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6 Official Opinions of the Compliance Board 74 (2009)

COMPLIANCE BOARD COMPLAINT THAT SPECIFIES
SUFFICIENT DETAIL SO THAT PUBLIC BODY MAY
IDENTIFY MEETING AND ALLEGATIONS SATISFIES ACT
January 13, 2009
Joseph H. Potter
The Open Meetings Compliance Board has considered your complaint
alleging that the Ocean City Council violated the Act in connection with the
purported settlement of threatened litigation. Given the City Solicitors
representations, we find that no violation occurred.
I
Complaint and Response
The complaint alleged that the Ocean City Council violated the Open
Meetings Act in connection with the Towns settlement of a potential sex
discrimination lawsuit. Relying on a newspaper editorial, the complaint noted that
the Chief of Police of the Ocean City Police Department decided not to follow
through on her intent to file a lawsuit against the municipality. S. Green, Between
the Lines: Thoughts from the Publishers Desk, The Dispatch (October 3, 2008).
According to newspaper editorial, in exchange to her decision not to file suit, Ocean
City reportedly paid approximately $5,000 to the attorney that had represented the
Chief, covering costs incurred in anticipation of filing suit. The newspaper learned
of the situation through an anonymous e-mail, but apparently conducted its own
investigation and determined that the story had at least ... some merit.
While the timing of the settlement is unclear, the editorial suggested that it
had occurred within the last year. The complainant indicated that he had reviewed
the minutes of the Councils open meetings and was unable to find any specific
mention of the $5,000 settlement. As a result, it is alleged that the Council violated
the Open Meetings Act.
In a timely response on behalf of the Council, Guy R. Ayres, III, Ocean Citys
municipal attorney, argued that the complaint failed to satisfy the requirements of
the Act, in that a complaint must not only identify the public body, but must
specify the action of the public body, the date of the action, and the circumstances
6 Official Opinions of the Compliance Board 74 (2009) 75
All statutory references are to the Open Meetings Act, Title 10, Subtitle 5 of the
1
State Government Article, Annotated Code of Maryland.
The complaint also requested that we issue a press release in the event we find a
2
violation. While opinions of the Compliance Board are published and are also available
on-line at www.oag.state.md.us/opengov/openmeetings/board.htm, we do not issue press
releases addressing the results of our opinions. Following our receipt of the response filed
on behalf of the Council, you submitted a newspaper article from the October 10, 2008,
issue of the Ocean City Today. However, because that article did not address any meeting
of the Council at which a settlement was approved, we did not forward the article to the
Council for a response before issuance of this opinion.
of the action. 10-502.5(b)(2). In the respondents view, [i]t is illogical to even
1
think that the legislature intended the [Compliance] Board to investigate and opine
in response to newspaper editorials.
Nevertheless, the Councils response provided information concerning Ocean
Citys Risk Retention Program. According to the response, the Mayor and Council
annually determine a level of risk Ocean City will underwrite and the level of
insurance to be purchased to cover risks in excess of those underwritten. This is
accomplished through appropriations as part of Ocean Citys budgetary process.
The response suggested that, to the extent there was discussion or settlement by the
Council as alleged in the editorial, it would involve an administrative function
outside the scope of the Act. 10-503(a)(1)(i). And the response indicated that
pursuant to the Risk Retention program, Ocean Citys risk manager and the city
solicitor or special counsel have authority to settle claims up to a certain amount,
well in excess of $5,000, and to settle claims without the approval of the Mayor and
Council. Finally, the response noted that, there was no such settlement within the
past year as suspected and suggested or a settlement amount as stated in the
editorial.
II
Analysis
As a preliminary matter, we note that, while the complaint requested that we
undertake an investigation, the Compliance Board is not an investigatory body. 5
OMCB Opinions 146, 148 n. 4 (2007). In considering this matter, we relied on the
information provided in the complaint, along with the accompanying newspaper
editorial, and the information provided by the City Solicitor on behalf of the Council
in response. As to the response, we reject the suggestion that the information in the
2
complaint failed to satisfy the requirements of the Act. While the information
provided in the complaint failed to identify a specific date on which the Council
meeting allegedly occurred, it did provide the Council adequate information to
respond. Of course, we encourage a complainant to provide as much detail as
6 Official Opinions of the Compliance Board 74 (2009) 76
To the extent a settlement involves a contractual agreement between the
3
municipality and potential plaintiff, by definition, it could not qualify as an administrative
function since it would constitute a quasi-legislative function in the parlance of the Act.
10-502(b) and (j)(3). However, we need not analyze this question here.
possible in explaining why the complainant felt the Act was violated. See Open
Meetings Compliance Board Complaint Procedures, http://www.oag.state.md.us/
Opengov/Openmeetings /complaint.htm. But it is normally the public body rather
than the complainant that has the necessary details to allow us to evaluate whether
or not a violation of the Open Meetings Act occurred. See 6 OMCB Opinions 69, 72
(2008). In any event, the complaint and accompanying editorial provided sufficient
information to satisfy the requirements of the Act.
Turning to the substance of the complaint, the Open Meetings Act applies
when a public body conducts a meeting, that is, when a quorum of the body
convenes for the consideration or transaction of public business, and the substance
of the meeting is subject to the Act. 10-502(g) and (h) and 10-503. There is no
question the Ocean City Council is a public body. However, according to the
representations of the City Solicitor, there was no such settlement within the past
year.... Thus, the factual premise of the complaint, i.e., that a settlement came
before the Council during the period under consideration, is not accurate. The
violation of the Open Meetings Act alleged in the complaint could not have occurred
because there was no such settlement with the Police Chief. Accordingly, we do not
address the merits of the Councils contention that a settlement approval would be
an administrative function outside the scope of the Act.
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III
Conclusion
Given the representations of the City Solicitor, there apparently was no
Council meeting during the period under consideration at which a settlement
between the Police Chief and municipality over a potential sex discrimination claim
was approved as alleged in the complaint. Under the circumstances, no violation
occurred.

OPEN MEETINGS COMPLIANCE BOARD
Elizabeth L. Nilson, Esquire
Courtney J. McKeldin
Julio Morales, Esquire