State OMA establishes only minimum standards for open meetings
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- State OMA establishes only minimum standards for open meetings
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The opinion
152 [95 Op. Att’y
OPEN MEETINGS LAW
P UBLIC S CHOOLS – A PPLICATION OF S T. M ARY ’ S O PEN
M EETINGS A CT AND O THER O PEN M EETINGS L AWS TO THE
S T. M ARY’S C OUNTY B OARD OF E DUCATION
September 7, 2010
Michael J. Martirano, Superintendent
St. Mary’s County Public Schools
The Honorable Roy Dyson
Maryland State Senate
You each requested our opinion as to whether the St. Mary’s
County Board of Education (“St. Mary’s Board”) may convene in a
closed session when performing an “administrative function” as
defined under the State Open Meetings Act (“State OMA”). Under
the State OMA, county boards of education need not meet in open
session when they are performing an “administrative function” and
when the State education law does not otherwise require an open
meeting. However, unlike other local boards of education, the St.
Mary’s Board is also subject to the St. Mary’s Open Meetings Act
(“St. Mary’s OMA”). The St. Mary’s OMA does not have a specific
exclusion for an “administrative function,” but has different
limitations on its scope. Both the State OMA and the St. Mary’s
OMA defer to any “more stringent” law requiring open meetings.
In our opinion, as a result of the St. Mary’s Open Meetings
Act, the St. Mary’s Board must meet in open session for many, if not
most, activities that would qualify as an administrative function
under the State OMA and for which another local board of education
may be permitted to hold a closed session. However, some activities
that do not trigger the open meeting requirements of the State OMA
or education law are also outside the scope of the St. Mary’s OMA.
For example, we understand that there are sessions in which the
Superintendent of Schools (or the Superintendent’s staff) reports to
the Board solely for informational purposes on matters that are
within the purview of the Superintendent, that do not involve the
formulation of substantive policy, and that do not require any action
by the Board. Such briefings not only would be an administrative
function under the State OMA and beyond the scope of the open
Gen. 152] 153
meeting requirements of the State education law, but also would not
amount to “official action” that triggers the open meeting
requirement of the St. Mary’s OMA. Thus, the St. Mary’s Board
need not conduct those briefings in open session.1
I
Open Meetings Laws
The St. Mary’s Board, like most public bodies in St. Mary’s
County, is subject to both the State OMA and the St. Mary’s OMA.
Meetings of the St. Mary’s Board are also governed by provisions of
the State education law concerning meetings of county boards of
education. These statutes have similar purposes but are not identical
in scope or procedural requirements.
A. State Open Meetings Act
The State OMA was initially enacted by the General Assembly
in 1977. Chapter 863, Laws of Maryland 1977, codified as amended
at Annotated Code of Maryland, State Government Article (“SG”),
§10-501 et seq. While the statute does not grant the public a right to
participate in meetings, it does afford the public the “right to observe
the deliberative process and the making of decisions by [a] public
body at open meetings.” City of New Carrollton v. Rogers, 287 Md.
56, 72, 410 A.2d 1070 (1980). When the State OMA applies to a
meeting, the session must be open to the public, subject to a limited
number of exceptions. SG §§10-505; 10-507(a).2 When a public
body chooses to close a meeting under one of the exceptions, it must
follow certain procedures set forth in the statute. See SG
1
Counsel to the St. Mary’s Board provided us with his legal analysis
and concluded that a session need not be open if it is devoted to the
Superintendent providing information to the Board on matters under the
Superintendent’s authority unrelated to any deliberation or action by the
Board. For the reasons set forth in this opinion, we agree with that
conclusion, although we note that the St. Mary’s Board likely must meet
in open session when conducting other matters that fall within the
definition of administrative function.
2
The meeting may be closed for 14 specific purposes set forth in the
statute. See SG §10-508(a). The exceptions are strictly construed and,
during the course of the closed session, the public body may not consider
any matter outside the relevant exception. SG §10-508(b) and (c).
154 [95 Op. Att’y
§§10-506(b)(3) (notice); 10-508(d) (closure procedures);
10-509(c)(2) (subsequent disclosures).3
Definitions of key terms in the State OMA limit its scope. The
statute applies only to “public bodies.” SG §10-502(h) (definition
of “public body”). Under the Act, a public body “meets” when a
quorum 4 of the public body convenes “for the consideration or
transaction of public business.” SG §10-502(g); see also SG §10-
503(a)(2) (State OMA does not apply to chance encounters or social
gatherings). However, the State OMA is not triggered every time a
public body meets. Application of the statute turns on the “function”
that the public body is performing at the meeting.
The open meeting and procedural requirements of the State
OMA apply when the public body meets to perform a “legislative,”
“quasi-legislative,” or “advisory” function, as those functions are
defined in the State Open Meetings Act. See SG §10-502(c), (f), (j).
However, the statute generally does not apply to a public body when
it is performing a “judicial” or “quasi-judicial,” or “administrative”
function, all of which are also defined in the Act. See SG §10-
502(b), (e), (i); §10-503(a)(1).5
3
Other provisions of the State OMA address the conduct of
meetings, minutes, disclosure requirements when a public body closes a
meeting governed by the Act to consider a matter that constitutes an
administrative function, the Open Meetings Compliance Board, and
enforcement of the Act.
4
Unless a different number is prescribed by law, a “quorum” is a
majority of the members of the public body. SG §10-502(k).
5
The General Assembly has also directed that the State OMA
applies whenever a public body is meeting to consider: (1) granting a
license or permit, or (2) a special exception, variance, conditional use,
zoning classification, the enforcement of any zoning law or regulation, or
any other zoning matter. SG §10-503(b). Neither of those circumstances
appears relevant to your inquiries.
Gen. 152] 155
Your inquiries concern the exclusion for administrative
functions.6 The term “administrative function” 7 is defined as
follows:
(1) “Administrative function” means the
administration of:
(i) a law of the State;
(ii) a law of a political subdivision of the State; or
(iii) a rule, regulation, or bylaw of a public body.
(2) “Administrative function” does not
include:
(i) an advisory function;
(ii) a judicial function;
(iii) a legislative function;
(iv) a quasi-judicial function; or
(v) a quasi-legislative function.
SG §10-502(b).
It is not immediately obvious what activities are encompassed
by this definition. See 78 Opinions of the Attorney General 275
(1993). The Open Meetings Compliance Board, an independent
advisory body charged with construing the State OMA,8 has
developed a two-step analysis to determine whether a particular
activity is an administrative function. See, e.g., 6 OMCB Opinions
145, 147 (2009); 6 OMCB Opinions 23, 25-26 (2008); see also 86
Opinions of the Attorney General 94, 115-17 (2001). The first step
6
In one respect, the State OMA regulates sessions that carry out an
administrative function. If a public body recesses a public session to carry
out an administrative function outside the public’s view, certain
information concerning the closed session must be made public as part of
the minutes of the public body’s next meeting. SG §10-503(c).
7
Before October 1, 2006, the State OMA used the term “executive
function” rather than “administrative function.” A 2006 amendment
renamed the function without changing the substance of the definition.
Chapter 584, Laws of Maryland 2006.
8
See SG §10-502.1 et seq.
156 [95 Op. Att’y
is to evaluate whether the meeting falls within any other function
defined in the statute. If it does, the analysis ends because, by
definition, the meeting does not involve an administrative function.
SG §10-503(b)(2). If the session does not involve one of the other
defined functions, the second step is to evaluate whether the public
body is involved in the administration of an existing law, rule, or
regulation (as opposed to the development of new policy). If it is,
the meeting likely involves an administrative function and the State
OMA does not apply; if not, the discussion is not an administrative
function and the State OMA does apply.9
The State OMA recognizes that other laws may also govern
meetings of some bodies. In the event of a conflict with another law,
the open meeting and procedural requirements of the State OMA
prevail “unless the other law is more stringent.” SG §10-504.
Although the term “more stringent” is not defined, it is understood
to mean a law that grants the public greater access. City of College
Park v. Cotter, 309 Md. 573, 586, 525 A.2d 1059 (1987) (State
OMA establishes only minimum standards for open meetings).
Other laws governing meetings of the St. Mary’s Board are
found in portions the State education law relating to local boards of
education. Also, the St. Mary’s OMA, which applies to meetings of
most public bodies in St. Mary’s County, specifically applies to the
St. Mary’s Board.
B. State Education Law
Two provisions of the State education law impose an open
meeting requirement on the St. Mary’s Board. One provision applies
to all county boards of education; the other is specific to the St.
Mary’s Board. Both statutes permit the Board to meet in “executive
session” – i.e., a closed session – in some circumstances.
Under Annotated Code of Maryland, Education Article (“ED”),
§4-107(d), a county board must take all of its “final actions” at a
public meeting and the minutes of that meeting are to be available
publicly. ED §4-107(d)(1). The statute authorizes a county board
9
The Open Meetings Compliance Board has opined that, in an
unusual situation where a meeting involves none of the defined functions,
the State OMA applies. 4 OMCB Opinions 12 (2004); 1 OMCB Opinions
96, 98 (1994).
Gen. 152] 157
to meet and deliberate in executive session for matters concerning
land and site acquisition and personnel and labor relations. ED §4-
107(d)(2). This provision has been part of the State education law
since 1969. Chapter 405, §1, Laws of Maryland 1969. When
recodifying it as part of the Education Article, the Legislature made
clear that it did not supersede any “more stringent” provisions of the
State OMA. Chapter 22, §8, Laws of Maryland 1978.
ED §3-1104 pertains solely to the St. Mary’s Board. It requires
the St. Mary’s Board to meet at least once a month. ED §3-1104(a).
All “actions” of the Board are to be taken at a public meeting; the
record of the meeting and any actions taken is to be made public.
ED §3-1104(b). However, the statute permits the St. Mary’s Board
to meet and deliberate in executive session, so long as any actions
and votes taken at the session are made public. ED §3-1104(c).
This provision was added to the education law when the St. Mary’s
Board was converted from an appointed to an elected board.
Chapter 292, §2, Laws of Maryland 1996.
C. St. Mary’s OMA
The St. Mary’s OMA was initially enacted by the General
Assembly in 1976 – a year before the State OMA. Chapter 715,
Laws of Maryland 1976, codified as amended at Annotated Code of
Maryland, Article 24, §4-201 et seq. Subject to certain enumerated
exceptions, 10 the St. Mary’s OMA applies to a meeting of a “public
agency” in St. Mary’s County. Article 24, §§4-202(b); 4-203(a).11
10
The St. Mary’s OMA does not apply to meetings of the judicial
branch, grand juries, petit juries, or law enforcement agencies. Article 24,
§4-209.
11
The term “public agency” is defined as follows:
“Public agency” includes:
(1) Any agency, assembly, authority, board,
bureau commission, committee, council, or
department of St. Mary’s County, except as
provided in §4-209 of this subtitle, including
advisory and quasi-judicial agencies, supported in
whole or in part by public funds or authorized to
expend public funds;
(continued...)
158 [95 Op. Att’y
The definition of “public agency” explicitly includes the St. Mary’s
County Board of Education. Article 24, §4-202(d)(2).12
The St. Mary’s OMA requires that “[a]ll meetings of a public
agency at which official action is taken regarding public business are
open to the public, except as provided in [the exceptions set forth in]
§4-210.” Article 24, §4-203(a). The term “meeting” is defined for
purposes of the St. Mary’s OMA as “the convening of a quorum of
the constituent membership of a public agency to deliberate or act
upon a matter over which the public agency has supervision, control,
jurisdiction or advisory power.” Article 24, §4-202(b).
The term “public business” involves “all matters within the
jurisdiction of a public agency which are before [that] agency for
official action or which reasonably, foreseeably may come before
that agency in the future.” Article 24, §4-202(e). Like the State
OMA, the St. Mary’s OMA is not limited to sessions involving final
action by the agency. The term “official action” is defined to mean
“the phases of the process in which a decision or recommendation
is reached including receipt of information, deliberation and decision
11
(...continued)
(2) The St. Mary’s County Board of
Education; and
(3) Subcommittees and other subordinate
units of the agencies above.
Article 24, §4-202(d). The original legislation used the term “public
body” in addition to “public agency” but was amended the following year
to conform the usage in the statute to a single term. See Chapter 715,
Laws of Maryland 1976 and Chapter 617, Laws of Maryland 1977.
Although the term “agency” might appear to extend the St. Mary’s OMA
to individual officials, the definition of a “meeting” makes clear that the
term “public agency” is limited to meetings of a multi-member entity as
opposed to a meeting conducted by an individual official who heads a
particular agency. Article 24, §4-202(b) (defining “meeting” to be the
“convening of a quorum of the constituent membership”). 89 Opinions of
the Attorney General 22, 25-27 (2004).
12
The specific reference to the St. Mary’s Board was added by
Chapter 77, Laws of Maryland 1995. This amendment simply confirmed
prior advice of this Office that the original version of the statute applied
to the St. Mary’s Board. Letter of Advice from Assistant Attorney
General Sandra J. Cohen to the Honorable John F. Slade, III (January 17,
1995) (copy available in legislative bill file on House Bill 647 (1995)).
Gen. 152] 159
of a public agency.” Article 24, §4-202(c). Thus, it covers the entire
deliberative process.
Unlike the State OMA, the St. Mary’s OMA does not limit the
scope of the open meetings requirement by reference to the
“functions” of a meeting. Rather, the statute provides an exclusive
list of reasons for which meetings of a public agency may be closed
to the public. Article 24, §4-210.13 And, similar to the State OMA,
the St. Mary’s OMA provides that in the event of a conflict between
the St. Mary’s OMA and other law, the provisions of the St. Mary’s
OMA control unless “provisions of existing law are more stringent.”
Article 24, §4-214.14
II
County School Boards
Under the State education law, a local school board is charged
with general control of educational matters in its county, subject to
direction from the State Board of Education and State
Superintendent. ED §4-101 et seq. In carrying out its role, a county
board appoints the county superintendent and other school
personnel, sets salaries and school policies, prepares an annual
budget for the school system, and approves the curriculum guide and
courses of study, among other things. ED §§4-103, 4-108, 4-111, 4-
201, 5-101. The county superintendent is the executive officer,
secretary, and treasurer of the school board, and is responsible for,
among other things, approving school board contracts, evaluating
13
Section 4-210 lists 11 exceptions to the open meeting
requirement, two of which are specific to the St. Mary’s Board. Article
24, §4-210(a)(2) (meeting relating to discipline of student), (a)(3)
(discussions concerning specific students, families, or personnel when the
discussion may be harmful to those individuals).
14
Other provisions of the St. Mary’s OMA address notice
requirements, meeting facilities, minutes, recording and broadcasting of
meetings, maintenance of order, and enforcement and penalties.
The St, Mary’s OMA also applies to certain staff meetings.
However, staff meetings are not subject to all the procedural requirements
that apply to a meeting of a “public agency.” See Article 24, §§4-202(g),
4-203(b), 4-207(c); see also 89 Opinions of the Attorney General 22, 24-
25 (2004).
160 [95 Op. Att’y
school instructional programs, overseeing the professional
development of teachers, and advising on the initial proposed
budget. ED §§4-102, 4-205, 5-101. Much of the day-to-day
administration of the schools is delegated to the local superintendent.
Yet the school board has ultimate responsibility for the school
system.
III
Analysis
A. Discerning the More Stringent Law
Both of your inquiries concern the extent to which the St.
Mary’s Board may meet in closed session when performing an
administrative function, as defined in the State OMA. Unlike other
local boards of education, the St. Mary’s Board is also subject to the
St. Mary’s OMA and to ED §3-1104. Both the State OMA and St.
Mary’s OMA require application of the “more stringent” open
meeting law. Thus, in order to determine whether a particular
session must be open, the St. Mary’s Board must consider how the
State OMA, the St. Mary’s OMA, and any applicable provisions of
the Education Article (including ED §3-1104) would apply and then
comply with whatever law requires greater transparency in the
particular circumstances.
B. State OMA – “Functions” Performed by County School
Boards
As the Open Meetings Compliance Board has noted, many of
the duties of a county school board would be classified under the
State OMA as legislative or quasi-legislative functions subject to the
openness and procedural requirements of that statute. 3 OMCB
Opinions 39 (2000) (“2000 OMCB Opinion”). But the Compliance
Board has also acknowledged in several opinions that some activities
of local school boards do not involve policy-making and fall within
the administrative function exclusion. Id.; see also 6 OMCB
Opinions 145 (2009); 6 OMCB Opinions 23 (2008). For example,
a budget strategy session held by a county board of education, the
making of an appointment by the board, and discussions about
attendance at retirement ceremonies have each been found to be
Gen. 152] 161
administrative functions. 2000 OMCB Opinion at 43-44.15
Briefings by the superintendent or the superintendent’s staff
concerning matters under the superintendent’s authority, and which
do not involve policy matters to be addressed by the board, would
also be an administrative function. Id. at 42.
In each of the instances identified in Compliance Board
opinions as involving an administrative function, the local school
board was not performing any of the other defined functions in the
State OMA nor making policy decisions. Rather, the school boards
were carrying out their obligation under the State education law to
oversee the operations of the school system and the performance of
the local superintendent. Accordingly, those actions were deemed
administrative functions not subject to the open meeting and
procedural requirements of the State OMA.
C. Application of ED §4-107(d)
ED §4-107(d) requires a county board of education to take any
“final action” in a public meeting and authorizes closed sessions for
meetings in certain circumstances. If a particular administrative
function performed by a county board does not involve taking “final
action” on a matter, ED §4-107(d) likewise would not require that
the meeting be open. Thus, ED §4-107(d) would not require a
different result from the State OMA in those circumstances – i.e., it
would not be a “more stringent” law. For example, a briefing by the
superintendent on matters within the purview of the superintendent,
and on which no board action would be required, would be outside
the open meeting mandate of ED §4-107(d).
D. Application of Laws Specific to the St. Mary’s Board
1. St. Mary’s OMA
The St. Mary’s OMA broadly defines “meeting” to include a
gathering of an agency “to deliberate or act upon a matter over
which the ... agency has supervision, control, jurisdiction or advisory
power.” The open meeting requirement is triggered if the agency is
15
At the time of the 2000 OMCB opinion, “administrative function”
was called “executive function.” See note 7 above. In describing the
conclusions of that opinion in the text we use the current label
“administrative function” to avoid confusion.
162 [95 Op. Att’y
to take “official action ... regarding public business...” at the
meeting. Article 24, §4-203(a). By definition, “official action” is
not limited to final action by the agency. Rather, it includes all
phases of a decision-making process “in which a decision or
recommendation is reached.” Article 24, §4-202(c) (emphasis
added). It specifically includes the sharing of information as part of
the decision-making process. Id. The phrase “public business” is
also broadly defined. Article 24, §4-202(e) (“all matters within
jurisdiction of a public agency...”). However, as is evident, the term
“official action” does contemplate that the agency will at some point
consider acting – i.e., making a decision or recommendation – on a
matter before it.
In our view, the open meeting requirement of the St. Mary’s
OMA would apply to many administrative functions described in
the OMCB opinions. Many such meetings will be part of the
process by which the Board takes “official action” on some matter.
For example, unless a specific exception in the St. Mary’s OMA
pertained, the open meeting requirement would apply when the
Board discusses its budget strategy. However, a limited range of
activities that fall within administrative function under the State
OMA would not trigger the open meeting requirement of the St.
Mary’s OMA. In this category are some briefings of the Board by
the Superintendent or the Superintendent’s staff.
For example, if a briefing session consisted solely of reports to
the Board, for informational purposes, of actions taken by the
Superintendent or staff on matters within their authority and not
requiring Board approval or the formulation of Board policy, that
briefing would not involve “official action” and could be done in a
closed session. Although such a briefing would allow the Board to
monitor the Superintendent’s performance and be better informed on
the operation of the schools, it would not be part of a process by
which the Board would make a “decision or recommendation.”
Therefore, the session would not involve “official action” subject to
the open meeting requirement of the St. Mary’s OMA. Article 24,
§4-202(b).
2. ED §3-1104
While ED §3-1104 broadly requires a “public meeting” for all
“actions” of the St. Mary’s Board, its equally broad allowance for
executive sessions would presumably encompass sessions at which
the Board is performing an administrative function. It would be
Gen. 152] 163
“more stringent” than the State OMA only in requiring that any
actions and votes at such a session be made public.
IV
Conclusion
In our opinion, the St. Mary’s Board must meet in open session
for many, if not most, activities that would qualify as an
administrative function under the State OMA and for which another
local board of education could legally meet in closed session.
However, some activities that are an administrative function under
the State OMA and that are outside the scope of the open meeting
requirements of the State education law are also outside the scope of
the St. Mary’s OMA. One example would be a session in which the
Superintendent or other staff report to the Board solely for
informational purposes on matters within the Superintendent’s
purview, so long as the briefing involved no formulation of
substantive policy and did not require any action by the Board. Such
a briefing would not only be an administrative function under the
State OMA, and outside the scope of the State education law’s open
meeting requirements, but would also not meet the definition of
“official action” that triggers the open meeting requirement of the St.
Mary’s OMA. Thus, the St. Mary’s Board need not conduct those
briefings in open session.
Douglas F. Gansler
Attorney General
William R. Varga
Assistant Attorney General
Robert N. McDonald
Chief Counsel
Opinions and Advice