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M A R T I N O ' M A L L E Y M O N I C A J . J O H N S O N , E S Q .G o v e r n o r ^ ^ M M ' ^ L C h a i r

A N T H O N Y C . B R O W N M l ? | I f f WA N D A M A R T I N E Z , E S Q .L t . G o v e r n o r * f t S r . l W J W t M A M AT A S . P O C H , E S Q .

State of Maryland

Open meetings compliance board

9 Ofcial Opinions of the Compliance Board 160 (2014)

Re: Maryland Health Benet ExchangeCraig O 'Donnell, Complainant

September 18, 2014

In this opinion, we will address the fourth of ve complaints by Craig O'Donnell,( Complainant ), that the Maryland Health Benet Exchange Board ( MHBE ) violatedthe Open Meetings Act. Many allegations involved meeting practices that we have sinceaddressed in our opinions on the earlier complaints, so we asked the MHBE to conne itsresponse to the allegations on two sets of issues: (1) whether, since we issued our opinionon May 19, 2014, the MHBE has complied with the Act's provisions on the informationthat a public body must disclose about its closed meetings; and (2) whether thediscussions that the MHBE's members held in its 2014 closed meetings fell within thestatutory authority that the MHBE claimed as the basis for excluding the public.

1. Summaries of the events of the May 20 and 30, 2014, closed sessions

This set of allegations questions the way in which MHBE discloses the events ofits closed sessions.

When a public body has met in a session closed under the provisions of the Act,the public body must later report on what actually transpired in the closed session.Specically, the public body must include four sets of information in the minutes of itsnext open session: the time, place, and purpose of the closed session, each member's voteon whether to close the session, a citation to the statutory authority for closing thesubject, and a listing of the topics of discussion, persons present, and each action takenduring the session. 10-509(c)(2).1 Some of the required information might overlapwith the information that must be included on the written statement that the presidingofcer must make at the time the members vote to close the meeting, but that is notnecessarily so. By way of examples, a statement prepared before the meeting cannot

All references to the Act are to the State Government Article of the Maryland Code.

Assistant Attorney General Ann MacNeille, Counsel200 Saint Paul Place Baltimore, Maryland, 21202-2021

Telephone Numbers: (410) 576-6327 (888) 743-0023 D.C. Metro (301) 470-7534

Telephone for Deaf (410) 576-6372

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report on the actions taken during the meeting, and a prediction as to the topics to bediscussed during the closed session will not reect the actual event if the members do notget to them all. For that reason, the model form we recommend for such statements hastwo parts. The rst part is for the information that must be provided at the time ofclosing. The second part, labeled for use in the minutes of the next regular meeting, isthere to prompt the person keeping the minutes of the closed session to record theinformation that the public body must include in the minutes of the next open meeting.See Written Statement for Closing a Meeting, available at http://www.oag.state.md.us/Opengov/Openmeetings/AppC .pdf.

The MHBE held two closed sessions during the period in question. For each, its

presiding ofcer completed a written closing statement. In each case, the MHBE lateradopted minutes of the open sessions that it had closed. Each set of minutes reects thefact that the members voted to close the meeting, and each set is posted, along with theclosing statement, on the minutes page of the MHBE's website. By way of a post-session summary of the May 20 closed session, the minutes state, For topics discussedand actions taken, please see the Statement for Closing a Meeting, dated May 20, 2014.A footnote provides a link to the statement. Neither the May 30 minutes nor the minutesof the next open meeting contain a similar adoption of a summary of the May 30 closedsession. However, both closing statements contain information, on the second part of theform, about what was actually discussed.

In Complainant's view, the Act requires a public body to include the post-meetingsummary in the body of its minutes or in a document physically attached to it. He pointsout, correctly, that the Compliance Board has advised that the events of a closed meeting must be reported in a single place. See 6 OMCB Opinions 127, 134-35 (2009). There,however, the public body's report on an action that was taken in the closed session wasplaced in the minutes in such a way that a member of the public might have thought thatthe action was taken in open session. Here, by contrast, the disclosures that the MHBEincorporated into its May 20 minutes make clear what was done in the closed session.Moreover, a reference in open-session minutes to a document one click away hardlyobscures the information from public view, when the documents are viewed online.MHBE staff directed Complainant to the summary online, and there is no complaint thatthe summary was withheld from a person who came to inspect the minutes. We nd thatthe MHBE did not violate the Act with regard to its disclosures about the events of theMay 20 closed session.

As to the May 30 disclosures, the MHBE posted the post-session summary alongwith the closing statement. However, neither the minutes of the May 30 open session nor

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the minutes of the next open session refer to the summary document, and neither set of

minutes contains a summary. We recognize that a person interested in the May 30 closedsession would very likely nd the summary while looking at the closing statement.However, the closed-session summary serves as the members' representation of whatoccurred out of the public's view. A summary that the members have yet to adopt might,like draft minutes, convey some information, but it does not fulll that function. Wetherefore nd that the MHBE has not timely adopted the summary of the May 30 sessionthat it posted separately in its website. This violation is easily remedied and notsubstantial.

2. The exceptions that MHBE claimed as authority for closing various 2014

meetings to the topics discussed in those meetings

Complainant alleges that MHBE violated the Act by excluding the public fromdiscussions that the Act required to be held in public. Specically, Complainant allegesthat the MHBE's closed-door discussions did not fall within the scope of three of theexceptions that the MHBE claimed as the statutory authority for closing the sessions.

All of the meetings in question pre-date our July 30, 2014, opinion in 9 OMCBOpinions 132 (2014),2 which we issued after the MHBE responded to this complaint.There, we addressed the limits of the exceptions for the discussion of certain procurement

matters, personnel matters, legal advice, and potential litigation matters. We will applythat guidance to the discussions described in the sealed minutes that the MHBE hasprovided to us. We will then turn to two exceptions not discussed in that opinion.

As to whether the procurement exception provided in 10-508(a)(14) applied tothese meetings, we nd that at times the MHBE discussed contract matters that did notinvolve either a pending procurement or an impending procurement that is actually in theworks. Those discussions exceeded the scope of the exception provided in 10-508(a)(14). As we noted in our July 30 opinion, the possibility that a public body mightdecide to initiate a competitive procurement process in the future does not by itself

provide a basis for invoking this particular exception when it discusses either the publicbody's needs or non-competitive procurements. For example, the MHBE's discussions ofnon-competitive contract modications on January 27, a meeting it closed only under thisexception, violated the Act. A discussion of procurement procedures generally, not in thecontext of a particular procurement, would also exceed the scope of this exception. Bycontrast, the May 30 brieng on competing proposals fell within the exception.

*Our opinions are posted at http://www.oag.state.md.us/Opengov/Openmeetings/board.htm.

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As to whether the legal advice and potential litigation exceptions set forth in

10-508(a)(7) and (8) applied to the meetings closed on that authority, we nd that thoseexceptions applied to the discussions for which the MHBE claimed them. For somemeetings, the MHBE had also cited the procurement exception as a basis for closing themeeting, but the matters that the members actually discussed did not qualify for thatexception. The question then might be, how should the public body proceed when itbecomes apparent during a closed session either that the members will not discuss all ofthe topics listed on the closing statement or that one of the cited exceptions will not applyto a disclosed topic? Assuming that the topics actually being discussed were listed on theclosing statement and fall within one of the exceptions claimed there, the public bodymight identify in its post-session summary the topics that it did not reach and the

exceptions that turned out not to be applicable, so as to avoid suspicion that an exceptionwas improperly invoked or the topics were actually discussed. Of course, when it insteadbecomes apparent during the closed session that the discussion has strayed to anundisclosed topic or, for a disclosed topic, beyond the scope of the claimed exceptions,the presiding ofcer should stop the discussion. If the public has had notice that thepublic body might return to an open session, the presiding ofcer may adjourn the closedsession and convene an open one so that the discussion may proceed.

Next, Complainant questions the applicability of the real property acquisitionexception ( 10-508(a)(3)) to the members' discussion of a lease of real property for the

MHBE's use. As the response points out, the Compliance Board concluded eight yearsago that the acquisition of real property includes the acquisition by lease. 5 OMCBOpinions 10, 12 (2006). We note that Complainant was the complainant in that matter.

Finally, Complainant asserts that the exception set forth in 10-508(a)(13), whichpermits a public body to close a session as required by a statutory provision, does notpermit a public body to approve its sealed minutes in a closed session. Public bodiesmust adopt minutes of their closed sessions, and those minutes, by law, shall be sealedand may not be open to public inspection. 10-509(c)(3)(ii). In our view, thosestatutory requirements leave most public bodies with three options for approving theirclosed-session minutes. First, the members may review, discuss, and adopt the minutesin a session closed under this exception. Second, the members may review and adopt thesealed minutes, but not discuss their contents, in a public session. Third, in a method ofdecision-making that we deem to be the least transparent method of conducting publicbusiness but that the Act does not prohibit, the members may review draft minutes,separately, and adopt them without communicating with each other in the presence of aquorum. Public bodies that are governed by laws or bylaws that require them to adoptminutes in open sessions might be conned to the second method; other public bodies are

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not. In none of the events is a member of the public entitled to see the contents of either

the draft or the adopted minutes until such time as the public body votes to make thempublic.

We hardly fault the MHBE for choosing the rst method. That method preservesthe requisite condentiality of the closed-session minutes. It also allows for a meaningfuldiscussion of their contents, and, if the public body wishes, the question of when theymight be unsealed. We nd that the MHBE's adoption of its closed-session minutes in aclosed session comported with the Act.

Conclusion

In section 1, we have found that the MHBE violated the Act by failing to adopt itspost-session summary of the May 30 meeting; it is important to note that the MHBE putthe draft summary on its website and failed only to vote to adopt it. The vote mattersbecause the Act assigns to the members, not staff, the responsibility for making therequired disclosures about what has gone on in a closed session. The MHBE compliedwith the Act with respect to the summary of the May 20 closed session.

In section 2, we concluded that the MHBE violated the Act because some of itsclosed session discussions exceeded the scope of the procurement exception. We found

that other discussions fell within the exceptions that the Complainant questioned.

Open Meetings Compliance Board

Monica J. Johnson, Esq.Wanda Martinez, Esq.