EASTON — The Talbot County Council, in a 4-0 vote with President Corey Pack abstaining, released in August two days worth of emails and text messages from Feb. 18 and 19 between council members that the Open Meetings Compliance Board ruled should have been open to the public.
In July, the Open Meetings Compliance Board said a discussion about taking a position on state legislation was not an administrative function and therefore was subject to the state’s open meetings law.
The Open Meetings Act requires a public body to meet openly whenever a quorum meets to consider or transact public business.
“I’d like to move that for this latest Public Information Act Request, that we do not exert executive privilege for any request of communications, and release to the requestor, to the press and to any other interested party,” Councilman Pete Lesher said at the Aug. 13 council meeting.
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.
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 two bills, the oyster sanctuary and minimum wage before the state legislature.
to the public
On Monday Feb. 18, Council Vice President Chuck Callahan sent an email to Talbot County Manager Andy Hollis stating, “We need to discuss with the watermen association first and have some kind of discussion with council.”
Hollis also sent an email on Feb. 18 to all council members regarding oyster testimony stating, “Per Laura, please advise as to whether the county council would support sending a letter similar to that attached from the Maryland Rural Counties Coalition.”
Councilwoman Laura Price responded with, “MACo rural county letter attached. Do we send our email to council?”
In a text to Price, Lesher said, “Responding to you first. I’m not prepared to sign on to the letter opposing SB 280/HB166 at this time. Mixed feelings on this issue.”
Price responded, “Even based on the cost to county government alone.”
“My concerns are more for small businesses like ours,” Lesher said.
“Absolutely,” Price responded. “It’s all of it together. Really afraid that this will drive out small businesses. Which in turn reduces income tax revenues. And drives up county payroll too. Talked to a business owner today. The trucking company at our business center and they would move out of state. He’s going to write a letter.”
Pack texted Lesher saying, “Give me a call when you are free, taking a poll of council regarding minimum wage bills and oyster bills.”
Hollis sent an email on Feb. 18, saying, “Please advise as to whether the County Council would support sending a letter similar to that attached opposing minimum wage legislation being proposed.”
Lesher replied, “Andy, I am not prepared to sign a letter opposing SB280/HB166 at this time. I have mixed feelings on this issue. I have responded separately to Laura.” Hollis responded with a thank you.
Price responded to Hollis as well saying, “Minimum Wage letter from Talbot County? All 5 signatures? For Senate Committee hearing this Thursday. SB280/HB166.”
Price sent out an email to council members and county staff stating, “Minimum wage was on our agenda last week at our council meeting for discussion for this very reason. The figures for Talbot County, calculated by Sherry and Angela and the letter I sent was provided to council. I presented the information at our public meeting on Feb. 12 and let you know that Rural Counties had voted to take a position and that we wanted letters from all rural counties to go in the packet for this Thursday’s testimony in the Senate. No one else discussed this topic.”
“The County Manager also sent this out for feedback yesterday and no one has replied. This was discussed on the Rural County Coalition call last night and Sara Visintainer sent out yet another reminder email. Regarding the Oyster Bill, this specific bill is being opposed by the Waterman. If you understand this Sanctuary bill, it will make all ‘fisheries’ off limits to them for any harvesting at all. As I understand it, this request to take a position was made to the Rural Counties by the Watermen’s Association. This letter was written by Les Knapp at MACo ans has already been shared with the watermen. They are very pleased with the content of our letter. At this point, there seems to be no reason to not take a position of opposition. If we wait until March, it will be too late to provide the testimony to the committee. That meeting with our watermen was suppose to be on our boat slip fees, and it was only discussed later to include topics of legislation in Annapolis.”
“I have not received a phone call from Corey this morning and I am available to discuss with any council member today if you have any questions or need clarification on the information that was presented last week.”
Pack responded via email Feb. 19 stating, “We have been asked by the Maryland Rural Counties, which we are a participating member, if Talbot County will consider forwarding a letter opposing the minimum wage Bills SB2890& HB166 as well as the Oysters sanctuaries Bill. I tried to reach several of you this morning by phone, yet not successful. I know our response time is sensitive, yet I don’t want it to be rushed and without full participation in the process.”
“With that being said, here are my thoughts on the matters for your consideration. Regarding the oyster bills, there are several of them I feel that we should wait. We are scheduled to meet with the Talbot County Watermen on March 4. I feel we owe them the consideration to be heard, before we sent a letter ‘for or against’ any of the bills. Regarding the minimum wage increase Bill, I will go with the majority’s vote. If you don’t mind sending back your vote on the Bill. We’ll sit down with staff and draft a letter from the Council, later today. Thanks.”
Councilman Frank Divilio sent Pack an email on Tuesday, Feb. 19 saying, “I would like for Council to come out in support of small businesses and against raising minimum wage. Talbot County has been working hard to attract the right businesses, that provide good paying careers. I don’t want us to do anything to scare those businesses away.”
“I support the Watermen and believe that we should also voice our support for them. I believe in innovation and not regulation. We are just beginning to see new ways to grow oysters and while some have the money to invest, others still need the ability to work all of the water while learning about other processes.”
Pack responded on Tuesday Feb. 19 to all council members saying, “Laura, Chuck and Frank are in favor of a letter from the Council opposing the minimum wage increase. I am voting the majority. Pete is against. Therefore I requesting a letter from Council in opposition to HB166 and SB820.”
“Regarding the oyster sanctuary bill, Laura and Frank are in favor of proceeding now with a letter opposing HB298, which has a hearing on Friday 2/22. Chuck and Pete asked to wait until we hear from the watermen on March 4th. I tried to reach Bruce Cole this evening for his input, but was unable to reach him. As this is time sensitive I am casting my vote with Laura and Frank for a majority to proceed now with a letter of opposition for Council. If you have any questions please call me.”
Open Meetings Compliance Board response
For 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.
“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.
Talbot County Council
During the council meeting on Aug. 13, Divilio said he accepted that the guidelines have changed. “I am happy to release the single email he sent to Pack, which offered my opinion on both issues,” he said.
“We need to bounce ideas off of one another; and electronics and technology of four people can unknowingly send their opinion to one another is near simultaneous,” Divilio said. “I supported the watermen, which comes to no surprise to anyone who knows me or has come to any of my campaign events. I was also against raising minimum wage because when I looked at our budget we didn’t have the money and it would have cut funding and valuable departments that we have.”
Callahan shared the sentiment as Divilio saying the council had intentions to do the right thing for the watermen.
“I don’t feel like we were trying to keep anything away from the public, I thought we were doing jobs as elected officials making a decisions for the best interest of the community,” Callahan said. “I was on a vacation doing my thing not really concerned about hiding anything, so there is normal things that I feel like has a governing body here that we were doing.”
Price thought from the beginning the council should be transparent and should release all the emails related to the PIA request. As many other counties, Talbot serves in a dual role, both at legislative and executive functions.
“I am all for releasing any and all information that was used to deliberate an issue. There is absolutely no reason not to. Whether it was executive or administrative is not the point, we need to be transparent. But the public also needs to allow the elected officials that you put your trust in to make that decision in a swift manner,” Price said. “There are absolute times we need to protect our executive privilege and by releasing these emails, I don’t believe that we are giving up our rights to protect that.”
Pack said: “With what my colleagues have said up here, council needs time to bounce off ideas from one another and whether we do it over coffee or an email, we still need to bounce things off from one another. As I said in my portion of the email, I was going to go along with the majority. I will do likewise tonight in my abstention of casting a vote, but whatever the majority of votes for I will abide with.”