A recent ruling from Maryland’s Open Meetings Compliance Board holds that a series of communications, even one-to-one, may create the fabric of a meeting, and trigger the state’s “open meetings” laws.

In a recent opinion, the State’s Open Meetings Compliance Board reviewed actions by the Talbot County Council (a charter county that does not have an elected Executive, leaving the Council to nominally serve in a dual capacity as legislative and executive branches, much like the Commissioner counties) to determine whether to submit a letter to the General Assembly on pending legislation during the 2019 session. In their ruling, the Board found that their discussions – even while not necessarily including a quorum or being confined to a particular time – constituted a substantive breach of the state’s Open Meetings Act.

A key excerpt from the ruling:

Here, the totality of the circumstances leads us to conclude that the Council’s deliberations were more akin to conversations among a group that effectively convened to decide on the Council’s positions than to the sporadic exchange of written correspondence. Those circumstances include: the number of messages, some among the entire Council, some not, but at a frequency that shows a continuous deliberation throughout the two days; the Council’s decision, taken during that period and apparently solely by electronic communications, to send letters on behalf of “a majority”; the  awareness of the members that the Council as a group was addressing the bills during that time; and the evolution of electronic communications (and devices) to the point where the opportunity for members to interact on a topic under consideration is effectively constant. We have given less weight to the timeframe in this matter, given the apparent continuity of the deliberations. Put another way, we do not read the Act to apply to electronic deliberations only when it is known how many members, all in separate places, are looking at their devices at the same time.

Initial reaction from county law offices and stakeholders has been mixed, but may cause jurisdictions to reassess some of the more “informal” means used to arrive at custodial and administrative matters.

This line, between legislative deliberations and the “executive functions” of an administrative branch of government, has been a longstanding matter of pressure on such “sunshine laws.” Because a majority of Maryland’s counties retain such a dual role for their elected officials, this matter has lingered as an imperfect fit for these laws throughout recent memory.

Read the full OMCB opinion online: July Opinion from OMCB