Surprising New Open Meetings Opinion: Public Body Can Be Meeting Even Without Quorum

An October 6, 2015, Frederick News-Post article reported on a recent opinion by the Open Meetings Compliance Board that  members of a public body can be having a “meeting” even if there is not a quorum present and thus violate Maryland’s Open Meetings Act.  The opinion, while advisory only not binding within a judicial context, alters established precedent by the Board stating that a meeting can only take place if there is a quorum of the public body.  From the article:

The Frederick County Board of Zoning Appeals violated state law during a 12-minute recess it took before voting at its April 23 public meeting, the Open Meetings Compliance Board wrote in an Oct. 2 written opinion. …

The compliance board found that it’s not clear if a majority of the appeals board met as a group during its recess, but one member definitely spoke to a county attorney and another member, then the board somehow came to a consensus during the break. That violates the act, the opinion stated.

“Public bodies may not use behind-the-scenes recesses as a means of shortcutting further public discussion of a matter that they have just been considering in open session,” the board wrote.

County Attorney John Mathias disputed the compliance board’s finding, saying there was no violation and the opinion directly conflicts with the law. The members did not meet in a quorum, and the law doesn’t prohibit two members of a five-member board from talking outside an open meeting, he said.

“There is no justification” for the opinion, he said. …

Even though there was technically not a quorum, the board “deliberated as a quorum,” even if a quorum wasn’t present at the time, the state board wrote.

In the article, Mathias also indicated that Frederick County may ask the Board to reconsider its opinion and that the County will not be advising its public bodies to alter their practices regarding open meetings.