Opening officials' closed doors

Sun Staff

Allen Dyer ran into a legal brick wall when he went to court to try to get the Howard County Board of Education to conduct more of the public's business in public. A county Circuit Court judge threw out his lawsuit, saying he didn't have legal standing to sue the school system.

But the Ellicott City man's four-year crusade for more openness in government scored a victory in Annapolis this year, when the General Assembly overrode Gov. Robert L. Ehrlich Jr.'s veto to enact legislation spelling out that every citizen has a right to go to court to enforce Maryland's open-meetings law.

Such is the state of affairs on the front lines of open government these days. Controversies over hot-button issues like schools, development or taxes often generate complaints from citizens about being kept in the dark by their elected and appointed representatives. In some instances, they have prevailed in pressing for more open meetings or for more information about what their government is doing.

An Aberdeen citizens group won an out-of-court settlement last year, for instance, to get the Army to release maps showing locations of toxic wastes at Aberdeen Proving Ground, where the military once developed and trained with chemical weapons. After Sept. 11, the Army had begun withholding or censoring such maps, noting the need to guard against terrorism.

But sometimes, people complaining of secrecy in government learn that the closed-door sessions they object to are permitted by state law, or that information once routinely provided is now withheld to safeguard homeland security.

"One of the worst casualties of all this is the citizens' trust of their own government," said Owen Thorne, a Cecil County resident whose community group has complained, with some success, about lack of public notice when large-scale development projects are up for county approval. "We want to work with government, not against it."

As part of a coordinated Sunshine Week campaign, newspapers, broadcast stations and online media across the country this week are featuring news stories and commentaries emphasizing the importance of open government.

The state's Open Meetings Compliance Board found violations of the law in 14 of the 20 opinions it issued last year in response to complaints from citizens, the press and government officials. The 15 complaints logged last year were nearly a third fewer than filings in the previous year.

The three-member board's rulings are advisory. But the relative handful of complaints - and even fewer lawsuits - suggests that government officials are generally complying with the open-meetings law, the board said in its annual reports.

"I don't think you find deliberate violations," said David Bliden, executive director of the Maryland Association of Counties. "You find different perspectives on the interpretation of the law, and you also have inadvertent violations."

'Executive function' debate

Dyer's is one of those different perspectives. An unsuccessful candidate five years ago for Howard County's elected school board, he said he merely wanted to be more involved in the system that was educating his children.

But after an acquaintance questioned the Howard school panel's habit of huddling behind closed doors before scheduled public meetings, Dyer filed a series of complaints with the state open-meetings board, then went to court when nearly all his allegations were dismissed.

He didn't fare any better with the Circuit Court, where a judge ruled in 2003 that although his children attended county schools, only people who could show that the board's activities cost them income or property value had a right to sue. Brushing aside the governor's veto warning about encouraging frivolous lawsuits, the legislature acted this year to ensure that anyone - regardless of financial or personal stake - can go to court over closed-door meetings.

Dyer, a computer consultant and lawyer, is waiting for a ruling from the Court of Special Appeals on whether he'll get a chance in court to try to prove his claims that the school board met illegally in secret in 2000.

Although the law stresses that government ought to meet in the open, it allows state, county and municipal boards, councils and commissions to meet in private when they are performing "executive, judicial or quasi-judicial functions." Elected officials frequently cite their "executive" role in going behind closed doors, though the law does not spell out when such sessions are appropriate.

"It's a tough issue," said William R. Varga, an assistant attorney general who works with the compliance board. "It's a delicate balance, especially for small municipalities where you don't have staff and elected officials are involved in day-to-day administration."

Dyer complained in his suit that the Howard school board hid behind the "executive function" exemption to meet in private. He also alleged that board members discussed government business illegally by e-mail, such as reimbursement for their expenses.

"My concern is not so much with what public bodies do as the way they do it," Dyer said. "The way they conduct their operations is in such a way as to generate a feeling among the citizens that the citizen has no control. That, to me, is the death of democracy."

Board awareness

Howard school officials counter that Dyer has unfairly portrayed them as secretive. They point out that the state open-meetings board found only three relatively minor violations among the many things that Dyer and others, including the PTA council of Howard County, complained about.

However, since the dispute began, the five-member school board has stopped holding private retreats and provides better notice to the public of its meetings.

"The awareness of the board members is so high, we probably go overboard," said Courtney Watson, president of the board. "Three of us don't even stand together, generally, so there's not even a perception that we're speaking."

The board also no longer holds closed-door pre-meetings under the rubric of performing its "executive function." The legislature stripped that right from the Howard board two years ago.

The change has not caused the school board difficulty, Watson said, though it "makes our meetings a little more cumbersome," with members having to discuss in open session such mundane matters as setting the next meeting date.

The Howard board is likely to regain its right to discuss administrative matters in private later this year, when the law passed two years ago sunsets.

Dyer acknowledges "a lot of movement in the right direction" by school board members. But he warns that unless the courts or the legislature tighten the law, governing bodies will continue to meet in secret far more than they should. That's why he's continued to press his lawsuit, he said - to get an appellate court ruling that will either put more of the public's business in the public or inspire more legislative reforms.

"I believe that citizens have to work to keep good government," Dyer said. "I don't think you can vote every two years or four years and hope that the people that are elected are going to comply with the proper process without citizen oversight."

Legislators' actions

His legislative victory this year was a backhanded one - essentially reinstating a right virtually everyone thought citizens had to begin with. The costs, in time and legal expense, to press public-records and open-meetings claims through courts can be so daunting that many give up. Dyer acknowledges that some have thought him "wacko" for pursuing his quest.

"All I'm doing is asking questions, basically," he said last week, "and that's an important part of democracy - one I don't think we can eliminate."

Dyer could be getting help from another legislative ally. Del. Michael D. Smigiel Sr., a Cecil County Republican, has proposed studying whether to tighten or eliminate the executive-function exemption to open meetings. He contends that it gives officials "an excuse for closing meetings that otherwise should be open."

Development disputes have fueled friction over open government in Cecil, which is coping with growth pressures from Baltimore to the south and from Pennsylvania and Delaware to the north and east. Residents concerned about the pace and scale of building have packed hearings and government meetings in recent months, and they have complained about not being given enough notice when a big, new project is coming up for approval.

Short notice

Until last month, Cecil residents learned about what new residential subdivisions were planned only when the local newspaper, the Cecil Whig, published the planning commission's agenda on the Friday before its scheduled Monday meeting.

"If you're going to build a huge development in somebody's back yard, they want to be there to find out what's going on," Thorne said.

Residents' grumbling about short notice of development approvals prompted Smigiel to introduce a bill in Annapolis this year that would have required the planning commission to publish its development agenda at least 15 days before to a meeting.

He withdrew the measure after the commissioners complained, insisting that they had already taken steps to address residents' complaints.

Last month, the county began notifying people who own property next to proposed subdivisions at least 15 days before the project comes up for planning commission approval, according to Eric Sennstrom, the county's director of planning, zoning, recreation and parks. All proposed housing projects are being posted on the county's Web site as soon as plans are submitted, and developers are required to post roadside notices before the project comes up for a vote.

Sennstrom said the complaints about being kept in the dark came from those who are "new to the system and not familiar with the process."

Thorne, chairman of the Appleton Regional Community Alliance, said his group simply has become vigilant and assertive. "We're kind of like a splinter that they can't get rid of," Thorne said.

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