January 26, 2021
The order in which the Wicomico County Board of Education (WCBOE) holds its open and closed sessions does not violate the Act—so long as the County Board votes in open session to hold its closed sessions. The submissions to the Open Meetings Act Compliancy Board establish that the WCBOE does hold that vote in open session. Further, review of the documents publicly available demonstrates the WCBOE's efforts to remain in compliance with the procedural intricacies of the Act. However, The Open Meetings Act Compliancy Board found that the WCBOE violated § 3-104 of the Act by failing to include sufficient information about the subject matter discussed when it met in closed session to perform an administrative function during some of their meetings. The Open Meetings Act Compliancy Board also found that the WCBOE violated the Act when its September 29, 2020 closed session discussion exceeded the scope of the administrative function. [1] You can download the entire document here.
“The County Board asserts that, at the September 29, 2020, closed meeting it received information from Wicomico County Superintendent of Schools Dr. Donna Hanlin about the administration of schools—specifically, about “the possibility of resuming in-person education and athletic competitions and various considerations she and her staff were in the process of weighing in terms of how such matters might impact the timing of these events.” The receipt of this information, the County Board maintains, fell within the administrative function exclusion from the Act. The County Board also points out that Dr. Hanlin’s final “Return to School Plan” was presented to the County Board and public during an open meeting held on October 13, 2020. The question before us is thus whether the County Board’s September 29, 2020, closed session was indeed closed to perform an administrative function and therefore was not subject to the Act, save for the disclosure provisions of § 3-104. To aid in our inquiry, the County Board has provided us with the sealed minutes of the September 29, 2020, closed session. As required by § 3-306(c)(3), we will maintain in the confidentiality of the sealed minutes.
With the above in mind, the sealed minutes show that a large portion of the September 29, 2020, closed session was indeed dedicated to the matters described in the response. However, it also appears that the County Board provided input on several aspects of those matters and, in so doing, strayed outside of its administrative function. We are reminded of a recent opinion of ours addressing a closed discussion by the SBE of matters related to the Covid-19 pandemic. There, the SBE contended that the discussion was “merely informational” and “was not used to determine policy and required no action by the State Board.” 14 OMCB Opinions at 95. We agreed and remarked, “had the State Superintendent advised the State Board in order to set policy, then that would have constituted a function subject to the Act.” Id. We also observed, as relevant here, “given the profound impact of the COVID-19 emergency, such discussions could potentially have devolved into the consideration of policy matters for the State Board, but the minutes indicate that the State Superintendent was merely keeping the State Board apprised as she responded to the emergency.” Id. The minutes of the County Board’s September 29, 2020, meeting indicate that the County Board did more than listen to the Superintendent’s report on how she had responded to the emergency; it then acted on that information by, among other things, discussing information about future measures and approving her plans. Compare, e.g., 14 OMCB Opinions 108, 111 (2020) (“The County Board thus took action to approve a ‘recommendation’ that reflected judgments as to where the necessary layoffs should best be made. . . . We find that the County Board was making a policy decision when it voted to concur with the layoffs as proposed by the superintended and thus was not merely expressing support for a decision taken by the superintendent.”).
What happens now?
WCBOE violated Maryland State law by its conduct according to the Maryland Open Meetings Act. The Open Meetings Act Compliance Board nor the Attorney General won't do anything to enforce or compel compliancy of the Act. The Open Meeting Act Manual states that:
"Only courts may enforce the provisions of the Open Meetings Act. To seek judicial enforcement of the Act, a person must file a lawsuit in the circuit court for the county in which the public body is located. During that process, a person may request that representatives of the public body give sworn testimony and produce documents. The Compliance Board and its staff from the Attorney General’s Office have no role in this process." [2] The entire Maryland Open Meetings Act Manual can be downloaded here.
References
1. Maryland Open Meeting Compliance Board - Wicomico County Board of Education
2. Open Meetings Act Manual - Office of the Attorney General https://www.marylandattorneygeneral.gov/OpenGov%20Documents/omaManualPrint.pdf