The Baltimore County Council may be violating the county charter by holding meetings closed to the public, a practice that has gone on for years.

An investigation into the practice by the county’s “watchdog,” Inspector General Kelly Madigan, is now into its sixth month and at an impasse because it appears that neither Madigan nor County Attorney James R. Benjamin Jr. want to take responsibility for giving the council the bad news.

Here is a rundown of the situation:

Last February 6, I joined eleven other county residents in filing a complaint with the state Open Meetings Act Compliance Board that the County Council violated the Maryland Open Meetings Act and the county charter by meeting in closed session on January 3, 2025 to discuss the appointment of a new county executive.

On March 17, the compliance board issued an opinion that the meeting did not violate the act because the appointment of a new county executive constituted an “administrative function” outside the scope of the act.

The board stated that it lacks the jurisdiction to opine on matters of local law and could not address our alternative claim that the closed session also violated the county charter, which imposes its own open meetings requirement on the council.

On May 28, I filed a complaint with IG Madigan, in which the eleven other residents joined, renewing the contention that the closed meeting violated Section 308(a) of the charter, which states: “All meetings of the county council or any committee thereof shall be open to the public.”

The relevant facts are not in dispute. The council held a meeting on January 3 that was not open to the public to deliberate on the selection of a person to succeed Johnny Olszewski, who had been elected to Congress, and to hear legal advice from its legislative counsel on the selection process and on filling the vacant county auditor position.

The importance of the complaint lies not in one closed meeting. The importance of the complaint is that the council routinely goes into closed session because it treats Section 308(a) as if it had been removed from the charter.

County Law is Crystal Clear

The framers of the charter were emphatic about their intent “to make it clear that every meeting within every session of the Council must be open to the public.”

They explained that Section 308(a) was intended to be “more restrictive” than state law, which at the time allowed county councils to go into closed “executive sessions” for purposes such as consulting with lawyers and discussing personnel matters.

The framers also emphasized that the requirement was not limited to legislation, noting that “all official acts of the County Council [are] to be performed in public.” The intent of Section 308(a) couldn’t possibly be any clearer: All meetings of the Council must be open to the public, and no public business may be conducted behind closed doors.

In 1977, the council enacted the county’s own version of a general open meetings act, just a few months before the General Assembly enacted the Open Meetings Act. The county’s version was repealed and replaced by the council in 1999 with the current language of Section 7-2-101 of the county code, which states: “The county adopts the State Open Meetings Act and incorporates the Act in the Code as if set out in full in this section.”

Under Section 305 of the charter, the council may not repeal or limit an explicit mandate contained in the charter, such as the requirement that all council meetings be open to the public. Consequently, the only reasonable interpretation of Section 7-2-101 of the code is that it incorporates the “conflict of laws” provision in the act described below, and that the “more stringent” requirements of Section 308(a) applicable to council meetings remain in effect.

State Law is Clear as Well

The conflict of laws provision of the Open Meetings Act, Section 3-105 of the General Provisions Article of the state code, has been interpreted by the Maryland Supreme Court to mean that “more stringent” openness requirements in a city or county charter prevail over conflicting provisions in the act, and require a meeting to be open even if not required to be open under the act.

The following is from page ii of the Open Meetings Act Manual published by the Maryland Attorney General describing the effect of the conflict of laws provision:

“As explained by the Maryland Supreme Court in City of College Park v. Cotter, 309 Md. 573 (1987), although the Maryland [Open Meetings Act] is the touchstone by which public bodies are to conduct their meetings, the statute is not exclusive in its application. The statute only outlines the minimum requirements for conducting open meetings. . . It does not supersede legislative enactments designed to bring more openness to public meetings.” (Emphasis added.)

The county council claimed that, even if the Open Meetings Act applied to the January 3 meeting, the act allowed it to go into closed session to discuss a personnel matter and to consult with legal counsel. Those exceptions, however, are not permitted under the more stringent requirement of Section 308(a) which, like the City of College Park charter provision at issue in the Cotter case (“all meetings of the Mayor and Council . . . shall be open to the citizens of the city”) does not recognize or authorize any exceptions.

As described by the court in that case, the wisdom of requiring all meetings to be held in public, including meetings to consult with counsel, was a matter for the voters of College Park to decide.

Given that the outcome of the January 3 meeting was to select Kathy Klausmeier to succeed Olszewski as county executive, it’s hard to argue with the wisdom of county voters in prohibiting the council from conducting any business behind closed doors.

An Impasse

On November 5, or over five months after I filed the complaint, IG Madigan released her report. I’ll summarize:

Madigan: “Before I respond to the complaint, I want a formal legal opinion issued by County Attorney Benjamin on whether the meeting held on January 3 violated Section 308(a) of the charter.”

Benjamin: “The Inspector General is not among the county officials entitled to seek a legal opinion from the County Attorney under Section 508 of the charter, but she can get an opinion from outside counsel.”

Madigan: “I don’t want it from outside counsel; I want it from the county attorney.”

County Executive Klausmeier, Administrative Officer D’Andrea Walker and the County Council are empowered to seek the opinion requested by Madigan, but to date apparently have not done so.

Result: An apparent impasse, and no answer to our complaint.

Dodging Responsibility

Let’s put aside the issues of whether Madigan, a lawyer, needs help with a relatively uncomplicated legal question, and whether Benjamin properly refused her request for a legal opinion.

In my opinion, if she does need assistance, it should not come from Benjamin or his office. She should accept his suggestion that she get any legal advice she needs from outside counsel.

Benjamin has been county attorney since 2019. During those six years he was aware of and participated in closed council meetings.

Issuing an opinion that a closed meeting violates the charter would be against his self-interest unless he has given that advice to the council in the past, and the council chose to ignore it.

If he gives council members that advice for the first time now, it would be tantamount to an admission that he sat idly by and failed to advise his clients that they were violating the law, an embarrassment not only for them but even more so for himself.

I don’t know how he could be objective under those circumstances.

Thumbing its Nose

The Baltimore County Council has a fondness for resolving matters behind closed doors, and its members are not going to be happy with the idea of complying with the plain language of the charter.

It appears that Madigan would prefer that Benjamin be the bearer of the bad news, and vice versa. At the end of the day, this is her complaint to resolve, and she can’t use what Benjamin does or fails to do as an excuse.

If she needs help, there are plenty of lawyers out there with at least as much skill and experience in statutory construction as the Baltimore County Office of Law.

In the meantime, the council continues to thumb its nose at county voters, who approved a charter provision intended to discourage the backroom politics for which the county has become known.

• David A. Plymyer retired as Anne Arundel County Attorney after 31 years in the county law office. He can be reached at dplymyer@comcast.net and Twitter @dplymyer.