UPDATED: Berlin Town Council Violates Open Meetings Act

UPDATED: Berlin Town Council Violates Open Meetings Act
File photo by Chris Parypa

BERLIN – A January contract discussion between Town of Berlin officials regarding the Berlin Fire Company should have been open to the public, according to the Maryland Open Meetings Compliance Board.

The board on Friday issued an opinion advising that a Jan. 23 Berlin Town Council meeting about the Berlin Fire Company (BFC) should not have been held in closed session. The complaint was filed by resident Jason Walter when town officials failed to address his concerns prior to the meeting.

“Our representatives are obligated to understand and follow the open meetings act, there is no real excuse not to,” Walter said. “The state provides ample guidance and training material to assist with compliance.”

The town’s attorney, however, does not believe the council did anything wrong.

“I don’t agree with it but there’s no right of appeal,” said David Gaskill, the town’s attorney.

Last month, Walter filed a complaint with the Open Meetings Compliance Board (OMCB) related to the Jan. 23 closed session meeting. The meeting was closed in accordance with a section of Maryland Code that states a meeting can be closed “Before a contract is awarded or bids are opened, to discuss 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.”

Walter said that didn’t apply in the town’s case. He also advised the OMCB that he’d submitted a written objection to the closure of the meeting before it was to be held. That objection was not noted by Mayor Zack Tyndall when he closed the meeting on Jan. 23. The council then voted 3-1, with Councilman Jack Orris opposed and Councilwoman Shaneka Nichols absent, to enter into closed session.

According to the March 24 opinion from the OMCB, the board agreed with Walter. According to the opinion, approving, disapproving or amending a contract is a quasi-legislative function that must be performed in an open meeting unless a certain exception applies. In Berlin’s case, the council cited the procurement exception related to the competitive bidding process.

“Based on the facts before us, we conclude that this exception did not authorize the Council to close its January 23 meeting to the public…,” the opinion reads. “Here, nothing in the submissions indicates that the contracts at issue were connected to a competitive process.”

The board also addressed the council’s use of the legal advice exception, which allows a public body to enter closed session to consult with counsel to obtain legal advice. That exception, however, covers the interchange between the lawyer and public body. Once the advice is given, however, the body must return to open session.

Walter said his complaint was prompted by frustration with the level of communication exhibited by elected officials.

“Maryland’s Open Meetings Act is a statute that requires public bodies to meet openly with only a few, limited exceptions…,” Walter said. “In observing the abundance of and the topics used for closed session it appeared clear the Town of Berlin was continuing to abuse their ability to meet behind closed doors.”

He added that when he attempted to challenge the meeting locally, “a brick wall was hit” so he reached out to the compliance board for the second time in two years.

At Monday’s council meeting, Gaskill acknowledged the OMCB opinion but said he disagreed with the board’s reasoning that the negotiating exception was only to be used when there was a competitive bidding process. He added, however, that the board’s opinions were advisory.

Tyndall said he disagreed too. Councilman Jay Knerr asked about whether Tyndall had been notified of the closed session objections before the meeting was held. Tyndall indicated he was not sure but Councilman Jack Orris said Walter had emailed him as well as Tyndall and Knerr. He said Tyndall’s failure to acknowledge the complaint was why he’d voted against entering closed session.

“If there’s an objection that exists, then object and say why please,” Tyndall said.

Orris said three of them on the dais had the objection from Walter prior to the meeting.  Councilman Steve Green pointed out this was the council’s second violation in two years and asked if more training was needed.

“I think the first time we learned a lot…,” Tyndall said. “This one, I don’t know. I don’t see any actionable feedback.”

Nichols said those with objections to a closed session should reach out to the entire council. Tyndall said the objector should attend the meeting in person to share objections because there wasn’t a virtual mechanism in place for the solicitation of objections.

“What I’m hearing is you have to be here to object,” Orris said.

“No, what I said was there’s not a mechanism in place,” Tyndall responded, adding residents could email concerns to the town’s general email address but that there was no guarantee an email would be read before the meeting.

Orris said the town could ask the OMCB about what constituted an objection and whether they could be emailed.

“If someone emails you again pass it along to everybody,” Gaskill said.

Nichols said residents should reach out to all council people.

“Please make us all aware,” she said. “Some of us knew nothing.”

About The Author: Charlene Sharpe

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Charlene Sharpe has been with The Dispatch since 2014. A graduate of Stephen Decatur High School and the University of Richmond, she spent seven years with the Delmarva Media Group before joining the team at The Dispatch.