Board of County Commissioners v. Landmark Community Newspapers

Smith, J., delivered the opinion of the Court. In this case we are faced with yet another application of Maryland’s second "sunshine” law embodied in Maryland Code (1957, 1980 Repl. Vol.) Art. 76A, §§ 7-15 (the Act) as enacted by Ch. 863 of the Acts of 1977. 1 The Act is contained in a subtitle captioned "Meetings of Public Bodies.” Appellees, Landmark Community Newspapers of Maryland, Inc., and Gerald R. Fischman (Landmark), sued the members of the Board of County Commissioners of Carroll County. They sought a declaratory judgment to the effect that meetings of the County Commissioners styled as "work sessions” or "executive sessions,” which are not open to the public and during which the budget for Carroll County was in the process of preparation, violated the Act.

Reference was made to three specific meetings held for the purpose of "discussLing] the proposed budget for Carroll County for the fiscal year July 1, 1981 to June 30, 1982.” 2 ⁵⁹⁸ The point was made that no notice of those meetings was given to the public as required by Art. 76A, § 12 and that Fischman was not allowed to attend the meetings. The County Commissioners of Carroll County, as an entity, filed a counterclaim asking for a declaration that under a resolution of the County they were "acting in an 'executive function’ ” as that term is defined in the Act "until such time as a proposed budget [was] submitted to the Clerk to the County Commissioners of Carroll County as required by [that] [resolution,” after which time they would be performing a "quasi-legislative function” in considering the budget as that term is defined in the Act. The County sought a further declaration that its "review sessions,” during which the proposed budget was formulated, did not constitute "meetings” for the purposes of the Act. The matter was heard on the County’s motion for summary judgment.

The chancellor filed a memorandum decree in which he ruled against the County. He granted a permanent injunction "requiring] ... all future meetings of the Defendants concerning the budget for Carroll County [to] be open to the public” and "that any minutes, tapes, or notes of any prior meetings held in violation of Article 76A be made available to the Plaintiffs for inspection and transcribing . . . .” The County then moved for reconsideration. It argued, among other things, that this case involved the appropriation of public funds and, thus, under § 14 (g) of the Act the trial court was deprived of jurisdiction. The trial judge again ruled against the County.

An appeal to the Court of Special Appeals followed. We granted the County’s request that we issue the writ of certiorari and consider the case prior to a determination by the intermediate appellate court. Since we regard this case as controlled by Avara v. Baltimore News American, 292 Md. 543 , 440 A.2d 368 (1982), we shall reverse. ⁵⁹⁹ I The public policy embodied in the Act is stated in § 7: "It is essential to the maintenance of a democratic society that except in special and appropriate circumstances public business be performed in an open and public manner and that the citizens be advised of and aware of the performance of public officials and the deliberations and decisions that go into the making of public policy.” The various terms used in the Act are defined in § 8. Relevant here are those definitions concerning executive and quasi-legislative functions and the meaning of the word "meeting.” An executive function is said in § 8 (c) to mean "the administration or application by a public body of the laws of the State or a political subdivision of the State, or of the rules, regulations, or bylaws of a public body.” This term does not include, however, any action defined as advisory, legislative, quasi-legislative, judicial, or quasi-judicial.

That portion of the definition of a quasi-legislative function here relevant is set forth in § 8 (i) (2). Such a function refers to "ft]he approval, disapproval, or amendment of a contract or a budget by a public body, or the process of doing so.” A meeting is defined in § 8 (f) as "the convening of a quorum of the constituent membership of a public body for the purpose of considering or transacting public business.” Section 8(f) states specifically that a meeting does not include "chance encounters, social gatherings, or other occasions which are not designed or intended for the purpose of circumventing the provisions of th[e] subtitle [pertaining to meetings of public bodies].” It is conceded that a board of county commissioners is a public body since § 8 (g) defines that term as including, among other things, "an entity consisting of two or more persons that is created by the State Constitution [or] by State statute . . . .” By the terms of § 9 the Act is applicable to a public body "when it is exercising legislative, quasi-legislative or ⁶⁰⁰ advisory functions.” The Act is not applicable to a public body "when exercising executive, judicial or quasi-judicial functions ....” Subject to the provisions of § 9, § 10 specifies that the meetings of every public body shall be open to the public unless closed in accordance with § 11. Procedures for closing meetings for certain specified purposes are set forth in § 11. There is no contention here that any valid attempt under § 11 had been made to close the meetings in question.

Accordingly, we have no need to refer to the details of § 11. Section 12, "[sjubject to the provisions of § 9,” indicates that "every public body shall give reasonable advance notice of its open meetings” as well as notice of closed sessions as provided in § 11 (b) (2). Section 13 requires the keeping of written minutes by every public body covered under § 9, with those minutes being "prepared as soon as practicable under the circumstances.” The minutes must be "open to public inspection during ordinary business hours.” Section 13 further specifies that "notwithstanding the provisions of Article 76A, minutes of a meeting lawfully held in closed session may not be open to public inspection if that would frustrate the purpose for having the closed session.” Enforcement provisions are contained in § 14. Section 14 (a) authorizes any person adversely affected by an action in violation of § 10 or § 12 to file suit in the circuit court having proper venue for the purpose of "requiring compliance with the provisions of these sections, determining the applicability of these sections, or voiding the action.” However, pursuant to the provisions of § 14 (b), such an action must be filed within forty-five days after the next public meeting or session following the "alleged improper closed meeting or session” under § 10, at which notice of the action taken or decision made at the closed meeting or session is given in accordance with § 11 (b).

If a violation of § 12 is alleged, then the suit must be filed within forty-five days after the public meeting for which notice was not properly given. Section 14 (g) specifically states that § 14, which contains the enforcement provisions, "does not apply to an action appropriating public funds, levying taxes, or ⁶⁰¹ providing for the issuance of bonds, notes or other evidences of public obligation.” It would appear at this time that each of the fifty states has some form of an open meetings statute. Our statute seems to be unique in that we have found no other having a per se exemption for executive functions. Relative to such statutes, see the discussion and the cases collected and analyzed in 56 Am.

Jur. 2d Municipal Corporations § 161 (1971); Annot., 38 A.L.R.3d 1070 (1971); and the supplements to each. The Maryland statute was first discussed by Chief Judge Murphy for this Court in City of New Carrollton v. Rogers, 287 Md. 56 , 410 A.2d 1070 (1980). Although the subject of that litigation is in no way relevant to the issue currently before the Court, it is important to bear in mind that the Court there said: "While the Act does not afford the public any right to participate in the meetings, it does assure the public right to observe the deliberative process and the making of decisions by the public body at open meetings. In this regard, it is clear that the Act applies, not only to final decisions made by the public body exercising legislative functions at a public meeting, but as well to all deliberations which precede the actual legislative act or decision, unless authorized by § 11 to be closed to the public.

The Act makes no distinction between formal and informal meetings of the public body; it simply covers all meetings at which a quorum of the constituent membership of the public body is convened 'for the purpose of considering or transacting public business.’ § 8 (f). It is, therefore, the deliberative and decision-making process in its entirety which must be conducted in meetings open to the public since every step of the process, including the final decision itself, constitutes the consideration or transaction of public business.” 287 Md. at 72 . ⁶⁰² II The County first argues that the preparation of a budget is an executive function of county government different from the process of approval, disapproval, or amendment of a budget which the Act classifies as a quasi-legislative function. In County Comm’rs v. County Comm’rs, 50 Md. 245 (1879), Judge Alvey observed for the Court: "A county is one of the public territorial divisions of the State, created and organized for public political purposes, connected with the administration of the State government, and especially charged with the superintendence and administration of the local affairs of the community; and being in its nature and object a municipal organization, the Legislature may, unless restrained by the Constitution, or some one or more of those fundamental maxims of right and justice with respect to which all governments and society are supposed to be organized, exercise control over the county agencies, and require such public duties and functions to be performed by them, as fall within the general scope and objects of the municipal organization.” Id. at 259 . More recently, in Centreville v. Queen Anne’s County, 199 Md. 652 , 87 A.2d 599 (1952), Judge Delaplaine said for the Court: "Counties are created for the purpose of carrying out the policy of the State for the administration of matters of political government, including taxation, education, improvement of roads, and care of the poor, and for the administration of justice.

The powers and functions of the county, as distinguished from municipal corporations, have a direct reference to the general, rather than the local, policy of the government of the