Paul M. Bessel's Open Meetings Act Complaint Against the Montgomery County Board of Elections
On October 1, 2015, the members of the Montgomery County Board of Elections appeared as witnesses at a meeting of the Montgomery County Council's Committee on Government Operations and Fiscal Policy. Below is a link to a video of what the president of that Board told the Council Committee about the conversations that he and other Republican members of the Board of Elections had in secret.
In response, because I care deeply about open meetings of all government bodies, I filed the following complaint that same afternoon, October 1, 2015, with the Open Meetings Act Compliance Board:
Paul M. Bessel
October 1, 2015
Open Meetings Compliance Board
To the Maryland Open Meetings Compliance Board:
I am filing this complaint against the Montgomery County Board of Elections, based on public statements made by the President of that Board at a public meeting this morning.
I have no animosity against the President or Members of this Board of Elections and I am willing to concede that those members of the Board who participated in the acts which will be described below may have acted in good faith and they thought they were permitted to do what they did. I am only seeking a decision of the Open Meetings Act Compliance Board that a violation occurred to assist the Montgomery County Board of Elections and any other groups similarly situated, to know what their legal responsibilities are concerning the Open Meetings Act.
This morning, October 1, 2015, from about 10am to about 12 noon, the President and Members of the Montgomery County Board of Elections were testifying before the Government Operations and Fiscal Policy Committee of the Montgomery County Council. The subject of their testimony and the details of the decisions of the Board of Elections that were being questioned is not relevant to this Open Meetings Act complaint.
What is relevant is that during this hearing, held with a number of members of the public present in addition to all the members of the Board of Elections, the President of the Board of Elections, James Shalleck, stated that before reaching a decision on the question of where early voting locations would be placed in Montgomery County during the upcoming elections, the three Republican members of the Board, constituting a quorum since a quorum of this Board consists of a majority and there are five voting members, met separately and without notice to anyone so that they could formulate the position they would take on this subject when the Board of Elections met to make its decision formally. The President of the Board of Elections said that he believed that so long as this informal pre-meeting was held with just the Republicans members of the Board of Elections, and no formal decisions were made, it did not contravene the Maryland Open Meetings Act.
A video recording of the meeting this morning, at which these statements were made by the President of the Board of Elections, is available.
In Compliance Board Opinion No. 01-2, issued January 12, 2001, concerning the complaint of Andrew B. White, Chairman, Montgomery County Fire Board, the Maryland Open Meetings Act Compliance Board ruled that:
"Under the Open Meetings Act, a meeting occurs when a quorum of a public body convenes for the consideration or transaction of public business." (Italics added) ... As we [the Open Meetings Act Compliance Board] have explained, even information-gathering at the earliest stages of policy formation is part of the consideration ... of public business....And as the Court of Appeals has observed, every step of the process ... constitutes the consideration or transaction of public business." [internal quotation marks deleted for ease reading]
The opinion continued:
"Four of the seven voting members of the Commission were present for the discussion concerning the proposed IECS regulations, a matter schedule to come before the full Commission. This group interaction about a Commission item of business invokes the Open Meetings Act, for in these circumstances neither the members nor the Chairman may shed their Commission identity as if it were an uncomfortable garment."
These principles enunciated by the Maryland Open Meetings Act Compliance Board apply precisely to the incident this morning. The President of the Montgomery County Board of Elections, with all the other members of the Board sitting beside him and in a public meeting that was televised and video recorded, that he and the other Republican members of the Board had met privately and without any notice before an official Board of Elections meeting to decide on the joint position they would take when the Board met officially. This was a violation of the Maryland Open Meetings Act, even if the President and the other members present did not think they were doing anything wrong. The Maryland Open Meetings Act Compliance Board should assist them by stating that they acted in violation of the law and provide guidance how they can avoid such violations in the future.
Paul M. Bessel
copy to: James Shalleck, President,
Montgomery County Board of Elections
The Montgomery County Board of Elections has 30 days from the date they received a copy of this complaint to file a response with the Open Meetings Act Compliance Board.
After that, I have 10 days to file a reply to their response.
The Open Meetings Act Compliance Board then will issue its decision in this case.
October 7, 2015
Open Meetings Compliance Board
To the Maryland Open Meetings Compliance Board:
As members of the Montgomery County Board of Elections ("the Board"), speaking only for ourselves and not for the Board, we write to request that the Open Meetings Compliance Board clarify the rules governing our Board's interactions, and to provide some context for the October 1,2015, complaint against the Board for the procedure it used for making decisions about early voting locations in Montgomery County.
While we leave it to you to determine whether or not an Open Meetings Act violation occurred, we believe that it's very important for the Open Meetings Act Compliance Board to assist the Board by clarifying for us whether the Board's quorum requirement, as adopted by the Board in its by-laws by majority vote, can redefine the application of the Maryland Open Meetings Act statute to our deliberations.
Sec. 3.2 A.2. of the Board's by-laws (attached) says, "A quorum of the board of elections shall consist of a majority of the membership (including substitute members) of the board and at least one member of each political party represented on the board." As you may know, the Board has 5 voting members and 7 total members - 3 voting members and one substitute member for the majority party (by statute, the incumbent Governor's party), and 2 voting members and one substitute member for the minority party. (A substitute member may vote whenever a voting member of the same political party is not present for a vote, even if that member has only momentarily left the room.) The by-laws provision suggests that 4 members, including at least one from each party, constitute a quorum for the purpose of convening our public meetings. This longstanding provision clearly was designed to assure that members of both political parties were part of the Board's deliberations, as we are not allowed to meet with only one political party's members present.
While §3-1 0 I (g) of the Open Meetings Act defines "meet" as "to convene a quorum of a public body to consider or transact public business," §3-101(k) defines "quorum" as "(1) a majority of the members of a public body, or (2) the number of members that the law requires" (my emphasis). We think it would be contrary to the intent of both the Open Meetings Act and the Board's by-laws provision governing a quorum if the Board's by-laws would be considered "the law" as referenced in §3-10 1(k) of the Act, and therefore allow the Board, by majority vote, to redefine the open meeting requirements as not applying to any private meeting of Board members to consider public business,as long as it only involves the members of one political party. This interpretation not only would encourage members of one political party to have premeetings to determine Board actions in secret, it also may invite other public bodies in Maryland to similarly change their quorum requirements to avoid the application of the Maryland Open Meetings Act.
We can't imagine that the statute was intended to allow a majority of a public body to meet privately to discuss public business, and, when we wer~ in the majority on the Board for the four years that ended in June 2015, we conducted ourselves accordingly.
On another note, if you determine that four members, rather than three members, constitute a quorum of our Board for purposes of the Open Meetings Act, because our colleagues indicated that they may have had multiple phone calls that included different people at different times, in considering the October 1 complaint, you also may want to consider the issue of whether there was a "walking quorum" as you discussed in 8 Official Opinions of the Compliance Board 56 (2012)..
We appreciate your attention to this important matter. Please contact David Naimon at xxxx if we may be of further assistance to you.
Mary Ann Keeffe, Board Member
David A. Naimon, Board Member
Graciela Rivera-Oven, Board Member
Maryland Open Meetings Act
(as recodified effective October 1, 2014 and put in Title 3 of the General Provisions Article of the Maryland Code)
(k) “Quorum” means:
(1) a majority of the members of a public body; or
(2) the number of members that the law requires.
§3 – 102.
(a) It is essential to the maintenance of a democratic society that, except in special and appropriate circumstances:
(1) public business be conducted openly and publicly; and
(2) the public be allowed to observe:
(i) the performance of public officials; and
(ii) the deliberations and decisions that the making of public policy involves.
(1) The ability of the public, its representatives, and the media to attend, report on, and broadcast meetings of public bodies and to witness the phases of the deliberation, policy formation, and decision making of public bodies ensures the accountability of government to the citizens of the State.
(2) The conduct of public business in open meetings increases the faith of the public in government and enhances the effectiveness of the public in fulfilling its role in a democratic society.
(c) Except in special and appropriate circumstances when meetings of public bodies may be closed under this title, it is the public policy of the State that the public be provided with adequate notice of the time and location of meetings of public bodies, which shall be held in places reasonably accessible to individuals who would like to attend these meetings.
Except as otherwise expressly provided in this title, a public body shall meet in open session
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