MARC panel violated Open Meetings Act

Wednesday, Aug. 23, 2006

The MARC Advisory Council violated the Open Meetings Act when the state Secretary of Transportation told a Boyds woman she couldn’t record portions of its inaugural meeting, a state board wrote.

The state’s Open Meetings Compliance Board, an arm of the Office of the Attorney General, issued its opinion Aug. 14, several months after Miriam Schoenbaum filed a complaint saying that she was asked to only tape record the comments of state employees at the May 18 meeting and not members of the advisory council.

‘‘I’m very pleased, really,” Schoenbaum said Friday. ‘‘A public body should transact public business in public.”

Once the board issues its opinion, the public body in question will ‘‘generally abide by what the board has decided,” said Assistant Attorney General Robert McDonald, ‘‘Usually people accept what the board has decided.”

There is no formal order or punishment associated with the board’s decision, he said.

The formation of the 20-member council to study the MARC system was announced in February, after Transportation Secretary Robert L. Flanagan reversed his January decision to close several underused MARC stations, including Boyds and Dickerson in upper Montgomery County.

In response to Schoenbaum’s complaint, MTA argued that the council is not subject to the Open Meetings Act because it is not ‘‘set up to ever deliberate, decide, consider or transact any public business,” MTA’s counsel Callista Freedman wrote in a July 12 letter to the compliance board.

At its inaugural meeting, Schoenbaum put a small digital tape recorder on the back of the seat in front of her, according to her complaint. Ten minutes into the meeting, Flanagan asked her to only tape him or MTA staff, according to her complaint. He told Schoenbaum that legal counsel told him the Open Meetings Act did not apply to the meeting, she reported in her May 30 complaint.

‘‘The implication, of course, was that the restriction on taping was within the discretion of the Secretary, unaffected by whatever right to use the recorder might be afforded by the [Open Meetings] Act,” the compliance board wrote in its opinion.

Freedman also wrote that a member of the council told MTA staff after the meeting that the ‘‘use of a recording device made him uncomfortable, inhibited the participation of the lay-persons on the [c]ouncil, was not aimed at constructively assisting in the information flow and could be used for an improper purpose.”

But personal feelings or the purpose of a recording should have nothing to do with whether a meeting can be recorded, the board wrote.

‘‘Members of the Advisory Council agreed to participate knowing that they would be heard by anyone wishing to attend. Anyone is free to take notes, including verbatim accounts. The members have no realistic or well-grounded claim to be free from having their words recorded,” the board wrote.

MTA, which did not respond to calls from The Gazette, did not inform the council of Schoenbaum’s complaint, one member said.

That concerns Dickerson resident Carol Oberdorfer, the only Montgomery County resident on the council.

‘‘The MTA responded on behalf of the MARC Advisory Council without consulting the advisory council, or indeed even notifying us that a complaint had been filed,” she wrote in an e-mail to members of the council. ‘‘Had they asked me, my response certainly would have been quite different from the one the MTA apparently submitted.”

Both Schoenbaum and Oberdorfer testified in Annapolis to keep the Boyds and Dickerson stations open. They are members of Save Maryland Area Rail Transit, which advocates for better advertising and incentives for people to use MARC.

Members of the council, which MTA announced in late April, have met several times since its formation.

Its next meeting is Sept. 7 in Washington, D.C.

Some activists and state representatives in Montgomery County have complained that the initial purpose of the council, which has not yet selected a chairman or set its own rules, is clouded.

In February, Flanagan said the stations would remain open while the advisory group studied the issue and worked with state transportation officials to devise alternatives to closing the underused stations.