By Jack Chavez, Staff Writer
(March 30, 2023) The Town of Berlin received a wag of the finger on Friday from a state advisory board after it issued an opinion that a closed meeting earlier this year should have been open to the public.
But some officials, including town attorney Dave Gaskill and Mayor Zack Tyndall, contend the town did nothing wrong.
The Maryland Open Meetings Compliance Board (OMCB) found that the Jan. 23 meeting about the Berlin Fire Company violated the state Open Meetings Act and should have been held publicly. It’s the town’s second violation in two years.
The board investigated the meeting after Berlin resident Jason Walter filed a complaint.
According to the opinion issued by the board, the town closed the meeting to discuss proposed contracts for FY23 and FY24 and revisions to the terms of previous contracts.
The board reported that the reason for the meeting represented a “quasi-legislative” function, which must be discussed publicly, unless an exception applies, which the town did cite.
The exception invoked by the town is known as a procurement exception, which stipulates that a meeting may be closed if the subject matter is directly related to a negotiating strategy or the contents of a bid or proposal and that public discussion would harm the public body’s ability to participate in the bidding and proposals processes.
“Based on the facts before us, we conclude that this exception did not authorize the (Berlin Mayor and Town Council) to close its January 23 meeting to the public,” the opinion stated.
The rule is not an exception for every type of negotiation that a public body might engage in, the opinion continued, but is based on the existence of a competitive bidding or proposal process.
“Here, nothing in the submissions indicates that the contracts at issue were connected to a competitive process,” the opinion continued. “We thus find that the discussions of these contracts did not fall within the procurement exception of § 3-305(b)(14), and the (Berlin Mayor and Town Council) violated the Act by excluding the public from the discussions.”
Gaskill, during the Mayor and Town Council meeting on Monday, said he disagreed with that reasoning.
“Of course, there is not (a competitive bidding process) for our contract with the fire company,” Gaskill said. “They’ve stretched it too far. I don’t agree. But there’s no right of appeal.”
He pointed out that the board is strictly advisory and that “there are no teeth to it.”
“What the statute provides is after (the opinion), the statute indicates that we’re supposed to announce that at our meeting which I’m doing right now and a copy of the opinion is to be (signed and returned),” he said. “We should (do that) but that is not mandatory either. No enforcement mechanism if we blow it off.”
Tyndall said that he doesn’t take the board’s findings lightly, but he shares Gaskill’s opinion, though he will sign the document as requested.
“I think what we discussed was squarely within our understanding of that parameter (that Gaskill outlined),” he said.
Councilmember Steve Green asked Gaskill if he thought the board cited the wrong clause.
“No, I just disagree … because they say it only applies in a competitive bidding process,” he replied.
“If we wish to make changes to the contract or aren’t satisfied with pertinent parts of it, we should be able to meet in closed session to discuss what our negotiating strategy should be.”
Councilmember Jack Orris suggested that they ask the OMCB how they should respond when a resident objects to a closed meeting decision, especially since not every councilmember — including Shaneka Nichols who was absent for the Jan. 23 meeting — was aware a complaint had been filed.
Tyndall said the best way to ensure a complaint is seen by everyone involved is that it is sent to firstname.lastname@example.org.