Maryland’s Open Meetings Compliance Board says the Baltimore County Council did not violate the Open Meetings Act when it met behind closed doors in January to discuss the selection of the county’s highest-ranking government official.

The opinion comes after several complaints were filed.

“We, too, agree that, if the Act applied, the failure to provide notice and an opportunity to attend was a violation,” the board wrote. “But… it is not clear from the record that the Act applied to this meeting.”

Council Chair Mike Ertel previously said the closed-door meeting was held to discuss the logistics of the council’s public vote on who would serve as the next county executive amid an impending snowstorm. The Zoom meeting included a conversation about then-candidate Katherine Klausmeier replacing the outgoing County Executive Johnny Olszewski, who is now a congressman.

Questions were raised after the meeting when the council made a surprise public announcement saying they’d selected Klausmeier before any public vote. Councilmember Izzy Patoka, who was serving as council chair at the time of the vote, previously told The Baltimore Sun the meeting involved a “discussion,” not “voting, per se.”

The compliance board now says the council was performing an “administrative function,” which includes discussions that are not “advisory, judicial, legislative, quasi-judicial, or quasi-legislative in nature.” The Open Meetings Act does not apply to administrative functions, the board said.

The board’s decision contradicts Ertel’s prior statement that the council had violated the act, and a statement from the panel’s legislative counsel taking the blame on himself, saying he “did not fully comply” with the act.

Former Anne Arundel County Attorney David Plymyer objected to the board’s decision, noting the county charter states, “All meetings of the county council or any committee thereof shall be open to the public.”

“The Compliance Board believes that the Council did not violate the [Open Meetings Act], but expressed no opinion on whether the Council violated the County Charter,” Plymyer said in an email.

Asked about Plymyer’s comments, the compliance board said it “does not issue comments on its advisory opinions.”

Plymyer also criticized the council in a memorandum he provided to The Sun.

“[T]here is the proposition that County residents should not be privy to deliberations … [about] candidates who want to serve as the most important official in County government for the next two years … The Council’s embrace of that proposition reflects its preoccupation with secrecy and how little commitment to the principles of openness and transparency it has.”

Towson resident Peta Richkus, who formerly served as the Maryland Department of General Services secretary, also described the board’s decision as “very disappointing.”

Asked about previous statements from the council chair and legislative counsel admitting a violation, Patoka said, “Council members are sometimes asked to be subject matter experts on all topics, and we are not … We try to do the best that we can.”

Patoka added, “I think it’s important for us to learn from this moment on how we can do better as a Council in terms of public engagement.”

Ertel said in a text message, “It was disappointing to be accused of violating the Open Meetings Act after the efforts we had taken to keep the process a public one. I’m happy to hear that we did not violate the act.”

The compliance board’s written opinion notes the council’s admission of a violation, in that it didn’t provide prior notice of the meeting and didn’t give the public an opportunity to attend before and after the closed session. The board said it normally would forego an extensive analysis of the situation if the accused party acknowledged a violation — but not in this case.

“Neither the Complainants nor the County Council raise the possibility that the Council was performing an administrative function during its January 3 meeting,” the compliance board wrote, adding that “the body performs an administrative function not only when the body votes to make the appointment but when it engages in certain preliminary discussions leading up to the appointment.”

Also discussed during the council’s meeting was the appointment of the county auditor. But the compliance board said it did not have enough information about that discussion to determine whether it involved an administrative function and whether the public should have been invited to the meeting.

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