Craig O'Donnell MDTA Series

8/2/2019 Craig O'Donnell MDTA Series

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Maryland Transportation Authority Series

Violations of the Open Meetings Act and Troubles with Transparency

By: [email protected]

Note: The first requests for meeting minutes from the MDTA was in November, 2009. After months oftrying to work with them, we finally began logging Open Meetings Act violations and filing complaintswith the Open Meetings Compliance Board.

It is impossible to have a third party mediate Public Information Act disputes, because there is no boardset up to do so.

September 2, 2010Lawmakers' comments redacted

December 16, 2010State panel: Meeting minutes should not have been redacted

January 27, 2011After complaint made, MDTA makes minutes more accessible

February 24, 2011MDTA continues to redact minutes

March 17, 2011Panel: MDTA violated open meetings law

April 14, 2011Questions remain about the availability of MDTA minutes

April 21, 2011Investigative Report: Public information request seeks investment minutes

June 2, 2011Compliance board: MDTA violated state sunshine law

July 14, 2011Analysis: Sifting through the bridge toll numbers it's confusing

July 21, 2011Compliance board: MDTA panel violated open meeting law

August 4, 2011Panel cautions MDTA about private company board

December 1, 2011Complaint filed against MDTA [Capital and Finance Committees]

December 8, 2011MDTA disagrees with a compliance board opinion


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Feb. 9, 2012Panel rules MDTA can't withhold old minutes

February 16, 2012More MDTA violations cited by state compliance panel

September 2, 2010Lawmakers' comments redactedBy CRAIG O'DONNELL

CHESTERTOWN -- Jack Broderick, candidate for Queen Anne's commissioner, said something secreton March 4, 2009.

It was at a public meeting of the Bay Bridge Reconstruction Advisory Group. He has chaired the 10-member BBRAG for five years.

Broderick says it wasn't secret at all. But Ron Freeland, recently retired Maryland Transportation Au-thority secretary, acted on his own by blacking out Broderick's comments from public meeting minutes.

When he did it, he claimed the Public Information Act allowed him to remove selected sentences. Free-land was an administrator, not a BBRAG member, and such a claim is dubious.

State law does allow keeping certain information private, but even when it falls into those categories,the MDTA has to give specific reasons for censoring something Freeland never did. He also claimed"executive privilege" over minutes of a public body.

After months of trying to get full BBRAG minutes from the MDTA, Broderick was contacted in July. Acomputer crash wiped out his electronic documents last year, he said at the time. Then he tried to help

the Kent County News get fresh uncensored minutes. He asked for electronic copies and the MDTAtold him not to distribute public information to anyone. Instead, last week Broderick read from someprinted minutes he located in his own files.

Not only were parts of public minutes hidden from the public; an MDTA lawyer told Broderick in Julyhe could not give out public information the minutes which his committee approved and he signed, aschairman, all in public meetings. The lawyer's reason? Freeland said not to.

In July, Broderick called Gail Moran, his MDTA contact, and asked for electronic copies of minutes.Freeland, through one of his lawyers, said they wouldn't give him any.

Last week Broderick said, "At first (Moran) said yes, then she called back and said, 'There may be a

problem getting the minutes to you. It looks like the legal office doesn't want you to give them out.'"

Later, he got e-mail. It included a message from Sherita Harrison, assistant attorney general assigned asan MDTA lawyer.

Broderick read the July 23 e-mail last week, which said in part, "Please do not provide BBRAG min-utes to Craig O'Donnell. I have forwarded to Mr. Freeland a copy of your e-mail ... (he) has advised meto inform you that the MDTA is the custodian of the records for the BBRAG minutes and as such he


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should not provide copies to Mr. O'Donnell and should forward the request to the MDTA to respondaccordingly.

"Thus he should not seek copies ... from other BBRAG members to provide to Mr. O'Donnell."

In other words, no, the chairman can't have copies of public documents, and he can't give anyone pub-

lic documents.

And yet if the MDTA posted all minutes on its website, as many tiny towns and most counties do, thisstruggle would never have begun.

What's So Secret?

None of what Broderick read is blockbuster stuff. There's no personal information. In one case, Free-land's name was removed twice.

The General Assembly was very upset about an MDTA toll hike in early 2009. A truck toll increase"happened very quickly, everybody was upset," Broderick said. "Ron had orders from higher up. It ba-

sically moved out very fast."

On March 9, 2009 Broderick told BBRAG members about legislative committee public hearings.

Freeland's version of the March 9 minutes say "Mr. Broderick said that he had attended a recent hear-ing at the Maryland State Budget and Taxation Committee, where several bills introduced by SenatorPipkin were heard."

Four lines are black, then "(He) said that he did not see the General Assembly warming up to the billheard that would prohibit toll increases without legislative approval."

What are the secret lines? They are: "... Ron Freeland was apologetic about the short time span" before

the toll hike, and "He said Mr. Freeland has recommended a 60-day period" (between proposing a hikeand putting it in place).

Pipkin, Smigiel Blacked Out

Those weren't the only lines that were blacked out.

At a 2008 meeting, parts having to do with safety questions raised by Sen. E.J. Pipkin and DelegateMike Smigiel were given the blackout treatment. On Aug. 10, 2008, the bay bridge's soundness cameinto question when a semitrailer broke the side wall, killing the driver.

In Freeland's version, the BBRAG Sept. 3, 2008 meeting after the accident was had three large black-

outs. Pipkin and Smigiel came to question MDTA officials about the wreck. It appears there was an at-tempt to prevent the public from seeing criticism expressed in a public forum.

There are 20 lines blacked out, which Broderick read on the phone. The missing words are in italics:

"A vehicle crash between a sedan and tractor trailer on August 10 resulted in the death of the tractortrailer driver when his vehicle crashed through the south parapet on the eastern shore side of the east-bound span.


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"MDTA staff and engineering experts quickly began a thorough inspection of the bridge using x-ray ...of the internal metal supports and identified areas where (internal supports were corroded).

"Acting on this finding, Secretary of Transportation and Maryland Transportation Authority ChairmanJohn Porcari ordered an immediate closure of the right lane.

"The lane closure could provide needed safety to those traveling on the bridge also allowed (staff) toreinforce the supports and provide additional safety to the span. It was announced the lane closurecould take up to 10 weeks depending on what was found."

Further along, missing text is about how, "Citing repeated assurances of bridge safety ... Pipkin strong-ly pressed for an outside inspection" and said Pipkin had contacted Gov. Martin O'Malley.

Then "Delegate Michael Smigiel asked whether school buses are safe ... Mr. Kolberg indicated he didnot know the answer ... he would answer later." Geoffrey Kolberg was MDTA chief engineer at thetime.

Broderick said last week, "It baffles me why this was redacted. It was all a matter of press releases and

open dialogue at the time. This was all public."

MDTA's own press releases, in other words, said what was deliberately withheld two years later. Thereleases went out Aug. 26 and Sept. 8, 2008. In part they say: "The MDTA began today's repairs afterultrasonic and ground penetrating radar (GPR) testing of the parapet in the right lane near the EasternShore indicated corrosion of reinforcing steel bolts encased in the concrete barrier. ... The repairs weare starting today will restore the strength of the parapet ... The corrosion is a direct result of voids inthe center of the concrete parapet, where moisture has become trapped."

Before redecking began about four years ago, the BBRAG was set up to hold open meetings for citi-zens to bring complaints and concerns and have issues directly addressed. Broderick called theBBRAG's five-year existence "a good-news story. It bothers me (the MDTA) would take such an offen-

sive angle to something that worked well."

And there isn't any consistency to the black marks. Two sentences (March 5, 2008) about speed radaralso got the marker. The secret? "Police occupy the bridge lane that has already been closed ... (theyare) behind an attenuator truck to provide protection."

Something about jersey barriers is under a very large black square on Oct. 1, 2008, but Broderickdoesn't have a paper copy to check. There are 15 or 16 lines gone from a paragraph that begins: "Mr.Cimino was asked about installing jersey walls between the lanes of the bridge." Ken Cimino was anMDTA official.

The struggle to get full, uncensored minutes of MDTA committees including BBRAG, the MDTA

Board, and its subcommittees, stretches back to November 2009. In the spring, two 36th District dele-gates, Dick Sossi and Smigiel, became involved. Sossi was instrumental getting a sheaf of meetingdocuments the MDTA refused to release.

Meanwhile, Smigiel did not believe Freeland had a right to do more than turn over the minutes as writ-ten. After exchanging several letters, on Aug. 17 he wrote to Freeland, "... (you say) you have workedwith your department's attorneys to provide those minutes in a redacted form. I would like to knowwhat they told you was the reasoning behind this (and the) statute chapter and section" authorizingredaction of anything from public meeting minutes.


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Minutes are a summary and "There should be nothing ... that would have personally identifying infor-mation such as a social security number or driver's license number since that would defeat the purposeof the summary in and of itself."

After getting what he called "a runaround" from MDTA officials, he received a letter from the Office of

the Attorney General. It doesn't agree either.

On Aug. 24, Kathryn Rowe, assistant attorney general in the Office of Counsel to the General Assem-bly, wrote to Smigiel, "You have asked ... whether a public body may redact material from minutes ofan open meeting when providing them to a member of the public. It is my view that it may not."

In other words, public meeting minutes are not to be tampered with once they have been approved. Sheadded, "... the Public Information Act has been interpreted to always defer to other laws governing thedisclosure of specific records. ... Once material from an open session is included in the minutes, how-ever, it is my view that it may not be redacted prior to disclosure."

The Open Meetings Act already provides a way to talk about confidential topics in a "closed session."

Sensitive information is kept out of minutes that way.

As for the MDTA's response, Freeland could not be reached. Press office contact Kelly Melhem did notreturn phone calls.

Harrison, contacted several times over many months, said she would not answer questions, claiming"attorney-client privilege." Her e-mails have been legalistic and uninformative. MDTA Principal Coun-sel Valerie Smith did not want to speak on the phone last week.

After nine months, the MDTA has never sent uncensored copies of the minutes, and the Kent CountyNews filed another formal records request for them Aug 30.

The Maryland State Archives website describes BBRAG as "Appointed by Executive Secretary in con-sultation with Chair, Maryland Transportation Authority: John E. (Jack) Broderick, Chair; LarryBrown; Nick Deoudes; Anne S. Ferro; Dolores Green; Barbara Hitchings; Randy Landis; Tracy Schulz;Barbara Span Obert; Nancy Wright." Moran is the MDTA staff member assigned to it.

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December 16, 2010State panel: Meeting minutes should not have been redactedBy CRAIG O'DONNELL

CHESTERTOWN -- The battle for uncensored minutes from the Maryland Transportation Authority

appears to have ended.

The Open Meetings Compliance Board wrote, Nov. 30, that meeting minutes cannot have sections re-moved, cannot be censored, or have anything "redacted," that is, blacked out.

Over the past year, the Kent County News has investigated whether the Maryland Transportation Au-thority was keeping proper meeting minutes for its board and several other committees and makingthem easily available to the public, as the Maryland Open Meetings Act requires.


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An OMCB opinion earlier in the year found the MDTA was in violation of state law because its boardminutes and other required meeting documents were not immediately available to anyone who came totheir office to review them.

For months, MDTA Executive Director Ron Freeland claimed he could remove parts of published min-utes because of "executive privilege." When Freeland resigned in August to take a private-sector job,

Deputy Transportation Secretary Harold Bartlett took over as acting MDTA executive director.

After a report describing the nine-month battle for minutes from the Bay Bridge Reconstruction Advi-sory Committee was published in early September in the Kent County News and the Star Democrat,the agency has begun putting MDTA Board minutes on its website www.mdta.maryland. gov/Meet-ingSchedules/MeetingSchedules.html. Bartlett sent uncensored BBRAG minutes to the newspaper inSeptember.

First Request was in 2009

The MDTA was asked a year ago for copies of minutes and closing statements describing closed-doormeetings. (The MDTA didn't have any minutes of any board or committee operating under its direction

posted on its extensive website). The staff could not find meeting documents and refused to providethem without a written Public Information Act request.

This caused the paper to file its first complaint with the Open Meetings Compliance Board.

Writing on June 8, the compliance board said the MDTA violated the law when it could not producematerials upon request: "Apparently, the relevant documents existed. However, had someone visitedthe Authority to review the closing statements ..., it is obvious that the documents could not have beenreadily produced."

Also, the law says meeting minutes and recordings must be kept for a minimum of a year. The MDTA'sattorney, Sherita Harrison, claimed this means minutes older than a year don't have to be available to

the public.

The compliance board did not buy that: we "disagree with the Authority's suggestion that, should apublic body choose to retain copies for a longer period, the right of the public to review these docu-ments under the Act is somehow extinguished."

Second Request Made

Next the newspaper asked for minutes from the BBRAG and the Bay Bridge Peer Review Group, acommittee of highway experts who reviewed the MDTA's operations following a fatal August 2008tractor-trailer crash on the bay bridge.

When papers arrived, the BBRAG minutes had parts blacked out. The newspaper was charged 47 centsa page for copies, plus postage. (The Public Information Act makes it difficult to fight excessively highcopying charges levied by state bureaucrats).

Through its attorney, Harrison, the MDTA declined to write or say anything about the Peer ReviewGroup. No minutes were provided, in fact, no information at all, and she did not mention the commit-tee in her response to the paper's public information filing.

This resulted in the second written open meetings complaint, one resolved Nov. 30.


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Although Harrison claimed the MDTA could black out sections of minutes if someone asked forcopies, the compliance board said "a privilege cannot be applied after the fact."

Once minutes are approved, they are fixed. A council or committee has the option, at the time they talkabout something, to have a closed session and talk over certain kinds of business. If they choose not to,

the public meeting record (minutes, tapes, videos) cannot be altered after the fact.

The board wrote: "We want to clarify our recent opinion ... any person has a right to visit the office of apublic body to inspect approved minutes of an open meeting and written closing statements. ... a personshould not need to submit a written request" for copies of minutes or closing statements.

"We also held that the right to copies of minutes is governed by the Public Information Act ..." Theysaid their concern was for copies made on paper on a copying machine, and "that the agency should nothave to subsidize an extensive volume of copying." Except, if someone asks for a copy of written clos-ing statements at the time of a meeting, they should be provided ASAP, they said.

In arguing the MDTA's position, Harrison claimed the Public Information Act would let them remove

anything they wanted from copies of minutes. The compliance board said no.

"We did not hold that the content of minutes of public meetings governed by the Open Meetings Actwas subject to redaction under the Public Information Act ... (and) provisions governing access torecords under the Public Information Act defer to other law," they wrote.

"In this instance, the Open Meetings Act provides that minutes of open meetings are accessible to thepublic. Stated otherwise, a copy of the document provided to a requester should look no different thanhad the requester visited the office of the public body where the requester would be entitled to reviewapproved minutes of open meetings at any time during ordinary business hours.

"If a matter was discussed in an open session governed by the Open Meetings Act even if the meeting

could have been closed (but) the public body did not elect to do so the minutes of that meeting areavailable to the public. A privilege cannot be applied after the fact."

The censored minutes were of BBRAG meetings on Mar. 5, Sept. 3, and Oct. 1, 2008 and Mar. 4, 2009.The blackouts included public comments in a public meeting by 36th District General Assembly mem-bers.

A Loophole Fixed

The Kent County News, in its second filing with the compliance board, held that the BBRAG was acitizens' advisory board made up of citizens and meeting publicly, and it is a "public body" and had tofollow the Open Meetings Act.

However the compliance board said Nov. 30 that it was not automatically a "public body" until Oct. 1,2009, so the early BBRAG minutes were not governed by the Open Meetings Act.

Last year an amendment went into effect to make the BBRAG and other committees like it legally a"public body" as soon as they are formed. It fixed a technical loophole which put committees likeBBRAG in public-document and meeting limbo.


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However, there has never been anything in the Open Meetings Act to prevent any agency from declar-ing, as part of a committee's organizing bylaws, that it will adhere to the Open Meetings Act. That ap-pears to be rare.

The Open Meetings Compliance Board also ruled in November that the MDTA did not provide themwith adequate information about the Peer Review Group: "we find that the response failed to satisfy"

what the law requires.

A written complaint to find out what happened to Peer Review Group minutes, when it met, and if thepublic was allowed to attend its meetings has been filed.

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January 27, 2011After complaint made, MDTA makes minutes more accessibleBy CRAIG O'DONNELL

CHESTERTOWN -- Following an investigation into its meeting records reported in the Kent County

News and The Star Democrat this fall, the Maryland Transportation Authority has made schedules andminutes more accessible to the public.

And in a Jan. 21 written response to a recent Open Meetings Act complaint, the MDTA says it failed tofollow the law for meetings of its 2008-09 "Peer Review Group."

The expert panel was created by Gov. Martin O'Malley on Sept. 5, 2008. In the wake of the fatal Au-gust 2008 bay bridge truck crash, it met to review the MDTA's inspection and maintenance proceduresand issue a report.

The Peer Review Group was one of several MDTA committees which were operating without publicnotice of meetings. This has been partially corrected.

In December, the agency's website "Public Meetings Archive" was expanded to include minutes andmeeting schedules (at www.mdta.maryland.gov/MeetingSchedules/Minutes_Archive.html). Minutesfrom MDTA Board meetings begin with Aug. 25, 2010. They are current to Nov. 24. With the minutesare short "closing statements" to document any meetings closed to the public.

Since at least 2007 the "Capital" and "Finance" subcommittees vetted or approved contracts, bondsales, and did other public business without notice of when and where meetings were held. TheMDTA's annual revenues are about $400 million. It is in charge of toll roads, tunnels and bridges andthe Intercounty Connector. It owns the Canton Development Company, which owns the Canton Rail-road at the Seagirt Marine Terminal.

In early 2010, the Kent County News asked for fall 2009 subcommittee minutes. The MDTA demand-ed a written request, and then blacked out large sections of what was sent. Initially, Kelly Melhem inthe MDTA public relations office said the two committees did not have to notify the public of meetingsbecause each has only four members, which is not a quorum of the MDTA board.

However, the Open Meetings Act treats formal subcommittees like these as standalone public bodies.They must follow the same transparency rules as the full board.


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At the Nov. 24 board meeting acting Executive Secretary Harold Bartlett introduced a resolution con-firming the two are "public bodies" and will comply with the Open Meetings Act. That means propernotice for all meetings and no censored minutes.

As of the end of January, Dec. 2 Capital Committee minutes and Dec. 9 Finance Committee minutesare also on the web. The Capital Committee's next two meetings are Feb. 3 and March 3; the Finance

Committee's are Feb. 10 and March 10. They meet at 9 a.m. at 2310 Broening Highway, Baltimore.

A year ago, this information was not on the website. The MDTA charged 47 cents per page to mail pa-per copies of minutes.

Gaps Remain in Records

Despite positive moves in the last few months, there are many questions about what MDTA boards andcommittees debated during 2007-2009 - when members were discussing the controversial IntercountyConnector and trying to recover from the fatal August 2008 bay bridge tractor-trailer crash.

The Peer Review Group looked into bridge maintenance and inspection. Its final report is in electronic

format on the MDTA's website. Despite a written request in early 2010, then-executive secretary RonFreeland did not produce its minutes.

The minutes question was included in a written complaint to the Open Meetings Compliance Board,which ruled Nov. 30 that the MDTA did not provide them with adequate information: "we find that theresponse failed to satisfy" what the law requires in the way of an answer. MDTA's attorney, SheritaHarrison, wrote there was nothing to reveal because the Peer Review Group existed only for sixmonths ending in June 2009.

So, a follow-up was filed. The Kent County News alleged this committee fit the definition of a "publicbody;" that the MDTA kept no minutes and posted no public notice of its meetings; and held meetingsillegally closed to the public.

Harrison said this week in a written reply to the Compliance Board that the MDTA did not keep themeeting records.

She wrote: "The Authority never advised Mr. O'Donnell or the Board that the Peer Review Group wasnot a public body ... By definition under the Act, the Peer Review Group was a public body."

She then wrote there are no minutes or meeting notice records to provide: "the documents in questiondid not exist" when asked for in early 2010.

In short, it appears the MDTA board and executive secretary knew it had a public body, but kept meet-ings and minutes under wraps.

Bridge and tunnel inspection and maintenance is a compelling public safety issue. The public has everyright to listen to a discussion by a committee which has been formed to assess it.

Harrison wrote, "The Authority staff did not properly follow the Act ... however, its failure ... was notintentional or deliberate."

The Open Meetings Compliance Board will issue its opinion in the next few months.


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MDTA Board members are Peter J. Basso, the Rev. William C. Calhoun Sr., Mary Beyer Halsey,Louise P. Hoblitzell, Richard C. Mike Lewin, Michael J. Whitson, and Walter E. Woodford Jr.

Secretary of Transportation Beverley K. Swaim-Staley chairs the board, with veto power over all deci-sions.

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February 24, 2011MDTA continues to redact minutesBy CRAIG O'DONNELL

CHESTERTOWN -- The Maryland Transportation Authority is once again claiming it can censormeeting minutes.

An Open Meetings Compliance Board opinion made it clear in a Nov. 30 formal opinion that meetingminutes cannot have sections removed, cannot be censored, or have anything "redacted," that is,blacked out.

Last year, some Finance and Capital subcommittee minutes were provided to the Kent County News,but there were extensive blacked-out sections. Following the Nov. 30 opinion, the Kent County Newsrequested copies again.

Acting Executive Secretary Harold Bartlett, in a Feb. 10 letter, wrote that new copies of the subcom-mittee minutes for 2009-2010 were provided as a courtesy. The new copies contain only one three-lineblackout, in minutes of a Finance Committee meeting on Sept. 10, 2009.

However, the MDTA now says that the two subcommittees have never been "public bodies." In a Feb.14 letter to the compliance board, MDTA attorneys Valerie Smith and Sherita Harrison said there hadnever been a formal MDTA board resolution which created the two subcommittees.

Therefore, the MDTA's attorneys have written, the agency doesn't have to keep minutes (although itdoes), and it can censor whatever it provides to the public.

But, they stated, "By formal resolution ... November 24, 2010, the members of the Maryland Trans-portation Authority formally created the capital and finance committees for the purpose of makingthem subject to the Act."

The state's Open Meetings Act doesn't apply to any meeting records before that date, they claim, be-cause formal action like a board resolution is necessary to create a subcommittee that falls under theOpen Meetings Act.

Each subcommittee now consists of four members out of the eight-person MDTA board. (The boardwas expanded from six to eight members in 2007. The records are not entirely clear, but it appears thesubcommittees each had three members before then). Each subcommittee meets at least once a month.The full MDTA board meets once a month.

The agency argues that, since four of eight isn't a quorum, the subcommittee meetings aren't meetingsof the MDTA board itself.


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"Obviously, a Board that meets once a month cannot micro manage the hundreds of decisions and ac-tions that must be completed during the day to day operations of an entire State agency. ...," they wrote.

Instead, staff members make presentations to the two subcommittees, which then recommend whetherthe full board should approve or not at the monthly meeting.

"At the monthly meeting of the Authority Board conducted , each such item of business is representedto the entire Authority by Authority staff and, where applicable, associated contractors and public offi-cials. ... The entire Authority publicly votes to approve or disapprove each such item."

However, it appears that the MDTA board did enact formal resolutions concerning the Capital Commit-tee several years ago.

On March 14, 2007, the board discussed "proposed amendments to the ... Operating Policy" which in-cluded "Changes to the Organizational Chart ..."; "A provision allowing e-mail polls in addition to tele-phone polls"; "The addition of Exhibit 1, describing the structure for the Capital Committee; and Dele-gation to the Capital Committee the authority to approve contracts not to exceed $15 million ... whichwill be formalized in a Resolution to be proposed at the April Authority meeting."

On May 30, 2007, that resolution was unanimously and formally approved, even though the proposalin March met with general agreement.

On June 28, 2007, the MDTA board passed Resolution 07-06, which delegated contract approval au-thority up to $25 million to the Capital Committee. Later, in September 2008, the MDTA board adopt-ed another resolution concerning its operating policy which took in various changes to policies over aperiod of many years. That later resolution contained a detailed description, the same "Exhibit 1," ofthe Capital Committee's organization and duties. Also, the MDTA board members discussed creating asimilar document for the Finance Committee. Whether that was ever acted on is not clear from the pub-lic record.

The attorneys also claim that the eight members of the MDTA board are state employees, and would beexempted from the Open Meetings Act when taking part in a subcommittee meeting.

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March 17, 2011Panel: MDTA violated open meetings lawBy CRAIG O'DONNELL

CHESTERTOWN -- It's not easy to get simple answers to simple questions when you ask state gov-ernment.

Remember the 2008 bay bridge crash that killed a truck driver? Afterward, the safety of the MarylandTransportation Authority's bridges and tunnels came under fire and legislators asked whether structuralinspections were adequate. Gov. Martin O'Malley directed then-Transportation Secretary John Porcarito hire a panel of transportation specialists from outside the state to review what the MDTA had beendoing. By issuing the order, the governor created a public body.

As it turned out, the MDTA "Bridge and Tunnel Inspection Peer Review Panel" (or Peer ReviewGroup) met secretly for more than six months even though its activities fell squarely under the OpenMeetings Act. All that's known about its meetings is a single statement in the final report: "... a seven-


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member Panel of experts ... met extensively between October 2008 and May 2009." They were told toanswer the complex question, "Are bridge and tunnel inspections in Maryland good enough?" and theydid, issuing a June 1 final report.

The simple question was: "Where are the Peer Review Group minutes and when did they meet?"

The plain answer, after more than a year and three complaints filed with the Open Meetings Compli-ance Board, is "nowhere, and no one can say."

That's illegal, the compliance board said this month: "We find that the Peer Review Group violated theAct," the three-member board wrote in a March 10 opinion letter. Its members failed to keep meetingminutes, required by law, or advertise meetings. And, they wrote, "We encourage the staff of the Trans-portation Authority to consider carefully and adhere to the requirements of the Act, if called upon tostaff any future panels."

The search for Peer Review minutes began in December 2009 and isn't over.

Delegate Mike Smigiel, who was among those who questioned whether the MDTA's bridges are safe,

said Monday, "I think the system's broken if it takes that long with all that effort to get something froma government agency the law says they must provide."

First the MDTA demanded a written Public Information Act request (the OMCB has since stated noone can demand a written PIA request for meeting minutes). At the time, MDTA press contact KellyMelhem wrote, "These minutes currently are available in audio format. ... We can also make themavailable to you electronically once they are transcribed. We expect the transcription to take a couple ofweeks, due to the time of year."

But the MDTA's letter supplying the requested documents, on April 22, 2010, said nothing about PeerReview transcripts or minutes and none were provided.

In the other documents they sent, they censored large portions. This caused followup open meetings fil-ings taking issue with censored or unavailable minutes. In reply the MDTA's attorney said the agencycould censor minutes at will; and since the review group disbanded, they did not have to respond.

The compliance board was not convinced by this. In rulings in July and November 2010 they flatlysaid it could not censor minutes, and it didn't give enough explanation about the Peer Review Group:"We find that the response failed to satisfy" what the law requires from a public body after a complainthas been filed, they wrote.

In December 2010 the Kent County News specifically detailed how the Review Group met illegally ina third open meetings complaint. Assistant Attorney General Sherita Harrison gave the agency's posi-tion in a Jan. 21 letter, first, "The Authority never advised ... that the Peer Review Group was not a

public body ... by definition (it) was a public body." She said "the Authority staff did not properly fol-low the Act with regard to holding meeting of the Peer Review Group" but that wasn't "intentional ordeliberate."

Next, "The Authority ... does not have documents relating to the Peer Review Group." But since it"provided access to a detailed report" in July 2009 it doesn't matter no minutes were kept.


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Again, the compliance board was unconvinced. Its members wrote, "A final report, however compre-hensive, does not satisfy the requirements of the statute (and) even if a report issued at the end of apublic body's existence were to contain everything that would have appeared in minutes," it's no good.

The point of published minutes is to make "information available on a more timely basis. ... This maybe critical to those members of the public who wish to keep current on the activities of a public body,

when unable to attend its meetings."

Second, the board wrote, "tape recordings were made for approximately half of the panel's meetingsand were ultimately transcribed. ... a transcription that is created on a timely basis does satisfy the min-utes requirement" if it is approved and available to the public. Making them available would help satis-fy the law's requirements.

Cheryl Sparks, MDTA communications director, said Tuesday she would find out which transcripts areavailable.

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April 14Questions remain about the availability of MDTA minutes

CHESTERTOWN -- Since 2007, the Maryland Transportation Authority has held at least 30 differentdiscussions, behind closed doors and out of public view, to consider "the investment of public funds"or "the marketing of securities."

Each general category investment or bonds is among the 14 exceptions in the Maryland OpenMeetings Act. When correctly justified in advance, the MDTA or any public body can hold part of ameeting out of public view. These two exceptions are rarely used, but if properly used, closing a dis-cussion of bonds or investments meeting to the public is permitted.

The legal exception for talking about investments is known as "10-508(a)5" after the subsection of thelaw where it's found. For bonds, it's 10-508(a)6.

During any closed session the public body must keep minutes and approve them without delay. Butwith most of the 14 exceptions, closed session minutes can remain sealed from public scrutiny indefi-nitely, unless the public body votes to publish them.

Investments and securities are different. There's a sunshine requirement.

Tape recordings and minutes of closed-door conversations and decisions must be "unsealed" (placedinto the meeting records) "when the public body invests the funds" or "securities ... have been market-ed."

For example, if the MDTA discusses a bond sale in a closed session in October, it is expected to createminutes of the closed session and approve them at its November meeting. After it holds the bond salein December, the closed minutes should be open and available very shortly afterward.

The law, unfortunately, does not specify exactly how soon afterward or how the public body is to notifythe public when the records are unsealed.


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In a March 24 letter in response to an open meetings complaint filed by the Kent County News, theMDTA apparently relies on this vague wording. The letter claims, without providing details, that theboard has not violated the Open Meetings Act because the 30 sets of minutes are "available."

But the Kent County News reviewed four years of the board's published minutes. There is nothing inthem about when, or how, they were to be made available to the public.

The MDTA has annual revenues in excess of $400 million; controls the state's toll bridges and tollhighways; and has committed to spend at least $2.6 billion on the 18-mile Intercounty Connector.Some estimates put the price closer to $3.1 billion.

Although nominally independent of state government, the MDTA board chairman is the Secretary ofTransportation, with veto power over all decisions of the eight-member panel. Its investments and deci-sions to issue debt that must be repaid are clearly important for the public to understand.

The 30 closed sessions were overwhelmingly concerned with financing the multi-billion-dollar ICC.Most are described by generic phrases, such as "ICC funding, financial overview and forecast," "Inter-county connector funding" or "ICC Project."

Some are labeled "TIFIA" and others "GARVEE." These figure prominently in ICC financing. TIFIAloans are a form of federal credit pool for transportation projects. GARVEE means Grant AnticipationRevenue Vehicles. These bonds are repaid out of anticipated future federal funding.

Missing Minutes

After repeated requests in 2009-2010, the Kent County News got copies of MDTA board minutes fromJanuary 2007 to December 2010.

On 13 dates in 2007 the MDTA board members claimed, in closing their meeting, to be taking up in-vestment decisions or bond sales.

There were 10 in 2008, and six in 2009. Due to the sketchy descriptions in the published minutes, it re-mains unclear if there was more than one investment or bond-sales topic talked about in some of thesemeetings; there are at least 30 identified topics.

The descriptions are so general, it may be that some topics taken up in secret were not within the limitsof the investment-bond exceptions.

The total absence of any unsealed minutes from the materials sent by the MDTA in 2009-2010 resultedin the open meetings complaint filed several months ago.

Also, there may have been more closed sessions about investments or bonds in 2006, but the MDTA

has not provided its minutes for that year.

By 2010, the MDTA board was no longer using the "investment" or "bond issue" exceptions to talkabout its finances out of earshot of the public.

Discussion of them was in the hands of the four-member Finance Committee. In subcommittee meet-ings in April, May, June and July they vetted bond decisions and discussed bids from potential bondmanagers.


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Until November 2010, the MDTA's policy was that the public didn't need notice of its Capital and Fi-nance Committee meetings; and that neither committee had to issue minutes to the public.

Finance Committee meetings were not advertised or open to the public. Records show the full boardsimply ratified, unanimously, decisions made in the subcommittee.

The policy was changed following a series of open meetings complaints filed by the Kent CountyNews as part of an investigation of the Transportation Authority's meeting procedures.

The Open Meetings Compliance Board's opinion on the missing minutes of "investment" and "issuingsecurities" closed sessions is pending.

Since January 2011 the MDTA has been putting its Board, Capital Committee, and Finance Committeeminutes on its website, which is a great improvement for public access to information about its activi-ties.

The web page is www.mdta.maryland.gov/MeetingSchedules/Minutes_Archive.html.

==April 21, 2011Investigative ReportPublic information request seeks investment minutes

CHESTERTOWN -- To allow the public to track how public bodies make investment decisions or de-cide to issue bonds, the Open Meetings Act says minutes and tapes of closed sessions to talk about in-vesting money or issuing debt can be secret only until the investments are made.

A Kent County News investigation revealed that minutes of at least 30 closed session discussions ofbonds and investments by the Maryland Transportation Authority were apparently kept back when thenewspaper asked for complete meeting minutes from 2007-2010.

After discovering the MDTA board never acted to vote to unseal "investment" minutes, the Kent Coun-ty News submitted a Public Information Act request for them, plus any tapes of the 30 closed meetings.The law requires tape recordings to be unsealed along with the minutes.

In his April 1, 2010 response letter, Acting Executive Secretary Randolph Brown said he had decided afee waiver for the Kent County News "is not in the public interest." He said printed minutes would cost$16, and tape copies would cost nearly $800.

In an April 12 letter, he said the cost is calculated at $39.72 per hour for an employee to listen to thetapes and leave out parts that don't have to do with investments and bonds, plus $100 for "equipment tomake copies" and $9.98 for tapes.

Long before asking for the unsealed closed session minutes, the Kent County News focused on two in-vestments, approved behind closed doors on May 30, 2007. The MDTA cited 10-508(a)5, investmentof public funds, to hold the closed-door meeting. An Open Meetings Compliance Board complaint wasfiled several months ago. What the MDTA chose to print about those closed sessions was inadequate,the complaint alleged, and the "investment" exception did not apply. The OMCB's decision is pending.

One discussion apparently included amending a contract with the Maryland Port Authority, so to "in-vest" in a schooner: "members unanimously voted to contribute $164,000 to the Pride of Baltimore II


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for fiscal year 2007 by reducing the amount payable by the Maryland Port Administration to the Au-thority under the Seagirt Martine Terminal Operating Agreement by that amount."

Investing usually includes the expectation of a financial return, such as interest or dividends. It was adonation to a nonprofit organization, apparently without expecting any return. The Open Meetings Acthas no exception for talking about donating public money in secret; and amending a contract is not

something which can be done outside public view.

The second was a corporate charter amendment for the Canton Development Company: "membersunanimously consented to the articles of amendment of the Canton Development Company authorizingadditional shares by the (CDC) and delegated the authority to the Executive Secretary to execute theconsent document. Members want to continue to operate the railroad primarily as a service to the Portand to provide the benefit to the Port. This investment will be taken to the Board of Public Works."

The public minutes don't mention how many shares or how much money, or how the MDTA couldamend a corporate charter. According to Canton Railroad officials, $1,000,000 was transferred to therailroad to expand a switching district in Cecil County.

Information on the CDC is scarce. It is 100 percent owned by the MDTA, which bought a bankruptrailroad company 25 years ago for $875,000. At least one MDTA board member is on its board: WalterE. Woodford Jr. is chairman. The summary sounds like there was a policy discussion about what therailroad serves; and there doesn't appear to be an exception in the Open Meetings Act for a public bodyto amend a charter or discuss and vote on issuing stock.

The Open Meetings Act does not allow public bodies to pick an exception that's "close enough." Thetopic must clearly fall within one of the 14 categories.

Writing for the MDTA, Assistant Attorney General Sherita Harrison responded March 24, "the closedminutes were available to the public once the investment was made." She did not explain how the pub-lic would locate them or know when any given "investment was made." The response appears to say

the MDTA board doesn't have to inform the public, by board action, that minutes and tapes are avail-able on a particular date.

The MDTA response also said the CDC and Canton Railroad are private companies, despite beingowned 100 percent by the MDTA. Published records from CDC meetings might have showed the rea-soning behind the $1,000,000 transfer of funds. The reason and the amount doesn't appear in theMDTA's public record.

The Open Meetings Compliance Board has noted in the Maryland Open Meetings Manual: "Accordingto the Court of Special Appeals, a private corporation that 'was organized and has functioned as an ex-tension or sub-agency of the ... government' is a 'public body' under the Act."

The court wrote: "A private corporate form alone does not insure that the entity functions as a privatecorporation. When a private corporation is organized under government control and operated to carryon public business, it is acting, at least, in a quasi-governmental way. When it does, in light of the stat-ed purposes of the statute, it is unreasonable to conclude that such an entity can use the private corpo-rate form as a parasol to avoid the statutorily-imposed sunshine of the Open Meetings Act."

The OMCB Opinions Index, 1990 through mid-2010, has only one entry about 10-508(a)5 (invest-ment); none on 10-508(a)6 (marketing securities). Its sole comment, in January 2005, is "no opinionpossible" due to lack of information in a particular case.


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The OMCB asked the CDC for their response as well. In a brief reply, John C. Magness, CDC presi-dent and CEO, said it is a private company. An OMCB opinion on this question is pending.

==

June 2, 2011Compliance board: MDTA violated state sunshine lawBy CRAIG O'DONNELL

CHESTERTOWN -- It's been a rough couple of years for the Maryland Transportation Authority.

The MDTA is in charge of all toll roads, tunnels and bridges in the state. Its revenues are about $400million a year. In recent years it has taken on billions of dollars in loans to build the Inter-County Con-nector.

And it hasn't been following the law when it comes to open meetings and the public records of them.

In its latest ruling, the Open Meetings Compliance Board again said the MDTA has been holding ille-gal meetings over a very long time.

It said the authority's "Capital Committee" met illegally for more than three years starting in July 2007.

This is the second time recently when the MDTA has been found violating required public notice andminutes preparation sections of the Maryland Open Meetings Act for an extended period of time.

In a May 23 letter based on a January Open Meetings Act complaint filed by the Kent County News,the three-member Compliance Board said, "the Act did apply to, and was violated by, the Capital Com-mittee. We shall trust that the Authority's 2010 resolution that at least two of its committees will oper-ate in the open will assure public access to its entire deliberative process."

A Compliance Board opinion earlier this year said the "Peer Review Panel" appointed by the gover-nor's orders conducted illegal meetings from late 2008 until June 2009. There was no public notice,and there were no minutes published for the public. Responding to that complaint, the MDTA legal de-partment admitted the Peer Review Group was a public body and claimed that its final report was justas good as minutes.

Capital Committee

Between June 2007 and November 2010 the Capital Committee met about once a month. There was nopublic notice of dates, times or locations. It kept "meeting notes" but did not prepare and publish min-utes for the public.

When asked in 2009 and 2010 for minutes of the committee, the MDTA's legal staff claimed it did nothave to provide the "notes" in full and could censor any part of them.

In a pair of opinions in 2010, the Compliance Board instructed the MDTA that it cannot censor orredact anything from minutes of public meetings. The MDTA's lawyers unsuccessfully argued that thePublic Information Act lets the agency censor copies of minutes without any explanation beyond "ex-ecutive privilege."


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In response to the Kent County News investigation, Acting Secretary Harold Bartlett, since retired, hadthe MDTA Board adopt a formal resolution in November 2010. It recognized that its Finance and Capi-tal Committees were engaged in significant public business that the public was entitled to observe. Theresolution specifically said they would proceed under the Open Meetings Act in the future. However,that does not remedy past violations, according to the Compliance Board.

Both committees have been active for an unknown number of years. The Kent County News has paidfor copies of MDTA Board minutes from 2007 to 2010, and references to the two committees go backat least that far. Bartlett provided free copies of Finance and Capital Committee minutes back to Sep-tember, 2009 and said minutes in the future would be uploaded to a web page.

In a long analysis of the situation, the OMCB concluded the MDTA Board adopted Resolution 07-06 inJune 2007, laying out the makeup and authority of a three-member Capital Committee. There is a chartto detail its procurement authority versus the MDTA executive secretary's authority. For example, itsmembers could approve certain contracts up to $5 million.

In a set of complicated explanations, the MDTA's lawyer said Resolution 07-06 was not really a resolu-tion. Apparently, for over 20 years, the MDTA changed its bylaws, or "Operating Policy," many times

without following its own procedures. To change the Operating Policy requires a formal Resolution.That was often ignored.

Technically speaking, those amendments were invalid, although the MDTA apparently proceeded totreat them as if they had been adopted by the correct procedure.

The lawyer said, since there was a later resolution to ratify defective amendments dating from 1985 to2005, the Capital Committee resolution should be ignored. It was not included in this later correctiveresolution.

The OMCB did not agree, and concluded that the Capital Committee had been formally created, evenif the MDTA wanted to ignore the resolution it adopted in June 2007.

That triggered the public transparency requirements found in the Open Meetings Act.

And the MDTA Board never voted, in a later resolution, to nullify it.

There are also indications in the MDTA Board minutes that the Finance Committee was organized andoperating based on the Capital Committee outline.

Since the Finance Committee was never mentioned in a formally adopted resolution, however, theOMCB ruled that it was not subject to the Open Meetings Act. The members wrote, "Nevertheless, as ageneral matter, we do not believe the General Assembly intended that public bodies could operate outof the sunshine by apportioning their statutory powers among committees composed of fewer than a

quorum of their members. ... If the November 2010 resolution ... merely formalized a procedure bywhich the Finance Committee functioned as an arm of the Authority, we encourage the Authority not tostand on that formality with respect to content in the Committee's minutes" from its meetings in pastyears.

The MDTA claims it can charge for paper copies because of the Public Information Act, even though itis clear the authority uses Microsoft Word to create its documents. It apparently circulates electroniccopies of minutes to the eight members and Secretary of Transportation Beverly Swaim-Staley, who isthe MDTA Board Chairwoman.


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But it will not send PDF or Word files of the past minutes when requested. In an April 26 e-mail to theCompliance Board, MDTA Principal Counsel Valerie J. Smith repeatedly emphasized the MDTA was"voluntarily" posting minutes and closing statements on its website.

As of May 27, though, the closing statements had vanished without explanation from the Minutes Ar-

chive online at www.mdta.maryland.gov/MeetingSchedules/Minutes_Archive.html.

==July 14, 2011AnalysisBy Craig ODonnellSifting through the bridge toll numbers it's confusing

[Looked at the PR put out by MDTA about the Bay Bridge-Hatem Bridge toll increase, and used infla-tion-adjusted dollars to determine if the statements were accurate or not. Not specific to MDTA meet-ings and Board votes.]

==

July 21, 2011Compliance board: MDTA panel violated open meeting lawBy CRAIG O'DONNELL

CHESTERTOWN -- The Maryland Transportation Authority board of directors can't call donatingmoney an "investment."

When they did, and did it in a closed meeting, they broke the law.

It can't hold a shareholder's meeting behind closed doors and vote to issue stock to itself. When it didthat, it broke the law again. The MDTA did it twice in one closed meeting on a single day in 2007, theOpen Meetings Compliance Board ruled on June 27.

Since being confronted with censored MDTA public meeting minutes in 2009 and 2010, the KentCounty News has investigated how well the MDTA Board follows Maryland's public meetings law. Sofar, the results show its compliance is historically sketchy. The June 27 ruling is the latest in a stringwhere the OMCB found fault with the MDTA's handling of its public meetings.

Contacted last week, Cheryl Sparks, the MDTA's public relations director, did not reply to requests forcomment.

The normally low-profile board controls the Maryland Transportation Authority: about 1,200 employ-ees and $400 million in annual revenues. It has been in the news constantly since it voted, in June, tojack up toll charges on its bridges, tunnels and highways. Its members have faced more than 1,000 an-gry citizens in at least one public hearing on the toll proposal, 700 at another, and hundreds in Worces-ter County.

Only after a series of Kent County News Open Meetings Act complaints did the MDTA start puttingcomplete minutes and meeting dates on its website, last fall, so the public does not have to pay for pa-


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per copies. Meanwhile many smaller counties and towns have created informative websites or supplyminutes by e-mail and have done so for years.

The MDTA argued to the OMCB that it is entitled to censor meeting minutes. The attempt failed. Whenit blacked out passages in public documents, it violated the law, according to compliance board opin-ions in June and November 2010.

When a public body censors public documents and offers boilerplate recitation of "executive privilege"as the reason it can, it prompted closer scrutiny. The paper paid for minutes from 2007 and 2008, andinvestigated what the board reported during the four years 2007-2010. The examination so far revealedquestionable actions.

The meeting minutes of May 30, 2007 describe how the MDTA used the "investment of public funds"as the legal reason to bar the public from discussion of a donation to support the Pride of Baltimore IIsailing ship.

The parts of the state meetings law that permits confidential discussion of investments or bond salesare known as 10-508(a)5 and 10-508(a)6.

The minutes have few details, but it appears the board voted in secret to change a contract with theMaryland Port Administration so the Pride could dock for free or at a substantial discount. This was de-scribed as voting "to contribute $164,000 to the Pride of Baltimore II for fiscal year 2007."

In a response to the February complaint, the MDTA's attorney, Sherita D. Harrison, wrote that the com-plaint "alleges the discussions ... were 'impermissibly' held in closed session.

"The Authority properly completed a written closing statement. It properly created meeting minutes(and) both of those investments were legally and permissibly discussed in closed session .... As such,Mr. O'Donnell's confusion alone does not equate to an 'impermissible closing of a meeting.' and there-fore, he has not presented evidence of any violation of the Act."

The subject of the complaint was, however, whether a donation is an "investment," and whether votingto buy Canton Development stock from itself was truly an "investment."

The OMCB wrote that a charitable contribution isn't investment. "At first blush it would seem clearthat a 'contribution' to a private entity qualifying as a 501(c)3 organization ... is not the same as an 'in-vestment' of public funds." The OMCB said a closed-door meeting must be about "a concrete invest-ment possibility; it does not apply to discussion of the financing mechanism for contributing to a pro-motional endeavor."

And "permitting public bodies to discuss in closed sessions their voluntary contributions of publicfunds would not serve any purpose recognized by the Act (since) the transfer of funds is gratuitous."

As a result, "the word 'investment' does not include ... expenditure on either charitable contributions orpromotional activities."

In the same ruling, the MDTA board was told that it's illegal to conduct "corporate governance" in aclosed session. Behind closed doors, the MDTA voted to allow the Canton Development Company,which it owns 100 percent, to issue stock. During the 2007 closed meeting, the MDTA board membersvoted as the body representing the only shareholder to issue more CDC stock. This it later boughtfor $1,000,000 from itself.


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As sole stockholder, the MDTA board controls who serves on the one board of directors for the threecompanies: the Canton Development Company and the two railroads it owns.

So when the MDTA board used the "investment" exception to go behind closed doors and amend theCDC's bylaws to issue stock, it broke the law: "We find that MDTA violated the Act by discussing the

corporate governance of CDC in a session closed under the 'investment' exception." This is becausecorporate financing and governance are not included in any exception found in the Open Meetings Act.

==August 4, 2011Panel cautions MDTA about private company boardBy CRAIG O'DONNELL

CHESTERTOWN -- All aboard! The Maryland Transportation Authority has its own "family-ownedcompany" it owns every share of stock in two railroads.

And when it met behind closed doors in 2007 to vote to issue $1,000,000 of Canton Development

Company stock, and then buy it from itself, it violated the Open Meetings Act.

A recent Open Meetings Compliance Board opinion said they were shareholders conducting corporategovernance, not a state agency "investing" public funds, and should have done business in the open.

But is the Board of Directors of the MDTA-controlled CDC a public body which must advertise andhold public meetings? The MDTA's attorneys claim it is a private corporation.

Organizationally, it is. The MDTA bought a bankrupt private company in 1987. The office of Comp-troller Peter Franchot said the MDTA appears to be the only state agency that entirely owns a privatecorporation.

The CDC is a holding company for buildings, real estate, and railroads: the Canton RR, founded in1906, and Freestate Logistics in Cecil County, founded in 2007. Each has a board of directors made upof whoever is on the CDC board: the three boards are the same people.

CDC's board chairman is Walter Woodford, who has been an MDTA Board member for two decades.He is paid $300 per meeting.

The newest CDC director, Thomas Osborne, was appointed in Oct. 2007. He is "former Authority Ex-ecutive Secretary," according to the MDTA's minutes.

The others are: Vice Chairman Maurice E. Good; Frederick G. Davis; Thomas H. Kerwin; Porter K.Wheeler; JoAnne Zawitoski. Canton RR president John C. Magness is also a director.

In Oct. 2007, the entire CDC board was reappointed by the MDTA (acting as shareholder). Each mem-ber's term was extended by three years (in one case, out to 2013).

In the case of public-private partnerships, the OMCB quoted a 1999 Court of Appeals decision: "Topermit the government to operate outside the view of the public through private corporations ... is aninvitation to great mischief...."


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The OMCB wrote it appears the Canton Development Company/Canton RR/Freestate Logistics boardsare public bodies, since the companies carry out activities for public purposes and are completely con-trolled by the MDTA. The OMCB said, however, it did not have enough information on hand to decide.

In effect, the Canton Development Company and its two railroads are wholly-owned subsidiaries of theexecutive branch of Maryland's government.

It began when the late Gov. William Schaefer's Board of Public Works let the MDTA buy the bankruptcompany. Without it, the state would lose control of rail access to the Seagirt Marine Terminal thatport project was already underway. The MDTA paid either $875,000 or $1,625,000 for all the stock(records vary).

The MDTA is a nominally independent agency, tightly connected to the executive branch. Part of itsstaff is funded by the Maryland Department of Transportation. The MDTA Board is appointed by thegovernor; the MDTA Board chair is a cabinet member, the Secretary of Transportation.

While the MDTA Board votes on its decisions, the Secretary of Transportation as chairman has an ab-solute veto. So it is unlikely shareholder decisions the governor doesn't like would be allowed to take

effect.

Does this "private" corporation pay taxes? Or just certain taxes?

The comptroller's office said CDC tax data is private. However, in the MDTA's annual financial reportsof June 2006 and June 2007, a summary of CDC balance sheets indicates it paid "Income Tax $168,000" for calendar year 2005 and $144,000 for 2006. Other reports from 2001 to 2010 don't haveany info.

Property tax payments are unreported. Neither the Canton Railroad website nor the MDTA's websitehave information on the addresses of its holdings. The state Department of Assessments and Taxationwebsite does not allow search by owner.

The Canton RR apparently owns 11 locomotives, a caboose and eight boxcars. What Freestate Logis-tics owns and where it is located is unclear.

The MDTA gets an annual report from the "private" company. Cheryl Sparks, MDTA communicationsdirector, said in an e-mail, "The annual report has Freestate and Canton Railroad included in it."

Minutes from 2007-2011 mention the annual report just once. The MDTA has not placed copies on itsextensive website or in its own annual report.

So how does the MDTA Board carry out shareholder duties if the subject never comes up in its meet-ings?

Compliance board members Elizabeth Nilson, Courtney McKeldin and Julio Morales warned "a stock-holders' meeting comprised of a quorum of the MDTA (board) as stockholder" is a public meeting ofthe MDTA "because that quorum would be discussing the affairs of the entity it controls for public pur-poses."

The MDTA cannot say how many stockholder meetings have occurred between 1987 and 2011. Com-pany bylaws call for at least one a year. Asked about the past decade, Sparks wrote, "We do not have adocument that includes this information for 2000-2011."


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She wrote, "... updates are periodically given at the MDTA Board meetings. Monthly summaries aregiven to MDTA Board Members and CDC periodically attends the monthly MDTA Board meeting toprovide a verbal update. CDC updates would be provided by either John Magness of CDC or MemberWooford."

Beyond the May 2007 illegal meeting, the CDC is a topic in minutes four times in 4-1/2 years ofmonthly meetings.

==

December 1, 2011Complaint filed against MDTABy CRAIG O'DONNELL

CHESTERTOWN -- Were a half-dozen meetings held in 2011 by the Maryland Transportation Author-ity Board and its Finance and Capital committees completely legal? The Open Meetings ComplianceBoard expects to issue an opinion in December.

Typically, the two four-member committees meet once a month a few weeks before the eight-memberboard does. For the first time ever, committee meetings have been open to the public this year.However, it appears they have run afoul of some requirements in the Maryland Open Meetings Act.Exactly what topics were discussed behind closed doors between December 2010 and June 2011 is notentirely clear.

For years, the two committees operated in secret. Since the end of 2010, their meetings have beenopened to the public and their minutes published on the MDTA's website, www.mdta.maryland. gov.An investigation by the Kent County News in 2010 revealed that the two committees, which have ex-isted for many years, never advertised their meetings or made public their minutes. The MDTA hasnever specified when they were established; the MDTA itself has been in existence since 1971, when it

replaced the State Roads Commission.

Documents from 2007 to 2011 show its two committees regularly discussed significant contracts, poli-cies, bond issues, loans, and other matters in advance of the full board meetings and outside the publiceye.

In November 2010 the MDTA board passed a formal resolution ensuring its Finance Committee andCapital Committee meetings would abide by the Open Meetings Act. It provides for public notice andfor published minutes. It resolved a dispute where the MDTA claimed its committees aren't "publicbodies," so they did not have to allow the public into their meetings, provide notice, or publish min-utes.

In May, the Open Meetings Compliance Board issued opinion 7 OMCB 176, which clarified that theCapital Committee had been given specific duties in a 2007 resolution, making it a fully public body.On the other hand, the Finance Committee was never formally constituted, even though its four mem-bers were previewing all the authority's financial matters.

The OMCB suggested the Finance Committee was functioning as a public body and wrote: "... as ageneral matter, we do not believe that the General Assembly intended that public bodies could operateout of the sunshine by apportioning their statutory powers among committees composed of fewer thana quorum of their members."


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To see if the committees were operating entirely in the sunlight, the first six months of meeting recordswere examined in September. The law requires meeting minutes to disclose certain items of informa-tion in reasonable detail. Certain apparent short-comings resulted in a followup complaint.

A May 5 meeting billed as the four-member Capital Committee meeting turned out to have seven

MDTA board members listening to a staff presentation.

The complaint alleged seven members (a board quorum) made the gathering an unpublicized MDTAboard meeting, not the advertised Capital Committee meeting. Also, the MDTA board did not createand approve the legally required minutes afterwards.

Attorney Sherita Harrison, writing for the Authority's legal staff, replied, "MDTA held a Capital Com-mittee meeting on May 5, 2011. ... At the beginning of the meeting, Committee Chair Woodford an-nounced that three (3) members of the Finance Committee ... were present for the Systempreservation/I-95 Express Toll Lanes and the Proposed Draft FY 2012-2017 items, although they didnot participate in or take any action during the Capital Committee meeting."

She said it was not a closed meeting of the MDTA Board, and that the Open Meetings Act "recognizesthat a public body may discuss policy and take action during a closed session."

However, many Open Meetings Compliance Board opinions over the past two decades make it clearthat a meeting held without notice is a closed meeting.

In opinion 6 OMCB 47 of 2008, which involved the Kent County Planning Commission, the three-member compliance panel wrote, "Unless advance notice is given, a meeting is not in reality an openmeeting."

In 2010, it repeated: "Reasonable notice must be given .... Absent advance notice, it cannot be said thata meeting is in reality an 'open' meeting since the public would not be aware that a meeting was to oc-

cur. ...."

The state's Open Meetings Act Manual also makes it clear that legislative matters and policy delibera-tions are not to be handled behind closed doors. For example, there can be a confidential consultationwith an attorney on legal details, but "'the exception is a relatively narrow one, limited to the give-and-take between lawyer and client in the context of the bona fide rendering of advice.' Furthermore, 'oncethe legal advice is obtained, the public body may not remain in closed session to discuss policy issuesor other matters.'"

Too Broad?The complaint also alleges committees closed their doors to talk about some items which aren't underany of the Open Meetings Act's 14 specific exceptions.

For example, the Finance Committee held closed sessions on Feb. 10, April 14, and June 9. On theseoccasions, the complaint says, what went on is only vaguely described in the required public summary.Or, the exception claimed did not apply to what apparently was being decided.

The public was barred while the Finance Committee discussed "certain litigation;" "a draft Request forProposals" and "financial data;" a "potential claim relating to bonds;" and "negotiation with current op-erators ... over terms of the new 'gap' contracts for continued operation of the Plazas."


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Contracts are to be handled in public, and "negotiations" are not automatically privileged, according toprevious OMCB opinions. Similarly, it says phrases like "certain litigation" are far too vague to meananything. No secrets are revealed, for example, if a court case is identified (as in "Jones v. Doe.")

A Capital Committee closed session April 7, was for obtaining legal advice and discussing litigation on"the status and terms of a draft request for Proposals for the future redevelopment and operation of the

I-95 Travel Plaza." How litigation is involved with advertising a contract is left for the public to won-der about.

==

December 8, 2011MDTA disagrees with a compliance board opinionBy CRAIG O'DONNELL

CHESTERTOWN -- The Maryland Transportation Authority says it doesn't agree with the Open Meet-ings Compliance Board.

Attorney Sherita Harrison of the MDTA's legal staff wrote that the state toll-roads agency does notagree with a recent OMCB opinion, which defined the status of two longstanding subcommittees. Thecomment is in a written response to a September complaint filed by theKent County News.

Because a March 2007 resolution by the toll agency board outlined the four-member Capital Commit-tee's membership and powers, that subcommittee automatically became a public body, the OMCBruled May 23. Its meetings from 2007 to 2010 were in violation of the law since they happened withoutpublic notice and the meeting minutes were not available to the public.

The compliance board also noted that the four-member Finance Committee, while not the subject of asimilar formal resolution, performed a lot of heavy lifting each month in advance of full MDTA boardmeetings. Both subcommittees met without public notice for many years. Only in December 2010 did

they open their meetings to the public.

Certain legal actions create a public body a regulation, legislation, executive order or a resolution, forexample.

But, the OMCB pointed out, courts have said some committees and boards, based on the matters theyhandle and the work they do, are public bodies no matter how they were initially formed. The threemembers of the Compliance Board suggested that the best course was to have the Finance Committeealso operate under the Open Meetings Act, making past "meeting notes" available.

While the response says the MDTA board does not agree, it does not specify what the disagreement in-volves. The members themselves are not on record, and as far as can be determined from their meeting

minutes, have never discussed it in public.

Whatever they had to say was apparently taken up outside public view in a closed session for "legal ad-vice" on June 23.

The meeting record says the public was barred so the MDTA board could "consult with legal counsel toobtain advice regarding an Open Meetings Compliance Board decision issued May 23, 2011 regardingthe MDTA Capital and Finance Committees."


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However, the agenda for that day gives topics as "CLOSED SESSION 9 a.m. PIA Requests & OpenMeeting Compliance Board Issues."

The minutes don't indicate any closed-door discussion of Public Information Act requests. That maymean the subject did not come up, or that the minutes are flawed. It isn't clear whether the closed-doorconference was limited to advice on points of law.

The agenda was obtained through a Public Information Act request. The Kent County News asked forcopies of all agendas for 2007-2011 as part of a longstanding investigation. The newspaper complainthas alleged the Capital and Finance committees were used for years for in-depth discussions of matterssuch as ICC contracts and financing, and then their conclusions were debated in closed sessions of thefull MDTA board.

In such situations the followup public discussion and votes are termed "ceremonial" ratifications of de-cisions previously made outside public view.

From the public record it isn't clear why the MDTA board wanted legal advice in June. It didn't com-municate its disagreement to the Open Meetings Compliance Board following the ruling.

Compliance board attorney Ann MacNeille said her office had not gotten anything from the MDTAboard after May 23. "We routinely send complainants copies of responses that go to the substance ofallegations," she wrote in a Nov. 29 e-mail, "so I think you have what I have."

As far as differences between the agenda and minutes, Harrison said in a Dec. 5 e-mail, "We have ad-dressed Mr. O'Donnell's allegation that the June 23, 2011 was improperly closed and that the discussionwent beyond the grounds for closing in our prior response. Therefore, we will not provide any furtherargument on this issue. However ... if the OMCB requests any supplemental documentation relating tothis matter, we will provide it at that time."

The OMCB is expected to issue an opinion after the holidays, MacNeille said Tuesday.

The Transportation Authority is a nominally independent organization operating the state's toll roadsand toll bridges. Its financial obligations led to a controversial set of toll hikes that began Nov. 1 andwill be phased in over the next year in different places.

The nearly $3 billion price tag on the 18-mile Inter County Connector plus additional spending forwidening I-95 comes on top of maintenance costs for its toll bridges. The MDTA said it needed to in-crease tolls to pay the bills.

In a series of hearings held for public comment, Eastern Shore residents and elected officials objectedparticularly to steep increases on the Chesapeake Bay bridge and the Hatem bridge over the Susque-hanna River. General Assembly members from the 36th District charged that toll rates were set to pay

off ICC loans at the expense of Shore residents crossing the Chesapeake Bay to work or shop.

While a cabinet member, the Secretary of Transportation, chairs the MDTA board and has veto power,the General Assembly has no direct oversight of the Authority. This has been a frustration expressed bySen. E.J. Pipkin and Delegate Mike Smigiel, both Republicans of the 36th District.

Since an Aug. 10, 2008 crash on the Bay Bridge involving a Millington woman resulted in the death ofa truck driver, the Kent County News has monitored the MDTA's meeting policies, procedures, andwhat it reports to the public.


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The coverage of Open Meetings Act violations at the MDTA including censored meeting minutes resulted in a formal resolution of November 2010, confirming that the Finance and Capital committeesare public bodies.

The agency began putting their meeting notices on the MDTA's web page along with those for the Bay

Bridge Reconstruction Advisory Committee and the full MDTA board.

Also, minutes are now posted for the public athttp://www.mdta.maryland.gov/MeetingSchedules/Meetings_and_Minutes.html.

==

February 9, 2012Panel rules MDTA can't withhold old minutesBy CRAIG O'DONNELL

CHESTERTOWN In Groundhog Day, the movie, poor Bill Murray does the same thing again and

again and again until he figures out what he has to do right.

Just in time for Groundhog Day 2012, the Open Meetings Compliance Board again told the Mary-land Transportation Authority again that it cant use Marylands Public Information Act to blockpublic access to meeting minutes. (The Public Information Act allows an agency to set a price for doc-uments; in some cases the amount of money may simply be too much to pay).

The ruling stems from a Nov. 3 visit to the MDTA office on Broening Highway, Baltimore.

The three-member OMCB wrote Jan. 30: We state, again: (1) a public body may not treat an in-person request for inspection as a PIA request and (2) a person's right to inspect documents under theAct is not extinguished by the fact that the public body has retained minutes for longer than the reten-

tion period required by the Act. Not only is the MDTA repeating itself, but its public records vortexmeans regular complaints to the Compliance Board have been necessary.

The MDTA chairwoman is Secretary of Transportation Beverley Swaim-Staley. Efforts to reach herfor comment were unsuccessful. A call to her Customer Service Manager, Karen Saab, was not re-turned. Instead, Maryland Department of Transportation spokesman Jack Cahalan sent an e-mail to sayinquiries should be directed to the MDTA.

The MDTA did not respond by deadline time.

Back in June 2010, in a complaint filed because the MDTA blacked-out large portions of minutes, theCompliance Board shot down the same MDTA arguments -- anything older than one year could be cen-

sored as it saw fit.

The Open Meetings Act is clearly worded: anyone who goes to a government office is entitled to readmeeting documents then and there, without delay.Delegate Mike Smigiel of the 36th District said Tuesday, Its clear the agencys been rather obstreper-ous about providing documents. Its important that the press can come in (and look them over) and ex-plain to the citizens how the government works.


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He said, It takes a lot of gall to say, yes, we have them, but the time has run out, so we dont have togive them to you. Thats outside the spirit and intent of the law. Agencies should not be able to thwartthat access intended by the legislature.

In this case, visiting to read minutes involved a 180-mile, four-hour roundtrip to Baltimore.

As it turned out, some minutes which couldnt be gathered that day. The late executive assistant, CindyTaylor was asked for minutes books for 2005 and 2006 MDTA Board meetings, and minutes of 2007-08 Capital and Finance Committee meetings.

Old board minutes were in binders right on a shelf, and the reporter was able to read them and takenotes.

But the other papers would take some time to find, said Taylor. She said she would send paper copiesfree.

A few weeks later, the Maryland Transportation Authority said copies wouldnt be sent, and to get themelectronically would cost $307 to cover the salary, health benefits and pension of an unidentified per-

son who would have to work for six or seven hours to prepare everything.

That triggered in the written complaint from the newspaper.

As in the past, the MDTAs legal staff responded. The Dec. 20 e-mail said: Clearly, Mr. ODonnell ismaking another attempt to have the OMCB review alleged OMA violations relating to the Capital andFinance Committees However, this particular issue is a PIA issue and not an OMA issue as Mr.ODonnell is now attempting to allege.

That view is wrong, said the Compliance Board. If the meeting minutes arent on hand, there has to bea mutually satisfactory way to get them.

The e-mail said the November 3, 2011 request and subsequent follow-up email request for electroniccopies was treated as a PIA request. Mr. ODonnell was sent a cost estimate letter detailing the costrelated to the retrieval and preparation of the documents in response to his request. At no time didMDTA advise Mr. ODonnell that it did not have copies of the documents that he was seeking but in-stead advised him that his request for copies of those documents was subject to the PIA and would betreated as such.

Meanwhile, after filing the complaint, the newspaper asked for the $307 fee to be waived. That is oftendone for news media.

MDTA Executive Secretary Harold Bartlett repeated in a Jan. 9 letter that the Public Information Actpermitted them to charge and demanded $307. He denied the waiver, since he could not see how the

Kent County News would use the information.

He wrote, neither you nor the Kent County News has shown any connection between the documentssought and matter of genuine public concern or how the production of those documents will primarilybenefit the public. Additionally, during the last couple of years, you on behalf of the Kent CountyNews have made voluminous PIA requests to MOTA and have received countless numbers of docu-ments.


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It appears that censored meeting minutes, meetings held without public notice or minutes, and closedsessions that should have been open dont fit Bartletts idea of genuine public concern. Yet this is the14th article about the MDTAs meetings and noncompliance with the Open Meetings Act.

Bartletts decision didnt matter to the Compliance Board. A citizen cant be sent away and then con-tacted with a demand for payment, the OMCB ruled.

When Taylor said she would send paper copies free, the OMCB said, that was fair as long as theMDTA had kept its word: When a public body cannot fulfill a persons request for on-the-spot inspec-tion of old minutes, it may agree with that person to accommodate the request by providing copies rea-sonably promptly And, as we explained to the Authority in 2010, when a public body has trans-ferred meetings documents to storage, we would expect that the public body would agree to retrievesuch records if still in its custody within a reasonable period.

But, Such arrangements do not turn a person's [meeting documents] request into a PIA request.The Compliance Board concluded that the MDTA should supply Capital Committee minutes sinceMarch 2007 (the date of a formal resolution giving it approval powers).

It again said the Finance Committee was probably acting on matters serious enough that it too wouldpass the court test, known as Andys Ice Cream, which determines when a committee is a publicbody because of the business it conducts, and suggested its Meeting Notes be released.

The MDTA Board has eight members. Only seven seats are filled. Kent County resident Art Hock wasappointed to the board in October. According to the MDTA website, other members are Peter J. Basso,Rev. Dr. William C. Calhoun Sr., Mary Beyer Halsey, Michael J. Whitson, Walter E. Woodford Jr. andBradley Mims.

==

February 16, 2012

More MDTA violations cited by state compliance panelBy CRAIG O'DONNELL

CHESTERTOWN Seven members of the eight-person Maryland Transportation Authority boardwere in a room.

It sounds like the start of a joke, but no, it really happened, on May 5, 2011.

And thats a quorum, according to the Open Meetings Compliance Board, and almost anyone elseyoud care to ask. Just count noses.

Perhaps the joke is, the MDTA didnt see it that way. Seven of eight members werent a quorum, be-

cause the MDTA called it a Capital Committee meeting, replied the boards legal staff.

In the nine-page Opinion 8 OMCB 8 published Jan. 30, the Compliance Board addressed a series of is-sues.

First of all, its a meeting of the full board if three members from the Finance Committee happen to sitin to hear a presentation or briefing. It has never been necessary for a board or commission to plan tovote, in order to fall under the legal definition of a meeting. And a quorum, attending a meeting of an-other entity, is not exempt from the law either.


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The opinion provided citations at length. Briefly, the OMCB said, The fact that a quorum may havebeen created unexpectedly does not exempt the discussion of public business from the Act's require-ment that it be conducted openly.

Accordingly, we have concluded that a briefing on public business, even if limited in scope and de-

void of discussion, given to an accidental quorum of a public body's members, constituted a meetingas defined by the Act.

To be legally open requires proper public notice and, later, proper minutes neither were supplied bythe MDTA board on May 5.

The Kent County News filed complaints in the fall of 2011 as part of an ongoing investigation of theMDTA boards meeting records. They alleged multiple violations of the publics right to adequate in-formation under the Open Meetings Act.

Complete and accurate MDTA minutes are essential because the meetings are difficult and expensivefor citizens to attend. While the members routinely call in by speakerphone, the MDTA does not pro-

vide a way for the public to listen in remotely.

Often, no one from the public or the media is there. The MDTA routinely approves millions of dollarsin spending at its meetings.

Even when someone does go, the MDTA board elects to conduct many closed sessions. Some informa-tion about the secret discussions is required to be published, but MDTA minutes often fall short of theminimum.

And until the December 2011 Capital and Finance Committee meetings, the MDTA claimed the publicwas not entitled to attend those gatherings anyway.

Better Minutes NeededThe MDTA also needs to pay attention to what it provides in minutes and how quickly they were avail-able to the public, according to the opinion.

May 5 meeting minutes were not approved for two months, even though all MDTA minutes are typical-ly approved at the following monthly meeting, and there was no apparent reason for a May delay.The MDTAs response was the complaint included a specious conspiracy theory about the unusualdelay.

Th