The state’s Open Meetings Compliance Board issued an opinion stating that Frederick’s Downtown Hotel Advisory Committee did not violate Maryland’s Open Meetings Act by operating behind closed doors and without notice to the public.
However, the opinion said that if the complaint were taken to a court of law, it could have a different outcome.
The ruling came in response to a complaint filed in September from Peter Samuel, a longtime opponent of the proposed downtown hotel and conference center, alleging the Hotel Advisory Committee has been violating open meetings laws since its inception in 2010. The complaint estimated the committee met a total of 30 or 40 times, most of which have been behind closed doors, and said the group is not listed on the city’s website as an official board. It also said the committee was put together in a closed session.
Employees in the city’s legal department responded that the committee is not an official city board but a product of the Frederick County Chamber of Commerce, and thus is not subject to the rules of the Open Meetings Act.
According to the ruling, the compliance board agreed that when the hotel committee formed in 2010 it was not a public body. It did say, however, that board members do not have enough information to determine whether the committee is a public body now. The opinion pointed out that because the city’s Board of Aldermen adopted a memorandum of understanding with the committee while developing the Request for Proposals for the project and recommending a developer, it muddied the group’s definition.
“Specifically, we are unable to resolve the apparent factual disconnect between the “ad hoc advisory group” described in the City’s submissions — a private, informal and amorphous group changeable and dissolvable by the Chamber at any time, led by a chairman of its own choosing — and the entity, by the same name, that the City itself designated, in a formally-adopted MOU, to perform substantive functions regarding the developer’s performance of the contract, under the leadership of a chair whom the mayor said he had appointed,” the opinion said.
The opinion further states that a court has the resources to explore “factual questions of control and actual functioning” that the board does not.
The board’s opinion also chastised city officials for not creating a clear definition of the function of the committee regarding open meetings and transparency.
“When a governmental body decides to delegate functions to a privately-created group, the government should consider whether to require the group to act as a public body, in the sunlight,” the opinion said. “The government should also make the group’s status clear to the public at the outset. Thus, once again, “[w]e encourage governing bodies, when outsourcing governmental functions to private entities, to consider whether the delegation of the particular function should include a duty of transparency.”
Patti Mullins, the city’s public information coordinator, said City Attorney Saundra Nichols declined to comment Monday on the compliance board’s opinion.
She emailed the following response statement from Mayor Michael O’Connor:
“As the OMCB opinion was rendered against a body the City did not appoint, the findings don’t really affect us. For City appointed bodies, of course, we will comply with the Open Meetings Act.”
Samuel issued a response Saturday via his online blog, Frederick Hotel Boondoggle. The response said he is disappointed that “the board failed to give appropriate weight” to a point he made regarding city Economic Development Director Richard Griffin’s involvement in the functions of the hotel committee. He also elaborated on the response via email Monday by pointing out that the board recognized the discrepancy in the committee’s functions but did not reflect that in the ultimate opinion.
“I was disappointed that the state board declined to go the next step and declare the City clearly in violation of the Open Meetings Act. I got about 80 percent of what I sought,” the emailed statement said.
Samuel said in the online response, however, that the compliance board’s opinion “goes a considerable way in vindicating” his complaint.
“The City should be taken to court, as suggested by the state compliance board,” Samuel said in the response. “A court could according to the enforcement provisions of the Open Meetings Act, void actions taken illegally by the City (Hotel Advisory Committee), and by injunction order a new competitive procurement.”
Samuel also said via email Monday that he would like to take the city to court on the matter and that he is investigating a lawsuit and what it entails.
The Hotel Advisory Committee was formed to help bring the hotel project to fruition. Members meet sporadically, and the meetings are not open to the public. The committee was originally appointed to explore ways to bring the hotel project downtown, help develop the Request for Proposals that went out to developers, and help decide which developer to choose.
The project is in the design and historic mitigation phase. Members of the city’s Historic Preservation Commission, and the Maryland Historical Trust and Department of Housing and Community Development, are working parallel through the processes.