Delegate Tony McConkey's Official Blog

Maryland Health Exchange Fails Open Meeting Test

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After a string of failures the Maryland Health Exchange fails open meetings test. Failed Obamacare exchange provides example on how not to comply with the Maryland “open meetings” law.

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Editorial: Not-so-open meetings

By: Daily Record Staff in the Daily Record, February 27, 2014

With all the other problems facing the Maryland Health Benefit Exchange, carping about the way its board went about firing the primary contractor over the weekend would be petty indeed.

Consider this, instead, an appreciation, a tribute to the board’s ingenuity and a 10-point primer for any public entity that needs to (arguably) comply with the Open Meetings Act without actually meeting in the open.

1. Meet on a Sunday night. Never mind that you’re going to make a change everybody has been expecting for two weeks. Never mind that you have no intention of announcing your decision until Monday afternoon. Timing is everything, and there’s no time like a Sunday night for a state panel to meet.

2. Better still, meet by phone on a Sunday night. It’s not like any protesters are going to surround your cell-phone tower and demand to be let in.

3. “Regrets” — you’ll have a few. It’s always tricky to get people together at the last minute, even for a phone call. Take a lesson from the MHBE board: If you have nine members, and five of them are on the call, you’re good to go.

4. When giving notice to the public, go for Bauhaus, not for baroque. Yes, the law requires “adequate” notice, but don’t feel you have to make a fuss. Post the notice of your Sunday-night call on your website on Saturday and check it off your list. (Note: Online-only notice is especially useful if you usually alert the media via phone or email. Just because you’ve established a pattern doesn’t mean you have to follow it. In fact, government should keep the media on its collective toes.)

5. Go minimalist in content, as well. No need to natter on about your reasons for excluding the public. Yes, technically, an explanation is required. Don’t worry about it. If anybody complains, you can always send them the reasons after the meeting. Call it substantial compliance.

6. Know what you can and can’t fudge. When it comes to exemptions from the Open Meetings Act, “consulting with counsel” is the gold standard, the immunity idol that makes you a Survivor. But the lawyer has to be there, and no, you can’t save a few bucks by substituting a potted plant or that blow-up barrister you bought online so you could drive in the carpool lane.

You may not have to name or even refer to the lawyer in your statement closing the meeting — the MHBE board certainly didn’t — but the lawyer absolutely, positively has to participate if you are going to pass this thing off as “legal.”

7. On other exemptions, you might have a little more wiggle room. Technically speaking, the “bids and proposals” exemption applies only to discussions that take place before a contract is awarded. But again, watch and learn from the MHBE board: It managed to shoehorn the termination of one contract and the modification of another into this category, so it’s definitely worth a try.

8. Talk all you want. Again, technically, you’re expected to reopen the meeting at some point — before you vote, for example. But as a practical matter, if you’ve followed lessons 1 through 7 above, this is a non-issue. Nobody else is sitting there on hold on your Sunday night call, waiting to be allowed back into the conversation.

9. If something goes wrong, blame the lawyers. Say the Open Meetings Act is too tricky for you to understand. Let this be your mantra: “We relied on the advice of the Office of the Attorney General.”

10. When you speak of the closed-door session — and you will — stress how important transparency is to you.

After all, with all the other problems you’re facing, you can’t have people thinking you have something to hide.

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