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Berlin, Ocean Pines News Worcester County Bayside Gazette Logo Berlin, Ocean Pines News Worcester County Bayside Gazette


County found not in compliance

By Josh Davis, Associate Editor

(Dec. 13, 2018) Based on an Oct. 9 complaint filed with the state’s Open Meeting Compliance Board by this paper, the Worcester County Commissioners were cleared of violating the open meeting act in one instance, but found not in compliance in another.

In a letter dated Dec. 10 from Jonathan A. Hodgson, Esq. and April C. Ishak, Esq. of the Open Meetings Compliance Board, the complaint alleged “that the County Commissioners of Worcester County … met behind closed doors on September 18, 2018, to conduct business that the Open Meetings Act required to be conducted in a public meeting.”

“Specifically, the complaint alleges that the Commissioners ‘agreed to waive thousands of dollars in fines for a local business,’ that the minutes of the Commissioners’ open session do not reflect a discussion of the matter, and that the Commissioners likely discussed the matter in closed session. The complaint additionally alleges that the Commissioners’ summary of a closed session that day does not disclose such a discussion,” the letter said.

Attached to the original complaint was a Sept. 20 letter to the local business in which County Chief Administrative Officer Harold Higgins said on Sept. 18 the commissioners “reviewed . . . the violations and fines . . . for your property” and that “the County Commissioners have agreed to waive the current fines issued for violations.”

In a response to the complaint, County Commissioner President Diana Purnell said discussion of code enforcement matters fell within the administrative function exclusion and was therefore beyond the scope of the Open Meetings Act.

According to the Compliance Board, closed session meeting minutes were attached to the county’s response and “bear out the president’s characterization of the discussion.”

“The submissions raise two questions: First, were the Commissioners performing an administrative function when they discussed the waiver of fees in the code enforcement matter? Second, did the Commissioners comply with [the Open Meetings Act], which requires public bodies to disclose some information about administrative function meetings held during a recess from an open session?” the letter said.

In the first instance, the board found the commissioners’ discussion did fall within the administrative function, adding, “The closed-session minutes show that the commissioners addressed the particular code enforcement and did not stray into broader policy issues.”

As to whether the commissioners disclosed some information about the administrative function, the Compliance Board ruled they did not.

“Section 3-104 requires the public body to include, in the minutes of its next open session, two categories of information about the administrative function meeting,” the letter said. “The Commissioners provided the information required by the first category: time, place, date, persons present at the meeting … The second category calls for ‘a phrase or sentence identifying the subject matter discussed at the administrative function meeting.’”

According to county meeting minutes, “Topics discussed and actions taken included discussing potential acquisition of real property for public purposes.”

“These descriptions do not provide the public with any information about the ‘subject matter’ of the administrative function discussions,” the letter said.

“Although the response states that the County provided the Complainant with the information in response to his Public Information Act requests, that does not address the problem created by a public body’s failure to disclose, in its meeting minutes, the events of its closed meetings: If a member of the public has no way of knowing that the public body discussed a particular subject, how will that person know to ask for more information? We encourage the Commissioners, when they adopt their open-session minutes, to review their closed-session disclosures for completeness—a disclosure of each topic discussed—and to provide as much detail as it can.

“We find that the Commissioners violated [section] 3-104,” the letter said.

Purnell, on Monday, said she had not yet seen the Compliance Board response.

“We are doing what a lot of businesses and governments are doing – we are making sure that we are up to date on what we are doing and how we are supposed to be doing it when it comes to transparency,” Purnell said. “When they got back with us and said you need to be doing this and you need to be doing that, then we are falling in line and doing those things.”

Purnell added that County Attorney Maureen Howarth was the one “making sure that we are doing what we are supposed to be doing, and doing it correct.”

“As the commissioners, we are doing what we are ordered to do, because we want to be as transparent as we can,” Purnell said.

Howarth, in an email on Tuesday, said, “Transparency is always a top priority to the County, thus the County respects the decision of the Open Meetings Compliance Board and will ensure our disclosure of the subject matter for each administrative function item discussed.

“This will not affect how the County Commissioners operate going forward, however, the minutes will provide more detail for the administrative function items discussed. I do not discuss legal advice between myself and my client, the County, but the Commissioners are committed to complying with the Open Meetings Act and will take the advice from the Compliance Board,” she said.