BERLIN– An email vote regarding a Town of Berlin budget transfer violated the Open Meetings Act, a state board has ruled.
The Maryland Open Meetings Compliance Board (OMCB) issued an opinion July 31 that the Berlin Town Council violated the Open Meetings Act with a May 31 email vote regarding a budget transfer. Berlin resident Jason Walter asked the board to weigh in on the vote after the email decision was alluded to at a regular meeting of the council.
“They had ample opportunity to address it publicly and this was an obvious skirt,” Walter said.
On May 31, Mayor Zack Tyndall emailed the town’s five council members seeking their approval of a budget transfer. According to his email, town staff were preparing an application that was due the next day to the Maryland Department of Transportation for a bikeways grant. The grant required a 20% match, about $60,500, and Tyndall wanted the council’s approval to assign that amount from the town’s capital reserve. The majority of the council responded with “reply all” messages in the affirmative, though some asked additional questions.
Walter submitted a complaint to the OMCB after hearing the vote alluded to at a June 12 meeting of the council.
“Late in the session the subject of email vote resurfaced in commentary from an individual councilman…,” Walter’s complaint read. “Though the councilman nobly expressed frustration and an unwillingness to further participate behind closed doors, I do believe the action taken amounts to an unadvertised closed meeting of the Mayor and Council.”
The OMCB agreed in its opinion that the Open Meetings Act was violated. The board said there were occasions when an exchange of emails could rise to the level of a meeting. The board said issues that had to be considered included the number of participants in the communication, the number of communications about the subject, the timeframe in which the communication occurred and the extent of the conversation-like interactions reflected in the communications.
The town asserted in its response to the complaint that the council did not discuss the budget transfer among themselves and that through the emails they weren’t interacting at the same time.
“Taking into account the totality of circumstances here, we find that the exchange of emails was a ‘meeting’ subject to the Act,” the OMCB opinion reads. “Within about one hour, a quorum (three Councilmembers) sent ‘reply all’ emails to all members of the Council about the same topic (whether to approve a budget transfer), which apparently had not been discussed publicly. This was not, for instance, a situation in which the Mayor was simply taking a vote on a matter that the Council had discussed at a prior open meeting.”
The board said that because there are sometimes urgent circumstances that require a public body to act quickly, there are ways to do it without violating the Open Meetings Act.
“First, a public body can convene a special meeting in person, by telephone, or virtually, using a platform such as Zoom or Microsoft Teams, and provide the public notice of that special meeting and the ability to attend,” the opinion reads.
It goes on to state that the ‘reply all’ and ‘forward’ functions were risky to use if a public body did need to conduct business through email.
“We conclude that the exchange of emails among a quorum of the Council
constituted a ‘meeting’ that was subject to the Act,” the opinion concludes. “Because the Council did not provide notice or an opportunity for the public to observe this meeting, we find violations of §§ 3-301 and 3-302.”
This is the town’s third violation of the Open Meetings Act in the past year. Previous violations related to a closed session meeting about the Berlin Fire Company and the general practices followed by municipal officials when closing meetings to the public.