The Annapolis city council may have violated state law when members discussed the city's anti-loitering law in a closed-door session in June, according to a complaint filed yesterday by the American Civil Liberties Union of Maryland.
The ACLU, which is challenging in U.S. District Court the law allowing the establishment of drug-loitering-free zones, filed the complaint with the Maryland Open Meetings Law Compliance Board on behalf of a city resident after reviewing a transcript of the council's June 6 regular meeting, an ACLU official said.
The main point of contention is whether a discussion of legislative findings - the city's rationale for adopting the anti-loitering measure that was later adopted at the council's open meeting - violated the law, which allows closed-door meetings on pending litigation.
Alderman Herbert H. McMillan, the Ward 5 Republican who sponsored the anti-loitering measure, called the ACLU's open-meeting complaint "groundless."
"Bullying small cities into submission with expensive and unfounded nuisance litigation is a common ACLU tactic," McMillan said. "They are trying to keep our staff from focusing on the case."
State law prohibits public bodies from meeting behind closed doors except in specific circumstances, including the discussion of pending litigation, said Jack Schwartz, assistant attorney general and counsel to the open-meetings board.
The ACLU contends that the topic of the closed-door meeting went beyond the discussion of the litigation. "Legislative findings is clearly not part of the litigation," said Dwight Sullivan, ACLU of Maryland's chief counsel. "The process of adopting a legislative findings is a legislative process, and there is no exception in the open meetings act for legislative findings."
The legislative findings were added to the law's legislative record in an attempt to strengthen the city's defense against the lawsuit filed in February by the ACLU on behalf of the National Association for the Advancement of Colored People and three Annapolis residents .
Two council members who attended the closed-door meeting said that though the legislative findings were part of the closed-door discussion, they think that was permissible under state law.
"We got advice on the counsel's perception of the lawsuit that was pending and what course of action we would consider," said Alderman Sheila M. Tolliver, a Ward 2 Democrat. "We did not develop any proposal in there or vote on any proposal."
Ward 4 Republican Alderman Joseph Sachs said the legislative findings were "part of the litigation" and have "no bearing on the law."
"Those findings referred to a piece of legislation that had already been passed," he said. "It is a reason for something you do."
The ACLU's complaint also questions whether the council provided adequate notice to the public that it would conduct a closed meeting and whether the council first convened in an open session to vote on closing it to the public.
According to the minutes of the meetings, the council did convene in public first, but it was unclear what advance public notice had been given. City Clerk Deborah Heinbuch, who is responsible for the notices, could not be reached for comment.
Sullivan said the city used "a flawed process to bolster a flawed ordinance" and hoped that the open-meeting complaint would convince the court hearing its lawsuit that it should "not attach much weight" to the legislative findings. The compliance board, an independent agency appointed by the governor, is limited to issuing opinions and has no authority to fine or sanction.
The city's anti-loitering law, which was narrowly passed by the council in October, is aimed at curbing open-air drug dealing and allows residents in an area where more than three drug-related arrests have been made in a 24-month period to seek to have the area designated a "drug-loitering-free zone."
The designation allows police officers to approach and disperse people they suspect of dealing drugs, along with anyone known as a drug user and subject to a court order prohibiting his or her presence in an area of drug activity.
The ACLU has said that the law is vague and unconstitutional, gives police too much power and will have a disproportionate effect on blacks and other minorities.