City of New Carrollton v. Rogers

Murphy, C. J., delivered the opinion of the Court. Chapter 863 of the Acts of 1977, now codified as Maryland Code (1957, 1975 Repl. Vol., 1979 Cum. Supp.), Art. 76A, §§ 7-15, and commonly known as the Sunshine Law (the Act), requires that meetings of public bodies, with designated exceptions, be open to the public.

The principal issue in this case is whether the Council of the City of New Carrollton (the City Council) violated the Act in conducting certain meetings pertaining to the possible annexation of areas adjoining the city known as the Metro East Triangle (MET) and West Lanham Hills. (1) Codified under the subtitle “Meetings of Public Bodies,” the Act provides in § 7 that “[i]t 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 Act applies only to public bodies “exercising ⁵⁹ legislative, quasi-legislative or advisory functions.” 1 § 9. By the express provisions of § 9, the Act does not apply to “a public body when exercising executive, judicial or quasi-judicial functions.” A “Public body” is defined by the Act, § 8 (g), to include the legislative body of a municipality. Section 10 requires that “meetings of every public body shall be open to the public,” unless they are authorized to be closed as within enumerated exceptions contained in § 11.

A “Meeting” is defined in § 8 (f) to mean: “the convening of a quorum of the constituent membership of a public body for the purpose of considering or transacting public business. It does not include chance encounters, social gatherings, or other occasions which are not designed or intended for the purpose of circumventing the provisions of this subtitle.” ⁶⁰ Section 12 requires that a public body “give reasonable advance notice of its open meetings.” In this regard, the section provides that “[w]henever reasonable under all the circumstances,” the notice be in writing and include the date, time and place of the meeting. Section 12 (c) (3) provides that the required notice may be given by posting at a convenient public location at or near the place of the meeting, “if prior public notice has been given that this method will be used.” Section 13 requires every public body subject to the Act to keep written minutes of all its meetings, reflecting the items considered and the actions taken, together with any recorded vote. The section provides that the minutes “shall be prepared as soon as practicable under the circumstances,” and designates them as public records, open to public inspection.

Section 14 provides that any person “adversely affected” by an action in violation of § 10 (requiring that meetings be open to the public) and § 12 (requiring that public notice be given) may file suit to compel compliance “with the provisions of these sections, determining the applicability of these sections, or voiding the action.” Section 14 (c) creates a presumption “that the public body did not violate §§ 10 or 12”; it also provides that “the burden of proving a violation is on the complainant.” Section 14 (e) authorizes the court to issue an injunction “to determine the applicability of this subtitle to the discussions or decisions of public bodies, or to grant such other relief as may be appropriate.” Section 14 (e) (2) authorizes the court to “declare void any final action taken at a meeting held in wilful violation of §§ 10 or 12 ... if the court finds that no other remedy would be adequate under the circumstances.” (2) On October 2,1978, a number of property owners affected by New Carrollton’s proposal to annex the MET and West Lanham Hills sued the City, the Mayor and the City Council, seeking declaratory and injunctive relief. They alleged that beginning at a time prior to August 16,1978 — the date upon which they claimed that the annexation proposal was first ⁶¹ divulged to the public —- the Mayor and City Council “secretly embarked” upon a “positive scheme,” consummated by closed meetings held in violation of the Act, to bring about the desired annexation. As a consequence of these “secret meetings,” the complainants asserted that they were denied the opportunity to participate in the functioning of government, and to voice their opinions regarding the annexation process when it was in its formative stages. In view of the alleged violations of the Act’s provisions, the complainants prayed that the “actions taken by the Mayor and City Council at all closed meetings dealing with the issue of annexation” be declared void and that an injunction be issued prohibiting the defendants from going forward with the annexation process.

The defendants, answering the suit, denied that the City Council and Mayor met in secret sessions in connection with the annexation proposal. They claimed that the challenged meetings of the Council were open to the public and were preceded by public notice, as required by the Act. In addition, the defendants asserted that minutes of the meetings were taken and made available for public inspection. On October 4, 1978, two days after the plaintiffs had filed their suit, a resolution of annexation was introduced in the City Council to annex the MET, West Lanham Hills, and other designated areas adjoining the City’s boundaries.

The resolution recited that, as required by Maryland Code (1957, 1973 Repl. Vol.) Art. 23A, § 19, consent for the annexation had been obtained from not less than 25% of the registered voters residing in the areas to be annexed, as well as from the owners of not less than 25% of the assessed valuation of the real property located in the areas to be annexed. As required by § 19, the City Council, on November 21,1978, held a public hearing on the resolution, adopting it thereafter on January 3,1979. On February 7,1979, a petition was presented to the Council to hold a referendum on the resolution, as authorized by § 19 of Art. 23A.

On February 13,1979, in accordance with the provisions of § 19, the Council provided for a referendum to be held on March 17, 1979, thereby suspending the effectiveness of the resolution pending the results of the referendum election. ⁶² On March 5 and 6, 1979, the Circuit Court for Prince George’s County (Bowen, J.) conducted an extensive evidentiary hearing into the merits of the plaintiffs’ action. Evidence was adduced showing that in late 1977 the City’s Advisory Planning Committee (APC), an executive-branch agency established within the Mayor’s office, was requested to study the annexation of areas adjoining New Carrollton. The APC met on December 8, 1977, January 12, February 9 and March 9, 1978, and discussed various annexation proposals. One of the proposals discussed was the annexation of the MET, a valuable tract of commercial and industrial properties adjoining New Carrollton’s boundaries.

The APC meetings were open to the public, and minutes taken at these meetings disclosed in a general way that annexation proposals were discussed. Neither the City Council nor any of its members attended these meetings. On March 16, 1978, a “Special Workshop” meeting of the City Council was convened at the request of the Mayor for the purpose of considering the subject of annexation. Notice of the meeting was posted on the bulletin board at City Hall.

It stated: “The City Council will meet in a Workshop Session at 7:30 P.M. on Thursday, March 16, 1978, at City Hall. The following topic will be discussed: I. Annexation proposal.” The meeting was attended by a quorum of the City Council, the Mayor, his administrative officer, and members of the West Lanham Hills Citizens Association (WLHCA), who had been invited to attend the meeting. The minutes of the meeting disclosed that the APC annexation study was discussed, together with various aspects and implications of the annexation process. Specific reference was made in the minutes to “the possible annexation of West Lanham Hills and the Metro Triangle.” The minutes also indicated that the President of WLHCA stated that he looked with favor upon such an annexation proposal and would discuss it with his Board of Directors. ⁶³ The City Council held another “Special Workshop” meeting on March 23,1978 at City Hall.

Public notice of the date, time and place of this meeting was posted on the bulletin board at City Hall; it was identical in format to the notice posted for the March 16 meeting. As before, the notice announced that the topic to be discussed at the meeting was “Annexation proposal.” A quorum of the City Council was present, together with the Mayor, his administrative officer, and invited officers and directors of WLHCA. Minutes taken at the meeting reflected that WLHCA had voted on March 19 in favor of the annexation and “requested the City Council to proceed with the necessary procedures.” The posting of public notice of the Council’s meetings of March 16 and 23,1978 on the bulletin board at City Hall was in accordance with § 12 (c) of the Act, which authorized this method of giving notice “if prior public notice has been given that this method will be used.” Consistent with this requirement, the City, on July 28, 1977, in two county newspapers, had given “Public Notice” that pursuant to the requirements of the Act, “notice of scheduled meetings of the City Council, special and workshop sessions, and meetings of citizen advisory committees will be posted in a timely manner on the first floor bulletin board in City Hall, 8511 Legation Road, New Carrollton, Maryland.” 2 Following the Council’s workshop meeting of March 23, the City Attorney was directed to obtain a survey of the areas to be annexed — an essential step where annexation is to be initiated by resolution of the legislative body. 3 Pending receipt of the completed survey, the APC continued its study of annexation in open meetings held in April and May of 1978. The public minutes of these meetings indicate that the APC ⁶⁴ recommended that a flyer be prepared as soon as possible to advise the citizenry of the benefits and implications of annexation, together with a “fact sheet” outlining the finances and costs of the annexation process.

The minutes took note of the fact that a survey of the areas to be annexed had been ordered. The survey was completed on June 21 at a cost of $8,000. The Council met that month and amended the existing City budget item for “legal expenses” to make funds available to pay the expense of the survey. Questioned by a citizen with respect to the nature of the increased legal expenses, the Council explained that it was due to a “positive ongoing action” and that it was not then advisable to give further information on the subject.

At a workshop meeting of the Council held on July 31, for which public notice was duly given, the Council suggested, according to the minutes of the meeting, that as soon as possible “an informational forum for residents of the City [be arranged] to explain the annexation proposal under consideration.” On August 5, the City prepared and distributed a flyer to the homes of New Carrollton’s residents, announcing that a special informational meeting would be held by the Mayor and City Council on August 8 at City Hall “to present a proposal to annex the New Carrollton (METRO) Triangle and adjacent areas into the City of New Carrollton.” Accompanying the flyer was a “fact sheet” outlining the demographics of the areas under consideration. All residents were urged by the flyer to attend the meeting. On August 7, 1978, at the invitation of the WLHCA, the Mayor and members of the City Council attended a meeting in West Lanham Hills for the purpose of answering questions that the residents might have about New Carrollton. No notice of this meeting was posted on the bulletin board at City Hall.

On August 8, the Council held the “informational meeting” which it had previously scheduled to inform New Carrollton residents about the annexation proposal. On August 16, 1978, the Council discussed the annexation proposal at a regularly scheduled meeting, for which public notice was given. ⁶⁵ Joseph Aukward and James Rogers, two of the plaintiffs, testified in support of their allegations that the Council had conducted its annexation business in secret meetings, closed to the public, in violation of §§ 10 and 12 of the Act. Aukward said that on every occasion that he attempted to attend Council workship meetings, the doors to City Hall were locked. This, he said, was in contrast to the Council’s regular meetings, which were always open to the public.

Aukward’s testimony was specific only as it related to workshop meetings held at some time between June and August of 1977. Rogers testified to workshop meetings at which the doors were locked in April or May, without specifying the year, and to a “recent meeting” held on October 2. He said he tried to attend four workshop meetings but always found the doors locked. Both witnesses indicated that they were able to gain admittance to workshop meetings by rapping on the door or window.

Rogers said that he had been told by the Mayor that admittance to Council workshop meetings was by invitation only. Several Council members testified that there had been times when the doors to City Hall were locked during workshop sessions, although no particular time was specified. This was attributed either to inadvertence or to a need to prevent vandalism. One councilman testified: “We have a very conscientious person who takes care of the City Hall.

Call him a maintenance man, but he is young. And we meet in the back room and he has to go upstairs sometimes, so he will lock the doors. He is afraid something might be stolen, because we never — we seldom go in the other room. And so they may have been locked, but they were never intentionally locked to keep out anybody.

In the last eight and a half years I have served I have never had the doors locked intentionally.” A councilwoman testified that she knew of several occasions when the janitor locked the doors during a workshop meeting. She explained: “I think a time or two when the janitor maybe was ⁶⁶ cleaning upstairs, and there’s been a problem with kids coming in, the restrooms have been vandalized. And if the janitor, the boy who works there, would not be in the outer office perhaps that’s the reason he locked it, because there’s a lot of problems with the kids from the playground coming across and using the drinking machine. And if they are rattling around out there, I believe that was his reason maybe for locking them to keep — it was not to keep anybody out.” Neither Aukward nor Rogers attempted to attend the March 16 and 23 special workshop meetings of the Council.

The defendants’ witnesses all testified that these particular meetings, as well as the Council’s other meetings, were open to the public. Testimony was adduced by the plaintiffs showing that various members of the Council and the Mayor had told others of a need to keep the annexation proposal as quiet as possible, not to broadcast or advertise it, to keep it “low key” or confidential, until the process of annexation could be completed. (3) At the conclusion of the evidence, the trial judge delivered an extended oral opinion. He said that the notice of the Council’s workshop meetings of March 16 and 23 was deficient because there was no “plain statement that this type of meeting is open to the general public.” He concluded that use of the term “workshop session” in the notice led the public to believe that these meetings were private or closed.

He referred to a “time-honored custom” in New Carrollton that workshop sessions were closed, while regularly scheduled Council meetings were open to the public. Accordingly, the trial judge found as a fact that the workshop meetings of March 16 and 23 were held in violation of §§ 10 and 12 of the Act. The trial judge found from the evidence that the doors to the Council’s workshop sessions were locked. He referred to ⁶⁷ testimony of the plaintiff Aukward that the doors to workshop sessions that he attempted to attend were locked on three occasions over a three-year period.

From this testimony, the trial judge reasoned that the doors must