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    Donald J. Barnes Linda J. Barnes: A. Complaint

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    Craig O'Donnell
    The Compliance Board found that: 1) The Planning Commission did not violate open meetings laws by posting notice of its February 13, 2008 meeting 5 days in advance, as there was no evidence of intentional delay. 2) However, the Board of Zoning Appeals did violate open meetings laws by failing to make minutes of its June 12, 2008 meeting available until October 10, 2008 - nearly 4 months later. This delay was unreasonable. 3) Public bodies must find a way to approve minutes in a timely manner, even when meetings are infrequent. A delay of several months would violate the law.

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    Donald J. Barnes Linda J. Barnes: A. Complaint

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    Craig O'Donnell
    45 views4 pages
    The Compliance Board found that: 1) The Planning Commission did not violate open meetings laws by posting notice of its February 13, 2008 meeting 5 days in advance, as there was no evidence of intentional delay. 2) However, the Board of Zoning Appeals did violate open meetings laws by failing to make minutes of its June 12, 2008 meeting available until October 10, 2008 - nearly 4 months later. This delay was unreasonable. 3) Public bodies must find a way to approve minutes in a timely manner, even when meetings are infrequent. A delay of several months would violate the law.

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    The Compliance Board found that: 1) The Planning Commission did not violate open meetings laws by posting notice of its February 13, 2008 meeting 5 days in advance, as there was no evidence of intentional delay. 2) However, the Board of Zoning Appeals did violate open meetings laws by failing to make minutes of its June 12, 2008 meeting available until October 10, 2008 - nearly 4 months later. This delay was unreasonable. 3) Public bodies must find a way to approve minutes in a timely manner, even when meetings are infrequent. A delay of several months would violate the law.

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    © All Rights Reserved
    Download as PDF, TXT or read online from Scribd
    Download as pdf or txt
    45 views4 pages

    Donald J. Barnes Linda J. Barnes: A. Complaint

    Uploaded by

    Craig O'Donnell
    The Compliance Board found that: 1) The Planning Commission did not violate open meetings laws by posting notice of its February 13, 2008 meeting 5 days in advance, as there was no evidence of intentional delay. 2) However, the Board of Zoning Appeals did violate open meetings laws by failing to make minutes of its June 12, 2008 meeting available until October 10, 2008 - nearly 4 months later. This delay was unreasonable. 3) Public bodies must find a way to approve minutes in a timely manner, even when meetings are infrequent. A delay of several months would violate the law.

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    The complaint set forth two additional allegations, one concerning when a notice

    1
    of special exception sign was posted on the property, the second concerning instructions
    by the municipal attorney to the Towns staff concerning certain requests from the
    complainants. Because it was clear that these allegations were unrelated to the Open
    Meetings Act, and thus were beyond the jurisdiction of the Compliance Board, we advised
    that the Town need not address these two allegations in its response.
    85
    6 Official Opinions of the Compliance Board 85 (2009)
    Notice Absent evidence suggesting intentional delay, notice provided 5 days
    before meeting satisfied Act;
    Minutes Procedures Lag time of almost 4 months violated Act.
    January 30, 2009
    Donald J. Barnes
    Linda J. Barnes
    The Open Meetings Compliance Board has considered your complaint
    alleging that the Poolesville Planning Commission and Board of Zoning Appeals
    violated the Open Meetings Act in connection with meetings that concerned the
    issuance of a special exception to allow the operation of an optometry practice in a
    residential property. For the reasons explained below, we find that the Planning
    Commission did not violate the Act by failing to provide adequate notice in advance
    of its February 13, 2008, meeting. However, we find that the Board of Zoning
    Appeals did violate the Act by failing to make minutes of its June 12, 2008, meeting
    available in a timely manner.
    1
    I
    Poolesville Planning Commission
    A. Complaint
    The complaint alleged that the Poolesville Planning Commission violated the
    Open Meetings Act when the Commission failed to adequately notify the public of
    a February 13, 2008, meeting at which it made a critical recommendation to the
    Board of Zoning Appeals concerning an application for a special exception. The
    complaint noted that the Planning Commission holds regularly scheduled meetings
    and the time and location of these meetings are available on the Towns website.
    However, because of the significance and impact on the community ... and the
    adjoining neighbors, the Planning Commission had a responsibility to ensure
    individuals interested, affected or potentially aggrieved ... be heard before making
    a recommendation to the Board of Zoning Appeals. According to the complaint,
    6 Official Opinions of the Compliance Board 85 (2009) 86
    All statutory references are to the Open Meetings Act, Title 10, Subtitle 5 of the
    2
    State Government Article, Annotated Code of Maryland.
    the lack of adequate notification resulted in the public not having an opportunity to
    provide input into the decision recommending that the special exception be granted.
    B. Response
    In a timely response, Alan Wright, municipal attorney for the Town, noted
    that notice of the Planning Commissions meetings is routinely posted on the
    Towns website as well as on the Town government bulletin board at a local grocery.
    In this case, the notice was posted on February 8, 2008, five days before the meeting.
    C. Analysis
    Before a public body conducts a meeting that is subject to the Open Meetings
    Act, the public body must give reasonable advance notice of the session.
    10-506(a). Whether advance notice is reasonable depends on the facts, namely,
    2
    the interval between the time when a meeting in question is scheduled and notice to
    the public of the meeting. 5 OMCB Opinions 139, 141-42 (2007). As we have
    previously noted, [t]he touchstone of reasonableness is whether a public body gives
    notice of a future meeting as soon as is practicable after it has fixed the date, time,
    and place of the meeting. 5 OMCB Opinions 83, 84 (2006). It is not clear in the
    record before us when the February 13 meeting was actually scheduled. However,
    notice was posted five days in advance of the meeting and there is no evidence that
    either the scheduling or notice was deferred in order to discourage public attendance.
    Under the circumstances, we find no violation. Cf. 2 OMCB Opinions 18 (1998)
    (posting on Friday in advance of Wednesday meeting satisfied Act).
    In terms of the method of giving notice, the Act gives public bodies such as
    the Planning Commission considerable discretion. 10-506(c). Here, the Planning
    Commission routinely provided notice on the Towns website and on a public
    bulletin board. Either option would have satisfied the Act. Nothing in the Act
    requires a public body to give individual notice to particular persons. To be sure,
    laws other than the Open Meetings Act sometimes require notice be given in a
    specified manner. We are not aware whether that is the case for the Poolesville
    Planning Commission. However, our role is limited to evaluating allegations under
    the Open Meetings Act. See, e.g., 3 OMCB Opinions 145, 146 (2001) (while other
    laws may prescribe public hearing requirements as a prerequisite to governmental
    action, Compliance Board lacks jurisdiction to consider notice requirements beyond
    requirements of the Open Meetings Act itself.); 4 OMCB Opinions 99, 100-01
    (2004) (Compliance Board lacks jurisdiction to consider direct notice obligation
    under other statute).
    6 Official Opinions of the Compliance Board 85 (2009) 87
    The complaint also cited the Towns municipal charter, the Towns zoning code,
    3
    and Article 66B of the Maryland Code. For the reasons mentioned above, we must limit
    our consideration to the Open Meetings Act.
    II
    Poolesville Board of Zoning Appeals
    A. Complaint
    The second allegation in the complaint alleged that the Poolesville Board of
    Zoning Appeals violated the Open Meetings Act because it did not make available
    minutes of its June 12, 2008, meeting, which concerned the special exception, until
    October 10, 2008. The complaint argued that this was an unreasonable amount of
    time, particularly, compared to previous meeting [sic]. The complaint cited as
    examples meetings held February 28, March 6, and May 22, 2008, when minutes
    were publicly available much sooner after each meeting, with the longest lag time
    being 21 days. The complaint alleged that the delay violated 10-509.
    3
    B. Response
    The response acknowledged that the time elapsed before minutes were
    approved after the June 12 meeting was considerably longer than the time required
    following the Board of Zoning Appeals three previous meetings. The response
    noted that the Board of Zoning Appeals is a volunteer board that only meets only
    when there are applications or appeals that require its attention. There were no
    meetings doing the summer of 2008. [This] may help to explain the discrepancy
    between the Boards previously quick turn-around and the longer time over the
    summer. However, the Towns municipal attorney indicated that he has advised
    the Board that, when no meetings are scheduled, members should review and
    approve minutes by mail and, if necessary, discuss any discrepancies by phone.
    C. Analysis
    As acknowledged in the response, the Open Meetings Act requires that
    written minutes be prepared [a]s soon as practicable after a public body meets.
    10-509(b). As a general rule, minutes should be available on a cycle paralleling a
    public bodys meetings, with the only lag time being hat necessary for drafting and
    review; however, special circumstances occasionally might result in a limited delay.
    5 OMCB Opinions 14, 17 (2006). As we have previously advised, the soon as
    practicable standard:
    permits a public body to take a
    reasonable amount of time to review
    draft minutes for accuracy and to approve
    the minutes.... The Act allows practical
    6 Official Opinions of the Compliance Board 85 (2009) 88
    Of course, in the event of a discrepancy, care must be taken that the suggested
    4
    telephone call be handled in a manner so as to not run afoul of the Open Meetings Act.
    circumstances to be considered and does
    not impose a rigid time limit. ...
    3 OMCB Opinions 96, 98 (2001) (internal citations and quotes omitted). However,
    we have also cautioned that routine delays of several months would be unlawful.
    Id.; see also 3 OMCB Opinions 340, 342 (2003) (six-week delay did not violate
    Act); 4 OMCB Opinions 1 (2004) (15-week delay unreasonable).
    In this case, we find that the nearly four-month delay in the availability of the
    Board of Zoning Appeals minutes violated the Act. We recognize that when a
    public body only meets periodically, as the need arises, assuring that the public has
    access to the minutes of its public meetings in a timely manner poses special
    challenges. Nevertheless, a public body is obliged to find a way to meet the Acts
    requirement that open session minutes be available with reasonable promptness. 4
    OMCB Opinions at 4. The Board of Appeals should follow the Towns attorney
    advice to implement a process by which minutes can be approved by mail when a
    future meeting is not scheduled.
    4
    IV
    Conclusion
    In summary, we find that the Planning Commission did not violate the notice
    requirements of the Open Meetings Act by failing to provide adequate notice in
    advance of its February 13, 2008, meeting. However, we find that the Board of
    Zoning Appeals violated the obligation to make minutes of its June 12, 2008,
    available in a timely manner.
    OPEN MEETINGS COMPLIANCE BOARD
    Elizabeth L. Nilson, Esquire
    Courtney J. McKeldin
    Julio Morales, Esquire

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