State's new law on open meetings could affect suit

An Ellicott City lawyer said yesterday that he will ask the Maryland Court of Special Appeals to consider the state's revised open-meetings law in determining whether he could sue the Howard County Board of Education for allegedly meeting in secret.

The latest development in Allen Dyer's four-year legal challenge against the school board comes after the General Assembly overrode Gov. Robert L. Ehrlich Jr.'s veto of an open-meetings bill Tuesday - effective immediately. The Maryland Open Meetings Act now guarantees that any person may sue a public body for alleged violations of the law.


Dyer's lawsuit prompted state lawmakers to seek clarification last spring of the open-meetings law after a Howard County Circuit Court ruling in 2003 stated that only a person "adversely affected" by an alleged violation could take a public body to court - as called for in the law's previous language.

Dyer appealed to Maryland's Court of Special Appeals, which heard arguments in the case in May. A decision by the state's second-highest court is pending, prompting Dyer to alert the three-judge panel to the General Assembly's override.


"The court makes the call, but here's my argument: If you have a legislation that is enacted during an active case - and a case on appeal is an active case - and that legislation is remedial, then it has an impact on that case," said Dyer, a longtime Howard County resident whose two children graduated from Howard schools.

If the Court of Special Appeals rules in Dyer's favor, he can move forward with his lawsuit, filed in November 2000, and address allegations that the Howard County school board met in closed sessions illegally and failed to give proper meeting notices, among others.

But an attorney representing the Howard County Board of Education disagreed, saying he expects the Court of Special Appeals to base its decision on the open-meetings law as it existed at that time.

"We don't think it changes our legal position in the Dyer case," said attorney Leslie Stellman, who heard of the General Assembly's override yesterday. "Certainly in the future, [the Open Meetings Act] abandons the need for a citizen to show specific harm.

"The board's legal position was that under the law as it existed, there was a requirement that Mr. Dyer have [legal] standing," Stellman said. "We took the position that he not only lacked standing but that we did not violate the law in any respect."

In the meantime, advocates of open government praised the revision of a law that they said previously lacked enforcement teeth.

"It makes it clear that the open-meeting law has meaningful enforcement remedies available to the public," said Mary R. Craig, a media lawyer who filed a "friend of the court" brief for the Maryland-Delaware-DC Press Association in Dyer's appeal. "Without the right to sue, you're relying on the willingness of the public body to voluntarily comply with the law."

Added George White, the press association's executive director, "It's what the drafters of the original intended, and it's pretty basic considering what's necessary for open government."


Del. Elizabeth Bobo - a Howard County Democrat who submitted the bill, which was co-sponsored by Del. John R. Leopold, an Anne Arundel County Republican - said it was gratifying to see continued support for the bill Tuesday.

"Open government is fundamental to democracy," she said.

In May, Ehrlich vetoed the legislation despite overwhelming approval by the General Assembly, saying that the bill, if enacted, would encourage frivolous lawsuits in Circuit Court.

Carl W. Smith, executive director of the Maryland Association of Boards of Education, which did not support Bobo's bill, said he does not expect a flood of legal challenges against school boards as a result of the revised open-meetings law.

"Essentially, the boards of education in Maryland obey the Open Meetings Act, and the boards have spent a lot of time thinking about the requirements of the Open Meetings Act and do everything possible to be compliant with the act," Smith said.