Regents vote may have violated Open Meetings Act

Chancellor Brit Kirwan

After many criticized the Board of Regents for meeting behind closed doors to endorse the university’s move to the Big Ten, a complaint was filed to the state’s Open Meetings Compliance Board this week.

The 17-member ruling body of the University System of Maryland may have violated the state’s Open Meetings Act, which requires state and local bodies to hold public meetings and remain transparent when convening to vote. If the regents are found to have been violating the act, the Open Meetings Compliance Board, which does not have the authority to enforce punishment, can issue an opinion condemning the vote to springboard a potential lawsuit. If the case does make it to the courts, the Board of Regents can be sued for attorney fees and be forced to take a public vote, said Student Press Law Center Director Frank LoMonte.

Even if the board is reprimanded, however, it would not have an effect on the conference move because the decision ultimately rests with university President Wallace Loh.

“The whole argument is very moot as to whether it did or didn’t [violate the act], because if the power rests with [Loh], and let’s say the process may have been defective … how do you cure the situation?” said sports lawyer Bradley Shear. “You don’t have to cure the situation if the regents don’t have to OK the move and even if someone says, ‘Yes you do,’ you just have a revote.”

On Nov. 19, the board overwhelmingly supported the move with only one opposing vote, shortly before the Big Ten Council of Presidents unanimously voted to bring in the university as its 13th member. Later that day, Loh publicly announced the university would be parting ways with the ACC, a conference it helped found nearly 60 years ago.

“Under current USM policies on intercollegiate athletics, UMCP’s move to the Big Ten did not require the approval of the USM Board of Regents,” Board of Regents Chair James Shea and Chancellor Brit Kirwan wrote in a joint statement. “However, it was important to both the university and the system that the Board of Regents deliberate on a move of such significant magnitude.”

There are 14 permissible circumstances for when a public body can request a closed meeting, ranging from personnel matters to other sensitive issues; Loh presented the regents with confidential financial information from the Big Ten. LoMonte, however, said he doesn’t see the vote meeting any of the requirements.

“I haven’t seen them cite which exception applies,” LoMonte said, adding the board still needed to give adequate notice its meeting was going to be closed even if it did follow the law.

“I don’t think they’re claiming they’ve done either of those things,” he said. “They didn’t follow any of the legal formalities to close the session in the first place.”

The purpose of the act is to ensure governing bodies remain transparent, said Stephen Sachs, a former state attorney general, who said he didn’t have an opinion on whether the move violated the law or not.

“The spirit of the Open Meetings Act is that the government should operate in the open — those were the words,” he said. “But, and it’s a very important ‘but,’ there are very legitimate exceptions to that and definitions are important.”

Tom McMillen, who cast the Board of Regents’ one dissenting vote, was irked by the secrecy surrounding the whole decision. With the Big Ten requiring Loh to sign a nondisclosure agreement to prevent rumors of the move from spreading while they were still negotiating, there was no public discussion before the move was finalized.

“These big money conferences are forcing these university presidents to really kowtow,” McMillen, who was a Terps basketball standout in the 1970s, said. “The flow of information is very limited.”

McMillen said he wasn’t comfortable with the process remaining confidential until the decision was announced, and he wanted more input from the public and the student-athletes who are directly affected by such a move.

“Ultimately, you can only treat student-athletes like cattle for so long; they just have no input on this at all,” he said. “It’s place of higher education, not a sports franchise.”