Attorney General of Maryland — Opinion
September 29, 2009.
CODE REVISION OPEN MEETINGS ACT — WHETHER CERTAIN OPEN MEETINGS STATUTESMAY BE REPEALED AS PART OF CODE REVISION WITHOUT CHANGINGSUBSTANTIVE LAW, IN LIGHT OF THE LATER ENACTMENT OF THE OPENMEETINGS ACT
DOUGLAS F. GANSLER, Attorney General.
Dear Susan G. Phelps
In connection with the ongoing code revision process, you have requested our opinion whether three statutory provisions enacted in 1954 that require certain public entities to hold meetings in public may be repealed, in light of the more recent enactment of the Open Meetings Act, without effecting a substantive change in the law.
In our opinion, the older statutory provisions are, in large part, duplicative of the Open Meetings Act and may be repealed as part of code revision without effecting a substantive change in the law. However, the part of each provision that states that “no ordinance, resolution, rule or regulation shall be finally adopted at [a meeting not open to the public]” should be retained in the Code.
I Statutory BackgroundA. 1954 Legislation
Fifty-five years ago, the General Assembly enacted parallel statutes requiring that meetings of certain State and local entities be open to the public. Chapter 13, Laws of Maryland 1954, now codified at Annotated Code of Maryland, Article 23A, § 8 (of municipal legislative bodies), Article 25, § 5 (county commissioners and county councils), and Article 41, § 1-205 (boards or commissions
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in units of the Executive Branch).[1] The identical requirement in each of the statutes is identically qualified: these provisions are not to be construed to prevent a public body from holding a closed
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executive session, as long as “no ordinance, resolution, rule or regulation [is] finally adopted at such an executive session.”Id.
The term “meeting” is not defined in any of these statutes. Thus, it is to be understood as reflecting its common law meaning: the convening of a quorum of the body’s membership — usually a simple majority — which is the minimum number necessary for a deliberative body to act. See Floyd v. Mayor and City Council of Baltimore, 407 Md. 461, 482, 966 A.2d 900 (2009); 73 Opinions of the Attorney General 6, 7 n. 2 (1988). The term “executive session” is also undefined, but it presumably refers to the closure of all or part of a meeting. See Schwing, Open Meeting Laws § 7.4.A (1994). Thus, as long as certain final actions are not taken out of public view, these statutes allow for meetings to be closed to the public. The statutes do not prescribe any procedural requirements governing meetings of public bodies or the closure of such meetings. Nor do they provide any penalty for a violation of the open meetings requirement.
B. Open Meetings Act
In 1977, the General Assembly enacted the Open Meetings Act, which has been described by the Court of Appeals as “Maryland’s first comprehensive legislation regarding open meetings.” City of Baltimore Dev. Corp. v. Carmel Realty Assoc., 395 Md. 299, 320, 910 A.2d 406 (2006). The Act, as amended, is now codified at Annotated Code of Maryland, State Government Article (“SG”), § 10-501, et seq. The Act embodies the legislative policy in favor of open meetings. Among other things, it requires, “[e]xcept as otherwise expressly provided in [the Act],” that a public body meet in open session, and grants the public the right to attend open meetings. SG §§ 10-501, 10-505, and 10-507(a).
The Act applies to “public bodies.” The definition of a “public body” consists of two prongs.[2] First, the term “public body”
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includes any multi-member entity created at the State or local government level by certain legal instruments, such as a statute, ordinance, or executive order. SG § 10-502(h)(1). Second, the term includes entities appointed by the Governor or the chief executive of a political subdivision — or by an official who is subject to the policy direction of the Governor or a chief executive — if the entity includes at least two individuals not employed by the State or the political subdivision. SG § 10-502(h)(2); City of Baltimore Dev. Corp. v. Carmel Realty Assoc., 395 Md. at 323. A “meeting” occurs when a quorum of a public body convenes for the consideration or transaction of public business. SG § 10-502(g).
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Not every meeting of a public body, however, must be open. The Act does not apply when the public body is engaged in an administrative, [3] judicial, [4] or quasi-judicial function, [5]
as defined in the statute. SG §§ 10-502(b), (e), and (i) and 10-503(a).[6] In contrast, the Open Meetings Act does apply whenever a public body is engaged in an advisory, legislative, or quasi-legislative function, as each of these terms are defined in the Act. See SG § 10-502(c), (f), and (j).[7] However, even meetings governed by the Act can be closed to the public under 14 enumerated exceptions to the open meeting requirement. SG § 10-508(a).
The Act imposes certain procedural requirements to ensure that the public may benefit from the mandate for open meetings.
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Reasonable advance notice must be given of a meeting. SG § 10-506. Minutes must be kept and made available to the public subsequent to a meeting. SG § 10-509.[8] And, when meetings governed by the Act are closed to the public, additional procedures must be followed.[9] When there is a conflict between the Open Meetings Act and other law relating to meetings of a public body, the “more stringent” law governs. SG § 10-504. Although the term “more stringent” is not defined, the policy underlying the Act is furthered only if the term is understood to mean the law granting the public greater access. City of College Park v. Cotter, 309 Md. 573, 596-97, 525 A.2d 1059 (1987) (Eldridge, J., dissenting).[10]
Finally, the Act created the Open Meetings Compliance Board as an independent panel that issues advisory opinions interpreting the Act, and provided for private civil actions to enforce its requirements, including the award of attorney fees to a prevailing party. SG §§ 10-502.1 — 10-502.6 and § 10-510.[11]
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II Analysis
You have requested this opinion in connection with the ongoing code revision process. As a general rule, code revision is presumed to be for the purpose of clarity rather than for the purpose of changing the substance of statutory law. Comptroller v. Blanton, 390 Md. 528, 538, 890 A.2d 279 (2006). Thus, you have asked whether the open meetings statutes enacted as part of the 1954 legislation may be repealed without effecting a substantive change in the law, in light of the later enacted Open Meetings Act.
Your inquiry thus requires that we construe and compare the 1954 legislation and the Open Meetings Act. We consider the relationship between the 1954 legislation and the Open Meetings Act in four steps.
First, we consider the scope of each statute in terms of the entities to which each applies: are there public bodies to which the 1954 legislation, but not the Open Meetings Act, might apply?
Second, we consider whether the functional exclusions from the Open Meetings Act create a distinction from the 1954 legislation: does the 1954 legislation have an open meetings requirement for meetings outside the scope of the Act?
Third, we consider the circumstances under which each statute allows a public body to close a meeting: does the 1954 legislation require a meeting to be open when the Open Meetings Act would allow for a closed meeting?
Finally, we consider the extent to which either statute requires a public body to hold a meeting to take specific action.
A. Scope — Entities Covered
Article 23A, § 8 applies to the legislative body of a municipal corporation. As used in Article 23A, the term “municipal corporation” is understood to include all incorporated cities, towns,
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and villages governed under Article XI-E of the Constitution Cf. Maryland-Nat’l Capital Park and Planning Comm’n v. Town of Washington Grove, 408 Md. 37, 57, 968 A.2d 552 (2009) (municipalities derive authority from Article XI-E of the Constitution and Article 23A of the Code).[12] By its express terms, Article 23A, § 8 also applies to the Baltimore City Council.[13]
Article 25, § 5 applies to the governing body of each county, whether the county operates under a traditional commission government, charter home rule in accordance with Article XI-A of the Constitution, or code home rule in accordance with Article XI-F of the Constitution.
The application of Article 41, § 1-205 to boards and commissions “in control of” any unit of the “Executive Department” in State government is less clear. The term “executive department” is frequently used to refer to those units that are part of the Governor’s office for budgetary purposes. See Letter of Advice from Assistant Attorney General Robert A. Zarnoch to theHonorable Charles J. Ryan (March 14, 1989). However, in this context, it is more appropriately interpreted as meaning the Executive Branch of State government — the meaning of the term in
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1954.[14] Boards and commissions are generally created by statute or the State Constitution, and sometimes by executive order.
The Open Meetings Act applies to the Baltimore City Council, the county council of a county that has adopted charter home rule, the board of county commissioners of a traditional commission county or of a code county, and a legislative body of a municipal corporation in that each of these entities would qualify as a “public body” under SG § 10-502(h)(1).[15] The definition of “public body” under the Act would also extend to any board or commission governed by Article 41, § 1-205. Thus, all entities governed by the 1954 legislation are also “public bodies” subject to the Open Meetings Act. Repeal of the 1954 legislation would not reduce the universe of entities subject to an open meetings requirement.
B. Scope — Functions Covered
As noted above, not every meeting of a public body is necessarily governed by the Open Meetings Act. Certain
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“functions” of a public body are excluded from the Act even if they involve gatherings that would otherwise qualify as a “meeting.” SG § 10-503(a). In contrast, the 1954 legislation has no similar exclusions.
At first blush, it might appear that the 1954 legislation grants the public a broader right to access meetings of public bodies than the Open Meetings Act in that the 1954 legislation applies to “[a]ll meetings, regular or special” and lacks the functional exclusions of the Open Meetings Act. Nevertheless, the only real limitation under the 1954 statute on a public body’s ability to conduct an executive session that is closed to the public is that it may not take final action in adopting an ordinance, resolution, rule, or regulation during the course of the closed session. Thus, subject to that caveat, the 1954 legislation also allows a public body to close those meetings that are excluded from the scope of the Open Meetings Act. And, as explained below, that caveat is very limited.
By definition, adoption of an ordinance would be a legislative function subject to the Open Meetings Act. SG § 10-502(f)(1). Adoption of a rule or regulation would be a quasi-legislative function also subject to the Act. SG § 10-502(j)(1). Under either scenario, the Open Meetings Act would apply not only to the public body’s final action, but to the entire deliberative process conducted during the course of a meeting. City of New Carrollton v. Rogers, 287 Md. 56, 72, 410 A.2d 1070 (1980). To be sure, unlike the 1954 legislation, the Open Meetings Act does not expressly address the adoption of a resolution. However, it is clear that adoption of any resolution that “set[s] public policy” would be a legislative function under the Act. SG § 10-502(f)(1).[16] Similarly, any resolution approving an appointment, proposing a charter amendment, or approving a budget or contract would be governed by the Act. SG § 10-502(f)(2), (4) and (j)(2), (3). Thus, it appears that the authorization of closed executive sessions — and the limitation on closure — in the 1954 legislation are largely co-extensive with the
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functional application of the openness requirements of the Open Meetings Act.
Nevertheless, we recognize that a limited class of “resolutions” might come within the definition of an administrative function, [17] and therefore would be outside the scope of the Act. SG § 10-503(a)(1)(i). Under those limited circumstances, the 1954 legislation would require an open meeting while the Open Meetings Act would not. Thus, to avoid a substantive change in the law, a code revision bill that otherwise repeals the 1954 legislation should retain at least the mandate that final adoption of a resolution occur in an open meeting.[18]
C. Exceptions to Open Meeting Requirements
We have thus determined the Open Meetings Act covers the same entities governed by the 1954 legislation and that, with a minor qualification, the application of the openness requirements are largely the same. We next consider whether the statutes differ as to the circumstances under which a meeting subject to the openness requirement may be closed and the procedure required.
As noted above, the 1954 legislation prescribed no procedural requirements for the closure of a meeting. Thus, the procedures required by the Open Meetings Act would govern closure of a meeting and repeal of the 1954 legislation would not affect these procedural requirements.
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With respect to the circumstances under which a meeting may be closed, the Open Meetings Act has 14 enumerated exceptions to the openness requirement based on the subject matter under discussion; the 1954 legislation generally permits an entity to hold an “executive session,” but does not further confine the body’s discretion except to the extent that it is finally adopting an ordinance or other measure. However, the Court of Appeals has held that the exceptions set forth in SG § 10-508 also apply to the open meetings requirement of Article 23A, § 8, one of the parallel statutes enacted by the 1954 legislation. J.P. Delphey Ltd. P’ship v. Mayor and City of Frederick, 396 M d. 180, 199, 913 A.2d 28 (2006).[19] Specifically, the Court held that exceptions under SG § 10-508(a), authorizing a public body to close a meeting for enumerated purposes, “provide[] an exception to the general prohibitions of Section 8 of Article 23A.”Id., 396 Md. at 202.[20]
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D. Required Meetings
Finally, we consider the extent to which either statute prescribes when a public body must hold a meeting. The 1954 legislation requires that public bodies take certain actions in the context of an open meeting — i.e., “final adoption” of an ordinance, rule, regulation, or resolution. In that respect, then, the 1954 legislation imposes an obligation on a public body to hold a meeting in public.
By contrast, our longstanding advice has been that the Open Meetings Act does not specify when a public body must hold a meeting; it simply establishes rules that apply when a meeting occurs. 81 Opinions of the Attorney General 140, 141-44 (1996); Office of the Attorney General Open Meetings Act Manual 6 (6th ed. 2006).[21]
Dictum in a recent Court of Appeals decision may raise a question whether the Open Meetings Act also requires a public body to hold a meeting for certain purposes, although that decision can likely be reconciled with our longstanding view of the statute. See
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Armstrong v. Mayor and City Council of Baltimore, 409 Md. 648, 976 A.2d 349 (2009).[22]
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In any event, the 1954 legislation clearly directs that certain actions be taken in an open meeting while it is not at all clear that the Open Meetings Act imposes the same, much less a co-extensive, requirement. In our view, repeal of the 1954 legislation would likely effect a substantive change if it eliminated this requirement.
E. Summary
The Open Meetings Act applies to each of the public bodies governed by the 1954 legislation. While the 1954 legislation does not have the functional exclusions that limit the scope of the Open Meetings Act, the earlier legislation allows a public body to close virtually any meeting that would be outside the scope of the Open Meetings Act — except for an entity enacting a “resolution” while performing an “administrative function.” Moreover, the Court of Appeals has held that 14 exceptions to the open meetings requirement in the Act also apply to the open meetings requirements in the 1954 legislation. Thus, the open meeting requirements imposed by the Open Meetings Act equal or exceed those of the older legislation in virtually all circumstances. Finally, in our view, the prohibition on final adoption of an ordinance, resolution, rule, or regulation under the 1954 legislation bans such action outside the
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course of a meeting — a matter not clearly addressed by the Open Meetings Act.
III Conclusion
In our opinion, the statutory provisions enacted in 1954 are, in large part, duplicative of the Open Meetings Act. They may be repealed as part of code revision without effecting a substantive change in the law. However, the final clause of each provision that states that “no ordinance, resolution, rule or regulation shall be finally adopted at [a meeting not open to the public]” should be retained.
Douglas F. Gansler Attorney General
William R. Varga Assistant Attorney General
Robert N. McDonald Chief Counsel Opinions and Advice
All meetings, regular and special, of the legislative body, by whatever name known, in every municipal corporation in Maryland, including the City of Baltimore, shall be public meetings and open to the public at all times. Nothing contained herein shall be construed to prevent any such body from holding an executive session from which the public is excluded but no ordinance, resolution, rule or regulation shall be finally adopted at such an executive session.
Article 25, § 5 reads:
All meetings, regular and special, of the board of county commissioners or of the county council in this State, shall be public meetings and open to the public at all times. Nothing contained herein shall be construed to prevent any such board or council from holding an executive session from which the public is excluded but no ordinance, resolution, rule or regulation shall be finally adopted at such an executive session.
Article 41, § 1-205 reads:
All meetings, regular and special, of the boards or commissions in control of any department, bureau or other agency of the Executive Department in the government of Maryland shall be public meetings and open to the public at all times. Nothing contained herein shall be construed to prevent any such board or commission from holding an executive session from which the public is excluded but no ordinance, resolution, rule or regulation shall be finally adopted at such an executive session.
These provisions have not been substantively modified since their initial enactment.
(1) “Public body” means an entity that:
(i) consists of at least 2 individuals; and
(ii) is created by:
1. the Maryland Constitution;
2. a State statute;
3. a county or municipal charter;
4. an ordinance;
5. a rule, resolution, or bylaw;
6. an executive order of the Governor; or
7. an executive order of the chief executive authority of a political subdivision of the State.
(2) “Public body” includes:
(i) any multimember board, commission, or committee appointed by the Governor or the chief executive authority of a political subdivision of the State, or appointed by an official who is subject to the policy direction of the Governor or chief executive authority of the political subdivision, if the entity includes in its membership at least 2 individuals not employed by the State or the political subdivision; and
(ii) the Maryland School for the Blind.
SG § 10-502(h)(1) and (2). SG § 10-508(h)(3) goes on to exclude certain entities from the definition of “public body” including, among other entities, the Governor’s cabinet.
Effective October 1, 2009, the definition of “public body” will be further expanded to include multi-member entities informally appointed by an existing public body in the executive branch of State government, or by an official subject to its policy direction, if the resulting entity includes at least 2 individuals who are not members of the public body or employees of the State. See
Chapter 164, Laws of Maryland 2009.
illustrate, reasonable minds may differ as to which of two enactments is “more stringent.”
The Court’s conclusion is somewhat difficult to reconcile with SG § 10-504 (Open Meetings Act defers to “more stringent” law), as interpreted in City of College Park v. Cotter, in which the Court held that a provision in a municipal charter requiring all city council meetings to be open was a permissible expansion of the public’s right to open meetings under the Open Meetings Act. 309 Md. 573, 525 A.2d 1059 (1987). In Cotter, the Court described the Open Meetings Act as “not exclusive in its application”; rather the Act “only outlines the minimum
requirements for conducting open meetings. . . . It does not supersede legislative enactments designed to bring more openness to public meetings.” 309 Md. at 586 (emphasis in original). In J.P. Delphey, the Court did not address SG § 10-504 or th Cotter decision. Nor did either party focus on SG § 10-504 in their briefs.
case is necessary to understand the context for the Court of Appeals’ cryptic reference to the Open Meetings Act. The case concerned the enactment of a Baltimore City ordinance authorizing a parking lot as a conditional use under the City’s zoning code. The bill had been significantly amended by a Council committee without a committee hearing on the amendments. Opponents raised several challenges to the ordinance in the circuit court, including an argument that the ordinance had been enacted in violation of the Open Meetings Act. The circuit court held that the committee had violated the Open Meetings Act, inferring that the committee must have discussed amendments to the bill before approving them (or at least, should have discussed them) and held that such discussions should have been held in public. It rejected the City’s argument that an open meeting was required only if a quorum of the committee discussed the matter simultaneously. However, the circuit court also held that the violation was “cured” as a result of the bill’s subsequent enactment by the full Council.
On appeal, the Court of Special Appeals affirmed, in part, the circuit court decision in an unpublished decision. Armstrong v. Mayor and City Council of Baltimore
(Case No. 1243, September Term 2005 (filed July 2, 2007)). The intermediate appellate court quoted at length from the circuit court decision and stated that the committee had violated the Act, “by recommending an amendment to the bill without first allowing the public an opportunity to hear the reasoning behind the amendment.” Slip op. at 9. The reasoning of the Court of Special Appeals, to the extent it adopted the circuit court opinion, thus appears to be contrary to the understanding that the Act does not create a substantive requirement for when a public body must hold a meeting. Of course, as an unreported decision, the opinion is not considered precedent or persuasive authority. Maryland Rule 1-104(a).
The Armstrong case ultimately reached the Court of Appeals, which determined that the Open Meetings Act issue had been rendered moot by subsequent legislation. Armstrong v. Mayor and City Council of Baltimore, 409 Md. 648, 976 A.2d 349 (2009). However, in referring to the ordinance in question, the Court stated cryptically that the ordinance “later was found correctly to have been enacted in violation of the Maryland Open Meetings Act.”409 Md. at 682 (emphasis added). Thus, although the Court of Appeals did not review the reasoning of the intermediate appellate court and this comment is dictum, it might be construed as an endorsement of the analysis of the circuit court quoted in the Court of Special Appeals’ opinion.
It is possible to reconcile the Court of Appeals’ statement with the longstanding view of this Office. In its opinion, the Court of Appeals recounted at some length the applicable City zoning code provisions relevant to the committee’s actions, 409 Md. at 655-57, including a provision that precludes substantive amendments to zoning legislation following a public hearing without an additional hearing, unless
“the amendment [is] made in Committee.” When the committee adopted its amendments as part of its report to the full Council without holding a committee meeting, it could be said that the amendment was not made “in Committee.” Thus, the requirement that the committee hold a meeting in order to amend such a bill could be traced to provisions of the City zoning code. Any meeting of the committee involving a zoning matter would have to have been conducted in accordance with the Open Meetings Act. See
SG § 10-503(b).
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