Open-meeting activists continue to worry that a Howard County judge's recent ruling will erode the public's rights, despite a finding in their favor Monday in a Baltimore County case.
The Howard ruling is "scary" and could limit the public's ability to carry out a legal challenge when a meeting is closed, said Tom Marquardt, chairman of the regional press association's Freedom of Information Subcommittee.
"It says unless you have something personally at stake, you don't have standing," said Marquardt, executive editor of The Capital in Annapolis.
"That's bad for the public because the public can't challenge a meeting unless you can prove you suffered personally. I don't think the framers of the Open Meetings Act really intended that to happen."
Both the Howard and Baltimore County cases involved challenges to closed-door school board meetings.
In the Baltimore County case, the state's Open Meetings Compliance Board ruled that the school board violated the law when it renewed Superintendent Joe A. Hairston's contract during a closed-door meeting in May. The challenge was brought by The Sun and the Towson Times.
But in Howard County, Circuit Judge James B. Dudley ruled against the Ellicott City lawyer who claimed open-meetings violations and filed a lawsuit against the school board.
Dudley ruled that the school board's alleged violations did not affect the plaintiff, lawyer Allen Dyer, any more than the general population, and therefore Dyer did not have the right to sue in court.
Dyer accused the school board of, among other things, gathering in illegal closed sessions, failing to give proper meeting notice, neglecting to provide timely records to the public and taking actions outside its authority in private.
Dudley did not address the specific facts of the Howard County case.
The Open Meetings Compliance Board, which evaluates complaints but has no enforcement power, looked only at the facts of the Baltimore County case.
In that sense, "it's comparing apples and oranges," said Jim Keat, a former Sun assistant managing editor who consults with the Maryland-Delaware-D.C. Press Association on freedom of information issues.
But complaints involving the Howard County case also went before the Open Meetings Compliance Board, which ruled in favor of the school system.
Unlike Baltimore County's board, Howard's board followed proper procedures in closing a meeting in November last year to discuss an amendment to Superintendent John R. O'Rourke's contract, and it also kept the required minutes.
"The County Board was entitled to close a meeting to consider an amendment to the Superintendent's Contract, including salary modifications, as a `personnel' matter,'" the compliance board wrote in its March opinion. It added that the Open Meetings Act does not preclude a vote on a matter "legally considered in a session closed under" the act.
The compliance board found the Howard County school board in violation of the Open Meetings Act in 2000.
But its lack of enforcement power frustrated Dyer, who took his concerns to Howard County Circuit Court in November 2000, filing a lawsuit that lasted three years and cost taxpayers more than $280,000 for the school board's defense before Dudley dropped it this month.
Keat said he was deeply troubled by Dudley's interpretation of the Open Meetings Act.
"Whether he intended to or not, he undermined the foundation of the statute," Keat said. "If a right can't be enforced in court, it can't be enforced at all."
Marquardt said the press association's Freedom of Information Subcommittee will discuss the ruling at a future meeting, including whether to support Dyer in his appeal.
Dyer said the similarity between the Baltimore and Howard county cases is in "the mindset of the boards of education."
"They've decided superintendent retention and hiring is something that should be conducted in secret," he said.
"Historically in Maryland, these types of decisions have always been made in private and they're going to continue to be made in private until the boards are forced to open up," Dyers said. "A tougher enforcement of the Open Meetings Act would be the most effective way to deal with this continued secrecy. We're not talking about national security."