Thirteen days after Maryland’s Board of Regents took a monumental vote to switch athletic conferences behind closed doors without public notice, we still do not have a legitimate explanation. But we do, perhaps, have an excuse.

The Baltimore Sun reports that Wallace D. Loh, president at the flagship University of Maryland campus, signed a nondisclosure agreement with the Big Ten Conference to enable him to review “sensitive financial information” before agreeing to divorce the Atlantic Coast Conference for the wealthier Big Ten. The university system’s Board of Regents voted Nov. 19 to approve the realignment (though it’s debatable whether the vote was a necessity or whether Loh had the authority to make the switch on his own).

The existence of a confidentiality agreement is the first hint of a rationale for excluding the public from the Regents’ deliberations. The Regents and Chancellor William E. Kirwan (who is chief executive of the entire UM system) have issued only vague denials that any laws were broken — claiming the hurry-up process was vetted with counsel from Attorney General Doug Gansler’s office.

What they haven’t cited — and what the law requires them to cite — is an exemption to the Maryland Open Meetings Act that would allow for a closed-door meeting (including the part where the final vote is taken).

Here is the operative portion of the Maryland Open Meetings Act. The exceptions permitting a closed “executive session” of a body such as the Regents are limited and are supposed to be narrowly construed; when in doubt, the meeting is supposed to be open.

Almost none of the 14 enumerated exceptions (discussing a criminal investigation, purchasing real estate, investing in stocks) could conceivably apply. The only ones that might be a fit are Sections 10-508(a)(7) (consulting with counsel for legal advice) or 10-508(a)(8) (getting advice about threatened litigation). But again, neither the Regents nor anyone at Maryland has identified which exemption they’re claiming.

Notably, however, neither of these exemptions provides that the vote itself can be taken behind closed doors. Once the confidential portion of a meeting is over, then the public is supposed to be invited in. A vote on the question, “Shall Maryland join the Big Ten?” would give away no legal confidences. But what it would do is require the Board’s 15 voting members to commit, on the record and in public, to their decision.

One thing that’s clearly not a legally recognized reason to close a meeting — and certainly not the part where a vote is taken — is “sensitive financial information.” Nor could a government agency make a contract that excuses compliance with the law. A contract that requires breaking state public-disclosure laws is a void contract.

In addition to being legally unenforceable, a confidentiality agreement with the Big Ten is, as a practical matter, futile. The conference’s finances are already largely a matter of public record.

Athletic conferences are nonprofit corporations subject to significant federal disclosure requirements. Chief among them is the requirement to make public each year a detailed tax return, IRS Form 990, that provides specifics about the corporation’s governance and finances.

The Big Ten’s most recent IRS Form 990 was filed in May 2012 (the form covers the 2010 tax year, which is an unusually long lag, indicating that the conference must have received a deadline extension). Here’s a copy of it.

It’s interesting reading (as are the tax returns of all athletic conferences, all of which are subject to public disclosure), providing a glimpse into how much money is involved in running an operation the size and sophistication of an athletic conference:

  • The commissioner of the Big Ten, James E. Delaney, earns a base salary of $1.2 million a year plus other compensation (most of which is a tax-deferred retirement package) of $550,000. At more than $1.75 million, Delaney’s total compensation package exceeds that of all but one of the university presidents — Ohio State’s E. Gordon Gee — who sit on the conference’s board.
  • The conference has a $5.2 million annual payroll that includes 11 employees making at least six figures (one, Delaney, is into the seven figures).
  • One of the conference’s biggest expenses is drug testing, for which it paid $269,000 to one vendor alone (the National Center for Drug Free Sport in Kansas City). Even bigger are legal fees: $1.1 million just to one Chicago law firm, Mayer Brown LLP.
It’s difficult to imagine what “sensitive” financial matters might have justified a confidentiality agreement. If the conference has projections about what Maryland stands to earn as a member — or projections about liability that Maryland might incur as a member — that seems like exactly the type of information for which open-records and open-meetings laws were designed: Information helping the public verify whether government decisions are a good or a bad deal for the taxpayer.

In a sense, of course, none of this matters. Maryland is going to the Big Ten Conference, even if it means the Regents have to reconvene in public and re-vote in the open. Winning a legal challenge to the Nov. 19 closure would be a classic “moral victory,” significant only for symbolic value.

Still, even a symbolic rebuke from a court might matter. Ever gotten a warning from a highway patrol officer? And as soon as the trooper let you go, did you floor the pedal and play Grand Prix all the way home? Chances are, you kept that needle glued to 55 for the rest of the trip.

Someone needs to pull over the Maryland Board of Regents. They didn’t run anybody over this time, but if they keep driving this way, they might.

Holding meetings in public is never the easiest way to do business. It’s time-consuming, and it can get messy. But doing business ethically and accountably always means sacrificing expediency. It’s a nuisance to file campaign financial disclosure forms. It’s a hassle to competitively bid contracts instead of sending business to the company you like the best.

The existence of open meetings requirements in all 50 states is evidence that state legislatures, and the voters they represent, believe formalities matter. “We just decided to do it this way” — or even worse, “Our lawyer said we could get away with doing it this way” — is not the explanation that Maryland citizens are owed.

 

 

  1. Frank : very clear.

    One 12/3 the regents posted, as part of their Dec. 7 meeting agenda, a one page set of “meeting notes” from the 18 and 19th November.

    Meeting notes have no existence under the Open Meetings Act. Minutes are minutes; have to include certain info; and must be prepared and approved.

    As far as this:

    “The only ones that might be a fit are Sections 10-508(a)(7) (consulting with counsel for legal advice) or 10-508(a)(8) (getting advice about threatened litigation). But again, neither the Regents nor anyone at Maryland has identified which exemption they’re claiming.”

    a(7) is limited to asking legal questions and receiving answers. It does not cover general discussions of policy or contractual matters, only specific legal advice. note also that it is *optional* and no public body ever has to shut the public out of a conference with their lawyer.

    I am quite certain this is regularly abused statewide, but of course, without adequate closing statements and summary information, the public is left to guess.

    a(8) only applies to (1) a court proceeding underway or (2) a credible threat of litigation. In my opinion, that nexus is pretty slender in this case.

    “Notably, however, neither of these exemptions provides that the vote itself can be taken behind closed doors. Once the confidential portion of a meeting is over, then the public is supposed to be invited in. A vote on the question, “Shall Maryland join the Big Ten?” would give away no legal confidences.”

    Absolutely correct, but this is a rabbithole in the law. Since it doesn’t say you can’t vote in closed session, in fact you can. Though if a(7) or (8) were invoked, your position is probably right, since the limits on what can go on in a closed session *do* depend on which exception is claimed, to some extent, depending on the facts in each individual situation.

    Every so often someone in the Md Gen Ass’y introduces an amendment to the OMA to specify that all votes should be public. It never gets out of committee.

    However, local ordinance or public body bylaws can specify open votes, since local gov’ts and public bodies can proceeed under stricter limitations than the statute contains.

    So one effective tool for disgruntled Terps is to attend regents meetings and agitate for a “all votes open” amendment to their bylaws.

    “But what it would do is require the Board’s 15 voting members to commit, on the record and in public, to their decision.”

    Ah. I cite a Compliance Board Opinion in my Part II post at http://md-ta.blogspot.com which says that, since the Act was amended a couple years back, it requires the minutes to list who voted, and how, in any summary of a closed session.

    Of course, minutes can be delayed for more than a month (another rabbit hole: no specific time limit in the law, though 6 weeks has been held by the OMCB to be a violation) and the public is not well served by a secret vote that no one talks about.