A Baltimore Sun article (2017-06-14) reported that the Baltimore County Council is currently considering four pieces of legislation addressing transparency and open government. According to the article, the legislation includes:

1. requiring the Council to hold evening meetings (sponsored by Council Member Wade Kach);
2. requiring one additional public hearing on the county’s annual budget (sponsored by Council Member Wade Kach);
3. requiring ethics training for certain county officials (sponsored by Council Member Vicki Almond); and
4. prohibiting campaign contributions during the county’s rezoning process (sponsored by Council Member Vicki Almond).

From the article:

Common Cause Maryland, a government watchdog group, lauded the efforts.

“We’re glad to see the county taking ethical concerns in the community seriously and looking to address them,” said Damon Effingham, the group’s legal and policy director. …

One of Kach’s bills would put an end to the council practice of discussing bills and taking public testimony during weekday afternoon work sessions. County residents rarely attend those sessions, and often no one from the public testifies on the bills.

Kach wants those work sessions to be held at 6 p.m. or later, like the council’s voting sessions on Monday nights in Towson.

He has proposed a requirement that the county executive hold at least two public meetings before introducing the budget.

Currently, only the council holds a public hearing on the budget. This year, no one testified at that hearing.

“One of the reasons that the [Baltimore County] council hearing may have received little engagement in the past could be because, at that point, many priorities of the budget are already basically decided on,” Effingham said.

The article also discussed Almond’s rezoning and training bills:

Rezoning, one of the major powers held by council members in Baltimore County, is an area of intense lobbying and community input. Council members already have an unofficial agreement against accepting campaign donations during the yearlong process. Almond’s bill would turn that into a requirement. …

“With the zoning issues, we deal so much with the developers and the attorneys. There’s a perception that if we take money from somebody that we’ll do what they want us to do,” said Almond, of Reisterstown. “It’s totally not true. This bill helps to say we’re not doing anything wrong.” …

Almond’s other bill would require annual training in ethics laws for county elected officials, top aides, top county officials, members of certain boards and commissions and registered lobbyists. The course would be provided by the county’s Ethics Commission.

Almond said county officials get only cursory training in ethics, or pick up their ethics knowledge on the fly.

The article noted that the bills will be discussed during a June 27 work session and possibly voted on July 3.

Maryland’s Open Meetings Compliance Board will hold its annual meeting at 11:00 a.m. on August 3, 2017, in Room 161 of the Arundel Center, 44 Calvert Street, Annapolis, Maryland. The public is invited to attend.

If you are interested in attending, please contact Ms. Janice Clark or call 410-576-7033 so that we may make the necessary arrangements. An agenda will be available in July when determined, and will be posted on the Compliance Board’s website.

During the 2017 Session, the Maryland General Assembly passed and Governor Larry Hogan signed into law new Open Meetings Act training requirements for public bodies (HB 880 / SB 450). Public bodies have until October 1, 2017, to comply with the new training requirements. Here are the five things you need to know to be in compliance:

(1) At least one member of each public body must take a training class on the Open Meetings Act. Under current law, each public body must designate at least one individual who is an employee, officer, or member to take the training class. While employees or staff can continue to take the training class, after October 1, 2017, at least one member of the public body must be also designated to take the class. The designated member has 90 days after the designation to take the class.

(2) Training classes can be taken through four different designated sources. The law identifies four designated sources where the training may be taken: (1)  an online class offered by the Office of Attorney General and the University of Maryland’s Institute for Governmental Service and Research; (2) a class offered by MACo at its annual conferences through the Academy for Excellence in Local Governance; (3) a class offered by the Maryland Municipal League (MML) at its annual conferences through the Academy for Excellence in Local Governance; and (4) a class offered by the Maryland Association of Boards of Education (MABE) through the Boardmanship Academy Program.

(3) Public bodies that have not designated a member to take a class may not meet in closed session after October 1, 2017. If a public body has not designated a member to take the class by October 1, 2017, the public body loses the ability to go into closed session. The member only needs to be designated by October 1 and may take the class at a later date as long as it falls within the 90 days after being designated.

(4) When going into closed session, a public body must either: (1) have a least one member designated to take the training class present; or (2) follow and complete the Compliance Checklist for Meetings Subject to the Open Meetings Act. After October 1, 2017, a public body can only enter closed session if it meets one of two requirements – either at least one member who has been designated to take the training class is present or the public body follows and completes the Compliance Checklist for Meetings Subject to the Open Meetings Act developed by the Office of the Attorney General. If the checklist option is used, the checklist must be included in the public body’s meeting minutes.    

(5) Public bodies under the Maryland Judiciary are exempt from the training and closed session meeting requirements. Due to the unique nature of public bodies under the Maryland Judiciary, the new training requirements do not apply to public bodies that are: (1) under the judicial branch of State government; or (2) subject to governance by rules adopted by the Court of Appeals.

MACo will be offering its next open meetings training class at its 2017 Summer Conference on August 16 from 3:30 PM – 5:00 PM. Further information on the conference and registration is below.

If you have any questions regarding the new Open Meetings Act requirements, please contact MACo Legal and Policy Counsel Les Knapp at 410.269.0043 or lknapp@mdcounties.org.

Useful Links

HB 880 of 2017

SB 450 of 2017

Online Class for Maryland’s Open Meetings Act

Compliance Checklist for Meetings Subject to the Open Meetings Act

MACo 2017 Summer Conference Attendee Registration Brochure

MACo 2017 Summer Conference Attendee Online Registration

This post summarizes the status of various public information and ethics bills that MACo took a position on for the 2017 Regular Session.

Public Information Act – Police Body Camera Video: As introduced, HB 767 / SB 970 would address when police body camera video would be disclosed under the Maryland Public Information Act (PIA). The bill addresses police accountability, privacy rights of certain crime victims, and protections for governments from abusive record requests. Under the bill:

• 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 Maryland Police Training and Standards Commission, in consultation with MACo, Maryland Municipal League, MML, law enforcement agencies, the press, and other stakeholders shall develop uniform standards and procedures 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.

MACo Position: MACo supported the bill as it would provide clarity to local governments, law enforcement, crime victims, and citizens on how the PIA handles body camera video. Based on stakeholder feedback at the bill hearing, MACo prepared several additional amendments that:

1. clarified the bill did not apply to public records entered into evidence in a court proceeding;
2. prohibited release of video that depicted the death of a law enforcement officer that occurred in the performance of the officer’s duties;
3. clarified that the victim notice requirement applies to all qualifying victims regardless of whether the record request was denied or granted; and
4. deleted as superfluous the provision requiring a custodian to allow inspection of body camera video if it is not otherwise prohibited under the PIA.

FINAL STATUS: The House passed HB 767 with the MACo amendments. The Senate Judicial Proceedings Committee gave an unfavorable report to HB 767 and SB 970.

MACo Testimony on HB 767

MACo Testimony on SB 970

Open Meetings Act – Training and Reporting: As introduced HB 880 / SB 450 would require every member of a public body to take a training course on the Maryland Open Meetings Act or else submit a letter to the Open Meetings Compliance Board (OMCB) stating that the member is unable or unwilling to complete the class. (Currently, each public body must designate at least one individual who is an employee, officer, or member of the public body to take the class.)

MACo Position: MACo supported the bill with amendments that would require at least one voting member of a public body to take the training course. If no voting member who has taken the training course is present when a meeting is proposed to be closed, the public body must complete and include in their minutes a meetings closing checklist developed by the OMCB. MACo opposed having every member take the training and the letter requirement, noting the wide range of sizes of public bodies and the challenges that small volunteer bodies are having in attracting participants.

FINAL STATUS: The General Assembly passed HB 880 and SB 450 with the MACo amendments and several other amendments acceptable to MACo. As amended, the bill:

1. Prohibits a public body from meeting in a closed session after October 1, 2017, unless the public body has designated at least one member to receive Open Meetings Act training. If no designated member is present at a meeting, the public body must complete the “Compliance Checklist for Meetings Subject to the Maryland Open Meetings Act” developed by OMCB and include the completed checklist in its minutes
2. Expands allowable courses on the Open Meetings Act to include a class offered by the Maryland Association of Boards of Education through the Boardsmanship Academy Program
3. Requires the OMCB to distribute educational materials on the requirements of the Open Meetings Act to specified parties
4. Requires OMCB in its annual report to identify: (1) the provisions of the Act that have been violated; (2) the number of times each provision has been violated; and (3) each public body that was found to have violated a provision of the Act
5. Requires OMCB to post on the Open Meetings Act webpage the name of each public body found to have violated the Act and the opinion that describes the violation
6. Requires OMCB, the University of Maryland’s Institute for Governmental Service and Research, and the Academy for Excellence in Local Governance to complete a report by December 1, 2017, on: (1) the costs and benefits of tracking the specific names of individuals who complete a Open Meetings Act training course; and (2) the development of a list of local government public body contacts where OMCB may send educational materials on the Act

MACo Testimony on HB 880

MACo Testimony on SB 450

Maryland State Archives – State and Local Government Records Management: As introduced SB 44 requires each unit of State and local government to have a records management program in place, including for electronic records. The program must include procedures for: (1) security, retention and disposal schedules, maintenance of inventories of record series; and (2) the transfer of permanent records to the Archives. Each unit must also designate a records officer to oversee the program and serve as liaison to the Archives and the Records Management Division of the Department of General Services (DGS). The records officer must notify the Archives of records that are no longer needed for the transaction of business and shall transfer to the custody of the Archives records (including electronic records) deemed by the Archives as permanent. Records accepted for transfer to the Archives shall be accompanied by the records inventory

MACo Position: MACo opposed the introduced bill, noting that as drafted the bill would impose potentially significant implementation and technical issues regarding the capture, retention, organizing, and transmission of electronic data. The bill also brought local governments into a section of records law exclusively applied to the State, with many unintended consequences. The bill also unintentionally altered some of the requirements already applied to local governments through regulations. After discussions with the Archives, MACo and other stakeholders worked on amendments that addressed MACo’s concerns and MACo dropped its opposition to the bill.

FINAL STATUS: The General Assembly passed SB 44 with the MACo amendments and several additional technical changes. As amended, the bill requires each unit of State government must have a records program that includes procedures for: (1) the establishment of record retention and disposal schedules, including for electronic records; (2) the maintenance of accurate and complete record series; and (3) the transfer of permanent records to the custody of the Archives. Each unit of State government must also designate a records officer for the unit to serve as a liaison to the Archives and DGS. The bill also clarifies what is considered a “record” and a “records inventory.”

MACo Testimony on SB 44

Click here for a round-up of the wrap-ups for all policy areas

A Baltimore Sun article (2017-03-24) reported that the Maryland House of Delegates unanimously passed legislation (HB 879) on March 24 that would tighten conflict of interest, lobbying, and public ethics laws for state legislative and executive branch officials. The legislation follows the formal reprimand of Delegate Dan Morhaim for failing to disclose that he had a contingent employment agreement with a medical cannabis company while advocating on medical cannabis issues before the Maryland General Assembly.

The legislation would explicitly prohibit such conduct, limit the ability of legislative and certain executive officials to lobby immediately after leaving office, require greater disclosure about income generated by spouses, and create an independent citizen ethics advisory board. From the article:

Gov. Larry Hogan sought an even more sweeping rewrite of the rules that would have subjected legislators’ conduct to oversight by an executive branch commission [HB 438/SB 253]. The attorney general’s office advised that such a move would probably violate the state constitution by breaching the separation between different branches of government.

Doug Mayer, a spokesman for Hogan, said the bill as passed represented a compromise that the Republican governor’s office was happy to see moving forward.

“We see this as a definite step forward and a move in the right direction after some very high-profile indictments and public ethical lapses that will help restore the trust the public deserves to have in their institutions of government,” he said.

Alexandra Hughes, House Speaker Michael E. Busch’s chief of staff, said Busch was pleased that he and the governor could combine ideas to produce “one of the strongest ethics bills in years.”

“This legislation will provide greater transparency to the public and tighten conflict of interest laws for greater public confidence in elected officials in the executive and legislative branches,” she said.

The bill’s cross-file, SB 683, was heard by the Senate Education, Health, and Environmental Affairs Committee on March 3 and no further action has been taken on the bill since the hearing.

Useful Links

HB 879 / SB 683 of 2017

HB 438 / SB 253 of 2017

A Washington Post article (2017-03-26) highlighted the challenges counties and all levels of government face when deciding how to balance the mutually exclusive but worthwhile goals of transparency and privacy. The article focused on the decision of the Montgomery County Council to request  that more than 200,000 email addresses of people receiving County newsletters be removed from the County’s open government portal, DataMontgomery. The Council adopted legislation in 2012 that created the portal and requires a large amount of county data to be made available online. From the article:

A five-member majority of council members — [Hans Reimer (D-At Large)], Nancy Floreen (D-At Large), Sidney Katz (D-Rockville-Gaithersburg), Nancy Navarro (D-Midcounty) and Craig Rice (D-Upcounty) — ordered their attorney to pull back from public view more than 90,000 of the email addresses published on DataMontgomery , the portal created under Riemer’s [2012 open government] bill. The bill required publication on the portal of any information released through a Maryland Public Information Act request. …

“This is like a treasure trove for marketers,” agreed Council President Roger Berliner (D-Potomac-Bethesda), who was not one of the five. Publication of the addresses, he said, could have created a “chilling effect” that would prevent many of the county’s 1 million residents from interacting with local government.

Pulling the email addresses violated the 2012 law, which is similar to new open-government statutes in other states and localities. Riemer said the decision was forced by “exigent circumstances” and argued that the public interest served by mass distribution of the addresses was outweighed by privacy concerns.

The article noted that Reimer was preparing an amendment to the 2012 open government law that would exclude email disclosures. The article contained the opinion of Future of Privacy Forum Vice President for Policy John Verdi, who stated that balancing transparency and privacy was an increasingly common challenge for governments.

“Everybody agrees that transparent government is a good thing,” said Verdi, a former Obama administration official who worked on privacy issues. “You have data that is purely government data, and data appropriately excluded by public information laws. Then you get the gray area in the middle, where an increasingly important question being asked is about the right balance between openness and privacy.”

Verdi said Montgomery’s experience “highlights government’s responsibility to provide notice to folks that information they submit might be made public.”

The article also provided further background on the Public Information Act request that led to the disclosure of the email addresses. The initial request was made by MocoVoters, a grass-roots group focused on voter turnout and development issues. Since receiving the email addresses, MoCoVoters has decided not to use them but instead build its membership through social media.

Useful Links

DataMontgomery Website

Future of Privacy Forum Website