(June 30, 2016) The issue of whether the Ocean Pines Association Elections Committee can count ballots during a closed session has become an annual debate, including this year when 12 candidates are running for three seats on the board of directors.
Resolution M-06, section 9., which governs the ballot count in Ocean Pines, reads, “Counting ballots is the responsibility of the [Elections] Committee, in closed session, with the assistance of a computer consultant and Association staff. The committee shall exercise due diligence in obtaining an accurate county of votes cast.”
Page three of the resolution shows board approval on April 24, 2013, and includes the signature of attorney Jim Trammel, who at the time was chairman of the by-laws and resolutions advisory committee.
One of the arguments against counting ballots during a closed sessions stems from the Maryland Homeowners Association Act, which allows closed meetings only under certain situations.
Under a section governing “Meetings of homeowners association or its governing body,” for instance, section 4(i) allows for closed meetings that pertain to “Discussion of matters pertaining to employees and personnel.”
Many do not consider directors – or candidates – to be “employees and personnel,” but rather unpaid volunteers. The ambiguity of both words used in conjunction, however, is interesting to some, including Jeff Knepper, an attorney and former director in Ocean Pines.
Last Thursday, Knepper emailed a statement on the subject at the request of the Gazette.
“Recently in Ocean Pines there has been a vigorous debate about whether or not the meeting of an OPA Committee to count votes in the upcoming election for three board of directors members can be done in a meeting that is closed to the public,” he said. “Maryland law requires a homeowners’ association to conduct its meetings in sessions that are open to the public with few, specified exceptions.
“One of those exceptions allows the closure of meetings to discuss matters relating to ‘employees and personnel.’ Unfortunately, there are no Maryland cases clarifying the meaning of these two terms.
“Some have suggested that ‘personnel’ must mean ‘employees,’ but if they are right, then the above sentence would allow closure of ‘meetings to discuss matters relating to employees and employees.’
“‘Personnel’ might include OPA’s numerous volunteers, it might include directors, and I suppose it might even include candidates running in an election for the board. Until some legal authority formally decides, we will not know the meaning of these words and one interpretation is as good as the next.
“So the bottom line is that the association’s decision to close the vote counting meeting is, in my opinion, based on a reasonable interpretation of an ambiguous and undecided Maryland law. Others may certainly disagree, but that is my opinion.”
On Saturday, the issue was raised during a public meeting of the board of directors. The board voted to table the question until the by-law & resolutions committee and elections committee could meet to mutually craft a recommendation.
During that meeting, Vice President Cheryl Jacobs, also an attorney, offered another explanation – the closed “meeting” was not a meeting at all.
“This is not a meeting – this is a time when ballots are counted,” she said. “There is no business being conducted of the committee, it is simply a time to count ballots. It is not a meeting. From my perspective this is not anything that is in violation of the Homeowner’s Act.”
Resolution M-06, section 9., which governs the ballot count in Ocean Pines, reads, “Counting ballots is the responsibility of the [Elections] Committee, in closed session, with the assistance of a computer consultant and Association staff. The committee shall exercise due diligence in obtaining an accurate county of votes cast.”
Page three of the resolution shows board approval on April 24, 2013, and includes the signature of attorney Jim Trammel, who at the time was chairman of the by-laws and resolutions advisory committee.
One of the arguments against counting ballots during a closed sessions stems from the Maryland Homeowners Association Act, which allows closed meetings only under certain situations.
Under a section governing “Meetings of homeowners association or its governing body,” for instance, section 4(i) allows for closed meetings that pertain to “Discussion of matters pertaining to employees and personnel.”
Many do not consider directors – or candidates – to be “employees and personnel,” but rather unpaid volunteers. The ambiguity of both words used in conjunction, however, is interesting to some, including Jeff Knepper, an attorney and former director in Ocean Pines.
Last Thursday, Knepper emailed a statement on the subject at the request of the Gazette.
“Recently in Ocean Pines there has been a vigorous debate about whether or not the meeting of an OPA Committee to count votes in the upcoming election for three board of directors members can be done in a meeting that is closed to the public,” he said. “Maryland law requires a homeowners’ association to conduct its meetings in sessions that are open to the public with few, specified exceptions.
“One of those exceptions allows the closure of meetings to discuss matters relating to ‘employees and personnel.’ Unfortunately, there are no Maryland cases clarifying the meaning of these two terms.
“Some have suggested that ‘personnel’ must mean ‘employees,’ but if they are right, then the above sentence would allow closure of ‘meetings to discuss matters relating to employees and employees.’
“‘Personnel’ might include OPA’s numerous volunteers, it might include directors, and I suppose it might even include candidates running in an election for the board. Until some legal authority formally decides, we will not know the meaning of these words and one interpretation is as good as the next.
“So the bottom line is that the association’s decision to close the vote counting meeting is, in my opinion, based on a reasonable interpretation of an ambiguous and undecided Maryland law. Others may certainly disagree, but that is my opinion.”
On Saturday, the issue was raised during a public meeting of the board of directors. The board voted to table the question until the by-law & resolutions committee and elections committee could meet to mutually craft a recommendation.
During that meeting, Vice President Cheryl Jacobs, also an attorney, offered another explanation – the closed “meeting” was not a meeting at all.
“This is not a meeting – this is a time when ballots are counted,” she said. “There is no business being conducted of the committee, it is simply a time to count ballots. It is not a meeting. From my perspective this is not anything that is in violation of the Homeowner’s Act.”