BERLIN – A controversial decision by the County Commissioners to consolidate three departments into one and lay off 11 employees was illegally made in a closed session, the state said this week in a ruling on an open meetings act complaint.
The Open Meetings Compliance Board concluded in a report dated Oct. 27 that the decision to fold the Comprehensive Planning Department and Environmental Programs into the Development Review and Permitting Department should have been made in open session, upholding a complaint brought by Assateague Coastal Trust (ACT).
“We find that the County Commissioners violated the Open Meetings Act in that the discussions during the closed session on May 26, 2009, concerning the departmental consolidation did not qualify as an administrative function outside of the scope of the Act. Nor were the discussions limited to matters within the scope of the personnel matter exception that could justifiably be considered in closed session,” the conclusion of the five-page report reads.
"Assateague Coastal Trust is not at all surprised by the finding. In our minds, the county had clearly violated the Open Meetings Act and acted in a manner that was irresponsible to the public, the citizens of Worcester County. It is unfortunate that our elected officials felt they did not have
to be accountable to the law and worse, they did not understand their actions behind closed doors should have been conducted in the light of sunshine,” said ACT Executive Director Kathy Phillips.
ACT made an official complaint to the Open Meetings Compliance Board in late June. The May 26, 2009 meeting in question was an open session meant for budget deliberations. Discussion of lay-offs and consolidation of three departments began in open session, but was abruptly moved to closed session, based on the discussion of a list of positions to be eliminated.
Several of those positions were mentioned by staff in open session before the County Commissioners chose to take the discussion behind closed doors.
ACT contended in its complaint that the County Commissioners were making policy decisions, not just decisions on specific personnel.
Worcester County attorney Sonny Bloxom argued in the county response to ACT’s complaint that the three departments were not established by law and that no legislative action is necessary to make any changes. The commissioners, he argued, have the authority to make those changes by their executive power.
Bloxom further argued that the consolidation was an administrative action and did not fall under the Maryland Open Meetings Act. Public policy was not changed, according to the county response, and neither were services provided to the public.
The discussion also involved talk of the employment status of particular employees, rendering it a personnel matter, Bloxom contended, and therefore allowed in closed session.
While personnel matters pertaining to specific employees may legally be discussed in closed session, the Maryland Open Meetings Act requires governments to favor open meetings, according to the compliance board.
“Discussion about consolidating county departments cannot be deemed a personnel matter to the extent discussion extended beyond the impact on individual, identifiable employees,” the decision reads.
The minutes of the closed session provided to the compliance board by Worcester County show that there was discussion of an individual employee’s eligibility for retirement, but went on to address topics that should have been aired in the open, according to the compliance board.
“However, other matters were discussed, such as a suggested severance package, when the decision affecting the employees should be implemented, available alternatives such as furloughs, and the merits of reorganization in general,” the compliance board’s report reads.
The subsequent open meeting vote, held two weeks later, to confirm the closed session consolidation, does not excuse the violation of the Open Meetings Act.
“As the complaint noted, subsequent ratification could not cure the violation of the Open Meetings Act that occurred,” reads the decision.
The Open Meetings Compliance Board has no enforcement authority and its decision has no practical effect on Worcester County. The board cannot levy fines or impose any other punishment. Decisions are meant as an educational tool.
Commissioner Bud Church, when contacted yesterday, said he was not aware of the recent decision and refrained from commenting until he had read the ruling.