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Executive function

Government's quirky little secret

Government's quirky little secret

March 12, 2006|By ANDREW SCHOTZ

Maryland legislators are trying to polish one of the state's most confounding open government provisions.

In a House bill approved this month 141-0, lawmakers suggested telling the public about certain secret meetings - and picked a new name for the provision.

If the bill is approved by both houses, it will be goodbye to executive function and hello to administrative function.

Despite some tweaking, legislators have chosen not to overhaul the executive function clause, which permits a government body to secretly discuss, without notice, "the administration of" a law, rule, regulation or bylaw.

Critics consider executive function to be a murky loophole in Maryland's Open Meetings Act. Government groups see it as a helpful protection for commission-style governments with frequent administrative duties.

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Interpretations vary, though, on how and when "administration" applies.

In addition, "executive function" often is mistaken for "executive session," a more concrete element of the Open Meetings Act. Government bodies may use executive sessions to talk privately about litigation, collective bargaining negotiations and six other categories.

Bodies that hold private executive sessions must alert the public beforehand and provide basic meeting minutes afterward.

But boards that invoke executive function when they meet in secret aren't bound by those requirements.

"The whole thing is a quagmire and needs to be cleaned up," said W. Edward Forrest, president of the Washington County Board of Education, which relies on executive function privacy a few times a year for budget and "team-building" retreats.

This year's reform attempt in Annapolis falls short of a deep cleansing.

A bill by Del. James W. Hubbard, D-Prince George's, called for an end to private budget discussions under executive function, stricter public notice requirements and the new name "administrative function" - but the bill failed in committee.

The notice requirements and the new name, however, were salvaged and incorporated into milder legislation sponsored by Del. Richard B. Weldon Jr., R-Frederick/Washington, creating a compromise bill.

Weldon's bill emerged from committee. The House unanimously approved it onMarch 3.

It went before a Senate committee on March 6.

Weldon said he didn't want to take on government advocacy groups intent on protecting the budget exemption because they could have killed his bill.

Yet, he said he's confident a bill with more openness will succeed next year. "I intend to work on that this summer, reading the political tea leaves," he said.

Weldon, a former city administrator in Brunswick, Md., added, "More is always better than less. Transparency is always better than secrecy ... I don't think any budget discussion should be in a closed setting."

Last year, the state's Open Meetings Compliance Board asked government and media organizations for feedback on the executive function clause, with an eye toward recommending change.

The compliance board, which issues opinions on open government challenges, has called executive function "the most bedeviling aspect of Open Meetings Act compliance."

In its report, the compliance board lobbied to eliminate budget preparation talks from the executive function clause. The Maryland-Delaware-D.C. Press Association agreed.

The Maryland Association of Counties (MACo) and Maryland Municipal League (MML) "strongly oppose this change," the report says.

MACo and MML argued that county executives and mayors would have privileges that commission governments would not, despite their similar roles.

The compliance board also came out in favor of notifying the public about executive function sessions, as did MDDC, which wanted a stronger standard for keeping minutes. The Herald-Mail belongs to MDDC.

The two government groups again were opposed. According to the report, MACo called notice requirements for anticipated meetings "ambiguous" and said sudden schedule changes might seem like "a subterfuge."

MML said having to disclose unscheduled meetings after they occur likely would be a "significant burden" for volunteer elected officials.

In an interview, Jim Peck, MML's director of research, said small towns would get bogged down issuing public notices and preparing minutes.

"Every time they spoke, they would have to remember the time they spoke, where it happened, what was the substance of the conversation," Peck said, "and make sure they popped that into the minutes of their next meeting .... We think you're setting them up to fail."

Actually, the tiniest towns would hardly be affected, said Don Bradley, a circuit rider/manager who assists four Dorchester County, Md., towns with populations of less than 150. His towns don't conduct enough business to be hurt either way by the terms of the executive function clause, he said.

Rather, towns with 300 to 1,200 people would suffer the most under the notice and minutes requirements, he said.

With a population of about 530, Church Hill in Queen Anne's County, Md., fits right in.

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