OCEAN CITY – The Town of Ocean City was taken to task for violating Open Meetings Act requirements after two separate complaints were filed questioning the negotiation process behind the new franchise agreement for the historic pier.
Late last year, Ocean City officials announced the town had reached an agreement with franchise holder Charles “Buddy” Jenkins and his Synepuxent Pier and Improvement Company to extend the franchise agreement for the iconic pier that juts eastward from the Boardwalk at Wicomico Street. In 2018, Jenkins approached the city about renewing the pier franchise agreement reached in 1978.
The accord was set to expire in 2029 and the franchisee sought to extend it an additional 25 years beyond the remaining term, essentially extending it for another 35 years. The full Mayor and Council appointed a three-member work group consisting of Council Secretary Mary Knight and Councilmen Dennis Dare and John Gehrig to negotiate with the franchisee and work through the details of the agreement extension.
However, those negotiations were conducted in a series of closed sessions over a period of 18 months beginning in 2018. Late last November, Mayor Rick Meehan announced a new agreement had been reached and in the subsequent weeks, the council introduced and ultimately approved a pair of ordinance changes to formalize it.
In a nutshell, the pier franchise extension ensures the iconic pier, its amusement park and the associated pier building will remain in the control of Jenkins’ company for another 35 years. The benefits of extending the agreement are significant for both parties. For Jenkins, a 25-year extension means he can confidently continue to make investments and improvements to the pier and his Jolly Roger amusement park and other amenities.
For the Town of Ocean City, the extension ensures continuity for what is perhaps the most iconic image of Ocean City. The estimated $9.1 million in revenue over the life of the agreement provides a dedicated funding source for maintaining the wooden Boardwalk, with its nostalgic sounds, feel and smells, for the next three decades-plus.
While few would argue with the benefits to the town with reaching a new agreement, at least two local residents raised concerns the negotiations were conducted during a series of closed sessions and behind closed doors with the public unaware the process was even underway. Former Councilman Vince Gisriel along with another private citizen filed complaints with the state’s Open Meetings Compliance Board calling into question various aspects of the closed-door negotiations for the new pier franchise agreement.
After a thorough review, the Open Meetings Act Compliance Board late last week issued an opinion confirming the town violated three sections of the Open Meetings Act, essentially affirming the two formal complaints. The Compliance Board’s opinion does not come with any punitive measures and is more of a stern rebuke and offers strong advice to the town to review its open and closed meeting policies and how it disseminates information about closed meetings to the public.
At the opening of Tuesday’s open work session, Council President Lloyd Martin acknowledged the Compliance Board’s opinion with a formal statement.
“The Compliance Board concluded the council violated the Open Meetings Act over a period of time by conducting business that the act requires to be discussed publicly and failing to disclose to the public the creation of the work group until after the council decided the terms of the franchise and ordinances,” he said. “The council has always tried to adhere to the Open Meetings Act and we are taking steps to better improve our practices.”
There are essentially two exceptions available to skirt the Open Meetings Act requirements. One is when a public body meets in closed session to “consult with counsel to obtain legal advice.” The second is the procurement exception, which permits a public body to meet in closed session to “discuss, before a contract is awarded or bids are opened, a matter directly related to a negotiating strategy or the contents of a bid or proposal if public discussion or disclosure would adversely impact the ability of the public body to participate in the competitive bidding or proposal process.”
The Mayor and Council routinely meet in closed session under the guise of discussing legal and contractual matters, which, on the surface appears to meet the intent of the Open Meetings Act. However, after Gisriel and another private citizen filed an Open Meetings Act complaint, the Open Meetings Act Compliance Board investigated and determined the city had violated three sections of the act.
“I noted that for 18 months, the Mayor and Council and a committee of three councilmembers met secretly in closed sessions dismantling the previous pier franchise ordinance, negotiating amendments and rewriting a new ordinance agreement as well as drafting a resolution to establish how revenue from the new agreement would be dedicated to the Boardwalk,” Gisriel said this week.
Gisriel took exception to the work group meeting behind closed doors with the franchise in several closed meetings over a period of 18 months on an agreement so important to the residents and taxpayers.
“The public was kept totally in the dark about the new pier franchise agreement and resolution until they appeared on the town’s website just five days before first reading,” he said. “For over 18 months, the Mayor and Council kept this important matter with its significant financial implications from public view and scrutiny, violating the Open Meetings Act on multiple occasions.”
In its opinion issued last week, the Compliance Board pointed out Ocean City officials did not attempt to deny the new pier franchise agreement had been negotiated and resolved during the series of closed meetings with the work group and the franchisee.
“Neither the council nor the work group denies the allegations that they discussed the franchise matters behind closed doors and that they did not disclose the discussions and the existence of the work group until late 2019,” the opinion reads. “On their behalf, the city solicitor asserts that the work group was not a public body subject to the act and that an open discussion by the council on the matter would have harmed the city’s bargaining position.”
As a result, the board determined the town had violated three sections of the Open Meetings Act.
“We find that the council violated the act over a period of time by secretly conducting public business that the act required it to discuss publicly and by failing to disclose to the public either the fact of the discussions or the creation of a negotiating committee until after the council had decided the terms of the franchise and ordinances,” the opinion reads.
The opinion issued last week included a stern rebuke for the Mayor and Council and other resort officials involved in the process.
“The council’s violations were not trivial,” the opinion reads. “From the submissions, it appears that the combined effect of the closed-door discussions and lack of disclosures was to entirely deprive the public of any information about the council’s meetings on the franchise matters until after the council had decided them.”
The Compliance Board opinion asserted the Open Meetings Act is designed to ensure transparency and violations can and often do shake the public’s trust in their government.
“The council failed to disclose even the existence of the work group, which was created during a closed session,” the opinion reads. “Given that secrecy, a member of the public could understandably conclude, as did the complainants, that the council created or used this work group as a device to avoid public discussion of the business at hand.”
The board’s opinion pointed out this was not the first time the Town of Ocean City had been called out for violating the Open Meetings Act. The board also opined this latest case was even more egregious.
“In 1995, we advised the council that it had violated the act even by briefly addressing legislation in one closed session in an exchange that was devoid of substantive discussion,” the opinion reads. “Here, by contrast, the discussions were numerous, lengthy and far-reaching. Further, the council’s disclosures about its closed sessions, disclosures in which it usually reported that the only action taken was the vote to adjourn, were remarkable for what they omitted.”
The Compliance Board opinion suggests a pattern could be discerned by the town’s handling of closed meetings and the apparent tiptoeing around the Open Meetings Act and advised resort officials to review and amend its policies.
“These facts suggest broader problems than the ones identified in the complaints that we addressed here,” the opinion reads. “We therefore encourage the council to carefully review its practices with regard to discussing contracts in closed session and to change the habits that it may have formed over the years.”
