PSC meeting seen as openness violation

Ehrlich aides privately discuss BGE rates with 4 of 5 members of public service panel

March 16, 2006|By DAVID NITKIN | DAVID NITKIN,SUN REPORTER

The Maryland Public Service Commission is an independent agency that regulates utilities through quasi-judicial hearings and by collecting evidence and issuing rulings.

So when four of five commission members met privately with top aides to Gov. Robert L. Ehrlich Jr. this week, some state officials and other critics raised concerns about a potential violation of Maryland's open-meetings law - as well as whether the session could compromise the agency in future deliberations.

James C. DiPaula Jr., Ehrlich's chief of staff, said he summoned the commissioners to a meeting to discuss strategies to lessen the impact of a looming 72 percent Baltimore Gas and Electric rate increase. He said the meeting was impromptu, convened after he saw the board members in Annapolis on Tuesday.

Ehrlich appointed all four of the commissioners. The regulatory agency has come under heavy fire in recent weeks as being too closely aligned with business interests and not sufficiently concerned with consumers.

A public advocacy group yesterday said the meeting might have violated provisions of the state Open Meetings Act, because a quorum of the board was present and no advance notice was given.

"In an effort to avoid litigation in this regard, we simply request that the minutes of the meeting be forwarded promptly to my attention," said Brad Heavner, state director of the Maryland Public Interest Research Group, in a letter to commission Chairman Kenneth D. Schisler.

Comptroller William Donald Schaefer repeatedly jabbed Ehrlich during a state Board of Public Works meeting yesterday over what he said was a "secret meeting," and said that Schisler should be replaced.

Glenn F. Ivey, the Democratic Prince George's County state's attorney who is a former commission chairman, said he believes it is acceptable for commission members to advise the governor, lawmakers, or members of the public in small, unofficial meetings. "I don't think it's inappropriate per se to meet with anybody - the governor, the General Assembly or particular stakeholders - unless you are discussing a matter in a pending case, and that would be an ex parte communication," he said.

Jack Schwartz, an assistant attorney general who advises the Maryland Open Meetings Compliance Board, said he could not discuss the PSC meeting, because it could come before the board.

He said that, in general, if the majority of members of a public body convene to discuss public business, they trigger the requirements of the open-meetings law.

But there are exceptions to the rule. For example, he said, courts have decided that the Democratic members of the Montgomery County Council were acting in their capacities as individuals - not councilmen - when they attended a meeting of the county's Democratic Party where council redistricting was discussed and the matter was pending before the council. The court ruled that the open-meetings law didn't apply in that case, Schwartz said.

"The crucial question is, are they interacting with one another as the public body, or are they essentially in somebody else's meeting as individuals?" Schwartz said.

david.nitkin@baltsun.com

Sun reporter Andrew A. Green contributed to this article.

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