127

6 Official Opinions of the Compliance Board 127 (2009)

Closed Session Procedures public vote shortly before closed
meeting during same session satisfied Act
Closed Session Procedures Written Statement disclosure of
contractual matter, citing statutory authority and noting attorney-
client privilege satisfied Act
Closed Session Written Statement Personnel Matter document
need not name appointee
Compliance Board Authority and Procedures complainants
should be limited to requirements of the Act
Exceptions Permitting Closed Sessions Legal Advice session
initiated by counsel where public body aware of general subject
matter allowed
Exceptions Permitting Closed Session Legal Advice substantive
decisions by public body as to content of contract beyond
exception
Exceptions Permitting Closed Session Legal Advice public body
entitled to meet with counsel to review prior legal advice counsel
had provided
Minutes Closed Session Statement failure to report required
information as single item violated Act
Open Session meeting must be conducted in manner that public, as
a practical matter, is aware of actions taken
June 25, 2009
Craig ODonnell
Kent County News
The Open Meetings Compliance Board has considered your complaint that
the Board of County Commissioners of Kent County violated the Open
Meetings Act in multiple respects. For the reasons below, we find that the
Commissioners practice of signing unidentified documents during the course
of a public meeting is inconsistent with the Act. We find that, in two cases,
the Commissioners action in meetings closed to consult with counsel appears
to have exceeded that permissible under the Act. We also find that the manner
actions taken during closed session are reported in publicly available minutes
and the failure to submit to the Compliance Board a statement concerning a
closed statement following an objection resulted in violations. However,
remaining allegations in the complaint lack merit.
6 Official Opinions of the Compliance Board 127 (2009) 128
All statutory references are to the Open Meetings Act, Title 10, Subtitle 5
1
of the State Government Article, Annotated Code of Maryland.
I
Bay Broadband Contract
A. Complaint
The complaint noted that on May 20, 2008, the County Commissioners
voted at 10:00 a.m. to close a meeting at some indeterminate time later that day
under 10-508(a)(7) to discuss the Bay Broadband contract renewal.
1
According to your complaint, you were told by the County Administrator that
the County Attorney requested the closed session, thus, she assumed there was
a valid legal reason. You alleged that the County Commissioners violated the
Act in that they were unaware of the justification for closure at the time of the
vote. You also indicated the presence of two staff members during the closed
session, the Countys Information Systems Director and Water and Wastewater
Director, suggest the purpose was not legal advice. You further noted that
the County Commissioners had an obligation under the Act to send to the
Compliance Board a copy of the written statement prepared in closing the
session in light of your objection.
Your complaint also referred to a meeting closed under 10-508(a)(7) on
April 29, 2008, concerning the same contractual matter. Staff members also
attended this meeting. As we understand your complaint, you object to the
County Commissioners justification for closure, i.e., attorney client
privilege. You characterized this explanation as mere boilerplatewhich
does not satisfy the disclosure requirements of the Act when sessions are
closed in connection with a contractual matter. (The complaint alleged that
there is a pattern of such disclosures involving contractual matters.)
According to the complaint, the closed session was illegal, absent more
complete and compelling reasons that make the need for confidentiality
abundantly clear to those who attended the meeting. The complaint also
questioned the ability to conduct a closed session on a new contract or contract
renewal without prior public discussion.
B. Response
In a timely response on behalf of the County Commissioners, Thomas
Yeager, Esquire, denied any violation of the Act. The response outlined the
Countys contractual relationship with Bay Broadband Communications
6 Official Opinions of the Compliance Board 127 (2009) 129
Unless the public body chooses to make minutes of closed sessions public,
2
the Compliance Board is required to maintain the documents confidentiality.
10-502.5(c)(2)(iii).
(BBC). Because the existing agreement had expired and there was a need
for increased broadband support, the matter was referred Mr. Yeager, the
Countys attorney. According to the response, on April 29, 2008, the County
Attorney met with the County Commissioners to provide legal advice and
receive direction from the client regarding a new agreement with the BBC.
The Countys Information Services Director as well as the Countys Water-
Wastewater Services Director, whose agencys operations were significantly
dependant on BBCs services, were in attendance during the closed meeting.
The response acknowledged that the closed session May 20, 2008, concerning
the BBC agreement, was initiated by counsel. The purpose was to give legal
advice and receive informed direction from the commissioners for drafting the
agreement with BBC.
Included with the response was the County Commissioners closing
statements and a copy of the relevant provisions of the sealed minutes of both
closed sessions. According to the response, [a]s the minutes of the closed
2
session[s] indicate, the conversation with counsel was confined to a discussion
of the legal issues involved with the agreement the attorney was working on.
The response challenges the complainants asserted standard for closing a
meeting under the Act as not supported by the Act or Compliance Board
precedents. Certainly the advice of the County Commissioners own attorney
that a closed meeting is needed in regard to a known legal matter that attorney
was handling would provide ... a bona fide basis for believing a closed meeting
is appropriate.... The response also argued that the written statements relied
on in closing the meetings satisfied the Act, in that reference to the Bay
Broadband negotiations or agreement identified the specific topic of discussion
and the reference to attorney-client privilege identified the underlying legal
privilege justifying the closed session.
C. Analysis
1. Initiation of Closed Session - May 20, 2008
The gist of your compliant in connection with the May 20, 2008, closed
meeting appears to be that it was initiated by the County Attorney rather than
the County Commissioners. To be sure, we have previously advised that a
public body is not permitted to close a meeting absent a bona fide basis for
6 Official Opinions of the Compliance Board 127 (2009) 130
believing that the ensuring discussion will fall within a permissible exception.
5 OMCB Opinions 172, 174 (2007). Here the closed session was initiated at
the request of the County Attorney. However, the County Commissioners had
sufficient information to close the session at the time the vote in favor of
closure was conducted as evidenced by the written statement submitted along
with the response. Clearly, the County Commissioners were entitled to rely on
their legal counsel about the need for a closed session to consult with counsel
with respect to the Bay Broadband agreement he was working on. If the
attorney felt there was need to advise his client on a legal matter, we would
expect him to initiate a closed meeting. As we have previously advised, there
are occasions where a public body may be unaware of the need for legal advice
until the attorney points out the need for consultation. 3 OMCB Opinions 345,
348 (2003). The suggestion that a closed meeting might not be initiated on
advice of counsel simply lacks merit.
The presence of department heads at the time of the closed session does not
support the suggestion that the discussion did not involve legal advice. Both
of the departments had an interest in the provisions of the agreement. It is
highly probable that they could contribute to the discussion, providing context
for whatever legal concerns the attorney wished to raise.
2. Topic of discussion - May 20, 2008
We are told in the County Commissioners response that the purpose of the
closed session was not only to offer an opportunity for counsel to provide legal
advice, but to receive direction from the Commissioners as to the contract that
counsel was preparing. Like all the exceptions under 10-508(a), the
exception authorizing closure of a meeting for legal advice must be narrowly
construed. 10-508(c); 6 OMCB Opinions 77, 81 (2009). We have long held
that once advice by an attorney has been provided, a public body must return
to open session to discuss policy implications of the advice it had received. 1
OMCB Opinions 145, 149 (1995). In that opinion, we noted that a public
bodys direction to have an ordinance drafted and instruction to a municipal
attorney to prepare the draft ordinance went beyond obtaining legal advice. Id.
In a different context, we drew a distinction between an attorneys role in
providing legal advice in connection with a proposed agreement with a
developer versus situations where an attorney serves in a role as the public
bodys negotiator in connection with a contract. 5 OMCB Opinions 130
(2007). While the former could properly be handled in a closed session under
the Act, a public body could not use the latter as justification to discuss policy
issues about the deal in a closed meeting even though the attorney was present.
6 Official Opinions of the Compliance Board 127 (2009) 131
Id. Thus, the fact that an attorney requested a closed meeting does not
necessarily mean the meeting involved rendering legal advice.
In interpreting 10-508(a)(7), we have not tied its application to the
technicalities of whether there is an attorney-client privilege. Id. Nevertheless,
we recognize that when an attorney prepares a document for a client, an
attorney-client privilege might exist. 1 Restatement (Third) of The Law
Governing Lawyers 72 comment b. (2000). Thus, the line is a fine one. If the
County Commissioners were merely providing instruction that would be
necessary in order that counsel could complete a draft agreement for the
Commissionerss subsequent consideration, and the Commissioners wished to
maintain the applicable privilege, we might find that no violation had occurred.
In this case, it would appear that the closed session consisted mainly of
counsel setting forth options for the Commissioners to consider affecting the
drafting of the contract. However, it appears that the Commissioners also
acted on the recommendations, instructing counsel to finalize a document for
presentation to Bay Broadband for its consideration. Assuming that Bay
Broadband agreed to the terms, the contract apparently would then come back
to the County Commissioners for approval. Nevertheless, to the extent that the
Commissioners gave final instructions to counsel as to what they felt should
be included with respect to the substantive terms of the proposed agreement,
we find the County Commissioners crossed the line and acted beyond the
confines of 10-508(a)(7).
3. Procedural Requirements
The complaint suggested that the May 20 meeting was improperly closed
because the vote was not taken immediately before the closed session. At 9:55
a.m., the County Commissioners adopted a series of motions to consider
several issues in closed session. Although it is not clear what time the meeting
was actually closed, the closed sessions were completed by 10:45 a.m. As we
have previously recognized, addressing multiple topics in closed session at a
single time is a convenience to the public. Clearly, this was not a situation
where a public body voted to hold a closed session at a prior meeting a
practice we have found inconsistent with the Act. See, e.g., 3 OMCB Opinions
4, 6 (2000). If the closed session did not begin immediately, it did start shortly
after the vote. The Commissioners in attendance would be clearly be
accountable for the vote. And members of the public who might wish to object
to the closure would not have been prejudiced by the timing. Thus, as to the
timing of the vote, we find that no violation occurred.
6 Official Opinions of the Compliance Board 127 (2009) 132
The complaint also included a general allegation that the form used by the
3
County Commissioners in closing a meeting does not include a line for recording the
time of closure. The response addressed why this item was eliminated. While the
sample form found in the Open Meetings Act Manual, Appendix C, published by the
office of Attorney General, includes a place to record the time, the short answer is
that this item is not required on the written statement. See 10-508(d)(2)(ii).
The complaint also alleged that the County Commissioners violated the act
by failing to submit to the Compliance Board a copy of the written statement
prepared in closing the meeting when the complainant objected to the closed
session. The County Commissioners did not address this specific allegation
in its response. The Act provides that [i]f a person objects to the closing of
a session, the public body shall send a copy of the written statement required
under [10-508(d)(2)(ii)] to the Board. 10-508(d)(3). Although this
document does not in itself trigger any action by the Compliance Board, the
failure to submit it constituted a violation of the Act. 1 OMCB Opinions 13,
15 (1992).
4. Closed Session - April 29, 2008
The gist of the complaint in regard to the closed session held on April 29,
2008, appears to focus on the level of information made public as part of the
written statement required under 10-508(d)(2)(ii). In completing a
standardized form used by the Commissioners, the presiding officer checked
10-508(a)(7), To consult with counsel to obtain legal advice on a legal
matter. Under the heading topics to be discussed, he indicated Bay
Broadband agreement - renewal and under the heading reason for closing
he indicated Attorney client privilege. In multiple opinions, we have
indicated that the information included in the statement must go beyond
parroting the applicable statutory exception; however, we have also advised
that a public body is not expected to reveal a level of detail so as to
compromise the basis for closure. See, e.g., 6 OMCB Opinions 77, 82 (2009).
The goal is to allow the public to evaluate compliance by comparing the
statutory justification with the reported topic. Id. Read in its entirety, the
statement advised the public that the County Commissioners intended to confer
with counsel to obtain legal advice in closed session to preserve the attorney-
client privilege in connection with the renewal of an agreement with Bay
Broadband. In our view, the disclosure satisfied the minimal requirements of
the Act. Cf. 4 OMCB Opinions 188, 195-96 (2005). The complainants
suggestion that a closed session must be preceded by public discussion of the
contract is without merit.
3
6 Official Opinions of the Compliance Board 127 (2009) 133
II
Developers Request for Allocation Refund
A. Complaint
The complaint also alleged that the County Commissioners violated the Act
in connection with a closed session under 10-508(a)(7) relating to an
interpretation of a Public Works Agreement that was prompted by a
developers request for a refund for allocations the developer had acquired.
The complainant explained the concern as that the request ... concerned both
action on a contract, and an underlying policy issue (no-refunds under public
works agreements) that seem to be inextricably wound up together. You
indicated that you are not sure that the interpretation was so sensitive that it
had to be discussed in closed session. Based on a subsequent comment by a
County Commissioner, you alleged a violation of the act in that the decision
to not offer a refund was never reported in the minutes subsequent to the
closed session.
B. Response
The response reviewed the background of the request for a refund of the
fees paid for seven water and sewer allocations. The Countys Water-
Wastewater Director had asked the County Attorney for an opinion addressing
the refund issue under the agreement. The County Attorney responded to the
County Commissioners, recommending against refunding the fees, before the
Commissioners meeting on April 29. This issue was addressed during a
public meeting on April 29, and one Commissioner indicated that he had a
slight problem with not refunding allocation fees, and a decision was
deferred until the Commissioners met with their attorney. The Commissioners
met with counsel later that day, and after discussing the legal opinion, a
decision was made to deny a refund. Copies of the applicable closing
statement, minutes of the public session, April 29, and minutes of the closed
session were provided with the response.
The response also argued that the publicly available minutes of that days
session satisfied the disclosure requirements under the Act. Noting that the
County Commissioners practice of producing minutes arranged topically to
the extent practicable, the response indicated that, as the minutes reflect, the
[C]ommissioners stated they wanted more time to consider the request and that
[l]ater in the day, and based upon the recommendation of the County
Attorney, the Commissioners denied this request. The response specified
6 Official Opinions of the Compliance Board 127 (2009) 134
where the remainder of the required information pertaining to the closed
session could be found in the minutes and that [i]t is the County
Commissioners bona fide belief that their manner of reporting publicly the
decisions they reach informs the public as the Act intends and requires.
C. Analysis
1. Propriety of Closed Session
The County Commissioners were clearly entitled under the Act to meet
with their legal counsel in closed session to seek advice on the proper
interpretation of the agreement or to discuss an opinion counsel had issued in
connection with the agreement. The fact that the results might have policy
implications does not alter this right. While you point out that the
interpretation does not appear sensitive, this is not a factor that a public
body need consider is exercising its right to close a meeting for consultation
with counsel.
However, for the reasons explained above, we find that a violation
occurred when the County Commissioners reached a final decision to reject the
refund request during the course of the closed session.
2. Minutes
The question remains whether the publicly-available minutes reporting on
the closed session satisfied the Act. Following a meeting closed under 10-
508, certain information must be made available to the public in connection
with the closed meeting. The Act provides:
If a public body meets in closed session, the minutes for its
next open session shall include:
(i) a statement of the time, place, and purpose of the
closed session;
(ii) a record of the vote of each member as to the closing
of the meeting;
(iii) a citation of the authority under [the Act] for closing
the session; and
6 Official Opinions of the Compliance Board 127 (2009) 135
We have long approved the County Commissioners practice of reporting
4
the information in the publicly-available minutes of a meeting the same date as long
as the public is aware of the practice rather than in the minutes of the subsequent
meeting. This practice expedites the availability of the information concerning a
closed session to the public. See, e.g., 3 OMCB Opinions 264, 270 (2003).
(iv) a listing of the topics of discussion, persons present,
and each action taken during the closed session.
10-509(c)(2) (emphasis supplied). On page 9 of the minutes for the
4
Commissioners April 29 meeting, the closed session is reported; however, this
section does not disclose the Commissioners action. To be sure, page 4 of the
minutes, where the request for a refund is discussed, reflect that, [l]ater in the
day, based upon the recommendation of the County Attorney, the
commissioners denied th[e] request. However, like other procedures under
the Act pertaining to closed meetings, the disclosure requirements under
10-509(c)(2) are intended to allow the public an opportunity to monitor the
propriety of closed meetings. Thus, in our view, in fairness to the public,
information reported about a closed session must be reported in a single place.
Reading the minutes alone, it would not necessarily be clear that the
Commissioners decision was reached during the course of the closed session.
III
County Attorneys Compensation
A. Complaint
On May 6, 2008, the County Commissioners held a closed session under
10-508(a)(1) for consideration of requests by four individual employees or
appointees for increased compensation and benefits... According to the
complaint, at the time of the vote to close the meeting, it was discussed in
passing that one of the items was the compensation for [County Attorney]
Tom Yeager.... However, based on the record the public is left to guess that
Mr. Yeager is the appointee in question. The complaint alleged that any
discussion about Mr. Yeagers employment contract was illegal, as were any
discussions about his pay level or benefits. Only his job performance
particulars would be legitimate reason for closing. [P]ersonnel
confidentiality is not a reason; it is a restatement of the statutory exception and
as such violates the Act.
6 Official Opinions of the Compliance Board 127 (2009) 136
The complaint referred to a prior situation, on April 17, 2007, when the
County Commissioners discussed during a closed session the compensation
rate for Alice Ritchie, Esquire, who represents the Countys Board of Zoning
Appeals. You alleged that closing [the] session to discuss a new contract
proposal or amendment [was] a violation of the Act. While the minutes
documented the decision to approve a certain rate for handling a certain
appeal, the minutes failed to reflect the action was taken during the closed
session.
B. Response
The response reviewed the background leading to the closed session
involving the County Attorneys compensation. Because the County Attorney
is an appointee of the County Commissioners, there is no question that the
closed session was not a violation of the Act. The response further noted that
requiring disclosure of the name would defeat the desired confidentiality the
Act intended to protect. As to the suggestion that discussion of pay level is
illegal, the response noted that the complaint is without merit. However, the
response noted that the discussion of performance is the norm in considering
a pay increase and, in this case, performance was, in fact, considered. Minutes
of the closed session were included with the response.
The response also set forth the background concerning a April 17, 2007,
meeting when the Commissioners considered a request from Alice Ritchie
concerning a specific appeal of a Board of Zoning Appeals decision to the
Circuit Court. According to the response, the status of the discussion as a
personnel matter is the same as the discussion involving the County Attorney.
The minutes of the April 17, 2007, public session reported on page 2 that the
Commissioners approved Ms. Ritchie handling the appeal at the hourly rate of
$125; on page 5, the minutes reflected the additional information required
following a closed session under the Act. The County Commissioners
believe their method of reporting is consistent with the Act.
C. Analysis
A public body is entitled to close a meeting to consider the appointment,
employment, ... compensation, ... or performance evaluation of appointees,
employees, or officials over whom it has jurisdiction; or ... any other personnel
matter that affects 1 or more specific individuals[.] 10-508(a)(1). To the
extent that the discussion might involve a new contract or contract
modification, it would be governed by the Act. 10-502(j)(3). However, there
is no merit to the suggestion that compensation levels for individual attorneys
6 Official Opinions of the Compliance Board 127 (2009) 137
appointed by the County Commissioners could not properly be considered in
closed session under 10-508(a)(1). See 4 OMCB Opinions 38, 40 (2004).
The written statement prepared in closing the session on May 6, which was
described in the complaint, was not deficient because it failed to name the
appointees whose compensation would be considered. As to the minutes
reflecting actions taken during the closed session on April 17, 2007, we simply
refer to our discussion of this issue, above.
IV
Contract Matters Generally
A. Complaint
Your complaint included a general allegation regarding contractual matters,
namely, situations where contracts were approved by the County
Commissioners that were never discussed in open session (or in most cases,
even alluded to in passing during the meetings.) They are merely reported in
the minutes after the fact. The complaint invited the Compliance Board to
examine the pattern of undiscussed and undisclosed thus secret contract
approvals....
B. Response
Given the extensive list of items attached to the complaint, the response
addressed this allegation generally. The response reviewed the Countys
governmental structure and noted that, each Tuesday, the Commissioners
Executive Assistant assembles a packet of documents for the Commissioners
signatures, including contracts. According to the response, under the County
Code, it is often the County Administrator that has the responsibility to
negotiate and/or review county contracts. As appropriate, other staff also may
be involved in the negotiation and review of contracts. The County Attornney
may also be consulted in connection with contractual matters. In some cases,
staff have the authority to sign contracts; in other cases, the Commissioners
sign contracts. According to the response, all contracts requiring the
Commissioners signatures are signed in open meetings. Sometimes,
Commissioners will have questions or comments and a discussion will occur.
Other contracts are signed upon review without comment. All these contracts
are reflected in the minutes. According to the response, whether or not the
Commissioners decide to engage in debate or discussion ... is not within the
scope of the Act. Allegations suggesting that the County conceal[s] matters
6 Official Opinions of the Compliance Board 127 (2009) 138
One option the Commissioners might consider is the development of a
5
consent calendar for routine contract approvals and similar actions carried out under
the Act, but not expected to generate discussions, and share that information with
those in attendance in order to avoid a delay in its proceedings.
required to be publicly available is without merit; according to the response,
all executed contracts are available for public inspection.
C. Analysis

As we have repeatedly held, the Act does not mandate that a public body
make an agenda of its meetings available to the public in advance of a meeting,
although it is a practice we have commended. See, e.g., 4 OMCB Opinions
168, 171-72 (2005). However, we have explained in other contexts that the
Act is not satisfied if a meeting is open only in name, but not in reality. 4
OMCB Opinions 67, 70 (2004). We have held that, [a]t a minimum, a public
body considering an item in open session must ensure that those observing the
meeting have the same information that someone reading the minutes from the
meeting would have. Id. We can appreciate the frustration of the public
witnessing the signing of multiple documents during the course of the meeting
without any insight as to what is occurring.
To be sure, the Open Meetings Act does not require a public body to
discuss any particular matter at a meeting. There is nothing in the Act that
would preclude the Commissioners from employing a notation process
whereby staff could collect the signatures of the Commissioners separately or
expanding its delegation for signing contracts to a single official. However,
if the Commissioners wish to sign contracts during the course of a public
meeting, the public must be advised of the action being taken so that they are
aware of the information that has traditionally been reported subsequent to the
meeting through the minutes.
5
V
Miscellaneous
The complaint included a long list of additional contractual matters which
we were invited to explore. We decline the invitation, but we believe the
discussion above should assist in ensuring compliance with the Act.

In a cover letter accompanying the response, the County Attorney noted
that we have previously recognized that the right to file a complaint with the
6 Official Opinions of the Compliance Board 127 (2009) 139
After receipt of the response, you requested an opportunity to review the
6
response. Although we received correspondence subsequent to that point from you
and the County, none of it really affected the extensive record that had already been
submitted. This process, as well as staffs work load, extended the time frame for
issuance of this opinion well beyond are normal practice.
Compliance Board should be exercised ... only in good-faith that the Act was
indeed violated, based on a reasonable inquiry into the available facts. 3
OMCB Opinions 143, 144 (2001). The response questions whether this
standard has been met.
As indicated by our discussion above, we would certainly not deem the
complaint frivolous. However, many of the assertions in the complaint suggest
requirements that have no basis under the Act. It is important to remember our
role is to evaluate whether a public body has satisfied the minimum statutory
requirements. We would request that future complaints be limited to the
requirements of the Act. Arguments for changes in what the Act requires of
a public body are more appropriately addressed to the Legislature.
6
OPEN MEETINGS COMPLIANCE BOARD
Elizabeth L. Nilson, Esquire
Courtney J. McKeldin
Julio Morales, Esquire