155

6 Official Opinions of the Compliance Board 155 (2009)

Public Body Informal subgroup established by single council
member Not a public body
Meeting Convening of quorum of council during course of
informally designated subgroup meeting Triggered Open
Meetings Act
September 8, 2009
The Honorable Brian McLaurin
The Open Meetings Compliance Board has considered your complaint that
the Ordinance Committee of the Town of Forest Heights Council violated the
Open Meetings Act on March 30 and 31, 2009, by not providing notice in
advance of its meetings or keeping minutes for the two sessions. For the
reasons explained below, we find that neither the Ordinance Committee nor
the subgroup created by the committees chair constitute a public body
regulated by the Open Meetings Act. However, we find that the Council itself
violated the Act when a quorum of its membership convened during the
meetings on the days in question without following the provisions of the Open
Meetings Act.
I
Complaint and Response; Supplemental Record
According to the complaint, the Ordinance Committee of the Town of
Forest Heights Council has been meeting and conducting business since
September 2008 without complying with the Open Meetings Act. More
specifically, the complaint alleged that, on March 30, 2009, the Ordinance
Committee held a meeting at the Towns municipal building to update the
Towns ordinances. Attending this session were: Mayor McCutcheon, Council
members Goodall, Riefsneider, and Clarke, and a representative from the
University of Maryland. Thus, four of the seven council members were in
attendance. According to the complaint, the meeting was not publicly
advertised nor were minutes taken to summarize what was discussed. On
March 31, a follow-up meeting was held. In attendance were the Mayor and
Council members Goodall, Reifsneider, and Barnes, as well as a representative
from the University of Maryland.
6 Official Opinions of the Compliance Board 155 (2009) 156
Included with the complaint was a list of committee assignments,
indicating that the Charter and Ordinances Committee consists of two
members, Council members Reifsneider and Clarke. Also enclosed with the
complaint was an e-mail from Council member Goodall addressed to the
Mayor and other members of the Council, dated April 8, 2009. Apparently
referring to the Ordinance Committee, the e-mail message argued that the
committee was not established in a manner so as to constitute a public body
under the Act. According to the e-mail, [p]ersons attending the meetings
were there solely for informational purpose[s] and not there to establish policy.
... When they present their information to the council then of course it would
... be done at a formal meeting.
In a timely response on behalf of the Ordinance Committee, Andrea
McCutcheon, Mayor of the Town of Forest Heights, denied that the Ordinance
Committee has been meeting since September 2008 without complying with
the Open Meetings Act. The Mayor stated that Council member Reifsneider,
chair of the Ordinance Committee, formed a sub-group to review the Towns
existing codes and ordinances in relation to storm water impact on Oxen Cove.
This group was to make recommendations to the Ordinance Committee for
modifications of the codes and ordinances to reduce the impact of
development and storm water runoff. This work is being done in accordance
with a grant agreement with the Maryland Department of Natural Resources.
The response claimed that the allegation that the Ordinance Committee met
on March 30, 2009 is false. According to the response, the sub-groups
meetings on March 30 and 31 were not for the purpose of updating the
Towns ordinance, convening a quorum of a public body for the consideration
or transaction of public business or to perform any legislative function.
(emphasis in original). The response concluded that the sub-group was not a
public body as defined in the Act. The response acknowledged that during
both meetings, a quorum of the Council was present at certain times as people
came in and out. However, [t]he Councilpersons were there to observe
providing minimal input if any.
Following our receipt of the response, we asked the Mayor to provide
additional detail in order that we could evaluate the application of the Act to
the subgroup meetings. Specifically, we asked the Mayor to describe the
composition of the subgroup that met on March 30 and 31, 2009, namely, the
total number of members and the number of Council members who serve on
the subgroup. We also asked for further detail as to what occurred at those
meetings. Finally, we asked how the Ordinance Committee was established.
6 Official Opinions of the Compliance Board 155 (2009) 157
On May 22, 2009, the Open Meetings Compliance Board also received a
1
copy of a complaint filed in the Circuit Court for Prince Georges County by Mr.
McLaurin against the Town of Forest Heights and Mayor McCutchean under the
Open Meetings Act. We advised the complainant that the Compliance Boards
opinions are strictly advisory and may not be used as evidence in a judicial
proceeding under the Open Meetings Act. Thus, the complaint filed with the
Compliance Board is processed independently of any judicial proceeding.
Mayor McCutcheon responded that the subgroup consists of
[a]pproximately two Council members and two citizens... The group that
met on March 30 consisted of Council members Reifsneider, Clarke, and
Goodall; the initial two serve on the subgroup. The purpose of this meeting
was to plan the questions they wanted to ask representatives of the University.
They also discussed things that negatively impacted storm water runoff and
searched for relevant ordinances. On March 31, the group that met included
Council members Reifsneider, Goodall, two citizen members, and
representatives of the University. Council member Smith-Barnes attended to
observe and the Mayor entered towards the end of the session to sign an
agreement with Dr. Blom, an agreement that did not require Council approval.
There was discussion about what ordinances were in place that related to
negative stormwater impact.
The Ordinance Committee was established by the Mayor who verbally
assigned Committee members to the various committees. There was no
executive order. The Town Clerk recorded the assignments and produced the
committee list.
1
II
Analysis
Determining the application of the Open Meetings Act requires a three-step
analysis: (1) Is the entity conducting the meeting a public body as that term
is defined by the Act? If not, the analysis stops because the Open Meetings
Act does not apply. (2) If the entity is a public body does the particular
session constitute a meeting for purposes of the Act, that is, did it involve
the convening of a quorum for the consideration or transaction of public
business? (3) Assuming the session is a meeting, the final inquiry is
whether the topic of discussion is subject to the Act. See, e.g., 6 OMCB
Opinions 140, 142 (2009).
6 Official Opinions of the Compliance Board 155 (2009) 158
The Council consists of the Mayor and six Council members. A majority
2
of the Council constitutes a quorum. Town of Forest Heights Charter 33-3 and
33-9, 3 Municipal Charters of Maryland ch. 53.
The Mayors response indicated that neither the Ordinance Committee nor
the subgroup that meet on March 30 and 31 are public bodies for purposes of
the Act. The Ordinance Committee is apparently one of multiple committees
consisting solely of members of the Town Council and informally established
by the Mayor. Thus, we agree that the Committee is not a public body under
SG 10-502(h)(1) in that it was not established under any enumerated legal
instrument. Rather, the Ordinance Committee exists solely by informal
designation of the Mayor. And because it does not include any public
members, it could not qualify as a public body under 10-502(h)(2).
Similarly, the subgroup consisting, in the words of the response, of
approximately two Council members and two citizens was not a public
body in that it was not created in a manner so as to constitute a public body
under 10-502(h)(1). Nor was it appointed by the Towns chief executive
authority so as to qualify as a public body under 10-502(h)(2). Cf. 4 OMCB
Opinions 132, 138 (2005). Rather, the subgroup exists solely by informal
designation of an individual Council member.
The response indicated that the meetings of March 30 and 31 were both
meetings of the subgroup rather than the Ordinance Committee. We accept the
Mayors explanation that the Ordinance Committee and the subgroup are
distinct bodies, albeit not public bodies as the term is defined under the Act.
Given the attendance of these sessions, however, the question remains whether
the presence of a quorum of the Council at some point turned the meetings into
Council meetings, thus, subject to the provisions of the Open Meetings Act.

A quorum of the full Council was present at some point during both the
March 30 and 31 sessions. While it may be true that the meetings were
2
intended to be meetings of the subgroup, the fact is, a sufficient number of
members of the Council were in attendance during each meeting to result in
a meeting of the Council. In fact, neither citizen member of the subgroup
apparently attended the first session, March 30. And Council members
outnumbered the citizen members present the following day. In fact, on March
31, only one of the Council members present, Mr. Reifsneider, was actually a
member of the subgroup. It may well be true that Council members who were
not assigned to the Ordinance Committee or who were not members of the
subgroup may have been there simply to observe and may have provided
only minimal input, if any. Nevertheless, once a quorum of the full Council
was present, the Open Meetings Act applied. Cf. Community and Labor
6 Official Opinions of the Compliance Board 155 (2009) 159
United for Baltimore Charter Committee (CLUB) v. Baltimore City Bd. of
Elections, 377 Md. 183, 832 A.2d 804 (2003).
In the response, the Mayor cited the Open Meetings Act Manual for the
proposition that [i]f a majority of members of a public body attend a
gathering convened by an entity to which the Act does not apply, the Act does
not become applicable merely because a quorum is present. Office of the
Attorney General, Open Meetings Act Manual p. 9 (6 ed. 2006). Citing
th
Ajamian v. Montgomery County, 99 Md. App. 665, cert. denied, 334 Md. 631
(1994), the Manual addressed attendance by Montgomery County Council
members at a meeting of the local Democratic Central Committee. In
Ajamian, the Court focused on the activity undertaken in concluding that the
Act did not apply. That is, the meeting at issue was a meeting initiated by a
local party central committee, all elected Democratic officials were invited, the
president of the County Council was asked to summarize redistricting plans
pending before the County Council for the group, the decision for the central
committee to conduct a vote was spontaneous, and there was no evidence that
the Council members collectively discussed redistricting or voted as part of the
central committee vote. While not an issue in Ajamian, the Manual also
cautions, a public body cannot escape its obligations under the Act if, in the
course of another groups meeting, the public body itself convenes and
engages in business that is subject to the Act.
Here, there was no outside group sponsoring a meeting comparable to that
in Ajamian. Thus, the Mayors reliance on the language quoted from the
Manual is inapposite. Whether focusing on the subgroup or the Ordinance
Committee, the purpose of the sessions was an initial step that was expected
to lead to proposed legislation for consideration by the full Council. To be
sure, the line between mere attendance by a quorum of a public body in their
individual capacities at another groups gathering and a meeting of a quorum
of a public body subject to the Open Meetings Act can be hazy in some
circumstances. However, the facts available to us indicate that the March 30
and 31 sessions fall into the latter category. The subgroup is not an
independent entity; it apparently was created to aid the Council in its work.
The discussion involved a matter that at some point would be before the full
Council. The only ones present other than subgroup members were members
of the Council, leading to the inference that it was their Council membership
that afforded them access. To consider the March 30 and 31 meetings as
strictly meetings of the subgroup, notwithstanding the presence of a quorum
of the entire Council, would run afoul of the policy of the Open Meetings Act.
Once a quorum of the Council was present, discussion should have ended to
avoid triggering provisions of the Open Meetings Act. Otherwise, from the
6 Official Opinions of the Compliance Board 155 (2009) 160
As to the general allegation that the Ordinance Committee has violated the
3
Open Meetings Act since September 2008, we note that neither the complaint nor the
response provided sufficient information to address this matter. However, as noted
above, based on the Mayors description of the manner the committee was created,
we determined that the committee is not a public body governed by the Act.
publics perspective, no meaningful distinction existed between a meeting of
the subgroup and a meeting of the Council itself.
The response further noted that the March 30 and 31 sessions were not for
the purpose of updating the town ordinances or for any legislative function.
We respectfully disagree. It appears that the very purpose of the sessions was
to start the process that was expected to lead to proposed legislation addressing
the Towns stormwater issues. A preliminary discussions of the process, even
if limited in scope and devoid of comments by some Council members there
solely for informational purposes, was subject to the Act.
3
III
Conclusion
Neither the Ordinance Committee nor the subgroup created by the
committees chair constitute a public body regulated by the Open Meetings
Act. However, we find that the Council itself violated the Act when a quorum
of its membership convened during the meetings of March 30 and 31 without
regard to the provisions of the Open Meetings Act.
OPEN MEETINGS COMPLIANCE BOARD
Elizabeth L. Nilson, Esquire
Courtney J. McKeldin
Julio Morales, Esquire