State compliance board finds multiple instances where act wasn’t followed

By Ally Lanasa, Staff Writer

(Jan. 28, 2021) The Maryland Open Meetings Compliance Board found that the town of Berlin violated the Open Meetings Act at the Nov. 16 closed session and the following Nov. 23 open session, according to an opinion dated Jan. 20.

Mayor Zackery Tyndall

The Maryland Open Meetings Compliance Board found violations of several requirements, including the pre-meeting notice and agenda requirements, the requirements for properly closing a session to the public, the requirement that closed-session discussion be limited to matters within the exception claimed on the closing statement and the requirement of a closed-session summary in the minutes of the next open session.

The board’s review of the Berlin mayor and Town Council’s procedures was prompted by a complaint filed by resident Jason Walter. Although he cited the two November meetings in his complaint, Walter alleged that the town’s closed session practices consistently violate the Open Meetings Act.

“While we do not address whether any other such violations have, in fact, occurred, we encourage the council in the conduct of future meetings to comply with the procedures as set forth in the Act and explained in Chapter 5 of the Open Meetings Act Manual,” the opinion states.

“These procedures are designed to ensure that bodies will conduct public business in secrecy only when there is a genuine need for secrecy, and, even when there is such a need, to ensure that the public is made aware of that need, and is meaningfully informed after the fact about the actions the public body has taken.”

The opinion also states that the council must notify the public that it plans to close part of a meeting to the public, and the notice must invite the public to an open meeting to vote on whether to close the meeting before the scheduled closed session.

Walter alleged that council never held an open session on Nov. 16 prior to the “special executive session” to discuss public safety. In response, the council said a vote to close the session was taken and that a written closing statement was prepared, however, it was done so out of public view.

“This nonpublic closure vote violated the Act,” the opinion states. “[M]embers of the public were deprived of the opportunity to object to closure, which violates the Act.”

Walter also said that the public was only notified two business days in advance of the closed session.

“We understand that during the ongoing pandemic, the council may need to meet on relatively short notice to address new or amended executive orders and other public health directives,” the opinion reads. “Such exigencies do not eliminate the requirement that the council provide reasonable advance notice of its meetings, but they are a factor to be considered in assessing the reasonableness of notice. The council may wish to advise the public to check the council’s website often while the current public health emergency continues.”

Furthermore, the agenda for the Nov. 16 closed session stated that the meeting would take place via Zoom with the time and date of the meeting. The only other information provided was “to discuss public security, if the public body determines that public discussion would constitute a risk to the public or to public security, including (i) the deployment of fire and police services and staff; and (ii) the development and implementation of emergency plans[.]”

The board found the council violated the agenda requirement because “it failed to clearly notify the public that the meeting would be entirely closed, nor did it invite the public to a separate open session preceding the closed session,” the opinion states.

In addition, a list of topics to be discussed must be included in the agenda if the council plans to use the agenda as the closing statement for the meeting, according to the Open Meetings Act.

“The council may find helpful the model closing statement currently posted on the Attorney General’s website; this most recent version has been formatted to more clearly remind the presiding officer to include, for each topic to be discussed, the public body’s reasons for discussing that topic behind closed doors,” the opinion states. “The closing statement can then serve as a reminder to the presiding officer, once the closed session has begun, of the limits within which the discussion must be kept.”

Another issue the board found was that the council did discuss topics at its Nov. 16 closed session that were not included on its closing statement.

“Here the confidential meeting minutes the council submitted to the board indicate that the council discussed a number of topics at the November 16 meeting extending beyond matters that would threaten public safety if discussed publicly,” the opinion reads.

“As the text of the Act indicates, closure is not allowed simply because the discussion relates to safety or security matters; rather, the body must ‘determine’ that the issues are sensitive enough that an open discussion would itself imperil the public.”

Lastly, the council failed to disclose the public information about the closed session at the following open session on Nov. 23.

“The mayor, presiding over the meeting, stated that a closed session occurred on November 16 and that the vote to close the session was unanimous with all members present, and cited Section 3-305(b)(10) as authority for closing the meeting,” the opinion states.

“Significantly, however, there was no ‘listing of the topics of discussion, persons present, and each action taken during the session.’”

Before the scheduled executive session on Monday, Mayor Zackery Tyndall addressed the report by explaining that the Open Meetings Act requires the Town Council to provide the opportunity for the public to hear the purpose of the closed session, the time and place of the meeting, the justification for the closed session and the time for a return to open session.

Then, the public could object to the closed session before the council votes to go into the closed session, the mayor continued.

“If there’s merit, then we need to weigh that before a vote were to be taken,” he said. “If not, the council could still choose to go into closed session.”

Following a closed session, a list of the agenda items should be disclosed to the public as well as the code which those items are in compliance.

“There is no deviation from the agenda item while in closed session,” Tyndall said.

He read the closed session summary for Monday before the council took a vote whether to go into closed session live on Zoom that was open to the public via Facebook Live.

The council planned to meet in executive session to discuss a negotiating strategy for selling a portion of Heron Park.

Councilman Dean Burrell said the agenda did not notify the public that an open session would occur before the closed session, thus the public might not be aware they could participate. Attorney Dave Gaskill agreed that it needs to be advertised to the public.

“I would suggest that if we want to provide more time for people to understand the process and make sure that it’s clear and transparent that we postpone the executive session until our next meeting on Feb. 8,” Tyndall said.

The council unanimously opposed going into executive session on Monday.

During the open session, Tyndall read the statement on behalf of the Town Council.

“On Jan. 20, 2021, the town of Berlin received notification from the State of Maryland Open Meetings Compliance Board regarding a closed session meeting held on Nov. 16, 2020,” he said. “The mayor and council of the town of Berlin take open meetings and their compliance with the Maryland Open Meetings Act very seriously. We are going to use these findings as an opportunity to enhance our transparency and adapt to the reporting of closed sessions to comply with the guidelines.”

In the future, the Town Council will go live before an executive session and read a statement of closure, which will be published in the meeting packet.

After an executive session takes place, Tyndall said the statement of closure will be updated with the list of agenda items discussed as well as the vote tally to go into closed session.