“We feel quite chastened and regretful for not doing our duty,” he said. “We are determined to do better.”
But Maryland did not need approval from the regents to make the move from the Big Ten and sought it only because of the high-profile nature of the decision.
Regents could also be sued in civil court, but any resulting fine would not exceed $100 according to the state’s open meetings act manual.
A court would only punish the board if it determines the regents willfully violated the act, the manual states.
“This is a case that got a lot of people’s dander up,” said Craig O’Donnell, a reporter with the Kent County News who has advocated for open meetings laws. “Maybe this will get the attention of the legislature and they will see the law needs some teeth to it.”
Maryland’s open meeting act requires public boards to announce meetings ahead of time, then vote to close them and cite the legal reason for the decision. Kirwan and the regents admit to not following that protocol, but have said that the topics to discussed warranted a closed session.
The regents met without prior notice on Sunday Nov. 18 and Monday Nov. 19 to look over Maryland’s proposal to move to the Big Ten. Kirwan said that both instances included discussions of private financial information, contracts related to the move and legal ramifications. He believes all of those are accepted reasons to close a meeting, according to the law.
Kirwan said the regents first heard that their opinion on the move was requested Saturday, but said no official proposal on the matter existed until Sunday. The group held a conference call to discuss it and met again Monday morning, with some members gathering at the University of Maryland’s Baltimore campus.
During the frenzy, Kirwan said, the board and its advisers — including an assistant attorney general — never thought of notifying the media or public of the meeting.
David Paulson, a spokesman for the Maryland Attorney General Doug Gansler, confirmed that an assistant attorney general attended the Board of Regents meeting. He declined to say how the assistant attorney general, Thomas Faulk, advised the board, saying it was protected by attorney-client privilege.
O’Donnell questioned whether the lack of announcement was truly an omission.
“It’s impossible to explain how these high-paid, very experienced, intelligent people failed to know even the basics of the law,” said. “That implies to me that they’ve been cutting corners for a long time. That’s the red flag.”
James Browning, the regional director of government watchdog group Common Cause Maryland, said the regents’ action send “a terrible message.”
“What’s so troubling here is that the regents are open except when the stakes are really big and they are afraid of dissent,” he said.
Browning said the board should receive the strongest penalties under the law.
“It’s a small fine, but it’s important to do that as a precedent,” he said. He also suggested that a judge consider nullifying the board’s actions at the meeting.
Ralph Jaffe, a former Baltimore County government teacher who filed a complaint with the open meetings board, declared the regents’ admission a “victory for the principles of ethics.”
Paulson said he could not discuss the issue because it is subject to an investigation by the Maryland Open Meetings Compliance Board, which will evaluate Jaffe’s complaint. The three-member board is independent from the attorney general’s office, although it is assisted by members of the office, Paulson said.
That compliance board will await a reply to Jaffe’s charges from the board of regents, then issue an opinion within 30 days. It holds no power to punish violators, but does actively work to ensure that they better understand the law and uphold it in the future.