7 Official Opinions of the Compliance Board 186 (2011

Quasi-Judicial Function Within the function: hearings by 3-

judge panels
Public Body Determined to be a public body: 3-judge panels
Meeting Determined not to be a meeting: Quorum not present
or convened 3 member panel of 9 member body
Legislative Function Within function, discussion of: positons
on legislation
Closed Session Procedures Violated by failure to hold vote,
make written statement and include summary in minutes in
open session
May 23, 2011
Complainant: Respondent:
Mr. Yakov Shafronovich Baltimore City Environmental Control
Board
We have considered and consolidated into one matter the submissions of
Mr. Yakov Shafronovich (Complainant) and the Baltimore City
Environmental Control Board (ECB) pertaining to Complainants allegations
that the ECB has violated, and continues to violate, the Open Meetings Act in
a number of ways.
Complainants allegations and questions fall into the following categories
of issues:
1. Does the Open Meetings Act apply to the hearings conducted for the
ECB by its administrative law judges (ALJs)?
2. Does the Open Meetings Act apply to the proceedings of the three-
member panels convened by the ECB to hear appeals?
3. Does the Open Meetings Act apply to other activities conducted by
the ECB, such
as advising the City Council or taking positions on legislation pending in the
General Assembly, and has the ECB violated the Act with respect to meetings
on those matters?
186
7 Official Opinions of the Compliance Board 186 (2011) 187
4. Has the ECB violated City laws governing its meetings?
For the reasons stated below, we conclude that the ECB has violated the
Act in some, but not all, of the ways alleged by the Complainant.
I
Facts
Baltimore Citys ECB was created by a city ordinance as an independent
agency with full authority to enforce, in accordance with the provisions of
[Subtitle 40], the sanitation, environmental, safety, and other quality-of-life
provisions of law listed in 40-14...,including any rules and regulations
adopted under them. Baltimore City Code ( City Code) Art. I, 40-2 and
40-5. The list of provisions in City Code Art. I, 40-14 (e) includes laws
pertaining to licensing and regulation of certain dwellings, water and sanitation
laws, building and fire codes, nuisance laws, and three provisions of the
Zoning Code. The violation of any of these laws may result in an
environmental citation. City Code Art. I, 40-1(d). In its response to the
complaint, the ECB states: Respondents that are before the ECB receive
citations from Animal Control, the Fire Department, Housing, Health
Department, Police Department, Department of Public Works, and Zoning.
The ECB also states, The ECB hearings do not encompass zoning matters
covered by Article 66B of the Maryland Code ... The ECB does not enforce or
regulate any zoning matters, but rather is limited to those matters listed in
Section 40-14(e)..... Instead, the ECB states, The Board of Municipal
Zoning Appeals hears the Citys zoning matters.
City Code Art. I, 40-3 sets forth three [g]eneral Board functions. First,
the ECB is responsible to provide for hearing officers or panels of [ECB]
members to conduct hearings on contested environmental citations. City
Code Art. I, 40-3(a). Second, the ECB is responsible to provide for an
opportunity to appeal to the [ECB] or to a panel of the [ECB] from the
decision of a hearing officer. City Code Art. I, 40-3(b). Third, the ECB,
[w]ith the assistance of its Executive Director and staff, is responsible for
collecting environmental fines and accounting functions. City Code Art. I,
40-3(c). While the ECB must prescribe the form and wording of
environmental citations, the contents are prescribed by statute. City Code Art.
I, 40-7(a), (b).
Under City Code Art. I, 40-2(b), the ECB is to be comprised of 13
members, some by virtue of their positions as designees of departments in the
executive branch of the City government; others by mayoral appointment.
7 Official Opinions of the Compliance Board 186 (2011) 188
Some of the positions are vacant, and the ECB may currently have as few as
9 members.
1
II
Discussion
A. Whether the Act applies to the hearings conducted for the ECB by its
ALJs
Complainant alleges that the ECB holds administrative hearings with an
administrative judge on citations without either providing notice to the public
or allowing the public to attend. The ECB denies that its hearings are closed
to the public and asserts that the Act does not apply to the hearings anyway.
We agree with the result asserted by the ECB: the Act does not apply to
these hearings. Addressing a similar claim involving hearings conducted by
a sole zoning hearing examiner, we found that while the zoning board in that
case was a public body, the examiner was not:
But those who conduct hearings on behalf of the [zoning
board] are not themselves a separate public body. When
a hearing examiner, as distinct from the Board itself,
conducts a hearing, no public body holds a meeting.
Moreover, a single individual, like the hearing examiner who
conducted [the hearing in question] is not a public body.
10-502(h)(3)(i). Hence,...the Act did not apply.
1 OMCB Opinions 175, 176 (1996). Here, too, we conclude that the ALJs who
conduct the hearings for the ECB are neither the ECB itself nor separate public
bodies, and, accordingly, that the Act does not apply to those hearings.
B. Whether the Act applies to the proceedings of the ECBs 3-member
review panels
Complainant alleges that the ECB violates the Act when three of its
members convene to hear appeals filed by people who wish to contest an
ALJs findings. The City asserts that the panels are conducting quasi-judicial
City Code, Art. I, 40-2(b) prescribes 13, and the ECB website lists 10.
1
Complainant cites a March 23, 2011 City Paper article which reports that only 9
members actually serve.
7 Official Opinions of the Compliance Board 186 (2011) 189
functions exempt from the Act under SG 10-503 (a)(1). We agree with the
City that the Act does not apply to the ECB itself when its panels conduct
these hearings, but for a different reason.
The Act applies only to meetings of a quorum of a public body to discuss
public business. See State Government Article (SG), 10-505 (providing,
a public body shall meet in open session) and SG 10-502(g) (defining
meet to mean to convene a quorum of a public body for the consideration
or transaction of public business). The Act is the sole source of our authority,
SG 10-502.4, and we therefore may only address allegations involving
meetings within its definition of the term. Here, even if the ECB is assumed
to be comprised of only 9 members, three members do not constitute a quorum.
So, no matter what function these three members perform, their gatherings are
not meetings of the ECB itself.
Whether the panels themselves are public bodies exercising functions
subject to the Act poses a more complicated question. To address whether the
panels meet the Acts definition of a public body, we turn to 3 OMCB
Opinions 260 (2003), a matter involving a county animal control commission.
County law authorized the commission chair to convene three-member panels
for certain proceedings. We noted that because the panel is authorized by law,
it would appear that even if a panel conducted the meeting in question, the
panel itself constitutes a public body for purposes of the Act. Id. at 261,
n.2. Here, the City Code requires the ECB to provide for an opportunity to
appeal to the [ECB] or to a panel of the [ECB] from the decision of a hearing
officer. City Code, Art. I, 40-3(b); see also 40-9 (providing that the ECB,
acting by or through ...panels of the [ECB] must conduct proceedings and
has full authority to render decisions and orders). We conclude that the
panels are themselves public bodies and are therefore subject to the Act when
they are fulfilling functions subject to the Act.
With respect to whether the panels functions fall within the Act, we agree
with the City that these panels perform a quasi-judicial function; the full ECB,
when sitting to hear appeals, would also be performing that function. The Act
defines quasi-judicial function as a determination of... a proceeding before
an administrative agency for which Title 7, Chapter 200 of the Maryland Rules
would govern judicial review. Those Maryland Rules apply to petitions for
judicial review where provided by statute, and City Code, Art. 1,40-10(a) of
the City Code so provides. The fact that the panels perform a quasi-judicial
function, however, does not exclude them from the Act entirely. Under the
provisions of SG 10-503 (a) and (b) (2) relevant to this matter, the Act
applies to a public body performing a quasi-judicial function when it is
meeting to consider... the enforcement of any zoning law or regulation, or any
other zoning matter. As noted above, the ECB is charged with processing
7 Official Opinions of the Compliance Board 186 (2011) 190
citations issued under three City zoning laws, listed in City Code, Art. I, 40-
14(e)(8) as use permit required, Prohibited uses - storage, etc. of vehicles,
and conditional use - live entertainment, each with a statutory reference to
a Zoning Code section. However, Complainant has not alleged that an ECB
panel has actually held a closed meeting to consider appeals of decisions
involving one of the three zoning laws. Further, we do not adopt his
2
argument that the other laws enforced by the ECB fall under the category of
zoning matters within the Act. Because the Act does not apply to the ECB
3
or its panels when they are performing quasi-judicial functions pertaining to
those other laws, no violation of the Act has been alleged.
C. Whether the Open Meetings Act applies to other activities conducted by
the ECB, such as advising the City Council or taking positions on
legislation pending in the General Assembly.
Complainant alleges that he has been unable to obtain copies of public
notices and minutes for the ECBs meetings. In this regard, he states that the
ECB routinely issues advice to the City Council and thus exercises functions
other than the quasi-judicial function. The ECB responds with minutes that
show that the ECB discusses various matters, including its position on
legislation in meetings. The minutes provided by the ECB contain redactions
under headings such as Appeal Responses, New Appeals, Human
Resources, Law Department, and Filed in Circuit Court for Baltimore
City. The minutes do not reflect votes by the ECB members to close the
meeting to discuss those matters.
Complainant alleges that a housing inspector attended the hearing of his
2
matter by a hearing examiner and that he had been issued citations for trash on the
grass and hedges outside his home. His matter thus did not involve one of the three
zoning laws enforced by the ECB, and we do not know if he appealed it.
Complainant bases his argument that all nuisance laws are zoning laws on
3
Art. 66B, 2.03. That section, which pertains to zoning regulations in Baltimore
City, requires Baltimores zoning regulations to be designed to accomplish eight
broad purposes, including Control congestion in the streets, Secure the public
safety, Promote health and the general welfare. Art. 66 B 2.03(b). The fact that
Baltimores zoning regulations, like many others, see, e.g., Art. 66B, 4.03
(concerning regulations adopted by other local legislative bodies), must further these
purposes does not mean that every law which also addresses these purposes is a
zoning regulation. For instance, traffic, food safety, and criminal laws also address
them. Such a broad reading of the term zoning in the Act would render the quasi-
judicial exception meaningless. However, we agree with Complainant that the quasi-
judicial consideration of some licensing matters may be subject to the Act. To be
subject to the Act, however, those matters must involve granting the license or
permit. SG 10-503(b)(1).
7 Official Opinions of the Compliance Board 186 (2011) 191
The ECB states: The ECB admits that it has not kept the notices and
written statements for closing its board meetings as required by the Open
Meetings Act. The ECB further states: The ECB is modifying its procedures
to be sure that it keeps the notices of the meetings of the ECB board (not the
hearings conducted by the hearing examiners...), the minutes, and the written
statements for closing board meetings, when such meetings are closed.
The ECBs submissions demonstrate that the ECB has indeed violated the
Act, not only because it has not kept the notices and written statements for
closing its Board meetings, but also because it appears that the ECB did not
generate those statements in the first place. Indeed, it appears from the
materials provided to us that the ECB did not follow any of the Acts
procedures for closing its meetings. The redactions in the minutes suggest that
the ECB considered its discussion of those matters closed. However, the
minutes do not reflect that the presiding officer completed a written statement
containing the information required by SG 10-508(d)(2), especially a citation
to the statutory exception relied on for closing the session; that the presiding
officer did not record any vote on closing the session, as required by SG 10-
508(d)(2); and that the ECB did not include in its minutes of the next public
session a summary of the actions taken in the closed session, as required by SG
10-509 (c)(2). We also question whether the ECB gave public notice of its
meetings.
In this regard, we have read the February 25, 2011 e-mail that Complainant
received from a City community liaison who, after reporting that she had
check[ed] with ECBs Executive Director, explained:
The Environmental Control Board has a quasi-judicial
function and is exempt from The Public Meeting Act.
Therefore their Board meetings are not open to the public as
they are generally deliberating on appeals after a board panel
presents their analysis to the full board.
If the ECB indeed has proceeded as though the Act does not apply to its
performance of advisory and other non-quasi-judicial functions, it has likely
violated the Act in many respects for as many years as it has operated under
that belief.
The Complainants narrative and exhibits detail his efforts, apparently
lasting from August 2010 through February 2011, to inspect the ECBs
minutes. His submissions lead us to make two more observations. First, the
Act requires public bodies to make those documents available for inspection
during business hours. SG 10-509(d); see also 7 OMCB Opinions 36, 40-41
(2010) (explaining closed-session procedures). The Act does not require the
7 Official Opinions of the Compliance Board 186 (2011) 192
public body to provide copies by mail or e-mail, but a requester should not
have to make a written request to inspect the documents. 7 OMCB Opinions
64, 66-67 (2010). Further, the Act does not permit public bodies to redact
minutes of public meetings. Id. If ECB members wish to discuss matters
falling within one of the statutory exceptions to the open meetings
requirement, they must do so in a properly-closed session devoted solely to
those matters. SG 10-508(b). And, certainly, a citizen who visits a public
bodys office should be provided with notice of the public bodys next meeting
or directed to the place where that notice is posted. See SG 10-506.
D. Whether the ECB has violated City laws governing its meetings
Complainant alleges that the ECB has also violated the Citys laws
pertaining to open meetings and that those laws are more stringent laws,
which, under SG 10-504, control. The Act does not provide us with the
authority to address allegations of violations of other laws, and we therefore
do not address the Complainants allegations of violations of City law.
III
Conclusion
We find that the ECB has violated the Open Meetings Act by failing to
close its Board meetings in accordance with the Act. We find that the Act
does not apply to hearings before an ECB hearing examiner because that
person is not a public body under the Act. We find that the ECB is
performing a quasi-judicial function, not subject to the Act, when it or one of
its panels considers matters other than those either listed in the Citys Zoning
Code or the grant of a license or permit.
We commend the ECB for its decision to modify its procedures.
OPEN MEETINGS COMPLIANCE BOARD
Elizabeth L. Nilson, Esquire
Courtney J. McKeldin
Julio A. Morales, Esquire