The newly sworn Calvert County commissioners are essentially spending this month in commissioner school, learning how their government works -- both in public meetings and behind closed doors.
On Tuesday, after completing their regular weekly meeting, the commissioners went to Flag Ponds Nature Park for the second in a series of "orientation sessions" with county department heads. The retreat allows the five commissioners -- three of whom were elected to their first terms in November -- to study away from the busy courthouse, and in private.
Unlike the commissioners' regular weekly meetings, which are open to the public and the media -- and taped for viewing on cable television -- the orientation is being done in closed session. In order not to run afoul of Maryland's Open Meetings Law, which defines when elected officials can meet in private, the commissioners are classifying the sessions as an "executive function." The term, according to a manual for the state's Open Meetings Compliance Board, can apply to meetings at which elected officials are not developing "a new policy."
"When we discuss things with department heads when it's not policy, sometimes commissioners feel more comfortable when the camera's not on," Commissioners President David F. Hale (R-Owings) said. "I want the new commissioners to feel as free and open as possible."
The new commissioners have endorsed the move to conduct the orientations in closed session. However, in November, former commissioner Barbara A. Stinnett objected to a move by the board majority to invite some of those same commissioners to a closed session as part of the transition process.
Stinnett, a Democrat, was a frequent opponent of decisions by the former board to meet in closed session -- and she criticized the new commissioners' decision to hold the orientation sessions in private.
"It just gives a bad message," Stinnett said. "It is improper. Government should be open."
But county officials say there is nothing wrong with holding the orientation sessions in closed session. Not only is the board "not creating policy," according to Calvert County Attorney Emanuel Demedis, but the Open Meetings Law also allows commissioners to meet in closed session with department heads because they are functioning as an executive body -- the "local government counterpart to the governor's Cabinet."
"When they get together, that body is not subject to the law," Demedis said.
Some open public meeting advocates have argued that the law as it applies to "executive function" is too broad -- even the Open Meetings Compliance Board manual describes the term as "amorphous." In fact, there was an unsuccessful effort to push state legislators to tighten the rules in the early 1990s, according to William Varga, an assistant state attorney general who works with the Open Meetings Compliance Board.
"It was seen by a lot of people as a giant loophole," Varga said.
The exception to the open meetings requirements for executive functions is particularly meaningful in Southern Maryland, where all three counties operate with a commissioner form of government and no elected county executive. Because of that, the commissioners perform both legislative and executive duties.
Varga said the danger facing elected officials citing the executive function provisions is they can "start getting into changes in policy" during a closed meeting. "Then they're no longer in executive function," he said.
However, if such a violation were to occur, it would be up to elected officials and their government employees to police themselves by making a complaint to the Open Public Meetings Board, since neither the media nor the public is allowed to attend such meetings.
Former commissioner Stinnett said that elected officials should be concerned about meeting in private because of how it may be perceived.
"It makes the public wonder what you have to talk about," she said.