School board may have won suit, clerk says

The Howard County school board might have been cleared on at least 11 counts of open-meetings violations alleged against past and present members - and found guilty on three others - if a judge had not dismissed the three-year lawsuit against the panel, according to the judge's law clerk.

Circuit Court Judge James B. Dudley issued an eight-page ruling Aug. 8, written and researched with the help of law clerk Dana Paul. It stated that plaintiff Allen Dyer, an Ellicott City lawyer and county activist, did not have the legal standing to bring the suit, which cost Dyer $10,000 and taxpayers $283,000 in board legal fees.


And without standing, Paul said, there was no reason for the judge to issue rulings on the multiple allegations Dyer made against the Board of Education when he filed the suit in November 2000.

"The courts don't answer hypothetical questions," Paul said. "If you don't have standing, anything they talk about is hypothetical."


But Paul still had to do the research to help answer the charges in case the judge did find standing. He says he wrote at least four opinion drafts that addressed each before the final opinion was approved - without allegations - by Dudley.

Those versions, Paul said, recommended that many of the school board practices Dyer thought were illegal were acceptable, including:

Conducting public business via e-mail.

Holding regular 3 p.m. closed sessions before 4 p.m. open meetings.

Approving superintendent salary adjustments in closed session.

Retaining outside legal counsel in private.

Receiving an expense stipend and attending meetings of the Maryland Association of Boards of Education, which are closed to the public.

But Paul recommended the board be found guilty of violating the law in three instances:


For not publishing the minutes of a closed session with the minutes of the next open session, as the law requires. (The board amended its minutes practices to comply with the Open Meetings Act more than a year ago.)

Giving only one day's notice of an open-meeting retreat held Aug. 20, 2001.

Holding another retreat in a closed session when it should have been open.

School system attorney Mark Blom said he did not have any "comment on a clerk's comments about an order and a decision which has never existed."

And Sandra H. French, the school board chairman, echoed his sentiments, saying she "can't comment on it" because it is not official.

"It's interesting," French said. "It's almost like gossip."


Dyer, too, said he found the insight intriguing, though it held no legal value.

"It's very similar to getting a chance to talk to jurors after a jury trial," he said, adding that he is heartened there might have been three violations found. "It helps you to look at your position from other perspectives."

Court clerks, who are usually law students or new lawyers, hold one-year positions with their judges and help out as needed.

Paul ended his tenure as Dudley's clerk Friday and is working for a Howard school system lawyer.

Paul, who passed the Maryland bar in June last year, said he and Dudley spent many hours working on Dyer's case, which contained more than 7,000 documents of evidence.

"This was a very long and intensive case," Paul said, adding that he regrets not "having been able to" issue his own opinion.


"I would have lambasted both parties," Paul said: "Allen Dyer for wasting so much of the taxpayers' money and wasting so much time on frivolous things, and the board for violating the spirit of [the Open Meetings Act]. They weren't discussing rocket-science secrets. They were talking about education - what's so secret about that? They should have willingly been more open."

Paul said he found the deliberation methods - including closed sessions and e-mail - that were used to decide to grant a $16,000 bonus to departing Superintendent Michael E. Hickey in June 2000 to be a "purposeful circumvention" of the Open Meetings Act, though still legally allowable.

"The purpose of the Open Meetings Act is to further democracy. [The board appeared to be] going from the premise of 'What can we get away with?' " said Paul, who lives in Anne Arundel County. "That would have outraged me if I was a taxpayer in Howard County."

French said she still believes the board was operating in good faith when it made that decision.

"There are so many arm-chair generals second-guessing everyone," French said. "Because there are some bad people, the culture has gotten so it assumes everyone is bad."

Dudley's decision stated that because Dyer could not prove special damages, such as harm to his property rights, he was not "affected adversely" by board behavior and not entitled to file suit.


Some law experts have expressed concerns that the ruling will make it difficult for the Open Meetings Act to ever be enforced, and Dyer, who is appealing the decision, is hoping to have the ruling overturned.