Frazier v. McCarron

Robin Bartlett Frazier v. James McCarron, et al., No. 4, September Term, 2019. Opinion by Wilner, J. HEADNOTE In a complaint filed in the Circuit Court for Carroll County, petitioner sought sanctions against the Taneytown City Council for alleged violations of the Open Meetings Act (OMA) by reason of its holding a closed session to consult with the Mayor, City Manager, and City Attorney regarding threatened litigation by petitioner’s husband. The Circuit Court found that the Council did violate some provisions of OMA but determined that those violations were technical, harmless, and not willful, and entered judgment for the defendant. The Court of Special Appeals, also finding that any violations were technical, harmless, and not willful, affirmed.

The Court of Appeals rejected the notion that violations of OMA could be excused because they were found to be technical or harmless. It held, however, that (1) all sanctions under the Act were discretionary with the trial court, and (2) the court could not impose civil penalties or void actions of the public body unless the violations were willful. The Court of Appeals defined willful as knowing and intentional, meaning deliberate and with knowledge that the conduct violates OMA; the conduct does not have to be nefarious or for a corrupt motive to be willful. The Court held that declining to impose the requested sanctions was not an abuse of the trial court’s discretion, and therefore affirmed the judgment.

Circuit Court for Carroll County Case No. 06-C-16-071811 Argued: October 2, 2019 IN THE COURT OF APPEALS OF MARYLAND No. 4 September Term, 2019 Case No. 419686V Argued 1/7/19 ROBIN BARTLETT FRAZIER v. JAMES MCCARRON, et al. Barbera, C.J. McDonald Watts Hotten Booth Greene, Clayton, Jr. (Senior Judge, Specially Assigned) Wilner, Alan M. (Senior Judge, Specially Assigned) Opinion by Wilner, J. Filed: November 20, 2019 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2019-11-20 14:35-05:00 Suzanne C. Johnson, Clerk In a complaint filed in the Circuit Court for Carroll County, petitioner alleged that the Taneytown City Council held a meeting on June 22, 2016 that was closed to the public in violation of the State Open Meetings Act (Md. Code, Title 3 of the General Provisions Article (GP) (OMA)). In her amended complaint, petitioner asked the court to impose civil penalties in the amount of $8,250, void all actions taken at the meeting, require the Council to reimburse her for all legal expenses and court fees, direct the Council to unseal minutes of the meeting, and order the Council to post the court’s Order on the first page of the City’s website and retain it there for two years. After a two-day hearing, the court concluded that the Council had, in fact, violated certain provisions of OMA but viewed those violations as “technical” in nature.

The court found that the Council had not acted willfully and that the violations were harmless. It therefore entered judgment in favor of the Council.1 In an unreported Opinion, the Court of Special Appeals, with one exception that it found harmless, rejected petitioner’s assertions of error and affirmed the Circuit Court judgment. We granted certiorari to clarify certain aspects of OMA, in particular the meaning of “willfully” for purposes of 1 The court announced its findings and decision from the bench. There is no separate document setting forth the judgment, as required by Md. Rule 2-601(a), only a docket entry stating, “Court granted judgment in favor of Defendant.” The lack of a separate document can affect the appealability of a ruling.

See Taha v. Southern, 367 Md. 564 (2002). In URS Corp. v. Ft. Myer Construction, 452 Md.48 68 (2017), however, the Court, confirming a holding in Suburban Hospital v. Kirson, 362 Md. 140, 156 (2000), concluded that the separate docket requirement can be waived when “the trial court intended the docket entries made by the court clerk to be a final judgment and where no party objected to the absence of a separate document after the appeal was noted.” In light of the docket entry in this case and the fact that respondent made no objection to the lack of a separate document, we shall regard the absence of such a document in this case as having been waived. that Act, and whether violations of the Act may be excused as technicalities or harmless error. SUMMARY OF OMA We shall need to consider certain provisions of OMA, in some detail, but, to bring context to the underlying facts, a summary of the relevant provisions in Subtitles 3 and 4 of the Act would be useful at this point.

We start with two prefaces. First, there is no dispute or doubt that the City Council, being a public body as defined in OMA, is subject to that Act. Second, the legislative policy implemented by the Act, as expressed in GP § 3- 102 (with some non-substantive punctuation modifications on our part), is that: “It is essential to the maintenance of a democratic society that, except in special and appropriate circumstances, public business be conducted openly and publicly, and the public be allowed to observe the performance of public officials and the deliberations and decisions that the making of public policy involves.” Subtitle 3 (§§ 3-301 through 3-306) contains the actual requirements of the Act. Section 3-301 requires generally that, except as otherwise provided in the Act, a public body shall meet in open session.2 Section 3-302 requires a public body to give reasonable advance notice of its meetings, whether open or closed, and sets forth the manners in which notice may be given.

Section 3-302.1(a) requires a public body, before meeting in open 2 Although not relevant to this case, we note that the requirements of OMA do not apply when a public body is carrying out administrative, judicial, or quasi-judicial functions, as defined in § 3-101, or to chance encounters, social gatherings, or other occasions not intended to circumvent OMA (GP § 3-103), but that, if another law relating to meetings of public bodies conflicts with OMA and is more stringent, that law will prevail (GP § 3-105). 2 session, to make available to the public the known topics to be discussed and whether the public body expects any portion of the meeting to be closed. Subsection (b) provides that, if the public body is unable to comply with subsection (a) because the meeting was scheduled in response to an emergency or other unanticipated situation, it must, on request, make available an agenda of the meeting within a reasonable time after the meeting occurs. Section 3-305, which is to be strictly construed in favor of open meetings, expressly permits a public body to meet in closed session for certain enumerated purposes, including “consult[ing] with counsel to obtain legal advice.” Finally, § 3-306 requires a public body either to record its sessions electronically or have minutes of its sessions prepared and made subject to public inspection “as soon as practicable” after the meeting and, in § 3-306(c), specifies what must be included in the minutes.3 Subtitle 4, consisting of §§ 3-401 and 3-402, provides for the enforcement of OMA. Section 3-401(b) permits any person to file a petition in the Circuit Court that asks the court (1) to determine the applicability of the relevant provisions in Subtitle 3, (2) to require the public body to comply with those provisions, and (3) to void the action of the public body.

Subsection (c) expresses a presumption that the public body did not violate OMA and places the burden of proving a violation on the petitioner. 3 We have omitted mention of § 3-304, which deals with interpreters, because it has no relevance to this case. 3 Section 3-401(d) permits the court, among other things, to issue an injunction, declare the final action of the public body void if it finds “that the public body willfully failed to comply with §3-301, §3-302, § 3-303, or § 3-306(c) of this title and that no other remedy is adequate,” and assess against any party reasonable counsel fees and other litigation expenses that the party who prevails in the action has incurred. Section 3-402 provides, in addition, for civil penalties against a public body that “willfully meets with knowledge that the meeting is being held in violation of this subtitle . . .” FACTUAL BACKGROUND What triggered this case was a proposed ordinance pending before the City Council that would enact a Code of Ethics for elected officials (Ordinance 22-2016). There also was a proposed charter amendment that provided for the removal of elected officials that was pending a review to determine whether a sufficient number of valid signatures had been collected to submit the proposal to referendum. Petitioner seemed to believe that that function would be performed by the members of the Council.

One of the then-Council members, Donald Frazier, who was petitioner’s husband, vehemently objected to both proposals. On May 25, 2016, Daniel Cox, an attorney for Mr. Frazier, wrote to the City Attorney Jay Gullo, insisting that the signatures on the proposed charter amendment be counted at an open meeting, presumably of the Council. 4 On June 4 The signatures were, in fact, verified by employees of the City, not the Council, in a nonpublic session. A protestant complained to the Open Meetings Compliance Board, 4 16, 2016, Mr. Cox addressed a letter to Mayor James McCarron and the Council insisting that the proposed ordinance be withdrawn and serving notice that “all necessary and proper legal steps will be taken to protect the legal rights of Americans and my client.” Mr. Frazier distributed a copy of that letter to each member of the Council. The implication taken by the Mayor and Council was that, if the Council enacted the ordinance, it or the City would be sued by Mr. Frazier.

On June 17, upon receipt of Mr. Cox’s letter, Mayor McCarron sent an e-mail to the members of the Council and other selected City officials calling a “special executive session of the Mayor and Council” at 7:00 p.m. on June 22 in the Council Chambers at City Hall to discuss a legal matter with the City Attorney. On June 20, Mr. Gullo responded to the two letters from Mr. Cox, informing him that, pursuant to GP § 3-305(b)(7), the Council would be meeting in closed session at 7:00 p.m. on June 22 for the purpose of consulting with Mr. Gullo to obtain legal advice. Mr. Gullo advised Mr. Cox that it would be inappropriate for Mr. Frazier to attend the meeting and be party to discussions of legal matters concerning a claim he may make against the City. At Mr. Gullo’s instruction, City Clerk Clara Kalman posted a notice of the closed meeting and its purpose on the City’s public bulletin boards on June 20 and directed the City’s information technology specialist to post it as well on the City’s website.

The notice did not mention any open meeting at which the question of going into closed session would be considered. which issued an opinion concluding that the employees did not constitute a public body and thus were not subject to OMA. That does not appear to be an issue in this appeal. 5 Just before 7:00 p.m., two members of the public – Ms. Frazier and Katherine Adelaide – appeared at City Hall for the purpose of attending the meeting. Both were turned away by Lisa Harvey, an administrative assistant with the City, who informed them that the meeting was closed. Ms. Harvey later testified that she had no training in OMA.

She worked for the City Manager and said that her duties as an administrative aide dealt predominantly with water and sewer billing. She happened to be at City Hall that evening working on a project with other co-workers. The project, coincidentally, was qualifying the signatures on the proposed Charter amendment. Four of the five members of the Council participated in the closed meeting, one by telephone.

Mr. Frazier was not present; apart from Mr. Gullo’s suggestion that it would be inappropriate for him to attend, he happened to be in Africa at the time. Also present were Mayor McCarron, Henry Heine (the City Manager), and Mr. Gullo, the City Attorney. In his testimony before the Circuit Court, Mayor McCarron noted that the Council usually meets twice a month, that it had met last on June 13, and that it was not scheduled to meet again until the first week in July. In light of what he and Mr. Gullo regarded as imminent threatened litigation, he felt it important to get legal advice prior to the July meeting.

That is why he asked for the special meeting on June 22 which, because it was solely to get legal advice, could properly be closed under § 3-305(b)(7). He acknowledged that, in order to close a meeting, the Council would need to convene first in open session and adopt a motion to close the meeting and that the public was entitled under OMA to notice of the open meeting. The Mayor testified that there was a brief open meeting on the 6 22nd, immediately before the closed session, and that the only matter considered at that session was whether to close the meeting. Mr. Gullo took notes at the closed session and eventually turned them over to the City Clerk to type up on a form recommended by the Attorney General for public bodies.

He said that, because he went out of town following the meeting, he was unable to do that until July 5. The minutes ultimately prepared neglected to mention the presence of the Mayor, which Mr. Gullo said was an oversight. The minutes were reviewed by the Council at its August 3, 2011 meeting and became public at that time. Petitioner’s amended complaint alleged the following OMA violations: (1) § 3-301 by failing to hold an open meeting at which the public could observe the deliberations leading to the decision to go into closed session; (2) § 3-302 by failing to give advance notice of both the required open meeting and the closed session; (3) § 3-303 by denying the public the right to attend an open meeting at which the proposed closed session could be voted on; (4) § 3-305(d)(2)(i) by failing to hold a recorded vote conducted by a presiding officer at an open meeting before going into closed session; (5) § 3-305(d)(2)(ii) by the presiding officer’s failure, prior to going into closed session, to make a written statement of the reason for closing the session and of the topics to be discussed; 7 (6) § 3-305(d)(3) by failing to conduct an open session to make a written statement and take the vote before going into closed session; (7) § 3-306(c)(2) and § 3-104 by failing to have written minutes of the closed session available for consideration at the Council’s next open meeting on July 6, 2011; (8) § 3-306(c)(2) and § 3-104 by failing on July 11 to have written minutes of the closed session for consideration at its next meeting on August 3, 2011; and (9) § 3-306(c)(2) and § 3-104 by failing on August 3, 2011 to produce any statement by the presiding officer of the reasons for closing the June 22 session and the topics discussed at that session.5 At the conclusion of petitioner’s case, the Circuit Court, in extemporaneous remarks from the bench, announced its findings regarding the alleged violations.

In summary, the court: 5 Although not mentioned in her amended complaint, petitioner argued to the trial court and argues to us that the supposedly closed session was not a legitimate closed session because the City Manager, Mr. Heine, was present. In light of our ultimate conclusion, this argument may well be moot, but, as we are attempting in this Opinion to provide some clarification to OMA and as the point was presented to the trial court and to us and could arise again, we shall address it and summarily reject it. The closed session was solely for the purpose of consulting with counsel. That was not in dispute.

The Mayor and Council members obviously and reasonably believed that the City Manager, who would have a clear role to play in the event of any litigation, was a necessary participant in that conversation. A closed session is one that “is not open to the public,” one that the public is not allowed to observe (emphasis added). GP §§ 3-104, 3- 102. The presence of an individual who is not a member of the public body but is reasonably believed to be necessary or helpful to the purpose for which a closed session is permissible under OMA does not convert a proper closed session into an unlawful one.

Indeed, most, if not all, of the permissible purposes listed in GP § 3-305 for a closed session contemplate that consultants, staff persons, or others may be present. 8 (1) credited the Mayor’s testimony, which the court believed was corroborated by the councilmembers and Mr. Heine that there was, in fact, an open meeting prior to the closed session at which the Mayor, as the presiding officer, took a vote to go into closed session and, accordingly, found no violation of § 3-301; (2) found that the public was not told that there would be an open meeting that they could attend and observe the discussion regarding the decision to close the session and that §