This story has been updated.
St. Mary’s County officials are seeking to update the county’s open meetings act to allow more topics to be discussed in closed session, to exempt government subcommittees from the act, but also to compel certain county boards to adhere to the more stringent provisions in the law.
The county law, touted by officials as being the most rigorous in the state, has not been substantially changed since its adoption 43 years ago despite attempts by previous commissioner boards, former Democratic state senator Roy Dyson said this week.
There were some adjustments made to the law’s language and organization in 2013, county attorney David Weiskopf said, adding that nothing substantive was altered.
Proposed as three separate draft amendments, the county commissioners intend to take a position on the proposals next Tuesday before passing them off to the St. Mary’s County state delegation for review ahead of the General Assembly’s 2020 session. The commissioners were set to discuss the legislative proposals at yesterday’s afternoon meeting.
‘A large, large open door’
County Administrator Rebecca Bridgett, Weiskopf and Bob Kelly, chief information officer, are requesting to add investment of public funds, legal consultation and cybersecurity discussions to the list of authorized reasons to hold a closed meeting.
“That sounds like a large, large open door,” said Dyson, who was instrumental in crafting the county’s open meetings law in 1976 — a year before the state adopted its own — and defending it from revisions during his years in the state senate.
“The whole purpose of my open meetings [act] is you want to always increase public access to information,” Dyson said Tuesday morning in an interview. “It leads to, inevitably, an informed citizenry, a more open society, and I think we should be very proud that we have the most stringent law in the state. … It has stayed that way for nearly half a century, and it has served us well.”
Some of the proposals would bring the county’s open meetings act more in alignment with the state’s, which is less restrictive. Under the state open meetings act, investing public funds, legal counsel and discussing cybersecurity are permitted to be discussed in closed session.
The state act allows the discussion of public funds for investment purposes and not to their expenditure. According to state law, a public body must unseal the minutes of a closed meeting after the funds are invested, and the Open Meetings Compliance Board has instructed the discussion be “sufficiently related to a concrete investment possibility,” according to a 2005 opinion.
The county invests in the Sheriff’s Office Retirement Pension, Other Post-Employment Benefits fund and the Length of Service Awards Program, Weiskopf said.
“I can’t imagine they would withhold [information] from a member of the group” whom the investment funds are meant to support, Weiskopf said Monday.
The firm that helps the county invest the funds sometimes feels “like their investment strategy and what they’re planning to invest in is proprietary,” Weiskopf said.
The state permits a public body to consult with its counsel to obtain legal advice, but does not allow for members of a public body to have a closed discussion with a lawyer “merely because an issue has legal ramifications,” according to a 1993 opinion issued by the Maryland Open Meetings Compliance Board.
Litigation strategy is already permitted for discussion in closed session under the county act.
“Nobody goes to a lawyer to get public legal advice — that’s why you have the whole thing called attorney-client privilege,” Weiskopf said. “They should feel able to ask me for a legal opinion without having it be published in the newspaper.”
A provision allowing closed meeting discussion about cybersecurity was added to the state act in 2018, if the public body determines that public discussion would constitute a risk to security, according to the 2018 state bill authorizing the amendment.
“If we’re gonna discuss how we’re gonna defeat hackers, you wouldn’t want the hacker to be able to listen in,” Weiskopf said.
The state open meetings act includes an exception for public safety discussions and emergency plans, if public discussion of those plans would be a safety concern.
“Cybersecurity is just our 21st century version of that,” Weiskopf said.
All should be able to ‘connect to their government’
In addition to including the St. Mary’s County Library system, the St. Mary’s County Metropolitan Commission and the St. Mary’s County Housing Authority in the open meetings act, a suggested amendment also proposes to encourage public agencies to use new technology, and to provide public access to online notices, agendas, meetings and minutes.
Two commissioners want to subject the three county boards to the local law, after citizen complaints about a seemingly lack of openness and accessibility from the housing authority board, MetCom and the library board, Commissioner John O’Connor (R) said. Along with Commissioner Eric Colvin (R), a request was also submitted to ensure county boards utilize new technology as it becomes available to support open meetings. Those boards are bound by the state law, but “the state’s is very broad compared to our local open meetings act and the requirements — I want to tie them into” the county law, O’Connor said.
If added to the county’s act, those boards would be encouraged to use BoardDocs, a public information database used by the county commissioners and some other county boards, and would also need to televise or livestream meetings, O'Connor said.
“We want to make sure everyone is able to connect to their government regardless of what facet it is,” he said. “The housing authority really touches more people when it comes to a one on one basis. With MetCom, it ebbs and flows. … With the library board, we absolutely have heard loud and clear for the last few years” calls for more transparency, he said.
‘It’s difficult for them to get the work done’
Removing subcommittees from the act, as requested by the deputy county attorney and Stephen Walker, St. Mary’s County Department of Emergency Services director, would preclude subcommittees of boards from having to record meetings and meeting minutes for the public record, or holding those meetings in open session.
But the draft amendment retains language that defines a “subordinate unit” of a governmental unit as a public agency that must adhere to the act. Weiskopf said a subcommittee may fall under that category anyway.
With subcommittees of appointed county boards, like the Animal Control Advisory Board's animal shelter subcommittee, “the way the county [open meetings] law is, it’s difficult for them to get the work done they need to,” Walker said Monday. “The state is not quite so restrictive.”
The Maryland Open Meetings Compliance Board has ruled on a number of complaints regarding subcommittees over the years, finding that a subcommittee is defined as a public body if its members are appointed by the chief executive authority of a local government, or by someone subject to the executive’s policy direction, and if it also includes at least two individuals who are not employed by the local government, according to the attorney general's open meetings manual.
The county law change would allow those working groups to be unencumbered by not having to meet openly or publish information about meeting times, agendas and minutes, Walker said.
“There are no motions, none of that. … The job of the subcommittee is to go out and work and come back and report to the committee, [which] might make a motion to take it to the commissioners,” Walker said. “It’s all a chain of events.”
However, often actual discussions related to an issue are done at a subcommittee level.
“Whenever you attempt to keep people, the citizens, out of the mix when government deliberates these issues … more important than anything, than rendering a decision, is how did you reach the decision? How did you get there?” Dyson said. “I just think that’s an open door to eventually undo the open meetings law.”
“We don’t want to circumvent everything. … We want everything to be transparent with the public, however, it’s just harder under the St. Mary’s County law,” Walker said.
“Hard to be open and forthright with the citizens of St. Mary’s County? I can never buy that,” Dyson said. “Who are they kidding?”