Q

Gaithersburg
A CHARACTER COUNTS! CITY

February 15, 2017

Via Email and Regular Mail

(opengov@oag. state. md. us)

Open Meetings Compliance Board

c/o Attorney General ' s Office
200 St. Paul Place
Baltimore, Maryland 21202

Re: Open Meetings Act Complaint

City of Gaithersburg Mayor and Council
Aaron Rosenzweig, Complainant

Dear Open Meetings Compliance Board Members:

On behalf of the Mayor and City Council of the City of Gaithersburg (hereinafter referred
to "City"), this response to the Complaint filed by Aaron Rosenzweig dated January 11 , 2017
and received by the City on January 17, 2017 is being submitted for consideration by the Open
Meetings Compliance Board. Note that many of the issues raised in Mr. Rosenzweig's
Complaint are similar to the January 12, 2017 Complaint to the Open Meetings Compliance
Board from Steven Lawrence. Therefore, much of the information provided below has been
previously provided to this Board.

Background Information

The Complaint alleges violations of the Maryland Open Meetings Act, General
Provisions Article of the Annotated Code of Mary land, 3-101 , et seq. (hereinafter referred to as
"Open Meetings Act" or "Act") that allegedly occurred at the December 19, 2016 Mayor and
City Council Regular Meeting related to the annexation of property by the City (Johnson
Annexation X-7067-2015 , hereafter referred to as the "Johnson Annexation").

City of Gaithersburg 31 South Summit Avenue, Gaithersburg, Maryland 20877-2038

301-258-6300 FAX 301-948-6149 cityhal l@gaithersburgmd.gov www.ga ithersburgmd.gov
MAYOR COUNCIL MEMBERS CITY MANAGER
Jud Ashman Nei l Harris Tony Tomasello
Yvette D. Monroe
Michael A. Sesma
Ryan Spiege l
RobertT. Wu
 The Mayor and City Council constitute Gaithersburg's elected officials and are
comprised of a Mayor and five (5) Councilmembers. On December 19, 2016, the City had one
vacant Council position due to the death of a Councilmember, so that the number of
Councilmembers on that date was four (4). Pursuant to the Gaithersburg City Charter, all
legislative powers of the City are vested in the City Council. See Sec. 3 of the City Charter,
attached hereto and incorporated herein. The City Council meets in regular public meetings
generally on the first and third Monday of each month at 7:30 p.m., and as required by the City
Charter, all meetings are open to public, except as otherwise provided by Maryland law. See
Sec. 6 of the City Charter, attached hereto and incorporated herein. The Mayor presides at
meetings, but has no vote on any decision of the Council. See Sec. 8 of the City Charter,
attached hereto and incorporated herein. The City Charter also defines a quorum, providing that
"A majority of the members of the council shall constitute a quorum for the transaction of
business .... " See Sec. 9 of the City Charter, attached hereto and incorporated herein.

Turning to the Johnson Annexation, the Johnson family who are the owners of this
property filed a Petition of Annexation with the City, which was introduced at a public meeting
of the Mayor and City Council on August 17, 2015. After the introduction of this Petition, the
Annexation was considered at the July 20, 2016 and August 3, 2016 City of Gaithersburg
Planning Commission public meetings and the September 19, 2106 Mayor and Council public
hearing. Notice of each of these meetings was posted on the City's website and posted on the
bulletin board at the entrance of City Hall. In addition, the required public hearing was
advertised in the Washington Post. Each of these meetings was open to the public and the public
was provided the opportunity to comment. In addition, 228 Exhibits were included in the public
record for this annexation, including many emails and letters from members of the public stating
their opinion on the proposed annexation. 1

In October 2016, Councilmember Ryan Spiegel, who is also a practicmg attorney,

learned that his law firm was representing the Johnson family in an employment matter unrelated
to the Johnson Annexation. 2 He immediately contacted the City Attorney's Office regarding this
matter to determine if this posed a conflict of interest under the City's ethics laws. As a result of
these discussions he decided to recuse himself from further participating in the consideration of
the Johnson Annexation. The same day he also contacted Mayor Jud Ashman to advise him of
his decision and subsequently informed the City Manager and City Clerk of his decision to
recuse himself.

On December 19, 2016, Councilmember Robert Wu texted Councilmember Spiegel

regarding the Johnson Annexation and Councilmember Spiegel responded by text that he was
going to recuse himself. This is confirmed by Councilmember Wu's statement at the 0:59 minute
mark of the meeting when he said that had learned that day that Councilman Spiegel intended to

1
Since the Complainant has not al leged any violation of the Open Meetings Act at the meetings
referenced in this paragraph, copies of the meeting notices, agendas and minutes have not been attached,
but are available if needed by the Open Meetings Comp Iiance Board .
2
Gaithersburg City Council positions are part-time in nature and the City's current Mayor and
Councilmembers all maintain other fu lltime jobs.

2
recuse himself. Councilmember Wu also that day emailed the Mayor and all of the members of
the City Council regarding the Johnson Annexation. Councilmember Wu referenced this email
at the 0:58 mark of the public meeting. See attached email from Robert Wu dated December 19,
2016. Neither the Mayor nor any of the Councilmembers responded to his email.
Councilmember Sesma, at the 1:04 minute mark of the meeting confirmed that Councilmember
Spiegel had not told him that he was recusing himself, and Mayor Ashman, at the 1:05 mark,
disclosed his prior discussion with Councilmember Spiegel, that he was going to recuse himself.
Councilmember Spiegel had no other communications with any other Councilmembers regarding
his recusal or the Johnson Annexation. See https://www.youtube.com 0:58 mark for the above
referenced statements during the December 19, 2016 public meeting.

At the December 19, 2016 Mayor and Council meeting, which is the subject of this
Complaint, a Resolution approving the Johnson Annexation was before the City Council for final
action. Notice of this meeting was properly posted on the City' s website and a copy of the
meeting Agenda was posted on the bulletin board at City Hall. See website posting and meeting
agenda, attached hereto and incorporated herein. The entire Mayor and Council meeting,
including all of the discussion of the Johnson annexation, was open to the public and was
televised. See https://www.youtube.com 0:58 mark.

When the December 19, 2016 meeting commenced, the Mayor and three (3)
Councilmembers were present: Councilmembers Neil Harris, Michael Sesma and Robert Wu.
Councilmember Spiegel was not present due to illness. In accordance with the City Charter, this
constituted a quorum as it was a majority of the members of the council. Once the Johnson
Annexation Agenda item came before the Council, Councilmember Wu, at the 0:58 meeting
mark, requested the item be continued, but his motion for a continuance did not carry. As a
result he left the meeting so that a quorum would longer exist. Councilmember Spiegel, who
was watching the meeting at home, then texted Mayor Ashman advising him that he was on his
way to the meeting. Approximately ten ( 10) minutes later, Councilmember Spiegel arrived at the
meeting, so that there was a quorum of three (3) Councilmembers: Harris, Sesma and Spiegel.
The Council then went onto to consider the Johnson Annexation, with Councilmember Spiegel
recusing himself and Councilmembers Harris and Sesma voting to approve the Annexation.

Discussion of Issues Presented

Complainant appears to allege two violations of the Maryland Open Meetings Act and
one other generalized complaint regarding the City ' s proceedings: (1) that the Council violated
the Open Meetings Act by using a "walking quorum; and (2) that not all deliberations of the
Council occurred during public meetings; and (3) that the City has taken other "bad" actions.
Each of these alleged violations is without merit and is addressed below.

1. "Walking Quorum" Allegation.

Complainant alleges that the departure of one councilmember and arrival of another
councilmember during the December 19, 2016 meeting violates the Open Meetings Act. This is
just not the case.

3
 The purpose of the Maryland Open Meetings Act is to ensure that public business is
performed in an open and public manner. Maryland Open Meetings Act 3-102. It is clear from
the information provided herein as well as the video of the December 19, 2016 Mayor and
Council meeting, all of the proceedings were conducted in public. Even for the short period of
time when a quorum of the council did not exist, the meeting remained open to the public. At no
time during this meeting was a recess taken, an executive session commenced, or any other
action taken to close the meeting. The proceedings were open to the public without interruption.

Complainant refers to this as a "walking quorum", or intentionally cycling members in

and out of a meeting to avoid a quorum. The concept of a "walking quorum" was discussed by
the Maryland Court of Appeals in Community and Labor United for Baltimore Charter
Committee (CLUB) et al. v. Baltimore City Board of Elections, et al., 377 Md. 183 (2002) In
that case the public body cycled its members in and out of a closed meeting in order to avoid a
quorum that would have triggered the open meeting requirement. The Open Meetings
Compliance Board has also discussed concept of a "walking quorum" or manipulating a quorum
in 8 OMBC 56 (2012). In that Opinion the Board in discussing the CLUB case found that a
public body risks violating the Open Meetings Act by manipulating a quorum to avoid
deliberating in public as such action could be perceived as willfully seeking to exclude the
public from its decision-making process.

In Gaithersburg's situation, the public was never excluded from the meeting; to the
contrary, the Mayor and Council continued to meet in public even during the short period of time
when it did not have a quorum, as can be seen in the video of the meeting. There was no attempt
or intent to exclude the public from viewing the deliberative process as in the Club case. The
Complainant may not like the outcome of the Council ' s vote or the way that it occurred, but the
City's actions clearly were in compliance with the Open Meetings Act.

2. Discussions Outside of Public Meetings Allegation.

The Complainant next alleges violations of the Open Meetings Act as allegedly there
were discussions that occurred privately and not in the open. The Open Meetings Act requires
that meetings of a public body be conducted in public. The City does not contest that the Mayor
and City Council constitute a "public body" under the Open Meetings Act. However, the second
inquiry regarding these alleged discussions is whether they were holding a "meeting" when
discussions occurred outside of public view. As this Board is aware, the Act only applies when
the public body "meets."

The Act, at 3-lOl(g) defines "meet" as to convene a quorum of a public body to

consider or transact public business. This Board has established a three part test to determine
whether a public body's action rises to the level of a meeting: (1) a quorum of its members are
present; (2) the gathering is convened for the consideration or transaction of public business; and
(3) when the gathering occurred by chance or social reasons, the quorum nonetheless used it to
discuss public business.

As is evident from the background information set forth above, the Mayor and City
Council never met outside of the open, televised public meeting to transact public business. At

4
no time was a quorum of its members present except at the December 19, 2016 open public
meeting. Councilmember Spiegel conveyed to Mayor Ashman in October of 2016 that he
intended to recuse himself from the vote in the Johnson Annexation. Per the City Charter,
Mayor Ashman does not count toward a quorum as the Charter defines a quorum as a majority of
the members of the council. No quorum was present for this discussion, so it was not a meeting
within the definition of the Act. Then on December 29, 2016, Councilmember Spiegel in
response to a text message from Councilmember Wu informed him that he would be recusing
himself. As this exchange involved only two councilmembers, once again, there was no quorum
so there was no meeting. Councilmember Sesma specifically stated at the December 19, 2016
meeting that he had not communicated with Councilmember Spiegel regarding his recusal, nor
had Councilmember Harris discussed the recusal with Councilmember Spiegel. Clearly, this one
text message communication outside of the public meeting between Councilmembers Spiegel
and Wu regarding his recusal does not constitute a quorum convened for the consideration or
transaction of public business so that there can be no violation of the Open Meetings Act.

Additionally, Councilmember Wu sent an email to the Mayor and all of the

Councilmembers on December 19, 2016 requesting a postponement of the Johnson property
consideration, but none of them responded to this email. Since there was no response to this
email, a quorum of the council once again did not convene for the consideration or transaction of
public business and the Open Meetings Act does not apply to this communication.

Opinions of the Open Meetings Compliance Board have dealt with complaints that a
public body reached a decision through e-mails, separately-held telephone calls or other modes
of communication outside of a meeting of the public body, but this Board has found that the
Act's definition of a "meeting" requiring the presence of a quorum has meant that the Act does
not apply to sequential or written communications among members. 7 OMCB Opinions 193
(2011 ). In later opinions, this Board has cautioned against this practice and the Maryland
Attorney General has opined that if members of a public body were able to "use e-mail for ' real
time' simultaneous interchange," this could violate the Open Meetings Act. 81 Op. Att 'y
Gen. 140 (1996). But as recently as April 2016, this Board has confirmed by that "separately-
held communications, held among fewer than a quorum of the public body's members and out of
the presence of a quorum, do not constitute a 'meeting' as defined by the Act." 10 OMCB 18
(2016).

This Board has also discussed the requirement under the Act to "convene." As discussed
in 9 OMCB 259, 262 (2015), "convene" entails the "simultaneous presence of a quorum of the
public body ' s members, whether in person or by telephone, and ordinarily does not include
sequential written communications when the members are apart." With regard to electronic
communications, in that Opinion, the Board found that "something more is needed for a meeting
than the mere 'capacity' for immediate group interaction; in our view, there should also be some
level of awareness that a quorum is present for a specific period of time." 9 OMCB 259, 263
(2015). Certainly here there is no evidence or indication that a quorum of the City Council was
present by e-mail, text message or any other form of communication for a specific period of time
outside of the public meeting. Therefore, there can be no violation of the Open Meetings Act.

5
 Additionally, in this case, there was never a quorum of the council that participated in
any communication regarding the Johnson annexation outside of the public meeting. There was
one text exchange between two (2) councilmembers and another email from one (1)
councilmember, which received no response from any other councilmember. This is not the type
of interchange that the Attorney General contemplated might constitute a near-simultaneous
interchange of a quorum of the public body in violation of the Act.

The City agrees with the holding of the Court in the Club case that the clear policy of the
Open Meeting Act is to allow the general public to view the entire deliberative process. But
unlike the situation in the CLUB case, here, the City published the required notice of its meeting
and all of its deliberations occurred in an open meeting.

3. Other "Bad" Actions Allegation.

Complainant finally alleges a number of alleged bad acts by the City. As this Board is
well aware, its authority in this regard is limited to violations of the Open Meetings Act. None of
Complainant's alleged acts are potential violations of the Act and, therefore, are outside of the
purview of this Board. As a result, while the City firmly maintains that it was well within its
authority and rights with regard to each of issues, the City does not intend to respond to these
allegations unless notified by the Open Meetings Compliance Board that additional information
is needed.

Conclusion

As the Open Meetings Compliance Board can see from the information and documents
provided in this response, the City conducted the December 19, 2016 Mayor and City Council
meeting in compliance with the Open Meetings Act. Notice of meeting was properly posted on
the City's website and at City Hall. The entire proceedings were open to the public as well as
televised for viewing by members of the public that chose not to attend in person. The few
limited communications regarding the Johnson Annexation between the Councilmembers never
included a quorum of the members and therefore, did not constitute a meeting as defined by the
Open Meetings Act. Nor is there any evidence that the City Council deliberated or transacted
public business outside of an open meeting.

The Open Meetings Compliance Board authority is limited to determinations of

compliance with the Act and in the absence of any violation of the Act any consideration of the
validity of the Council's vote on the Johnson Annexation in the open meeting is beyond the
scope of the Board' s authority. Further, this Board' s enforcement authority is limited under 3-
210 and 3-211 of the Act. While the Complainant has requested that the Board "tell the City
Government of Gaithersburg to ' start over' and proceed with the vote to annex this property
without playing games", this requested relief is beyond the authority of the Open Meetings
Compliance Board.

Based on all of this information, it is clear that the City has complied with the Open
Meetings Act and that Mr. Rosenzweig' s Complaint is without merit and should be dismissed .
The City of Gaithersburg prides itself in being transparent and conducting its business in an open

6
manner that is welcoming to all. We respectfully request this Board find that no violations of the
Open Meetings Act have occurred.

Should you have any further questions with regard to this matter or need any additional
information or documents, please do not hesitate to contact me at 301-258-6310 or
lboard@gaithersburgmd.gov.

cc Mayor and City Council

Tony Tomasello, City Manager
Aaron Rosenzweig