7 Official Opinions of the Compliance Board 95 (2011)

Exception Legal Advice Outside Exception Discussion of

enforcement terms of special exception was distinct from
pending litigation on the grant of the special exception.
Minutes Preparation following all meetings, required.
March 10, 2011
Complainant: Respondent:
Donald J. Barnes Poolesville Board of Zoning Appeals
Linda J. Barnes
The Open Meetings Compliance Board has considered your complaint that
the Poolesville Board of Zoning Appeals violated the Open Meetings Act in
connection with a closed session held on February 25, 2010. For the reasons
explained below, we find that the Appeals Board violated the Act by failing to
create minutes of the open and closed sessions and to disclose a summary of
the actions taken at the closed session. We further find that the Appeals Board
violated the Act during the closed session by conducting business that did not
pertain solely to pending or potential litigation against the Town.
I
Complaint and Response
According to your complaint, on February 25, 2010, the Poolesville Board
of Zoning Appeals conducted a closed session in violation of the Open
Meetings Act. You attached a copy of an agenda for the February 25 meeting
that noted there would be a closed session following a public hearing on an
unrelated matter. That agenda, posted on February 23, 2010, stated that the
Appeals Board would hold the closed session under 10-508(a)(8) to consult
with counsel regarding complaints on an approved special exception. Other
1
attachments to your complaint indicate that you had filed two such complaints
with the Appeals Board about two weeks earlier. In those complaints, you
stated to the Appeals Board that Doctors Mevissen and McInnes (the
doctors) were using their home as a professional office in violation of the
conditions placed on the special exception granted to them for that use. You
All statutory references are to the Open Meetings Act, Title 10, Subtitle 5
1
of the State Government Article, Annotated Code of Maryland.
95
7 Official Opinions of the Compliance Board 95 (2011) 96
allege that your interest [was] raised by the Appeal Boards agenda for the
February 25 meeting and that you attended the meeting hop[ing]...to learn
more.
You state that you learned little more at the [Appeals] Board meeting.
You allege that the Appeals Board failed to adequately announce the purpose
of the closed session, take a vote to close the session, or record the vote. The
audience was simply asked to leave Town Hall; as a result, you allege, the
public was denied the opportunity to object. You also allege that the Appeals
Board failed to properly document the closed session discussions. You attach
an Appeals Board document concerning the February 25, 2010 meeting; that
document is labeled Summary of meeting due to recording malfunction.
You state that the document did not mention the closed session or contain
information required under 10-508(d)(2) and 10-509(c)(2).
You further allege that you learned the purpose of the closed session only
when you received a copy of a March 16, 2010 letter from the Appeals Board
chair to the doctors about their operation of a professional office in their home
as a special exception use. That letter referred to two complaints about the
doctors activities and stated: The Board met to discuss this matter on
February 25, 2010. Your two complaints were attached. The Appeals Board
then stated the action it took:
Without any further input from any parties, the consensus of the
Board was that the allegations, if true, do not represent a serious
violation of the conditions of the special exception, and that a
hearing to consider further action is not warranted at this point.
However, the Board members felt that, due to the complaints,
you should be reminded of the conditions of the special
exception and the intent of the Board that they be strictly
observed.
***
The Board wishes to make clear that it has not made any
findings or reached any conclusions with regard to the truth of
the complaints received.
You state that the Appeals Boards approval of the doctors special
exception use was then being litigated in a case pending in the Court of Special
Appeals. You assert that the validity of the approval of the special exception
was an issue distinct from the issue of whether the doctors were violating the
conditions incorporated into the approval. In your view, the closed session
should have been open to the public because the discussion of your complaints
did not rise to the level of Section 10-508(a)(8).
7 Official Opinions of the Compliance Board 95 (2011) 97
Jack A. Gullo, Jr., appointed as the attorney for the Town in May 2010,
submitted a timely response on behalf of the Appeals Board. According to the
response, rather than designating someone to take notes, the standard practice
of the Towns boards and commissions is to record their meetings and use the
recordings to produce a transcript of each meeting. However, when this
technology does not work properly, there is an incomplete record of what
transpires.... The response states that the recording equipment malfunctioned
on the night in question.
2
The Appeals Board disputes that it failed to adequately announce the
purpose of the closed session. The agenda statement included with the
complaint reflected the statutory authority and included a brief summary of the
subject to be discussed. The Appeals Board also disputes the allegation that
a vote was not taken to close the meeting. Although an audio record was not
preserved, the chair of the Appeals Board apparently reported to Mr. Gullo that
it is her custom and practice to always call for such a vote and that she
believes that a vote was taken in this case. The Town has acknowledged that
the lack of a record ... is unacceptable and the Town will need to ensure strict
compliance with such basic requirements of the Act in the future. As to the
suggestion that the public was denied the opportunity to object to the closure,
the response argues that the Act does not require a public body to ask whether
there is any objection.
The response acknowledges that the allegations as to a lack of
documentation required in connection with a closed session is partially
correct. According to the chair of the Appeals Board, she read the statement
that appeared on the agenda. Thus, in Mr. Gullos view, there was compliance
with 10-508(d)(2)(ii). However, the response acknowledges noncompliance
with 10-509. According to the response, it is obvious from the letter ...
sen[t] to Drs. Mevissen and McInnes that the issue surrounding the special
exceptions and potential violations thereto were discussed and a decision was
reached as to a course of action ... Unfortunately, without a written record of
what occurred, ... it is impossible to determine the scope of the closed meeting
discussion.
As to the justification for a closed session, the response explained that the
complainants and the Town were parties to pending appellate litigation that
We note that although the response refers to the February 10, 2010
2
meeting, the response otherwise addresses the complainants allegations about the
February 25, 2010 meeting, and the Appeals Boards documents confirm the
February 25 date. We shall therefore assume that the respondent meant February 25,
not February 10.
7 Official Opinions of the Compliance Board 95 (2011) 98
arose out of an Appeals Board proceeding. At the time of the meeting, the
appeal before the Court of Special Appeals was pending, and the purpose of
the closed session was to discuss current complaints by the complainants
regarding potential violations pertaining to the decision that was the subject of
that appeal. The Appeals Board believed it needed legal advice regarding any
action it might take and the impact on the pending appeal. Accordingly, Alan
Wright, the Towns former municipal attorney, was present to answer any
questions that the Appeals Board might have had and offer advice for a proper
course of action in dealing with the zoning complaints. Because the advice of
counsel was privileged, the Appeals Boards position is that this aspect of the
complaint is without merit.
In closing, the response explained various measures being implemented to
ensure future compliance.
II
Analysis
When a public body closes a meeting governed by the Act, certain
procedures must be followed. If it is anticipated that all or a part of the
meeting will be closed, the notice is to inform the public of this fact. 10-
506(b)(3). The tentative agenda posted by the Appeals Board, which
apparently served as public notice of the meeting, clearly satisfied this
requirement. Furthermore, immediately before the start of a closed session,
the Act requires that the public body conduct a vote to support closure of a
meeting. 10-508(d)(1) and (2)(i). According to the chair of the Appeals
Board, a vote was conducted. However, as the response acknowledged, the
failure to document the vote violated the Act. There apparently is no record
of the Appeals Boards vote to close the meeting on February 25, 2010.
The Act also requires that, before the start of a closed session, the presiding
officer of a public body is to make a written statement of the reason for
closing the meeting, including a citation of the authority under [10-508], and
a listing of the topics to be discussed. 10-508(d)(2)(ii). As long as the
statement is available at the time the meeting is closed, there is no reason that
the written statement cannot be prepared in advance of the meeting. Provided
the statement accurately reflects the statutory requirements at the time a
meeting is closed, there is no reason this statement could not be printed as part
of an agenda. 4 OMCB Opinions 46 (2004). In our view, the statement
included in the agenda satisfied the Act. Furthermore, the response indicated
that the chair actually read the statement that had been printed on the agenda
a practice we commend. Because the vote was conducted before the closed
7 Official Opinions of the Compliance Board 95 (2011) 99
session and the written statement was obviously available at the time the
session was closed, we agree with the municipal attorney that the allegation
that the public was denied an opportunity to object to the closure lacks merit.
We find that the Appeals Board violated the Act by failing to create
sufficient minutes of the February 25 meeting. Although minutes normally are
not in the form of a transcript, had the equipment worked properly and a
transcript been produced, the information therein would likely have satisfied
the requirement for minutes of the meeting. 1 OMCB Opinions 162, 165
(1996). Although a [s]ummary of the meeting was produced, the fact that
the document failed to make any mention of the closed session clearly shows
that the document did not satisfy 10-509. Nor is there any public record of
the closed session as required by 10-509(c)(2). Given the recorder
malfunction, in our view, the Appeals Board ought to have at least attempted
to create minutes based on the participants collective memory that reflected
the minimal information that must be documented under provisions of the Act.
We acknowledge that the practices being implemented by the Towns boards
and commissions, as outlined in the response, should prevent a repeat of those
deficiencies.
In closing the session, the Appeals Board relied on 10-508(a)(8), which
authorizes a public body to go into closed session for the purpose of
consult[ing] with staff, consultants, or other individuals about pending or
potential litigation. We accept the Appeals Boards explanation that it wished
to discuss the recent complaints with counsel given the related appeal pending
before the Court of Special Appeals. Furthermore, the Open Meetings Act
does not preclude a public body from acting on a matter that is properly before
it in closed session. See, e.g., 10-509(c)(2)(iv) (publicly-available minutes
prepared subsequent to closed session to reflect, among other information,
each action taken during [closed] session.). Of course, like any exception
under the Act justifying a closed session, 10-508(a)(8) must be strictly
construed and the Appeals Board was not permitted to discuss or act on any
matter not permissible under the cited exemption. 10-508(b) and (c).
Unfortunately, the lack of any meaningful record limits our ability to assess
whether the content of the letter addressed to the doctors about their current
conduct was tied to the Appeals Boards discussion with its former counsel
concerning the litigation pertaining to the grant of the special exception. The
Appeals Boards March 16 letter, however, provides us with some basis upon
which to evaluate whether or not the entire closed session might be fairly
considered within the perimeters of 10-508(a)(8). See 10-502.5(f)(2). That
letter shows that the Appeals Board both considered the question whether your
allegations about the doctors activities represent[ed] a serious violation of
7 Official Opinions of the Compliance Board 95 (2011) 100
the terms of the special exception (an issue separate from the issue of the
Appeals Boards consideration of facts in the doctors application for the
special exception) and reached a decision on its course of action. The
Appeals Boards consideration of the facts in your two complaints may have
been informed by advice of counsel on potential litigation, but 10-508(a)(8)
did not provide the Appeals Board grounds for denying the public access to its
deliberations and vote. See 6 OMBC 127(stating, once advice by an attorney
has been provided, a public body must return to open session to discuss policy
implications of the advice it had received).
III
Conclusion
We find that the Poolesville Board of Zoning Appeals did not violate the
Open Meetings Act in closing the meeting on February 25, 2010, with respect
to the required vote and production of a written statement explaining the
justification of closure. Furthermore, we find no merit to the suggestion that
a member of the public was precluded from objecting to the closure.
However, the Appeals Board did violate the Act in its failure to produce
minutes of the open and closed sessions and the failure to disclose as part of
publicly-available minutes information related to the closed session as required
by the Act subsequent to the closed session. We further conclude that the
Appeals Board violated the Act by discussing in closed session matters beyond
the scope of the exception claimed by the Board as grounds for the closing.
OPEN MEETINGS COMPLIANCE BOARD
Elizabeth L. Nilson, Esquire
Courtney J. McKeldin
Julio Morales, Esquire