Open-meeting reform effort is questioned

Bill would eliminate one category of closed-door sessions

`May be too much too soon'

Media group, others say measure needs more study

General Assembly

March 19, 2004|By Tricia Bishop | Tricia Bishop,SUN STAFF

A bill that would close what some say is a gaping loophole in the state's Open Meetings Act encountered resistance from a surprising source - the media - yesterday during a legislative committee hearing in Annapolis.

The measure could end up being studied over the summer.

"We are strong proponents of open government," said James Keith, speaking on behalf of the Maryland-Delaware-DC Press Association, which counts more than 150 newspapers - including The Sun - among its members. "However, we have a problem with this particular bill because we feel it is written too broadly."

The bill would make public bodies conduct more of their business openly by eliminating "executive-function" meetings, which are meant for administrative housekeeping matters. Such meetings are exempt from the Open Meetings Act and therefore allowed to go on in secret without notice or record-keeping, which many say leaves them open for abuse.

The law now provides for 14 categories of private meetings, but only when public notice is given and records are kept.

"This is being used as a mechanism to get around open meetings," said the bill's creator, Cecil County Del. Michael D. Smigiel Sr., a Republican, who introduced it with the support of 10 other delegates.

Smigiel said he has seen instances where government bodies have conspired illegally under the guise of executive function.

He also suggested there may be fewer problems in Maryland - including the Baltimore schools' budget mess - if executive-function meetings were not allowed.

"You cannot steal, you cannot do things inappropriately if you're doing them in the open," he said. "It's an oxymoron to say we want more open government, then provide a mechanism to close it without any basis for doing so."

But some say there is a good reason for the closed meetings, which were originally designed with governing bodies of small jurisdictions in mind. Unlike larger jurisdictions, small counties with the commissioner form of government use the same group of people for legislative and executive functions.

The Open Meetings Act applies to public bodies when a quorum of members is present, with 14 exceptions. Even then, however, public notice and records of the sessions are required. Those requirements do not apply to executive-function meetings.

"If you have three people on a town council and two of the three meet up at the post office and want to talk about filling a pothole on Main Street," they need to be able to do that without having to file notice and keep records, said Jack Schwartz, attorney for the Open Meetings Compliance Board, which issues advisory opinions about the law.

In a letter to the committee, Walter Sondheim Jr., the compliance board chairman, acknowledged that the exclusion of executive-function meetings from the Open Meetings Act "is troublesomely vague" and "probably results in meetings being closed for no good reason."

However, "simply eliminating" the exemption, Sondheim continued, may "cause an undue burden."

Sondheim suggested, and the press representatives agreed, that the bill should be amended to instead demand that a study be performed from June to December looking into the effect of eliminating executive function before taking action.

"We're not saying the status quo is fine," Schwartz said. "We're just saying it may be too much too soon."

Still, the Maryland Municipal League, and the Maryland Association of Counties (MAACO) also opposed the bill, the league officials saying the change would create problems for small town governments, and MAACO officials complaining it could hinder candid dialogue.

But the bill's supporters weren't swayed.

"We think government for the people and by the people must be visible to the people," said Mindy Binderman, speaking on behalf of the American Civil Liberties Union.

Smigiel pointed out that Maryland is the only state that allows for executive function meetings, and the other 49 seem to be getting along fine.

Maryland zoning boards may not hold executive function meetings either, he said, nor may the Howard County Board of Education, which lost its right to the meetings in October when temporary legislation went into effect denying members executive function access.

Those instances show that public bodies are perfectly capable of complying with the Open Meetings Act, said Allen Dyer, an Ellicott City attorney, who many credit with getting the Open Meetings Act-revision ball rolling.

In 2000, Dyer sued the Howard County school board for alleged violations of the act, which inspired several bills now before the General Assembly.

"That is a tremendous show of support down in Annapolis," Dyer said, though he was disappointed by yesterday's testimony.

Smigiel said he likely wouldaccept the recommendation to drop the bill for a year and perform a study if the committee espouses the idea.

"Worst case scenario, we'll get this done in the next session," he said.

The press representatives' "trepidation diminished considerably" at the idea, said James Doyle, who lobbies for the group.

"That way we'll have a studied review of whether it makes sense," he said. "I do think this is a more judicious way to do it."

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