City files appeal in BDC case

Officials contend agency not subject to sunshine laws


Arguing that the entity brokering Baltimore's most significant development deals is not a public institution, city officials yesterday asked Maryland's highest court to shield the agency's meetings and documents from public scrutiny.

The appeal, which could have implications for how the city pursues large-scale development projects, follows a January decision by the Court of Special Appeals that found that the Baltimore Development Corp. must conform with the state's sunshine laws.

If it decides to hear the case, the Maryland Court of Appeals would wade into the largely uncharted issue of whether the state's open government laws - which require agencies to hold public meetings and disclose some documents - extend to nonprofits set up to perform work in government's stead.

Created in 1991, the BDC has been behind many of the city's largest developments, including, most recently, the $305 million convention center hotel that is scheduled to open in 2008. It is often responsible for choosing contractors and acquiring land for those projects.

City Solicitor Ralph S. Tyler, who is representing the BDC, said the law narrowly defines a "public body" as an entity created by state statute or city ordinance and said the open meetings and public records laws apply only to those bodies. In contrast, BDC has only a contract with the city.

"By the plain terms of the statute, in our view, the open-meetings law doesn't apply," Tyler said.

BDC President M.J. "Jay" Brodie, through a spokeswoman, declined to answer questions on the decision to appeal the case. Instead, he issued a statement.

"We have taken this action because we believe the issues involved in this case are of such importance that they should be decided by the state's highest court," the statement read.

The original lawsuit was filed by nine businesses slated to be condemned as part of a redevelopment of downtown's west side. The business owners argued that a decision by the BDC's board to recommend developers to Mayor Martin O'Malley was made illegally because it was made behind closed doors.

John C. Murphy, the attorney representing the business owners, said lower courts have disagreed with the city's interpretation of the public body definition in this and other cases.

"I think common sense disagrees with that interpretation," Murphy added.

Maryland's open-meetings law defines a public body as any entity that "consists of at least two individuals; and is created by: the Maryland Constitution, a State statute, a county charter, an ordinance, a rule, resolution" or an executive order.

The law also notes that a public body may include a multi-member board appointed by a chief executive, such as a mayor. But, in its appeal yesterday, the city argues that the examples are meant to be illustrative, not to expand the definition of a public agency.

In its Jan. 24 decision, the Court of Special Appeals found the ties between City Hall and the development entity - a nonprofit corporation - were strong enough to suggest BDC is a public body, because the mayor is involved in picking the board.

BDC's 15-member board elects its members, who must be nominated by the mayor. The board can reject a nominee but it may not appoint a new member without receiving mayoral approval.

Also, the development corporation's bylaws require the commissioner for the city's Department of Housing and Community Development, currently Paul T. Graziano, and the city's director of finance, Edward J. Gallagher, to serve on the board.

Both of those positions are appointed by the mayor.

"The argument that the board of directors `elect' the members of the board is technically correct, but also visionary," the January decision read. "The board elects only from individuals who are recommended by the mayor."

The Court of Special Appeals decision overturned a March 2005 ruling by a Baltimore Circuit Court judge.

A final decision in the case could affect other entities, such as the Baltimore Area Convention and Visitors Association, that are similarly structured. Quasi-governmental entities are often promoted as a way to apply a business model to work once performed by government.

State and federal governments, meanwhile, have put public-records and open-meetings laws in place to give citizens an opportunity to observe the actions of government.

On Feb. 2, The Sun filed a request for more than a dozen records, including minutes from the BDC's meetings, a calendar of future meetings, the salary of employees and proposals submitted by developers on a number of projects - all documents made available by other city departments.

Yesterday, the BDC sent a letter signed by Brodie to The Sun saying that the agency is not considering public-records requests until the appeals process is finished. By law, public agencies have 30 days to respond to such a request.

"Until the process of this litigation is complete," the letter read, "BDC is not responding to requests ... for documents under the Maryland Public Information Act."

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