Before Gov. Martin O'Malley gavels the Board of Public Works to order, he and Treasurer Nancy K. Kopp regularly meet outside the public's view in a separate conference room. These days the third board member - Comptroller Peter Franchot - is conspicuously absent.
That's because Franchot thinks the meetings are illegal.
The so-called "pre-meetings," a tradition in Annapolis dating to at least the 1970s, are a chance for board members to go over the agenda and to catch up on their personal lives. The three-member board, a uniquely Maryland institution, has purview over millions of dollars in state contracts awarded every year.
But Franchot said he became concerned months ago that the conversation during pre-meetings often veered to substantive discussions of business before the board, including decisions to pull items from the agenda and the calling of witnesses scheduled to appear during the regular meeting.
The comptroller says officials from the attorney general's office advised him that the pre-meetings appear to be subject to the state's Open Meetings Act, which requires that citizens be allowed to observe the deliberations and decisions of public bodies and that meetings be announced in advance. While O'Malley said yesterday that the public is welcome in the pre-meetings, Franchot's aides point out that few people are aware of them.
"People are not going to trust Annapolis if decisions are made in back rooms in secret," Franchot said. "I respect the traditions of the office, but I'm following the advice of my lawyers."
Assistant Attorney General Gerald Langbaum said in an e-mail to Franchot's office in April that transparency laws would apply whenever more than one board member attends a meeting during which discussions take place on matters that would have to be publicly aired at the regular meeting. He also said that advance public notice would be required.
Elizabeth Harris, the governor's chief legal counsel, described the meetings as "cordial get-togethers" where attendees exchange "niceties." She added that officials from the attorney general's office have told her in conversations that the pre-meetings pass muster under the law as long as board members aren't having substantive deliberations or making substantive decisions.
"So long as that's not happening, they have no issue with it," Harris said.
Attorney General Douglas F. Gansler's office has never issued formal advice on the pre-meetings, spokeswoman Raquel Guillory said, though she said that other attorneys in the office reiterated the informal advice given by Langbaum, who has since retired.
O'Malley, who has made transparency and openness in government a central theme in his administration, pointed out that he also held pre-meetings when he was Baltimore's mayor and that the press and public were welcome. He said the same is true for the pre-meetings of the Board of Public Works.
The practice of gathering before the board meetings dates to Gov. Marvin Mandel's administration and has been an on-again, off-again routine since then, depending on how well the occupants of the three offices liked each other, State House observers say. The pre-meeting is typically held in the governor's office, but it hasn't been for the past several months because the State House is closed for renovations.
At various times in the past, the press has attended the pre-meetings, though not in recent years.
Yesterday's pre-meeting was held in a small conference room across the hallway from the room where the full Board of Public Works meets. But as the stadium-style seating in the regular meeting room filled up with dozens of staffers and citizens who planned to testify, no one from the public came to the pre-meeting. A Sun reporter was allowed in the room.
In addition to O'Malley and Kopp, Lt. Gov. Anthony G. Brown and a half-dozen aides and staffers attended the pre-meeting yesterday. They talked about the upcoming Democratic National Convention - all of the elected officials are Democrats - and discussed the order of the agenda. They also talked about a state land purchase and the witnesses who signed up to testify on a controversial contract they planned to vote on.
Kopp said they routinely look at the witness lists to determine how long the regular meeting will last, and aides said issues may come up at the last minute that should be brought to attention of board members or that might cause them to withdraw agenda items.
Oftentimes, Franchot arrives for the regular meeting at 10 a.m. - the scheduled start - and waits for O'Malley and Kopp to arrive from the pre-meeting. The comptroller, also a Democrat who frequently clashes with O'Malley, said he has waited for 45 minutes or longer for them.
"I think that it's discourteous and a waste of resources," Franchot said, referring to the fact that many in the audience at Board of Public Works meetings are state employees who must wait along with him.
Franchot said he had attended the pre-meeting but became concerned when a dispute arose concerning an initiative to bring Internet access to rural areas. Franchot's aides say that Patrick Mitchell of the Maryland Broadband Cooperative was summoned and asked to discuss pertinent facts.
But Mitchell said he went to the pre-meeting to say hello to O'Malley and denied that he was asked any questions. "What I went to wasn't really a meeting," he said.