Pete Lesher

Pete Lesher

EASTON — The county council, during Tuesday night’s meeting, announced the decision of the state open meetings compliance board that emails and texts between members over a two-day period constituted a meeting that should have been open to the public.

“As required by State law, this is to advise that the Open Meetings Compliance Board found that a series of e-mail and text communications between Council members over the course of two days about whether to send letters to the General Assembly constituted a meeting in violation of the Open Meetings Act, and the Board found that the Council was not performing an administrative function under the Act in deciding whether to send such letters,” Talbot County Council President Corey Pack said.

The Open Meetings Act requires a member of a public body found to have violated the open meetings law to summarize the compliance board’s opinion at its next public meeting. Beyond that legal requirement to announce a violation, the board’s opinions are advisory only and the board has no power to issue orders or impose penalties.

Talbot County Councilman Pete Lesher said he welcomed the decision as providing guidance to the council and helping ensure more open and transparent public deliberations.

“It’s always hard to take an adverse decision,” Lesher said, but the board’s opinion is helpful.

“I welcome the decision of the Open Meetings Compliance Board,” Lesher said. “I regret my contribution to the violation, which was in the form of an email reply to a single council member, despite the fact that my position was not to support the sending of the letters in question.

“We are citizen legislators and trying to do the best we can — including our efforts to comply with both the spirit and the letter of the Open Meetings Act,” he said. “And our violation of the act was unintentional, as the OMCB acknowledged.

“The OMCB decision advises we follow the procedure for meetings on short notice. We may have more frequent workshops as a consequence. If so, the council will undoubtedly be less nimble in its ability to act on urgent and short-notice items,” Lesher said. “But unless and until the General Assembly acts to change or clarify the Open Meetings Act, we need to find a way to comply with this latest interpretation of the act as it stands today.

“While this may feel like an inconvenience to the council, the positive impact for the public is that our deliberations in the future will be more open and transparent,” he said.

Councilwoman Laura Price, who had asked whether the county council wanted to take a position on the minimum wage and oyster sanctuary bills being considered by state lawmakers, said council members “have no problems following the rules. We just need to know what the rules are.

“I think the bar has been moved,” Price said about the board’s opinion. “That’s fine. We didn’t know where that bar was beforehand.”

She also said she was concerned that the board’s opinion was a “little overbroad,” noting council members are allowed to have one-on-one conversations.

With five county council members, at least three are needed for a quorum, which is one factor in determining whether a meeting is being held.

Price, Talbot’s representative to the Maryland Association of Counties, said she planned to discuss the opinion with that organization.

The county, in response to a separate Public Information Act request, declined to release a number of the emails in question.

Price said Tuesday night she supported the release of the withheld emails.

“There wasn’t anything nefarious,” Price said. “I thought we should have released the emails. There’s nothing there we wouldn’t have said publicly.”

Pack, who penned a guest comment concerning the board’s opinion, did not make any additional comment Tuesday night.

“I think I’ve said my share on this,” he said.

Council Vice President Chuck Callahan and Councilman Frank Divilio also did not comment Tuesday night.

The state open compliance meetings board issued its advisory opinion on July 1 in response to a complaint filed against the county council.

The complaint alleged the county council violated the Maryland Open Meetings Act by deciding — via emails and texts on Feb. 18 and 19 — to take positions on the two bills.

In a response to the complaint, the county’s attorney said the Open Meetings Act “did not apply because the presence of a quorum was not demonstrated, so no ‘meeting’ occurred within the scope of the Act, and, second, that the Council’s consideration of whether and how to comment on (state) legislation was an administrative function” not subject to the act, the board wrote in its opinion.

The Open Meetings Act requires a public body to meet openly whenever a quorum meets to consider or transact public business. In a 2015 opinion, the board said the state’s highest court “has not taken a mechanical approach to the quorum requirement” and said “there are some circumstances under which the members of a public body will be deemed to have deliberated as a quorum even if a quorum was not present at one precise instant in time.”

In this case, the board had to consider how to apply these principles to deliberations that a public body conducted electronically over the space of about a day and a half, sometimes demonstrably among a quorum, sometimes not, but continuously, the board wrote.

“We have long cautioned against the use of electronic communications to decide substantive matters, both in the interest of the public — which is clearly deprived of the opportunity to observe the public body conduct its business — and in the interest of the members of (the) public body, who are at risk of violating the Act whenever they hold group discussions electronically.”

In the Talbot County case, “the totality of circumstances leads us to conclude that the Council’s deliberations were more akin to conversations among a group that effectively convened to decide on the Council’s positions than to the sporadic exchange of written correspondence,” the board wrote.

To avoid such a violation, the board said public bodies could provide access to teleconferences by publishing a call-in number or having a speakerphone available at a published location.

The board, in its opinion, also rejected the council’s argument that it was “merely performing an ‘administrative function’ — a function that is expressly exempt from the Act — when it considered whether to express its position on the two bills in question.”

The Open Meetings Act “does not apply when a public body is meeting solely to perform an ‘administrative function,’” the board wrote. The definition of an administrative function includes a requirement that the public body is “carrying out ‘the administration of’ a law of the State or political subdivision of the State, or of a rule, regulation, or bylaw of a public body.”

The Talbot County Council, in considering whether to take a position on legislation introduced in the Maryland General Assembly, was not administering a law, rule, regulation or bylaw of a governmental body, according to the board’s opinion.

“We conclude that the Council violated the Act when it did not provide the public with an opportunity to observe its deliberations on its position on legislation pending in the General Assembly,” the board wrote. “We have explained that when the sequence of electronic communications is such that a collective deliberation among a quorum has occurred, with the opportunity for the quorum to interact on public business subject to the Act, actual interaction, and awareness that a quorum is at hand for a specific period of time, we will deem the public body to have held a meeting subject to the Act.

“And, once again, we strongly discourage the exchange of electronic communications on public business, no matter how carefully structured to avoid the presence of a quorum, as violative of the goals that the Act was intended to achieve,” the board wrote.

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