2016 End of Session Wrap Up: Public Information & Ethics

This post summarizes the status of various public information and ethics bills that MACo took a position on for the 2016 Regular Session.

Public Information Act – Police Body Camera Video: HB 947 / SB 930 is a MACo legislative initiative that creates a series of mandatory denials mandatory denials under the the Maryland Public Information Act (PIA) for police body camera video: (1) showing incidents of domestic violence, sexual crimes, or abuse of minors or vulnerable adults; or (2) does not result in an arrest, temporary detention, death, or injury of the individual or a complaint of officer misconduct made against any law enforcement officer involved in the incident. However, an individual who was a subject of a recording listed above and directly involved in the incident that prompted the recording shall be allowed inspection of a recording (subject to existing exceptions under the PIA). If the individual is a minor that individual’s parent or legal guardian may inspect the recording. If the individual is incapacitated, the individual’s guardian or agent may inspect the recording. If the individual is under investigation for, charged with, pleaded nolo contendere, or guilty, or been found guilty of a violation listed in the bill, the individual may not receive a copy of the recording.

MACo Position: MACo supported the bill and proposed sponsor amendments that MACo had worked out with most concerned stakeholders. MACo argued the bill and the proposed sponsor amendments: (1) maintained law enforcement officer transparency and accountability; (2) protected the privacy of victims and specified subjects of police body camera recordings; and (3) provided record custodians clarity and protection from abusive requests.

FINAL STATUS: The House passed HB 947 with the proposed sponsor amendments but the Senate Judicial Proceedings Committee took no action on the bill. The amended bill does the following: As amended, the bill provides for the following:

  • A custodian must deny inspection of that part of a recording from a body-worn digital recording device regarding an incident that:
    • depicts a victim or information that could identify a victim of: domestic violence, sexual crime, or abuse of a minor or vulnerable adult (excluding adult hazing);
    • does not result in the arrest, attempted arrest, temporary detention, attempted temporary detention, search, attempted search, citation, death, or injury of an individual;
    • the use of force against an individual; or
    • a complaint or allegation of officer misconduct made against any law enforcement officer involved in the incident.
  • A custodian shall deny inspection of records for the incidents listed above regardless of subsequent action taken by law enforcement or a court based on the incident recorded.
  • The bill’s provisions may not be construed to affect the discovery or evidentiary rights of a party in civil or criminal litigation.
  • A victim who is the subject of a record that is denied inspection under the bill shall be notified of all requests to inspect the record. The Attorney General, in consultation with MACo, MML, law enforcement agencies, the press, and other stakeholders shall adopt regulations regarding the notice.
  • Subject to the exceptions under the PIA law, a custodian shall allow inspection of a body camera video by an individual who is a subject in the recording and directly involved in the incident that prompted the recording or:
    • if the individual is a minor, the individual’s parent or legal guardian;
    • if the individual is deceased or unable to request the recording due to injury, the individual’s parent, legal guardian, spouse, adult child, next of kin, or a representative of the individual’s estate; or
    • if the individual is an incapacitated person, the individual’s guardian or agent.
  • A custodian may not allow copying of a recording from a body-worn digital recording device by an individual who is allowed to inspect the recording under the bill’s provisions but is under investigation for, charged with, received probation before judgment for, is subject to a peace or protective order as a result of, pleaded nolo contender to, pleaded guilty to, or has been found guilty of a violation that the bill requires denial of general public release, if the recording is of the incident leading to the investigation, probation before judgment, order, charge, plea, or verdict.
  • A custodian shall allow inspection of body camera video if it is not otherwise prohibited under the PIA.

 The Senate Judicial Proceedings Committee heard SB 930 but took no further action on the bill.

MACo HB 947 Testimony

MACo SB 930 Testimony

Public Information Act – Public Employee Personnel Records: HB 402 / SB 671 expands the definition of “person of interest” under the PIA to include, for record requests related to a formal complaint made against a governmental unit or an employee of the unit, a complainant. The bill also specifies that a record related to a formal complaint of job-related misconduct made against a public employee, including an investigation record, a hearing record, or a disciplinary decision, is not a personnel record under the PIA. Finally,  the bill provides that a custodian may deny records of an investigation, hearing, or decision by a governmental unit connected with a complaint of job related misconduct made against a public employee. The bill was introduced in response to the Maryland Court of Appeals decision in Maryland State Police v. Dashiell (published June 25, 2015).

MACo Position: MACo opposed the bill, arguing that it would upset the reasoned and longstanding practice of the PIA to protect the details of sensitive internal investigations regarding employees and personnel. MACo noted that venues already exist for citizens who wish to pursue a remedy beyond an internal agency review and the bill would needlessly expose government employees to potential abuse and put enormous burdens on record custodians.

FINAL STATUS: Both HB 402 and SB 671 were withdrawn by their respective sponsors.

MACo HB 402 Testimony

MACo SB 671 Testimony

Open Meetings Act – Training, Enforcement, and Reporting: MACo considered several similar bills that modified Open Meetings Act training, enforcement, and reporting requirements. HB 823 / SB 598 authorizes the Open Meetings Compliance Board (OMCB), if it finds an open meetings violation, to issue an order that requires the public body to take corrective action. The OMCB may also impose a civil penalty not to exceed $500 for each violation. The bill also requires each individual who is an employee, officer, or member of a public body to complete open meetings training through an Office of the Attorney General online class or at a MACo or MML Academy for Excellence in Local Governance class within 90 days of becoming an employee, officer, or member of the public body. Current employees, officers, or members of a public body have until September 30, 2017, to take the training.

HB 1088 / SB 754 requires the OMCB to include in an annual report the top issues identified in complaints and the public bodies whose actions were the basis of a high number of complaints found by the OMCB to be violations. The bill authorizes the OMCB to issue an order requiring a public body to take corrective action for a violation and impose a civil penalty ($250 for first violation and $1,000 for each subsequent violation). Each officer of a public body must take open meetings training either through an Office of the Attorney General online class or through a MACo or MML Academy for Excellence in Local Governance class within 60 days of becoming an officer and every 2 years thereafter. Existing officials have until November 30, 2016, to comply. Finally, the bill requires that each public body shall report to the OMCB the name of each officer who completed the training and the date when it was completed and list those names on the Office of the Attorney General website.

MACo Position: MACo opposed HB 823/SB 598 and HB 1088/SB 754, stating that the bills would improperly vest quasi-judicial power with the advisory OMCB, impose onerous new training requirements on public bodies that were rejected when the initial training requirement was adopted in 2013, and pose a recruitment challenge for small volunteer public bodies.

FINAL STATUS: The House passed HB 823 with substantial amendments. The amended bill requires:

  • the OMCB to distribute educational materials on the requirements of the Open Meetings Act
  • the OMCB to include as part of its annual report: (1) the number of times each open meetings provision has been violated; and (2) each public body that the OMCB has found to have violated an open meetings provision
  • the OMCB to post on open meetings website the name of each public body it has found to have violated the Open Meetings Act and its opinion that describes the violation
  • each public body to designate one member with the authority to close a meeting to take the training
  • one person who has taken the training to be present at each meeting of the public body or else the body must complete an Open Meetings Checklist prepared by the OMCB and include a copy of the completed checklist as part of its minutes
  • the OMCB to collaborate with MACo, MML, and the University of Maryland to implement a process on reporting the names of people who have taken the training and develop a list of contacts for each public body to whom the may send educational materials, the checklist, its annual report, and other specified information.  

The Senate Education, Health and Environmental Affairs Committee heard HB 823 but took no further action on the bill. The same Committee also gave SB 598 an unfavorable report. The House Health and Government Operations Committee heard HB 1088 but took no further action on the bill. The Senate Education, Health and Environmental Affairs Committee heard SB 754 but took no further action on the bill.

MACo HB 823 Testimony

MACo SB 598 Testimony

MACo HB 1088 Testimony

MACo SB 754 Testimony

E-Mail Use & Retention Policies for Public Bodies: HB 492 / SB 155 prohibits an employee of a public body from creating or maintaining government email using a personal e-mail account. If an employee receives government e-mail to a personal account from a third party, the employee shall forward the e-mail to an official government e-mail account within 5 days after receipt. The bill also requires each public body to retain government e-mail for: (1) a minimum of 7 years; or (2) if the e-mail was sent or received by a senior employee of the public body, permanently. The State Archivist shall adopt regulations defining who is a “senior employee.” The bill’s provisions may not be construed to authorize a employee to delete government email that is subject to a stricter retention requirement, a PIA request, an Open Meetings Act complaint, a records retention schedule, or use in anticipated or filed litigation.

MACo Position: MACo opposed the bill, arguing that while well-intentioned, the bill would disrupt existing county document retention policies that comply with current law, impose significant new costs on counties for email storage and retention infrastructure, and ultimately increase the time and costs associated with email requests under the PIA.

FINAL STATUS: HB 492 was withdrawn by the bill’s sponsor. The Senate Education, Health, and Environmental Affairs Committee gave SB 155 an unfavorable report.

MACo HB 492 Testimony

MACo SB 155 Testimony

Legal Notices – Constitutional Amendment for Charter Counties: Under current law, the Maryland Constitution requires charter counties to publish a summary of proposed laws and ordinances for two weeks in at least one newspaper of general circulation within the county. HB 663 / SB 580 is a constitutional amendment that would allow the proposed laws or ordinances to be published in a manner specified by the General Assembly.

MACo Position: MACo supported the bill, noting the bill would modernize outmoded notice requirements and acknowledge technological and cultural changes about how people seek out information. MACo also stated that an alternative method of publication could also reduce costs for charter counties.

FINAL STATUS: The Environment and Transportation Committee gave HB 663 an unfavorable report. The Senate Education, Health, and Environmental Affairs Committee heard SB 580 but took no further action on the bill.

MACo HB 663 Testimony

MACo SB 580 Testimony

Legal Notices – Publication Via Websites: HB 666 / SB 581 allows a local government to publish legal notices on its website instead of a newspaper of general circulation. Before starting to post on a website a local government must:

  • At least 1 month before the first posting, publish a notice in a newspaper of general circulation in its jurisdiction to: (1) inform the public of the intent to post on the website; and (2) specify which types of notices shall be posted; and
  • Annually publish a notice in a newspaper of general circulation in its jurisdiction stating: (1) the types of legal notices that are available on its website; and (2) the address of the website.

A local government must also: (1) maintain paper copies of the legal notices under its records retention and document disposal schedule; and (2) make the copies available to public under the PIA. Finally, for each notice published on a website, the local government must maintain an affidavit that states the initial date through the last date that the notice was published on the website. The affidavit does not have to be notarized.

MACo Position: MACo supported the bill, stating that it would modernize outmoded notice requirements, acknowledge technological and cultural changes about how people seek out information, promote more efficient and environmentally friendly government, provides a method for citizens to secure paper copies of the notices, and save local governments much needed resources.

FINAL STATUS: The House Environment and Transportation Committee gave HB 666 an unfavorable report. The Senate Education, Health and Environmental Affairs Committee heard SB 581 but took no further action on the bill.

MACo HB 666 Testimony

MACo SB 581 Testimony

Ethics – State Ethics Commission Authority over Local Government Conflict of Interest and Financial Disclosure Modifications: SB 395 requires local government and school board modifications to conflict of interest and financial disclosure provisions of State law to be done in accordance with regulations adopted by the State Ethics Commission and be consistent with the intent of the Maryland Public Ethics law. The bill also clarifies that local government modifications to the financial disclosure provision are authorized rather than mandatory.

MACo Position: MACo opposed the bill, arguing that it would expand the authority of the State Ethics Commission to limit local modifications to conflict of interest and financial disclosure provisions. MACo acknowledged the authority of the Commission to review local ethics laws, including conflict of interest and financial disclosure modifications, and determine whether or not they comply with State law. However, MACo stated the bill would allow the Commission to seek to block a local modification that is permissible under existing statute but that the Commission does not like by adopting regulations. Reasonable local interpretations could be overridden by the Commission’s interpretation.

FINAL STATUS: The General Assembly passed SB 395.

MACo SB 395 Testimony

OTHER BILL OF INTEREST

Agendas for Public Meetings: HB 217 and SB 529 are identical but not cross-filed bills that address agenda requirements for public meetings. The bills would require public bodies to provide a public agenda before meeting in an open session. The agenda must contain available information regarding matters to be discussed at the open session and whether the body expects to close any portion of the meeting. The body does not have to disclose the subject matter of a closed portion of the meeting in the agenda.

If the agenda has been determined at the time the body gives notice of the meeting, the body shall provide the agenda at the same time as the notice and may use the same methods as providing notice. If the agenda is not ready when the body gives notice, the body must provide the agenda as soon as practical after the agenda has been determined or at least 24 hours before the meeting. If the body is unable to comply because the meeting was scheduled in response to an emergency, natural disaster, or similar unanticipated situation, the body shall provide the public an agenda within a reasonable time after the meeting occurs.

Nothing in the bill prevents a public body from altering the agenda of a meeting after the agenda has been provided to the public.

MACo Position: MACo did not take a position on either bill as they contained amendments offered by MACo in prior years to remove MACo’s concerns over the bill.

FINAL STATUS: The General Assembly passed HB 217 with amendments. As amended, the bill:

  • Requires a public body, before meeting in open session, to make available to the public an agenda: (1) containing known items of business or topics to be discussed at the portion of the meeting that is open; and (2) indicating whether the public body expects to close any portion of the meeting
  • Clarifies that the public body is not required to make available any information in the agenda regarding the subject matter of the portion of the meeting that will be closed
  • Requires the public body to either make the agenda available: (1) when the public body gives notice of the meeting; or (2) as soon as practicable after the agenda has been determined but no later than 24 hours before the meeting
  • Provides that the public body may make an agenda available to the public either using a method authorized for giving notice or through another method
  • For a meeting where an agenda could not be provided beforehand because the meeting was in response to an emergency, natural disaster, or any other unanticipated situation, requires the public body to make available on request an agenda of the meeting within a reasonable time after the meeting occurs
  • Provides that nothing in the bill may be construed to prevent a public body from altering the agenda of a meeting after the agenda has been made available to the public

The Senate passed SB 529 with amendments identical to HB 217 but the bill did not make it over to the House before Sine Die.