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Yes, nearly a month after back-to-back secret meetings about jumping the conference barrier into the Big Ten, the University of Maryland press staff issued a new press release.

(Transparency by press release is an interesting concept, but one which doesn't have any standing under the Maryland Open Meetings Act.)

The full press release is below the flattened terrapin. After claiming over and over, in press conference Nov. 19 and in press releases, that they had a legal right to meet secretly without telling anyone, the regents have started whistling another tune.

When folks first called them out, Nov. 21:

Joint Statement from Board of Regents Chair James L. Shea and Chancellor William E. Kirwan

Adelphi, MD (November 21, 2012) Questions have been raised about the process by which the University System of Maryland (USM) Board of Regents convened in closed session to discuss the University of Maryland, College Park’s (UMCP’s) move from the ACC to the Big Ten. ...

With the advice and counsel of the Office of the Attorney General, the board convened in closed session and voted to endorse the university’s application to the Big Ten.

Some also are reporting that the USM Board of Regents is not allowed to vote in closed session. That is inaccurate. The Maryland Open Meetings Act does not preclude public boards from taking action in closed session.

We sincerely regret that the need to deliberate and consider endorsement of the application to move to the Big Ten within a given timeframe has led some to believe that the USM Board may have violated the process by which public boards are allowed to convene in closed session. The board takes its public responsibility seriously and, in continued consultation with the Office of the Attorney General, is vigilant of its processes and procedures.

And now, Dec. 7:
The board and USM officials acknowledge and sincerely regret that the public notice and closing procedures required by the Maryland Open Meetings Act were not followed with regard to the two sessions.

Issuing a press release as an apology is a nice thing. The Maryland Transportation Authority has never owned up to its many open meetings violations in public. Very few public bodies ever do. But it doesn't get you off the hook, and we still don't know enough about the secret meetings.

Really, I still can't understand how intelligent and experienced people blew right through the statute on the days of the meetings, and then issued "meeting notes" which aren't sufficient as legal minutes, all with their taxpayer-paid Assistant Attorney General right there on hand.

Moreover, in September 2011, the Maryland Transportation Authority did almost exactly the same thing; got caught (by me) and came out on the short end of an Open Meetings Compliance Board opinion. These opinions are public, and are posted online, and apparently no one associated with the regents has ever reviewed them.

They are essential to understanding what's inside the bounds and what's not, based on each individual situation where someone -- a citizen or a journalist or even a public official -- thought the law was broken and wrote it up.

For example, did you know that a secret vote (i.e., in a closed meeting) is legal, but that who voted how is required to be reported in the summary of the secret meeting? Yep. You'll find that in one of the Opinions online.

In November: The Terp Leaps

Jenna Johnson, blogging for the Washington Post, first brought to light the Sunday (Nov. 18) and Monday (Nov. 19) meetings which went on without any public notice. They resulted in a vote which the regents say wasn't legally required, to "bless" the Big Ten Leap.

See this page for her three posts, with a direct link to the most recent:

U-Md. under fire for possible Open Meeting law violation NOV 23

Details emerge about University System of Maryland regents’ private meetings NOV 21

Legality of University System of Maryland’s Big Ten vote questioned NOV 20

Frank Lomonte, who heads up the Student Press Law Center, in Arlington, Va., picked up on that when Johnson called them for comment.
">University of Maryland regents approved move to Big Ten in closed session

and a second one asking what sensitive information was being protected.

Writers at the Baltimore SUN followed up. Ralph Jaffe, who has run for office as a write-in Democrat several times, filed a brief complaint with the Maryland Open Meetings Compliance Board.

See Julie Scharper's article here:

Teacher says Big Ten decision violated open meeting laws / Pikesville man files complaint over closed Board of Regents meeting
Meanwhile, the regents kept up vague explanations which made it sound as if the Maryland Attorney General, Doug Gansler, had given them personal permission to have the secret meetings.

As it turns out, it was their embedded attorney, an Assistant Attorney General named Faulk, who they indicate gave them the advice. (But to be completely clear, at no point has anyone raised their hand and said, "I'm the one who gave the bad advice." It's always a ghostly bureaucratic flash mob of people who may or may not have done something, may or may not have said something, may or may not have broken the law, all happening in the passive voice, of course).

The amount of confustication over whether those meetings were illegal, whether the regents had conducted a meaningless vote, whether they'd have to have it all over again in public, prompted my first diary on this:

An idiot's guide to Maryland Regents Open Meetings
When they released some "meeting notes" on Dec. 3, I looked very closely at them. That's because written records of a meeting, no matter what you call them (call 'em B'rer Rabbit if you like) are legally the minutes. The minutes say that Faulk explained some legal stuff about the closed meeting, etc., (actual details unspecified) to the regents.

That prompted another diary. See:

Those Wacky Regents: II
The Regents Admit They Were Wrong

... but still think they were right. The Dec. 7 press release also says:

However, the matters discussed at each meeting were proper subjects for closed-session discussions in accordance with the Open Meetings Act.
Maybe yes, maybe no. Technically speaking, that can't be true, because once you hold an illegal closed meeting, whatever you discussed was illegally discussed, even if you would have been able to summon one of the law's 14 exceptions which allow barring the public from particular discussions.

You can't use the Wayback Machine or the press office to undo the basic fact of the illegal meeting.

Where there is a dispute -- and there is here -- the referee is the Open Meetings Compliance Board. The ref steps in only if someone gives them a written complaint (In the dark ages, it was paper letters. Now PDFs are fine as long as there is a scanned signature).

They don't indicate why they believe they were sorta-right; and they don't address the issue of the bad minutes. Both of those remain to be worked out.

So I continue to be baffled by the press releases from a whole posse of more or less shadowy people. If it's a group apology, why are the 17 regents' names missing? The Chancellor, Kirwan, has no connection to the regents' activities under the Open Meetings Act, any more than a school superintendent would be responsible for an illegal meeting conducted by his or her school board.

There's a place where the buck stops, and it's not with a collective entity, though all members of the public body share basic responsibility for their compliance with the Open Meetings Act.

From the point of view of the Open Meetings Compliance Board, the buck stops with the presiding officer. So the regents' chairman, James Shea, is solely responsible under the law for proper open meetings procedures, and for making certain that things like contracts, pending legislation, and policy matters, are not discussed behind closed doors.

The complete 12/7 press release is:

Statement on Board of Regents Closed Meetings

Adelphi, Md. (Dec. 7, 2012) -- As has been reported, the University System of Maryland (USM) Board of Regents met on November 18, 2012, and November 19, 2012, in hastily convened closed sessions to consider confidential information about the University of Maryland, College Park's (UMCP's) application to move to the Big Ten. The representative of the Office of the Maryland Attorney General who serves as the board's general counsel was present at each meeting.

The board and USM officials acknowledge and sincerely regret that the public notice and closing procedures required by the Maryland Open Meetings Act were not followed with regard to the two sessions. However, the matters discussed at each meeting were proper subjects for closed-session discussions in accordance with the Open Meetings Act.

As both USM Board Chair James L. Shea and USM Chancellor William E. Kirwan said in an earlier statement, UMCP's move to the Big Ten did not require the board's approval. But it was important to both the university and the system that the board understand and support the implications of such a significant move.  

The USM board and officials and the Attorney General's Office are thoroughly reviewing their practices to ensure that the USM vigilantly adheres to all of the Open Meetings Act's procedural as well as substantive requirements.

Recently, USM regents and officials learned that a complaint has been filed against the Board of Regents with the Maryland Open Meetings Compliance Board. The USM board will participate fully in the compliance board's process and looks forward to the compliance board's conclusions and instructions on the practices for meetings that must be held in executive session on short notice.

Originally posted to dadadata on Sun Dec 09, 2012 at 10:23 AM PST.

Also republished by Maryland Kos and Community Spotlight.



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Comment Preferences

  •  They don't care. (5+ / 0-)
    Recommended by:
    Navy Vet Terp, mindara, rb608, Lujane, BYw

    The got what they wanted.  It'll cost the university several million dollars in fines to the ACC (which they figure they'll recoup from the Big 10 membership), but nothing more will come of it.  

    Gansler won't do anything about it, and the Regents know it.

    •  Ball's not in Gansler's court. (5+ / 0-)
      Recommended by:
      IndieGuy, mindara, ActivistGuy, PeterHug, BYw

      The Open Meetings Compliance Board is an independent "agency" created by statute. It has no budget and is supported by one staff member and an Assistant AG.

      The meetings infractions are in the public's court. Anyone can file a complaint saying that there's something wrong with the way the regents conducted meeting "x" or "y."

      Or the town council. Or any so-called Public Body.

      That sends an Open Government message. Elected officials and their appointees have to get these love notes on a continual basis. I joke about "keepin' 'em honest."

      I don't mean it literally, of course.


      It's like Schrodinger's Meeting. Whatever went on, if the public is not there, it might have been ineptitude or poor training that led to a violation. It also might have been advice from an attorney who wanted to skirt the edge. Or it might have been deliberate, to give someone a break, or carry out some elected official's personal agenda.

      You can't know. And that's a bad thing for informed citizens and elected officials staying, as the phrase goes, "honest brokers."

      The Big Ball is really in some angry Terp's court. UM has a law school - a good one - and a large number of attorneys are graduates.

      It only takes one to sue to cause some real pain for Loh and Kerwin and the regents. The vote may or may not have had any legal bearing on the decision.

      The fact of the secret meeting is simply what it is: a secret meeting that should not have been.

      Thump! Bang. Whack-boing. It's dub!

      by dadadata on Sun Dec 09, 2012 at 12:49:19 PM PST

      [ Parent ]

      •  i think it actually may be a bit more than that. (2+ / 0-)
        Recommended by:
        PeterHug, BYw
        The fact of the secret meeting is simply what it is: a secret meeting that should not have been.
        it's the "fruit of the poisoned tree" scenario. if the meeting itself wasn't legal, then any decisions made at that meeting are not legal, because the participants lacked standing, under law, to make them. so, if it turns out that the board's ok was required, to make the switch from the ACC to the Big Ten, any decision they made would be void on its face. basic contract law.

        so, the big question here is, was the board's agreement necessary, in order for the school to change its NCAA athletic conference affiliation? this is why it's important to know exactly what happened during those two illegally closed meetings. also, why i suspect they'll fight tooth and nail to keep that information secret.

        •  It is bizarre. (1+ / 0-)
          Recommended by:

          here's the interesting question ... Supposedly, Loh of UMCP could make the athletic decision without the regents or anyone else.

          It turns out there's an associated academic consortium which affects, not just UMCP, but all school in the UM system.

          Which the regents oversee. So when did they delegate control over academic things like this to one or two people?

          As far as poisoned trees, the only way to reverse the discussion is for a suit to be filed and a judge to act. That's one reason Maryland is 47th in the nation when it comes to open government.

          Thump! Bang. Whack-boing. It's dub!

          by dadadata on Mon Dec 10, 2012 at 02:39:51 AM PST

          [ Parent ]

    •  The exit fee is $50 million (0+ / 0-)

      The regents think that won't hold up in court. But they also thought they could meet illegally...

      The extra money from the B1G isn't going to be nearly enough to cover the costs of the facility upgrades they are going to need to compete.

      In the beginning, the universe was created. This has made a lot of people very angry, and is generally considered to have been a bad move. -- Douglas Adams, The Hitch Hiker's Guide to the Galaxy

      by boriscleto on Mon Dec 10, 2012 at 09:31:50 AM PST

      [ Parent ]

  •  Why do we care? (3+ / 0-)
    Recommended by:
    kyril, debedb, Roadbed Guy

    On the theory of "pick your battles", this does not sound very important. In fact, it sounds trivial. Who is harmed by the team's move to the Big Ten, and why is this where you want to draw your line in the sand about the Open Meeting law? As a political issue (and, um, this is a political blog) I'm not seeing it.

    •  Some of us alumni, me included, do care (9+ / 0-)

      And we should have had a right to attend an open scheduled and been invited to speak.  I mean, this is the way the Republicans in Michigan have been running their legislature since they lost seats on election day.  The process as well as the results are important.

      Now I need to get back to watch the Baltimore Ravens beat that team from our suburb!

      "We have always known that heedless self-interest was bad morals, now we know that it is bad economics." Franklin Delano Roosevelt, Jan. 20, 1937

      by Navy Vet Terp on Sun Dec 09, 2012 at 11:46:26 AM PST

      [ Parent ]

    •  Education. (4+ / 0-)
      Recommended by:
      mindara, rb608, Eric Stratton, Egalitare

      One of these days someone's going to pull a fast move in a secret meeting on political matter you care about.

      At that point, be conversant with your state's Open Meetings laws.

      Also, it's a super high profile (front page of the Saturday SUN, which is astounding for an argument over a secret meeting) situation which ought to make it a little easier for people in the Md Gen Ass'y to make some long needed changes in the law.

      Maryland ranks 47th in the quality of its oen meetings and public information laws.

      You have no info about what the electeds and bureaucrats are doing, you are ceding political power to them.

      Thump! Bang. Whack-boing. It's dub!

      by dadadata on Sun Dec 09, 2012 at 12:35:35 PM PST

      [ Parent ]

    •  Because they are in violation of our state's (2+ / 0-)
      Recommended by:
      dadadata, rb608

      Open Meetings Laws. Note the operative word is LAW

      And violating our Open Meeting Laws has become SOP here and left Maryland ranked 47th in the quality of these laws and almost total lack of transparency. Much as I love my home state, we have the good old (rich, white) boy network alive and well and we need to ratchet up the pressure on the Gen. Assembly to strengthen our public information laws.

      "On this train, dreams will not be thwarted, on this train faith will be rewarded" The Boss

      by mindara on Sun Dec 09, 2012 at 12:55:10 PM PST

      [ Parent ]

      •  Yes, and unfortunately, it's Democrats (1+ / 0-)
        Recommended by:

        who run the machine.

        As the motto says, More and Better Democrats

        Thump! Bang. Whack-boing. It's dub!

        by dadadata on Sun Dec 09, 2012 at 01:43:04 PM PST

        [ Parent ]

        •  Absolutely! (0+ / 0-)

          I mean, while I am grateful we don't have the tea bagger problem that so many other states are dealing with, we do have a disproportionate level of Democratic cronyism to deal with.

          But our redistricting did get rid of Roscoe Bartlett, woo hoo!
          And my new Congresswoman is Donna Edwards. And that is all kinds of awesome :)

          "On this train, dreams will not be thwarted, on this train faith will be rewarded" The Boss

          by mindara on Sun Dec 09, 2012 at 05:34:42 PM PST

          [ Parent ]

    •  Wait until you've been in the Big 10 -14 for a (0+ / 0-)

      while until you assume it's no big deal.  I started grad school at Penn State in 1973 and have been, as a PSU employee & State College resident, a fan ever since, albeit obviously now with quite a changed perspective (although, IMO, Joe Paterno, whatever his faults, really has gotten scapegoated by the people really to blame, but that's another story).  Penn State has now been in the Big 10-14 about as long as the period when I was a fan before we joined the conference, and I STILL HATE IT WITH A PASSION, a sentiment shared by a VERY large segment of the PSU alumni base.  There are many problems with it, but the biggest one is that the name of the conference should be "The Big Two and the Little X" since the welfare of Ohio State & Michigan so often take precedence over the welfare of the other athletic programs.  In fact, "The Big Two & Little Ten" was a sportswriter nickname for the conference before Penn State joined and it was made very clear after we joined that it would NOT become the Big Three.  

      Little known fact:  Joe Paterno was instrumental in getting instant replay review introduced into college football because he finally got so fed up with blatantly blown calls against PSU at crucial moments -- especially in games ag OSU & Michigan --that, after the 2002 season, he went ballistic with the Big 10 office, which agreed to begin using instant replay in its conference games.  That decision blew up a logjam and in a few years instant replay review was the law of the land in major college football.  

      And lest you think this is some kind of sour-grapes paranoia, ask, for example, Iowa fans about their perceptions about officiating in Iowa -Michigan games.  Of course, an alternate hypothesis with much to say for it is just simply abysmal incompetence.  IMO, both hypotheses are amply supported by the evidence.

      To be honest, I was glad to hear that RU & MD were joining the Big 10-14.  Now, PSU won't be the only Eastern red-headed step-child in the conference.  Plus, one son lives near Rutgers & my brother lives near MD, so I can combine PSU games with family visits.  But I have to be honest that I don't envy you guys what you're in for.  Did I tell you how much I hate this conference?

    •  because it establishes bad precedence. (1+ / 0-)
      Recommended by:
      Why do we care?
      if they get away with it once, you can bet they'll try it again, and the next time it may be for something not so "trivial".
  •  More power to you! (2+ / 0-)
    Recommended by:
    Bob B, dadadata

    Hooray for Citizen Journalism. It's the only type of Journalism left.

    I'm going to go cry in a corner now.

    •  Oh, I'm a citizen first (2+ / 0-)
      Recommended by:
      mindara, rb608

      But I work at a tiny, tiny paper. I have two (rescue) dogs, and neither are in this fight.

      Didn't go to UMCP, or UM anything, don't know the people involved, and don't follow sports.

      I'm only concerned with the long term bad effects from a huge business (Univ of Md) run with public money doing stuff in dark rooms.

      Thump! Bang. Whack-boing. It's dub!

      by dadadata on Sun Dec 09, 2012 at 12:38:46 PM PST

      [ Parent ]

  •  I understand it's the principle of the thing... (3+ / 0-)
    Recommended by:
    debedb, AaronInSanDiego, Roadbed Guy

    but I still can't emotionally comprehend why anyone cares.

    "Let’s just move on, treat everybody with firmness, fairness, dignity, compassion and respect. Let’s be Marines." - Sgt. Maj Michael Barrett on DADT repeal

    by kyril on Sun Dec 09, 2012 at 02:06:28 PM PST

    •  Higher Education is the next bubble industry (1+ / 0-)
      Recommended by:

      student debt totals more than national credit card debt
      "public" universities are no longer funded by tax monies
      as a result, they have waded deeper and deeper into more and more exotic schemes to make money
      Sports seem to come under this rubric. And while anyone who looks closely at college sports will tell you that there are very, very few schools that realize any profit from their athletic departments,  there is certainly lots of income to be obtained.  That income goes wherever your Trustees,  Regents or Governors want it to.

      in fact,  the fees charged for housing, dining, and other student services work in a similar fashion

      So the more they are governed in the dark,  the crazier schemes your institution is probably launching.

      And,  the harder someone is going to fall.

      In New Jersey,  Montclair State University build new dorms in a public/private partnership.  The prospectus made it clear to investors that all the risk is on the public side,  and damn near all the profit on the private side.

      Watch closely, Terps, to see where the money is coming from and where it is going.

      And remember, student debt cannot be discharged in bankruptcy.

      It's not a fake orgasm; it's a real yawn.

      by sayitaintso on Sun Dec 09, 2012 at 03:26:26 PM PST

      [ Parent ]

    •  It's not sports. It's open government. (1+ / 0-)
      Recommended by:

      there's no other justification needed.

      Thump! Bang. Whack-boing. It's dub!

      by dadadata on Mon Dec 10, 2012 at 02:43:19 AM PST

      [ Parent ]

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