The Calvert County Board of Commissioners may have violated the Maryland Open Public Meetings Act by discussing the establishment of a county tax during a closed-door "orientation" session that the board said would not involve any consideration of new policy.
The tax proposal was made public yesterday when commissioners talked about their 2003 "wish list" of items for the county's legislative delegation to pursue in Annapolis. In opposing asking the legislature to give Calvert the authority to assess a real estate transfer tax when property changes hands, Commissioner Linda L. Kelley (R-At Large) told her fellow board members that she had missed the discussion of the issue because she had been unable to attend the Jan. 14 orientation session with department heads.
Kelley, a self-proclaimed "fiscal conservative," was objecting to the new tax, not the forum in which it was discussed. However, William Varga, an assistant state attorney general, said because the legislative request was "a new policy," it should have been discussed publicly.
Commissioners President David F. Hale (R-Owings) said that the commissioners "did not start a transfer tax discussion" at the closed session, but rather the legislative item was raised by a department head during a presentation about county finances.
Hale said the first discussion about the transfer tax ensued in open session.
"We had a great public debate today," Hale said yesterday. "It's not like we're trying to do things behind people's backs."
Yesterday's disclosure of the tax discussion came several days after a state legislator raised questions about another board meeting.
Hale received a letter on Jan. 17 from Sen. Roy P. Dyson (D-St. Mary's) who objected to a meeting scheduled for 2:30 p.m. Thursday in Annapolis between the commissioners and the Calvert legislative delegation. The meeting -- at which the elected officials will discuss the tax and other legislative requests -- has been held in Calvert in years past so as many residents as possible can attend.
"Obviously, meeting in the Senate Lounge with no public notice is not a public meeting," Dyson said. "Since we are discussing potential legislation that will affect all Calvert Countians, I am asking that we hold a public meeting in the county, not in Annapolis, so all interested parties may attend."
A public meeting in Calvert was canceled late last year when not enough members of the prior Board of Commissioners could attend, according to Hale. The Annapolis meeting was scheduled because of time constraints.
Senate President Thomas V. Mike Miller Jr. (D-Prince George's), who called for the meeting, said that the "time element" was behind the location.
"I promise you if there's anything controversial whatsoever, we'll have a public hearing back in Calvert County," Miller said. However, the meeting between the county commissioners and the Calvert legislators could itself be a violation of the open meetings law, depending upon the official host of the gathering, according to Varga, the assistant attorney general.
In addressing the "Choice of Meeting Site" for elected officials, the Open Meetings Compliance Board Manual says, "The location should be as convenient as possible for public attendance." The reason is "to preclude selection of a meeting location so distant and inconvenient as to prevent public attendance," the manual says.
What is unclear is whether the act covers a session such as the one scheduled for Annapolis, which could be interpreted not as a meeting of the commissioners, but of the legislators.
Similarly confusing is the provision the commissioners used to cover their orientation sessions.
In order not to run afoul of Maryland's Open Meetings Law, which specifies when elected officials can meet in private, the commissioners had classified a series of three orientations with department heads on successive Tuesdays -- the last of which was held yesterday -- as an "executive function." The term, according to the open meetings manual, applies to meetings at which elected officials are not developing "a new policy." Varga said if a new tax was discussed, it does not qualify as an executive function.
"They were considering a matter to set public policy, which is by definition a public policy and therefore cannot be an executive function under the terms defined by the open meetings act," Varga said.
Two of the three orientation sessions were held at a nearby nature park so the commissioners and staffers could be away from the busy courthouse and in private -- thus not recorded and replayed on TV. Some open public meeting advocates have argued that the law applying to "executive function" is too broad -- even the Open Meetings Compliance Board manual describes the term as "amorphous."
An unsuccessful effort to push state legislators to tighten the rules was made in the early 1990s, according to Varga, because it was seen as a loophole.