Donald J. Barnes Linda J. Barnes

Unless otherwise noted, statutory references are to the Open Meetings Act,
1
Title 10, Subtitle 5 of the State Government Article, Annotated Code of Maryland.
110
6 Official Opinions of the Compliance Board 110 (2009)
Minutes Contents Level of detail Transcript not required
Notice Content Agenda information not required
Notice Timing Absent evidence of intentional delay, posting on
towns bulletin board six days in advance of meeting satisfied Act
May 18, 2009
Donald J. Barnes
Linda J. Barnes
The Open Meetings Compliance Board has considered your complaint
alleging that the Poolesville Board of Zoning Appeals violated the Open
Meetings Act in connection with a meeting on January 29, 2009. Specifically,
your complaint alleged that the Board of Zoning Appeals failed to provide
adequate notice in advance of the meeting and failed to produce accurate
minutes of the proceedings. For the reasons explained below, we find that no
violation occurred.
I
Complaint and Response
According to the complaint, on January 27, 2009, the complainants
received in the mail from the Town of Poolesville a document captioned
agenda, indicating that the Poolesville Board of Appeals would meet on
January 29, 2009, at 7:00 p.m. at 19721 Beall Street. Included among the
agenda items was a request for reconsideration on special exception 001-08
Mevissen. Citing 10-506, the complaint alleged that the Board of Zoning
1
Appeals failed to provide reasonable advance notice that [the members of the
Board of Zoning Appeals] were to discuss and make a decision regarding a
Motion for Reconsideration [that the complainants] had submitted three
months prior ... The complaint noted that two-day advance notice through
the mail to a select group of lot owners does not qualify as adequate public
notice. The complaint also alleged that the information included in the agenda
without elaboration was not enough information to understand the intent of
the hearing. The complaint noted that the complainants name was not
mentioned on the agenda, thus, they were caught unprepared ... and interested
citizens did not know about the hearing. The complaint also alleged that the
6 Official Opinions of the Compliance Board 110 (2009) 111
The complaint also alleged violations under Article 66B of the Maryland
2
Code and the Poolesville Zoning Ordinance and objected to the timeframe between
the filing of the motion and the Board of Zoning Appeals action. However, the
Open Meetings Compliance Board lacks authority to consider matters beyond the
Open Meetings Act. See, e.g., 5 OMCB Opinions 1, n. 2 (2006); 6 OMCB Opinions
85, 86 (2009). Thus, in submitting the complaint to the Board of Zoning Appeals for
its response, we advised the Board that it need not address laws other than Open
Meetings Act.
minutes of the January 29 meeting were incomplete in that, unlike certain prior
meetings, no line-by-line transcription was provided and that [t]he minutes
do not represent the true tone of the hearing. The recording equipment was
uncharacteristically not working while a Board member castigated [the
complainants] for issues raised in [the] Motion.
2
In a timely response on behalf of the Board of Zoning Appeals, Alan M.
Wright, Esquire, indicated that notice of the meeting was given and minutes
were produced in accordance with the Act. Citing applicable provisions of the
Open Meetings Act, the response stated that notice of the January 29, 2009,
meeting was given by the normal means ..., namely by posting the agenda
notice, indicating the date, time and place of the meeting, on the town
government bulletin board at Selbys Market, the local grocery store. A copy
of the notice was included with the response, indicating that it was posted
January 23, 2009. The response indicated that the notice was also mailed
directly to the complainants on or about the same time. The complainants
received the notice and attended the meeting. The response also noted that,
while the complaint repeatedly referred to a hearing, the matter before the
Board of Zoning Appeals was not a hearing, but rather an agenda item a
discussion by the Board on the threshold issue of whether to reconsider.
As to the allegation about the minutes, the response acknowledged that the
document was not in the usual form of a complete transcript, due to the
malfunction in the recording equipment.
However, the response argued that the minutes nevertheless met the
requirements of the [Open Meetings Act.] According to the response, the
document reflects each item considered, the action that the public body took
on each item, and each vote that was recorded. 10-509(c). A copy of the
minutes were included with the response.
The response from the Board of Zoning Appeals indicated that the notice
3
sent to you on or about the same time. According to the copy submitted with the
complaint, that notice was postmarked January 26, 2009 and you indicate that it was
received January 27. However, in applying 10-506, our focus is on the public bodys
notice to the public rather than individual property owners. Had notice only been sent
to select property owners, the public body would have violated the Act. See 4 OMCB
Opinions 178, 179 (2005).
II
Analysis
A. Notice
Before a public body holds a meeting that is subject to the Open Meetings
Act, it must provide public notice. Rather than dictate a specific durational
requirement, the Act speaks in terms of giving reasonable advance notice of
the meeting. 10-506(a). As we recently indicated, [w]hether advance notice
is reasonable depends on the facts, namely, the interval between the time
when a meeting ... is scheduled and notice to the public of the meeting. 6
OMCB Opinions 85, 86 (2009). A public body is advised to give notice of a
future meeting as soon as practicable after it has fixed the date, time, and place
of the meeting. Id. Based on the record before us, it is not clear when the
Board of Zoning Appeals actually scheduled its January 29, 2009 meeting.
However, notice to the public was posted on the Towns bulletin board at a
local store six days in advance of the meeting. There is no evidence that the
posting of the notice was delayed in order to discourage public attendance.
Under the circumstances, we cannot find that the posting violated the Act.
3
In terms of the content of the notice, the Act prescribes minimal
requirements. The notice must include the date, time, and place of the
meeting, and, if it is anticipated that all or part of the session may be closed to
the public, a notation to that effect. 10-506(b). While we have frequently
commended public bodies for providing an agenda in advance of a meeting,
the Act does not require that an agenda be included. 4 OMCB Opinions 168,
172 (2005). Thus, allegations in the complaint concerning the description of
the agenda item do not amount to a violation of the Act.
B. Minutes
The Open Meetings Act requires that, [a]s soon as practicable after a
public body meets, it shall have written minutes of its session prepared.
10-509(b). The minutes of a public meeting must reflect each item that the
public body considered, the action that the public body took with respect to
The Board of Zoning Appeals acknowledged that the recording equipment
4
had malfunctioned. The Open Meetings Act leaves to the discretion of a public body
weather to record its meetings. 10-509(c)(3)(i). Of course, if a meeting is recorded
by the public body, the recording must be retained for at least one year. 10-509(e).
each item, and each recorded vote. 10-509(c). Each item considered must be
described in sufficient detail so that a member of the public who reviews the
minutes can gain an appreciation of the issue under discussion. 4 OMCB
Opinions 67, 70-71 (2004). To be sure, a transcript reflecting each element
required would satisfy the requirements of the Act. 1 OMCB Opinions 162,
165 (1996). However, while a transcript may be necessary for some purposes,
a transcript is certainly not required by the Act.
The minutes of the January 29 meeting of the Board of Zoning Appeals
indicated, among other things, that the Board took up the request for
reconsideration filed by the complainants in connection with the grant of a
special exception for an optometry office at 19739 Selby Avenue, provided a
summary of comments of two Board members, and the action taken in
connection with the request -- that is, denial of the request for reconsideration
by unanimous vote. The fact that the minutes were not in the form of a
transcript is immaterial for purposes of the Open Meetings Act. While we
cannot comment on whether the minutes reflected the true tone of the
[meeting], an issue raised in the complaint, it is clear that the minutes reflect
the minimal information required by the Act. Thus, we find no violation as to
the content of the minutes.
4
III
Conclusion
We find that the Board of Zoning Appeals did not violate the notice
requirements under the Open Meetings Act in connection with a meeting held
January 27, 2009. We further find that the minutes of the meeting satisfied the
minimum requirements of the Act.
OPEN MEETINGS COMPLIANCE BOARD
Elizabeth L. Nilson, Esquire
Courtney J. McKeldin
Julio Morales, Esquire

Donald J. Barnes Linda J. Barnes

Uploaded by

Copyright:

Available Formats

Donald J. Barnes Linda J. Barnes

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Donald J. Barnes Linda J. Barnes

Uploaded by

Copyright:

Available Formats

Unless otherwise noted, statutory references are to the Open Meetings Act,

You might also like