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Has the public been shut out of public business by the Maryland Health Benefit Exchange? Ask Josh Sharfstein, chairman of the trustees and a Harvard-trained M.D., and he'll say his operation is "a model of transparency."

... while Maryland's Open Meetings Compliance Board told the trustees on July 30:

We encourage the MHBE Board to consider, for future meetings, two questions: first, will each topic to be discussed in closed session fall within the scope of the exception claimed for it; and, second, even so, is there a need to exclude the public?
In other words, you're holding secret meetings at the drop of a hat and the reasons don't seem kosher.
UPDATE: for background on this ongoing story (believe me, reporters trying to deal with the Exchange are frustrated, but editors place a low priority on meetings law violations unless there's a hook) see:

Previous news report on the first of two opinions in the Kent County News: http://www.myeasternshoremd.com/...

Earlier diary:
http://www.dailykos.com/...

Charlie Hayward's stories at MarylandReporter.com

February - http://goo.gl/...
April Pt. 1 - http://goo.gl/...
April Pt. 2 - http://goo.gl/...

Jenna Johnson, Washington Post - May 21 - http://goo.gl/...

Where she describes the levity with which the first adverse opinion was greeted by the MHBE board chairman and his attorney.

The MHBE was established by state law in June, 2011. It's independent - supposedly - with a special dispensation to bypass state procurement policies. From the outside, it's difficult to see the difference between chaos and bad management or the alternative, three years of transparent efforts to hide decisions about the public funds (state and federal) being spent.

While political smoke screens to protect Lt. Gov. Anthony Brown made "Beltway sense" between the November 2013 exchange meltdown and the June state primary, what explains how the MHBE board acted in 2011, 2012 and the first ten months of 2013?

The lack of meeting records led to complaints to the state open meetings board, which examines alleged transparency failures and issues advisory opinions. The first ones were focused on closed-door meetings held after the exchange website collapsed.

The Open Meetings Compliance Board looked at three complaints, in two pieces, delivering one opinion in May and the next July 30.

May Opinion: Violations of the Law

In May the Open Meetings Compliance Board found roughly 75 separate and distinct violations of the law from 2011-2013. They largely stem from a failure to create and maintain records required by statute. The missing links consist of summaries of topics, actions, and attendees at closed meetings (which must be incorporated into minutes) and separate documents called "closing statements" which identify what topics will be talked over outside public view, and why. Forgetting to do this stuff is breaking the law.

The MHBE board also ran afoul of requirements for meeting notice and opportunity to attendance by the public. For example, if a meeting is held as a teleconference, a dial-in number must be provided for anyone to listen, something the MHBE board somehow "forgot" to do many times.

It's "Minor" - It's Confusing - It's Excuses

State law requires a board in violation to have a discussion of the Open Meetings Compliance Board's findings in a public meeting. On May 20, reporting the first OMCB opinion to the public, Sharfstein talked about the MHBE's great emphasis on transparency and minimized the seriousness of the violations that were found.

The new July 30 opinion reflects new light on those comments .

From the May 20 minutes (throughout, my emphasis bold, comments in ital):

Chairman Sharfstein next addressed a complaint filed with the Maryland Open Meeting Compliance Board against the MHBE Board. He remarked that the Board has had a strong record of transparency in public engagements.

The Open Meetings Compliance Board rejected most of the concerns raised in the complaint, but found a few specific violations, which related mainly to the need for the Board to explain in more detail their reasons for entering into a closed session. A few specific violations repeated almost weekly over the course of three years.

He also stated that it is significant that the Compliance Board itself noted that the issues identified resulted in part from details of the law that are understandably confusing. ... If anything was minor, it was the role that "administrative actions" played in the complaint, involving one meeting out of dozens.

Chairman Sharfstein reported that the Compliance Board recommended some minor modifications. ... Minor. Not really.

Sharfstein noted that, overall, the Board has complied with the open session requirements and believes it is appropriate for the Board to adopt the recommendations.

The full text of this part of the minutes is at the end of the post.**

Beyond the Paperwork

Following proper documentation procedures is only one part of the law.

The next question is whether what got talked over and approved in those illegal secret meetings was actually permissible under the statute. By definition, failing to follow the mandatory documentary procedures makes any meeting closed to the public into an illegal meeting.

But even when the procedures are given lip (or pen) service, it is also a violation of state law if whatever gets talked over isn't included within fourteen "exceptions" to open, public transaction of the public's business.

Moreover, unless there is a crystal-clear requirement to talk about something in private due to another law or a court order, the choice to exclude the public from the chance to hear the debate is entirely optional.

For example, there's an exception to discuss the lease or purchase of property "for a public purpose." There may be situations where keeping the negotiations confidential will result in a better price. Note that it doesn't include the sale or lease of public property. That's a matter for public meetings.

What's Going On Here?

If this were a small-town government's mayor and council, it's perfectly understandable that members might be unclear on their legal obligations.

But it's not. The MHBE spent somewhere between $80 million and $150 million on Maryland's health exchange website and back end, and it immediately fell apart.

Just picking up the pieces and temporarily sticking them together cost $33 million more than budgeted. While this was going on the MHBE held a whirlwind series of poorly-documented secret sessions and teleconference meetings.

But the love of secrecy started long before this year.

The Baltimore Sun reported Feb. 23. 2014:

... state Comptroller Peter Franchot reiterated his criticism of the exchange for bypassing the Board of Public Works, the agency charged with approving state contracts.

The quasi-independent exchange was permitted by the state legislature to bypass that board to save time, but Franchot said the exchange should have voluntarily gone through the normal state process.

"I'm not about to suggest this board is a magic wand," said Franchot, a board member, but he argued that greater transparency wouldn't have hurt. "There is a damn good reason why this board has stood the test of time since the Constitution of 1864."

The words echoed a warning Franchot gave in 2011 to Sharfstein about the exchange. He said that without proper vetting by the Board of Public Works, "You can create an environment where big mistakes are made and people are put in awkward positions."

... The Noridian contract extension was approved seven months after its original contract award in a closed session of the exchange board. Sharfstein said all exchange procurements are done privately so board members can discuss and debate bids.

Sharfstein said the Board of Public Works, which rarely goes into closed session, does not go through the same deliberative process when it votes on contracts because agencies make recommendations.

The sentence "The Noridian contract extension was approved seven months after its original contract award in a closed session of the exchange board" set off the investigation of MHBE meetings: there weren't any meeting records available to explain this Sept. 2012 action.

You just don't hold a secret meeting to add millions of dollars onto an existing contract and then claim you can't find any minutes.

And in 2014 ...

Since January 1, the MHBE has signed off on more than $100 million in "emergency" (thus no-bid sole source) and other sole-source contracts. Not one of the decisions was made entirely before the public. In fact, when Deloitte was hired to create a new exchange April 1, someone from the state IT department "made recommendations."

Unfortunately for Sharfstein, the Board of Public Works and the MHBE board have to play by the same statutory rules. Whatever he might think he could do as a cabinet secretary isn't what he's legally required to do as the chairman of the board of a public corporation.

A Couple Partial Exceptions Simply Prove the Rule

To be completely clear, so far in 2014 one contract RFP went out; presumably there were multiple bidders. You will search the MHBE's online records and minutes in vain for their names. That carries on the board's tradition of forcing citizens and journalists to file FOIA requests to get even the most basic information.

The winner "selection" was not made by the board; on June 24, it was given to the board, who proceeded to bar the public from their discussion of the selection. The presumptive winner was not even named until after the secret part of the meeting.

They came back into their public forum for a ceremonial, unanimous vote; the minutes report "Chairman Sharfstein noted that the first motion for the Board to consider is whether to hire Angarai International for IV&V for quality assessment activities at a one year cost of 3.55 million dollars starting July 1, after a competitive procurement process.

"Mr. Steffen motioned to adopt the recommendation, which was seconded by Mr. Apfel. The Board voted unanimously to adopt the recommendation."

The big decision faced by the MHBE was whether to junk its existing system and adopt another.
A public presentation of alternative fixes for the broken exchange was given April 1. All discussion of the busted sofware in meetings preceding it was secret, and the board shut the public out of its final decisionmaking immediately after the 4/1 presentation ended.

Minutes: "Recommendation for Upgrading Maryland’s IT System
Isabel Fitzgerald, Secretary of the Department of Information Technology (DoIT), provided an overview of a study analyzing options for the IT platform of the MHBE, the results of which can be found in a memo."

Closed Session
Chairman Sharfstein discussed that the purpose of the closed session was to obtain legal advice on the terms of a potential contract with Deloitte Consulting. Professor Apfel motioned to move into closed session, which was seconded by Mr. Saquella. All members present voted unanimously to move into closed session. For topics discussed and actions taken, please see Statement for Closing a Meeting, dated April 1, 2014.

Then they came back into the meeting room.

Voting Session
Chairman Sharfstein noted that there is a minor procurement procedure that relates to contracts that is going to be waived in the coming motion. Chairman Sharfstein read the emergency justification that will authorize the Chairman to finalize the contract with Deloitte Consulting to leverage Connecticut’s IT system to update the MHBE IT platform.

The Board then adopted a resolution reflecting the Board’s decision to adopt the Deloitte eligibility and enrollment system and authorizing the Chairman of the Board to finalize the contract with Deloitte Consulting, LLC."

The March 31 memo was placed online, though not before the meeting: "Recommendation for Maryland Health Connection IT Platform, March 31, 2014, http://governor.maryland.gov/...

For more, see the MHBE's April 1 public meeting minutes (PDF).
July 30 Opinion: What Were You Thinking?

Mom's classic question. If proceeding deliberately and allowing the public to understand how and why the board is shoveling out money is a question of common sense, there's none to be found.

The second opinion examines four meetings (in November 2013, two in December 2013, and one in March 2014) where the MHBE board failed to create all of the necessary documentation. As a result, the public could reasonably be skeptical of the true need for secrecy.

In a nutshell, the board's confidential minutes are so poor that the compliance board, reviewing them, could not figure out what Sharfstein's board was doing. Inconsistencies, mistakes(?) and omissions are too frequent to look like a slip of the pen by the minutes-taker.

Honestly, hese two OMCB opinions raise question so basic they are embarrassing to ponder. They truly seem insulting to ask. At best, as a whole the board's behavior points to a longstanding failure to carry out their duties. (At worst it's a fine example of systematic failure throughout state government, and that means poor leadership and poor choices by Martin O'Malley.)

Each person on the MHBE board of trustees is personally responsible for their vote approving a closed session. Beyond that, the chairman is personally responsible for complying with the letter and the spirit of the law in each and every meeting.

How can a cabinet secretary - Sharfstein - in O'Malley's administration be completely clueless about his state's public meetings law? The MHBE board's own bylaws, which Sharfstein voted to adopt, require the board to follow all requirements of the Open Meetings Act.

Is it ignorance? He never knew there was a law about meetings.

Is it arrogance? He knew about it, but it didn't apply to him as far as he's concerned.

Is it something else? Suggest something plausible, because so far it doesn't look good for the MHBE leadership.

How can the board members (some holding posts in O'Malley's administration and others with law degrees) claim ignorance? They're intelligent and accomplished people.

How can Assistant Attorney Generals, paid with public tax money, fail to stop meetings that are heading off in an illegal direction, and fail to make sure that the law's been followed as far as meeting records? Are they, too, ignorant of the statute? Have they been instructed, or chosen, to look the other way? Something else? Help me out here.

How can Doug Gansler, Attorney General, oversee a crew of lawyers who can't find the state's fundamental transparency statute with both hands?

Can't Spin This

No matter what excuse comes into play, by now it's hard to avoid thinking O'Malley and his appointees, and their advisers, simply don't give a damn about your right to know what's going on while they run this "public corporation."

That's right. This is not an executive department, but an independent public corporation acting on behalf of the state. Its board chair is a cabinet official, its IT advisor is a cabinet official, and its executive director since December comes from O'Malley's office.

The OMCB's Conclusion is Clear:

Our inability to resolve the allegations as to all but the December 30 closed meetings in 2013 arises in large part from the MHBE Board's failure to prepare the required disclosures at the time of those meetings.

While we are unable to declare conclusively that the MHBE Board discussed matters beyond the personnel and procurement exceptions that it claimed for the first three meetings, we note that neither the response to the complaint nor the meetings documents establish the applicability of the exceptions to the topics discussed.

... As to the December 30 meeting, we find that the MHBE violated the Act by discussing matters that did not fall within the exception claimed. Nonetheless, it appears that the MHBE Board could have closed that meeting legally had it cited the applicable exception.

The word "slapdash" suggests itself.
In closing, we note that unless another law requires a public body to discuss a particular topic behind doors, the decision to exclude the public is discretionary.

We encourage the MHBE Board to consider, for future meetings, two questions: first, will each topic to be discussed in closed session fall within the scope of the exception claimed for it; and, second, even so, is there a need to exclude the public?

The full opinion, from Scribd:

  9 OMCB 131: Complaint About Closed Meetings of the MHBE by Craig O'Donnell


** May 20 Meeting Minutes

Open Meeting Compliance Complaint Update

Chairman Sharfstein next addressed a complaint filed with the Maryland Open Meeting Compliance Board against the MHBE Board. He remarked that the Board has had a strong record of transparency in public engagements. The Open Meetings Compliance Board rejected most of the concerns raised in the complaint, but found a few specific violations, which related mainly to the need for the Board to explain in more detail their reasons for entering into a closed session. He also stated that it is significant that the Compliance Board itself noted that the issues identified resulted in part from details of the law that are understandably confusing.

Chairman Sharfstein then provided an overview of the complaint filed and the Open Meeting Compliance Board’s response via letter.

• The complaint raised concern about the December 6, 2013 meeting to accept the resignation of the executive director of the MHBE. The Compliance Board found that this meeting was not required to be held in open session.

• There was a complaint about the February 23, 2014 closed session to discuss the legal implications of ending the Noridian contract. The Board posted notice of the meeting on the MHBE website a little more than 24 hours before the meeting. The Compliance Board found that the Board failed to make additional efforts to alert media of the meeting. However, the Board was not required to identify the emergency requiring the short notice. The Board correctly closed the meeting but did not state a reason for the closed session as required. The Compliance Board pointed out that had the public been properly informed, they would have understood the need for confidentiality. The Compliance Board found that the Board was not allowed to vote on changes to the Noridian contract during a closed session, though the Compliance Board noted that the law is particularly unclear on this issue, and the Compliance Board will address it further in the future.

• With respect to the March 7 meeting, the Compliance Board found that the Board properly entered a closed session but should have provided a more detailed explanation for doing so.

• The Compliance Board found that, in general, there were no routine delays in approving minutes. The Board is not required to email minutes to the public or make them available on the MHBE website, but the Board is doing that routinely now.

• The Compliance Board stated that the required closed session disclosures must be made in the minutes of the next open session, rather than posted separately.

• The Compliance Board stated that the Board must name the topics to be discussed during the closed sessions and must cite to the law giving them authority to enter into closed sessions. The Compliance Board agreed that the closed session statement containing the post session summary is not open to the public until approved.

Chairman Sharfstein reported that the Compliance Board recommended some minor modifications. The Board must:

• Make extra effort to publicize a meeting on short notice;
• Indicate in the notice when they intend to go into a closed session;
• Continue to make closed session statements;
• More thoroughly explain the reason for the closed session;
• Include the closed session statement in the open session minutes; and • Vote only during open sessions.

Mr. Apfel asked if the Board needed to vote to approve the recommendations. Ms. Kristine Hoffman, general counsel to the MHBE, responded that the Board did not need to vote but instead must sign and return the opinion issued by the Compliance Board.

Chairman Sharfstein noted that, overall, the Board has complied with the open session requirements and believes it is appropriate for the Board to adopt the recommendations.

Thu Aug 07, 2014 at 7:28 AM PT: Updated to include links to background material from February, April, May and July.

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