Regents: 'No vote, no foul'
Posted: Thursday, February 14, 2013 12:00 am | Updated: 9:01 am, Fri Feb 15, 2013.
NEWS ANALYSIS By CRAIG O'DONNELL, Kent County News
LINK

CHESTERTOWN - After they broke the law in two November meetings, the University of Maryland Board of Regents faced a pair of complaints to the Open Meetings Compliance Board. In a Jan. 22 letter, the university system responded.

Their two unannounced meetings were right in the middle of the controversial Big Ten conference switch. The administrators didn't notify the public of Nov. 18 and 19 secret confabs.

At first, they denied any obligation to hold public meetings in a news release Nov. 21: “We sincerely regret that the need to deliberate and consider endorsement of the application to move to the Big Ten within a given timeframe has led some to believe that the USM Board may have violated the process by which public boards are allowed to convene in closed session. The board takes its public responsibility seriously and, in continued consultation with the Office of the Attorney General, is vigilant of its processes and procedures.”

In a Dec. 7 press release, College Park President Wallace Loh and Chancellor William Kirwan admitted wrongdoing: “The board and USM officials acknowledge and sincerely regret that the public notice and closing procedures required by the Maryland Open Meetings Act were not followed with regard to the two sessions.”

They said the public wasn't going to hear anything more because Open Meetings Act complaints had been filed. But they also insisted there were no other violations, and the regents have been silent since Dec. 7.
The 24-page letter tries to back up the claim. It addressed complaints by Pikesville resident Ralph Jaffe and the Kent County News.

The regents did not respond themselves, but through Assistant Attorney General Thomas Faulk.
In the letter, he promises they will be good from now on: “Despite the fact that the meetings involved matters which the Open Meetings Act permits to be discussed in closed session, and despite the fact that the public was fully and timely informed of what transpired at those meetings, the Board is committed to scrupulously adhering to the Act's requirements” in the future.

On Nov. 18, the regents debated joining the Big Ten Conference, according to the letter: “The Regents had many questions for President Loh, and they had a good, robust discussion about the UMD/Big Ten Contract.”

Then on Nov. 19, they were asked to “endorse” the Terps' jump. But they did not hold a “vote” on whether to join the conference. They just “endorsed” – the regents' word – a contract Loh had already signed.
Throughout the letter, Faulk referred to actions cleared with the attorney general's office or the regents' counsel. He is their counsel. References to the “attorney general's office” do not mean Doug Gansler, Maryland's Attorney General, or Gansler's staff, but Faulk or perhaps a colleague also working for the regents.

Faulk was at both meetings. He either missed the obvious or was giving advice at variance with the Open Meetings Act and the many opinions issued by the Open Meetings Compliance Board in the past 22 years.
In the days leading up to the two meetings, he gave the regents the advice on whether or not to tell the public they planned to meet, as far as can be determined from the few documents that the regents have made available.

An Illegal Vote?

Jaffe is a retired teacher who has been a Democratic write-in U.S. Senate candidate. He heard of the two secret meetings through news reports and penned a short letter of complaint almost immediately afterward.

He wrote, “the recent vote ... to approve the University of Maryland switching its athletic conference membership from the ACC to the Big Ten Conference was done illegally.” He asked the OMCB to “require the University of Maryland Board of Regents to conduct the vote again in open session.”

According to Faulk, Jaffe is wrong. The regents did not have to vote to approve the conference change. Instead, he said, policies allowed Loh to decide and sign contracts on his own.

Loh and Kirwan set up a conference call late Sunday, Nov. 18. At this meeting, the regents talked about “the economics of the UMD/Big Ten Contract and potential exit fee that UMD might have to pay ... (and) the prospective possible uses of funds received from the Big Ten.”

When did Loh sign the Big Ten dotted line? The letter doesn't say, only that it was “prior to the Board's meeting on November 19 ....”

Maybe he signed before the Sunday meeting started; perhaps sometime Sunday evening in an undisclosed location. Whichever, the deal got sealed before the Monday meeting.

Thus, Faulk says, the early-morning secret meeting Nov. 19 made no difference. All the regents did was “endorse” what Loh had done. And, more: even if a contract endorsement “were considered a vote (which it was not), that action had no legal effect.”

The letter goes on to explain in great detail how UM system presidents can enter into contracts. Faulk cites various bits of statute, bylaws and so on.

But if Loh already signed, there would be little point in hiding from the press and public Nov. 19. It does not explain why they had a second meeting out of public sight, what the topics were - or why, in fact, secret meetings were necessary at all.

And finally, Faulk also asserts, in summary, the “Board activities were proper for a closed session.”
He lists four or five of the 14 exceptions found in the statute, claiming that they could, or might, have been appropriate to cite when the two secret meetings happened.

Unfortunately, none of these were mentioned in an open session on either day. Nothing to justify the closed sessions was put in writing at the time. This legal mandate is clearly stated in the Open Meetings Act.

A formal opinion from the three-member Compliance Board is expected by March 1.
(Part II will examine the regents' response to specific allegations by the Kent County News.)

Read the full regents' response here.

Posted at 11:33 AM ET, 11/21/2012
Details emerge about University System of Maryland regents’ private meetings
By Jenna Johnson, Washington Post
LINK

(This post has been updated.)

In the frenzy leading up to the University of Maryland joining the Big Ten Conference on Monday, the University System of Maryland Board of Regents met twice behind closed doors to discuss the move and vote to endorse it.

I wrote an article for Wednesday’s newspaper about how the meetings — unannounced and entirely out of public view — appear to be in violation of Maryland Open Meetings Act, according to legal experts. (You can read the full article here: “Legality of University System of Maryland’s Big Ten vote questioned.”)

What do we know about these two meetings? Here’s a timeline pieced together using a variety of sources, including information provided by a university system spokesman on Tuesday afternoon:

Thursday, Nov. 15: The Board of Regents was notified of the proposal on Thursday, according to Regent C. Thomas McMillen, a former Terps basketball star who went on to become a Democratic congressman.

Saturday, Nov. 17: Rumors of U-Md. possibly leaving the Atlantic Coast Conference and joining the Ben Ten began to circulate late on Friday and picked up steam on Saturday. At some point on Saturday, the board of regents arranged via e-mail to hold a “closed session” telephone conference the next day.

University of Maryland President Wallace D. Loh (left) and University System of Maryland Chancellor Brit Kirwan (right) both reportedly participated in the Sunday telephone conference with the Board of Regents. (Patrick McDermott - Getty Images) Sunday, Nov. 18: At 4:30 p.m. the teleconference began. Thirteen of the board’s 17 regents were on the line: Chairman James L. Shea, Orlan M. Johnson, Francis X. Kelly Jr., Linda R. Gooden, Louise Michaux Gonzales, David Kinkopf, Gary L. Attman, McMillen, Barry P. Gossett, Earl F. “Buddy” Hance, John L. Young, Patricia S. Florestano and student regent Steven Hershkowitz.

(Originally, a spokesman for the board did not include the board chairman, Shea, on a list of the regents who participated in the call. On Wednesday afternoon, the spokesman updated that list to include Shea.)

The regents were joined by university system Chancellor William E. “Brit” Kirwan and some of his staff, along with representatives from U-Md. People with information say that U-Md. President Wallace Loh was on the line.

Loh has implied that the decision to move to the Big Ten was mostly his to make, but he sought a blessing from the school’s ultimate authority, the board of regents, before doing so. If the regents voted no, Loh said he would not have proceeded.

Although news of the teleconference leaked to reporters and was widely reported, the university system never formally announced they were meeting, as is required by the Maryland Open Meetings Act. The regents did not take a vote to go into closed session, saying there was no need to do so because they scheduled the meeting via e-mail (messages officials have yet to share) to be closed. Legal experts say this is a clear violation of the act.

The statue of Testudo resides mutely on campus in the wake of news that the University of Maryland will join the Big Ten. (Bill O'Leary - The Washington Post) The regents also did not compose a written statement explaining why they closed the meeting, as is required by the act. “Due to the emergency nature of the Sunday conference call, a written statement was not prepared,” the spokesman said.

The phone conference ended at roughly 5:45 p.m. At 6:30 p.m. the regents scheduled a meeting for the next morning.

Soon, ESPN reported that the regents would meet in Baltimore at 9 a.m. on Monday to vote on the matter. That night, I asked three spokespeople — one with the system and two with U-Md. — to tell me when and where that meeting would occur. I told them that under the Maryland Open Meetings Act they had to tell me. But they did not.

There was no mention of the full meeting on the regents’ Web site, but there was a notice that a board committee would meet at University of Baltimore at 10:30 a.m.

Monday, Nov. 19: The regents gathered for a full meeting at 8:30 a.m. at the University of Maryland, Baltimore, in the president’s conference room on the 14th floor of the Saratoga Street Office Building, according to the spokesman.

Ten regents were there in person: Chairman Shea, Attman, Young, McMillen, Florestano, Gonzales, Kelly, Kinkopf, Frank M. Reid III and Hershkowitz, the student regent. Four others joined via telephone: Gossett, Gooden, Hance and Johnson. (Three regents did not participate in either meeting: Thomas G. Slater, Norman R. Augustine and Paul Vance.)

Again, the meeting was not announced, there was no vote to go into closed session and no written statement was made to explain why the meeting was not public. Again, legal experts say all of those things appear to violate the Maryland Open Meetings Act.

University of Maryland football head coach Randy Edsall speaks with reporters after a news conference announcing Maryland's decision to join the Big Ten. (Patrick McDermott - Getty Images) The meeting was a continuation of the Sunday conference call, according to the spokesman, and it was held in closed session because the “board was receiving legal advice and reviewing confidential commercial and financial information pursuant to the Maryland Open Meetings Act.” Legal experts have challenged those reasons as likely not being enough cause to close the entire two-hour meeting.

The meeting lasted for about two hours. Here’s what a spokesman for the regents say happened: “Following a robust discussion, each regent commented on the issue and offered their opinion on whether to endorse or not endorse.”

When some regents asked why they couldn’t hear from other stakeholders before taking a vote, they were told that the nondisclosure agreement signed with the Big Ten prevented such a discussion, according to McMillen in an opinion piece for the Washington Post

Thirteen of the regents present, including the student regent, voted to endorse the university’s application for the Big Ten. One regent — self-identified as McMillen — voted against it, citing the lack of transparency in the process.

Most of the information that regents received about the Big Ten was verbal, McMillen said. Board members received one piece of paper outlining the proposal but he said it was taken away at the end of the meeting. McMillen said he didn’t understand why the decision had to be made so quickly.

In a piece headlined “Big Ten. Big Mistake.” McMillen wrote: “Given that Maryland cannot join the Big Ten until 2014, why the big rush? The Big Ten needs Maryland in order to finalize a new TV package... It wanted Maryland two years ago, and it will want Maryland tomorrow. There was plenty of time to build a real case for a move if it made sense. The real problem is that commissioners of athletic conferences can dictate terms to universities that effectively highjack the possibility of debate, and that is just plain wrong.”

Starting at about 9 a.m. a swarm of reporters gathered about two miles away at the University of Baltimore’s student center, where a regents committee meeting was scheduled to happen. University system officials there repeatedly told reporters they did not know where, when or how the regents were meeting.

It was after 11 a.m. before a few regents showed up for the committee meeting. Regent Florestano told reporters that the regents had just held “a full board meeting” and voted nearly unanimously to endorse U-Md. moving to the Big Ten. She said it was closed to the public because “financial issues” were involved.

Soon, news broke that the Big Ten move would happen, and a news conference was arranged for 3 p.m. in College Park. Throughout the day, university system officials continued to decline to say where and when the regents met and why their meeting was closed to the public.

Monday afternoon: The news conference featured Loh, Kirwan, U-Md. Athletic Director Kevin Anderson and Big Ten Commissioner James Delany.

Group picture! (Left to right) U-Md. President Wallace D. Loh , Big Ten Commissioner James E. Delany, University System of Maryland Chancellor Brit Kirwan,Chairman of the Board of Regents James L. Shea, and U-Md. Director of Athletics Kevin Anderson pose for a photo Monday. (Patrick McDermott - Getty Images) In his opening remarks, U-Md. President Loh said: “This morning the Board of Regents of the University System of Maryland voted very strongly to endorse our application into the Big Ten. And shortly thereafter, the council of presidents of the Big Ten voted to admit us into the Big Ten conference.”

When reporters were allowed to ask questions, I asked when and where the regents had met that morning, and why the public was not notified.

Kirwan, who oversees the entire university system, answered that members held a “conference call executive session” on Sunday that was suspended and restarted on Monday morning at the University of Maryland, Baltimore — which he said has a “very convenient parking arrangement” and conference facilities. Kirwan said the board is entitled to hold such meetings “to consider contracts and financial arrangements.”

Kirwan said that while “some members” were at the meeting, “many of the members in the meeting were on the telephone.” (On Tuesday, a spokesman for the board said that 10 members physically attended the meeting, while only four were on the phone.)

I asked again why the public was not informed.

Kirwan responded: ”According to the Attorney General, we followed all of the procedures that we are expected to follow in holding an executive session — for the board to hold an executive session.”

Officials in the attorney general’s office declined to comment on Tuesday.

Tuesday, Nov. 20: University system spokesman Mike Lurie, with assistance from the attorney general’s office, provided a list of answers to questions about the two meetings. Although officials maintain that they are legally allowed to hold closed-session meetings, Lurie wrote in an e-mail: “Given the concerns raised regarding the scheduling of the meetings, the USM Board of Regents is reviewing its policies and procedures to ensure compliance with the Maryland Open Meetings Act.”

Wednesday, Nov. 21: Shea, the chairman of the board, and Chancellor Kirwan released a statement to clarify that U-Md.’s move to the Big Ten did not require approval of the regents — but the regents deliberated on the matter because it is one of “such significant magnitude.”

The statement reitterates that the closed session was convened with “the advice and counsel of the Office of the Attorney General.” Officials in the attorney general’s office have declined to comment. The two men also wrote that the open meetings law does not preclude publics from taking action — like a vote — in a closed session. (Full statement)

This post was updated on Wednesday afternoon to include comments from McMillen, a new count of which regents participated in the Sunday meeting and the statement from Shea and Kirwan.

For more U-Md. news, you can follow me on Twitter and Facebook. And here are more articles on this topic:

McMillen: Big Ten. Big mistake.

Legality of University System of Maryland’s Big Ten vote questioned

Big Ten institutional cooperation cited as a plus for U-Md.

Maryland move to Big Ten took ACC officials by surprise