosure should not have been allowed, government watchdogs and local and state officials said yesterday.

Eight board members met with Superintendent Joe A. Hairston and others to discuss how the school system should handle its budget.

To avoid a quorum, the members split into two groups, avoiding having to advertise the meeting or to meet in public.

Before holding the meetings, members of the board, which has 13 members in all, were told by the school board's attorney that the move was legal.

Gerald W. Winegrad, a former state senator from Anne Arundel County who oversaw a revamping of the state's Open Meetings Act in the early 1990s, said the annals of Maryland public bodies seeking to avoid public meetings are vast but that the board's move is a new one on him.

"It's very innovative," Winegrad said, but "it does appear to violate the spirit and intent of the open-meetings law in not allowing the public to be present when such pivotal discussions take place by a public body."

The preamble to the act reads: "It is essential to the maintenance of a democratic society that, except in special and appropriate circumstances, public business be performed in an open and public manner and citizens be allowed to observe the performance of public officials and the deliberations and decisions that the making of public policy involves."

Theodore G. Venetoulis, who as Baltimore County executive from 1974 to 1978 helped usher in the county's first open-meetings and public-disclosure laws, said he can understand the desire to meet privately - it makes discussions easier - but that except under specific circumstances, the law doesn't allow it.

"There's no sense having a law like that on the books if you're going to have different schemes to violate it," Venetoulis said. "That doesn't make any sense."

Venetoulis said that before open-meeting laws, that sort of thing happened frequently but that in his years as executive he never saw anyone try to circumvent the new rules.

"Had we seen that, we would have stopped it," he said.

County Executive James T. Smith Jr. declined to comment on the school board matter. County Council Chairman Kevin Kamenetz, a Pikesville-Ruxton Democrat, said the school board needs to accept the law and stop trying to evade it.

"It's not the way to conduct activities," Kamenetz said. "The idea is to gain confidence by the public in the decisions being made. You don't purposely meet in numbers less than a majority in order to evade the intent of the law."

Few of those interviewed said they were shocked that a public body would seek to evade the open-meetings law.

But they said they were surprised at how clumsily the school board did it.

Abraham A. Dash, a professor of legal ethics at the University of Maryland Law School, said the law is evaded often but that most bodies are more subtle about it. Their members talk on the telephone or hold informal lunches or dinners; they don't acknowledge afterward precisely how they divided to avoid a quorum and called their lawyer to make sure they weren't violating the letter of the law.

"I don't think the open-meetings law requires legislators or school board members to refrain from discussing this on the telephone - they probably do, or at cocktail parties or whatever. There are any number of ways to avoid that," said Kenneth Lasson, a law professor at the University of Baltimore. "But when you have a meeting, it's a meeting and it should be open."

Jack Schwartz, an assistant attorney general who is counsel to the Maryland Open Meetings Compliance Board, said that without a quorum, there is no meeting, and without a meeting, the law doesn't apply.

Dash said nothing probably can be done under current law to stop the board from holding meetings like the one last week.

"I don't know of any agency of government that doesn't use these various ploys," Dash said. "I've always felt when statutes were passed it was one of the do goody-goody type things, but they made sure there were sufficient holes in it that it really didn't change how most agencies operate."

Del. Robert A. Zirkin, an Owings Mills Democrat who is active on county schools issues, said that if such efforts to circumvent the law become a pattern, the legislature might need to look at the issue.

"It's easy to want to isolate yourself when things are challenging, and this budget crisis makes it more difficult for everybody," Zirkin said. "But that's the time when you should be more inclusive, not less."

The school board is not the only public body to capitalize on the Open Meetings Act's quorum requirement to avoid the law.

In August, the Baltimore City Council met without public notice to discuss an effort to reduce the size of the council.

To avoid the Open Meetings Act's requirements, three council members left the room when a quorum was reached.

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