If a Maryland board member attends every board meeting but skips the required public hearings, does that count against them under a 60 percent attendance removal rule?

Plain-English summary

The chairman of a Maryland House committee asked the Attorney General two questions about the Chesapeake Bay Critical Area Commission, a 25-member body that had to adopt program development criteria for local governments around the Bay. The statute required the Commission to hold at least six regional public hearings before adopting those criteria, and separately required Commission members to attend at least 60 percent of "the meetings of the Commission" or be considered to have resigned. The question was whether the public hearings counted as "meetings" for purposes of that attendance rule, and if members had in fact fallen short of the requirement, whether that would undermine the criteria the Commission had already adopted.

The Attorney General concluded, on a close call, that the public hearings did not count as "meetings" under the attendance requirement, reasoning that hearings serve mainly as a forum for public input rather than the kind of collegial group deliberation the attendance rule was meant to protect. On the second question, the opinion concluded that even if members had missed enough meetings to trigger the statutory "resignation" language, that resignation was not automatic, it required the Governor to receive notice and decide whether to waive it, so noncompliant members remained entitled to act, and in any event a de facto officer's actions are treated as valid under Maryland law even if the officer's continued authority is later challenged.

Currency note

This opinion was issued in 1986. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Did attending public hearings count toward a Maryland board member's required meeting attendance percentage?
No, according to this opinion. The Attorney General concluded that the regional public hearings the Chesapeake Bay Critical Area Commission held before adopting its criteria were not "meetings of the Commission" under the statute requiring 60 percent meeting attendance, reasoning that a hearing is primarily a forum for public testimony rather than the collegial decisionmaking session the attendance requirement was designed to encourage.

If board members had actually missed too many meetings, would that have invalidated rules the board already adopted?
No. The opinion concluded that a member's statutory "resignation" for nonattendance is not automatic or immediate, it requires the chairman to notify the Governor and the Governor to decide whether to waive the resignation, so a noncomplying member remains entitled to serve and vote until that process runs its course.

What happens if someone later challenges a board's decision on the ground that a member who voted was not properly serving?
The opinion explained that under Maryland's de facto officer doctrine, actions taken by someone who was in actual possession of a public office under color of right are treated as valid and binding on the public, even if that person's legal right to hold the office is later questioned, so the Commission's adopted criteria would remain valid either way.

Background and statutory framework

The Chesapeake Bay Critical Area Commission consisted of 25 voting members, including local government officials and state department secretaries serving ex officio, and was charged with adopting criteria for local governments' Critical Area protection programs by a fixed deadline. The statute required the Commission to hold at least six regional public hearings before adopting those criteria, closely tracking the general attendance provision in Article 41, §4 of the Maryland Code that applies to state boards and commissions, except that the Commission's attendance threshold was 60 percent rather than the usual 50 percent.

The opinion weighed several considerations pointing toward treating hearings as meetings, including that Maryland's Open Meetings Law broadly defines "meet" to include convening a quorum for public business, before concluding that the specific attendance requirement here served a different purpose: ensuring that the Commission's decisions reflected genuine deliberation among its geographically and substantively diverse members, something a public hearing devoted mainly to receiving testimony does not provide. On the second question, the opinion distinguished the statute's four-step "resignation" process (a twelve-month tally, notice to the Governor, a waiver decision, and appointment of a successor) from an automatic ouster, and further reasoned that under the de facto officer doctrine, actions taken by a member who possessed the office under color of right would be valid and binding regardless of any later attendance dispute.

Citations

Statutes:

• §8-1804(a), (a)(2), (a)(4), and (c)(6) of the Natural Resources Article (Commission composition and attendance requirement)
• §8-1806(1) and (2) of the Natural Resources Article (Commission's regulatory and hearing powers)
• §8-1808(a) and (d)(1) of the Natural Resources Article (program development criteria and required regional public hearings)
• §8-1809(d)(1), (d)(2), 8-1810(b), 8-1811, 8-1812(a), and 8-1814 of the Natural Resources Article (Commission hearing panels and related procedures)
• §10-501(f) and (i)(1) and §10-505(3) of the State Government Article (Open Meetings Law definitions and quasi-legislative function requirement)
• §2-1601(b)(1) and §2-1606(a)(2) of the State Government Article (General Assembly investigating committee hearing and quorum requirements)
• Article 41, §4 of the Maryland Code (general 50 percent attendance requirement for state board and commission members)
• Article 41, §4A of the Maryland Code (automatic suspension or removal for certain criminal convictions)
• Chapter 329, Laws of Maryland 1947 (original enactment of the attendance requirement)
• Chapter 114, Laws of Maryland 1964 (amendment adding the waivable resignation provision)
• Chapter 601, Laws of Maryland 1986 (subsequent legislation on hearing attendance, noted in the opinion's editor's note)

Cases:

• City of New Carrollton v. Rogers, 287 Md. 56 (1980)
• Hills & Dales, Inc. v. City of Wooster, 448 N.E.2d 163, 167 (Ohio App. 1982)
• County of Nassau v. Metropolitan Transp. Auth., 293 N.Y.S.2d 1017, 1021 (Sup. Ct. 1968)
• Morgan v. United States, 298 U.S. 468, 481 (1936)
• McGraw Elec. Co. v. United States, 120 F. Supp. 354, 357-58 (E.D. Mo. 1954)
• Bouton v. Potomac Edison Co., 282 Md. 142, 152 (1978)
• Eudaly v. City of Colleyville, 642 S.W.2d 75, 77 (Tex. App. 1982)
• Ulrich v. Board of County Comm'rs, 278 Md. 432, 439 (1976)
• Kone v. Baltimore County, 231 Md. 466, 471 (1963)
• Grooms v. Lavale Zoning Bd., 27 Md. App. 266, 273-74 (1975)
• Reed v. President and Commissioners of North East, 226 Md. 229, 242 (1961)

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1986/Volume71_1986.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

Chesapeake Bay Critical Area Commission - "Hearings"/"Meetings" - Attendance Requirement - Validity of Criteria.

April 2, 1986

The Honorable Larry Young
Chairman
House Environmental Matters Committee
Maryland House of Delegates

You have requested our opinion concerning certain provisions in the statute creating the Chesapeake Bay Critical Area Commission. Specifically, you inquire:

1) whether the "regional public hearings" required by §8-1808(d)(1) of the Natural Resources Article ("NR" Article) are "meetings of the Commission," for purposes of the requirement in NR §8-1804(c)(6) that Commission members "attend at least 60 percent of the meetings of the Commission" annually; and

2) whether the legality of the Commission's criteria for program development would be affected if they were adopted by a quorum composed of members of the Commission who had failed to attend at least 60 percent of Commission meetings.

For the reasons stated below, we conclude that:

1) Although the question is a very close one, public hearings held by the Commission need not be counted for purposes of the attendance requirement as "meetings of the Commission."

2) The question of Commission members' compliance with the statutory attendance requirement does not affect the legality of the Commission's criteria. That is, even if it were concluded that a majority of Commission members had failed to attend the required number of meetings, nevertheless those members continue to serve on the Commission and are legally entitled to participate fully in the Commission's actions.

I
Attendance at "Meetings"

A. Background

The Chesapeake Bay Critical Area Commission "consists of 25 voting members" appointed by the Governor. NR §8-1804(a). Eleven Commission members are required to be local government officials. NR §8-1804(a)(2). Five other members are State Executive Department secretaries, serving ex officio. NR §8-1804(a)(4).

In general, the Commission is empowered to superintend the efforts that will be made at the local level to protect the Bay and its environs. See, e.g., NR §§8-1808(a), 8-1809(d)(2), 8-1811, and 8-1814. The Commission has the power, among other things, to "adopt regulations and criteria" and "conduct hearings in connection with policies, proposed programs, and proposed regulations or amendments to regulations." NR §8-1806(1) and (2).

B. Program development criteria

One of the Commission's principal responsibilities was the adoption of criteria for the development and approval of programs in each local jurisdiction, designed to achieve the statutory goals. NR §8-1808. Certain hearings were required to have been held prior to the adoption of the criteria:

"The Commission shall promulgate by regulation on or before December 1, 1985, criteria for program development and approval, which are necessary or appropriate to achieve the standards stated in subsection (b) of this section. Prior to developing its criteria and also prior to adopting its criteria, the Commission shall hold at least 6 regional public hearings, one in each of the following areas:

(i) Harford, Cecil, and Kent Counties;
(ii) Queen Anne's, Talbot, and Caroline Counties;
(iii) Dorchester, Somerset, and Wicomico Counties;
(iv) Baltimore City and Baltimore County;
(v) Charles, Calvert, and St. Mary's Counties; and
(vi) Anne Arundel and Prince George's Counties.

During the hearing process, the Commission shall consult with each affected local jurisdiction." NR §8-1808(d)(1).

As we understand it, the Commission in fact held 16 hearings, instead of the minimum of six required by the statute. The Commission, having been advised by counsel that a quorum was not essential to the convening of these public hearings, did not regard the hearings as Commission business meetings. After the hearings, the Commission, acting at meetings, with a quorum, considered and adopted the criteria. See 12 Md. Reg. 1953 (Sep. 27, 1985) (proposed regulations); 12 Md. Reg. 2352 (Nov. 22, 1985) (final regulations).

C. Construction of "Meetings"

The statute contains the following provision regarding attendance by Commission members:

"Any member of the Commission appointed by the Governor who shall fail to attend at least 60 percent of the meetings of the Commission during any period of 12 consecutive months shall be considered to have resigned, and the chairman shall forward the member's name to the Governor, not later than January 15 of the year following the nonattendance with the statement of the nonattendance, and the Governor shall thereupon appoint a successor for the remainder of the term. If the member has been unable to attend meetings as required by this subtitle for reasons satisfactory to the Governor, the Governor may waive the resignation if the reasons are made public." NR §8-1804(c)(6).

This provision is closely modeled after Article 41, §4 of the Maryland Code, an attendance requirement that is applicable to members of all State boards and commissions.1 The only difference is that the minimum attendance requirement applicable to the Commission is 60 percent, rather than the 50 percent generally required of members of State boards and commissions.

Thus, the General Assembly clearly attached considerable importance both to the public hearing process preceding adoption of the criteria, else it would not have specified with such detail the requirements for those hearings; and to diligent attendance by Commission members at meetings, else it would not have increased the otherwise applicable 50 percent attendance requirement to 60 percent. Moreover, the General Assembly might well have understood these two provisions to be linked, so that the attendance requirement for meetings would serve to increase attendance at the hearings. This argument, that "hearings" are "meetings," for purposes of the attendance requirement in NR §8-1804(c)(6), is strengthened by provisions elsewhere in the statute that authorize the Commission to "appoint a panel of 3 of its members" to conduct other required public hearings. NR §§8-1809(d)(1) and 8-1810(b).

Finally, there is little doubt that, when a public hearing is convened by a quorum of the Commission, or indeed of any other public body, it is subject to the State Open Meetings Law. The term "meet" is defined, for purposes of the Open Meetings Law as follows: "'Meet' means to convene a quorum of a public [body] for the consideration or transaction of public business." §10-501(f) of the State Government Article ("SG" Article). Under SG §10-505(3), "a public body shall meet in open session whenever the public body is carrying out ... a quasi-legislative function."2 A "quasi-legislative function" is defined as "the process or act of ... adopting, disapproving, amending or repealing a rule, regulation, or bylaw that has the force of law." SG §10-501(i)(1). The taking of testimony at a public hearing is surely part of "the process . . . of . . . adopting ... a rule." See City of New Carrollton v. Rogers, 287 Md. 56 (1980).3

Nevertheless, after taking into account these forceful considerations, we still conclude on balance that hearings of the Commission need not be counted for purposes of the requirement in NR §8-1804(c)(6) that Commission members "attend at least 60 percent of the meetings of the Commission."

First, we believe that the breadth of "meeting," for purposes of the Open Meetings Law, is not dispositive of the issue of construction here. See Hills & Dales, Inc. v. City of Wooster, 448 N.E.2d 163, 167 (Ohio App. 1982) (term "public hearings" in city charter provision regarding zoning procedure not the equivalent of term "meetings open to the public" in Sunshine Law). Cf. 70 Opinions of the Attorney General 30 (1985) (entity might be a State agency for purposes of the Public Information Act but not for other purposes). Obviously a "regional public hearing" must accord with a law intended to open agency meetings to public observation.

But we are not dealing with a question of public access. Rather, the attendance requirement in NR §8-1804(c)(6) is aimed at the Commission members themselves. It is, we think, best read as a device to ensure that Commission decisions in fact reflect the collegial process of a diverse membership. The Commission's membership was carefully devised to bring to its decisionmaking a range of geographic and substantive interests. NR §8-1804(a). But the intended collegial decisionmaking cannot occur if members are too often absent from sessions at which decisions are made.

However, a quasi-legislative public hearing, by its nature, does not involve the kind of group deliberation and interaction that a collegial body is required to bring to its decisionmaking. A public hearing is intended primarily as a forum for those who wish to express their views. It is also, correspondingly, a means of information for agency members. See County of Nassau v. Metropolitan Transp. Auth., 293 N.Y.S.2d 1017, 1021 (Sup. Ct. 1968), aff'd mem. 301 N.Y.S.2d 432 (App. Div. 1969) ("a quasi-legislative hearing . . . can be primarily informational for the hearing body"). But it is not a mode of agency deliberation. To be sure, members of the body might participate in the hearing by posing questions to witnesses, but there is little interaction among the members themselves. Hence, the absence of members from the hearing does not impair the collegial process of decisionmaking, for that process simply does not occur at a hearing.

Indeed, it is a well-settled tenet of administrative law that members of an agency may participate in the decision of a matter, notwithstanding that they did not personally hear the presentation of evidence or argument. "Neither due process of law nor the concept of a full or fair hearing requires that the actual taking of testimony be before the same officers as are to determine the matter involved, and it is common for hearings to be conducted by less than all members of an administrative agency." 2 Am. Jur. 2d Administrative Law §437, at 245 (1962). Accord 3 Davis, Administrative Law §17:2, at 280 (2d ed. 1980). The procedural minimum necessary to ensure a reasoned judgment by decisionmakers is that decisionmakers consider and review all relevant evidence, but this requirement does not mean that they must be present at the actual hearing.4 Morgan v. United States, 298 U.S. 468, 481 (1936). As Professor Davis summarized the import of this case and its progeny: "[T]he deciding officers must understand the evidence, and that may be done by reading summaries prepared by the staff or by consultations with the staff." 3 Davis, Administrative Law §17:2, at 280. See also McGraw Elec. Co. v. United States, 120 F. Supp. 354, 357-58 (E.D. Mo.), aff'd 348 U.S. 804 (1954) (ICC decision on rates properly made by commissioners who had not heard oral argument but who read transcript).5

The statute creating the Commission itself reflects an awareness that hearings and meetings do not play the same role in the work of the agency. The two terms are used separately in different places, and the public hearings are not expressly defined as meetings. The Commission members themselves are described as "25 voting members," which suggests that the attendance requirement is a manifestation of the General Assembly's concern about the decisionmaking process, i.e., the "voting", that would occur at meetings, not hearings. See also NR §8-1812(a) (procedure for disapproving chairman's actions regarding judicial proceedings "by vote at a meeting of the Commission").

A distinction between hearings and meetings also has its practical side, of which the General Assembly was presumably aware. As was to be expected given the tight timetable for the development of the criteria, the regional public hearings of the Commission were bunched at the beginning and near the end of the process. And, as noted in Part I A above, most of the members of the Commission are required by the statute to be public office holders. It was certainly foreseeable that these officials would have other responsibilities that would prevent them from devoting a lengthy, consecutive block of time to a series of public hearings. If hearings had been considered to be part of the attendance requirement for meetings, the result might well have been greater attendance by Commission members at far fewer hearings. This result would have ill-served the legislative intent underlying the required regional public hearings, that the public have as much opportunity as possible to be heard.6

Finally, the difference between hearings and meetings is reflected in provisions governing the General Assembly's own investigating committees. "Unless there is a quorum, an investigating committee may not act at any meeting or hold a hearing." SG §2-1606(a)(2). The express inclusion of "hearing," as separately defined in SG §2-1601(b)(1), in this quorum requirement suggests that the term "meeting" alone would not extend the requirement to hearings. Cf. Bouton v. Potomac Edison Co., 282 Md. 142, 152 (1978) (meetings of Public Service Commission personnel with interested persons were not "public hearings," within meaning of Public Service Commission Law). See also Eudaly v. City of Colleyville, 642 S.W.2d 75, 77 (Tex. App. 1982) (distinguishing "public hearings" from "public meetings").

For these reasons, we are of the view that the term "meetings" in NR §8-1804(c)(6) does not extend to the "regional public hearings" required by NR §8-1808(d)(1).

II
Effect of Noncompliance

A. Introduction

As we understand it, if public hearings are not counted as meetings for purposes of the 60 percent attendance requirement, all members of the Commission have met that requirement. If, however, public hearings were to be reckoned as meetings for purposes of the attendance requirement, most members of the Commission would not satisfy the requirement.

As discussed in Part I above, we have concluded that public hearings need not be counted in determining compliance with the attendance requirement. Nevertheless, because the question is a very close one, we think it useful to offer our views on your second question as well: whether the legality of the Commission's criteria for program development and approval would be impaired if they had been adopted by a quorum composed of members of the Commission who had failed to meet the attendance requirement. We conclude that noncompliance by a Commission majority with the attendance requirement in NR §8-1804(c)(6) would have no effect on the legality of the Commission's criteria.

B. The Statutory "Resignation" Procedure

NR §8-1804(c)(6) provides for the "resignation" of a Commission member who fails to meet the 60 percent attendance requirement. But the provision does not swiftly or automatically remove noncomplying members from office and thus create vacancies. On the contrary, the procedure entails four separate steps, all of which must be completed before a noncomplying member ceases to hold office.

First, a "period of twelve consecutive months" must have elapsed and the member's failure to meet the 60 percent attendance requirement must be determined by the Chairman of the Commission.7 Second, "the Chairman shall forward the member's name to the Governor not later than January 15 of the year following the nonattendance with the statement of the nonattendance." Third, the Governor must decide whether to "waive the resignation," after considering the reasons for the member's nonattendance. Finally, if the Governor declines to waive the resignation, the Governor "appoints a successor for the remainder of the term." Thus, the noncomplying member's service on the Commission ceases only after the successor qualifies.

Article 41, §4, in virtually identical terms, requires the members of State boards and commissions generally to attend at least 50 percent of their meetings, while authorizing the Governor to waive the resignation otherwise implied from nonattendance. In contrast, Article 41, §4A provides that a board or commission member who is convicted of certain criminal offenses "shall be suspended without pay from participation in the board's or commission's activities during the appeals period. If the conviction becomes final, the member shall be removed from the office and the office shall be deemed vacant." In our view, the sharp contrast between the automatic suspension or removal provided for by Article 41, §4A and the waivable resignation provided for by Article 41, §4 and NR §8-1804(c)(6) reflects a clear legislative intent that "resignation" by virtue of nonattendance at meetings takes effect only if the Governor decides not to waive that resignation.8

Thus, in our view, the statutory resignation of a Commission member operates essentially like a voluntary resignation, which is ordinarily not effective until it has been accepted. "[A] public officer who submits his resignation is required to perform the duties of his office until his resignation is accepted." Ulrich v. Board of County Comm'rs, 278 Md. 432, 439 (1976).

In the Ulrich case, the Court of Appeals held that a public official's resignation tendered at the request of the county governing body took effect immediately, without the necessity of any formal acceptance. The basis of that holding was "that the acceptance of the resignation was implicit in the request for the resignation." 278 Md. at 440. That is, the governing body had previously determined upon its "willingness to relieve [the official] of the performance of his duties." Id. Under such circumstances, further formal action was unnecessary.

By contrast, formal action on the statutory "resignation" of a Commission member is expressly required by NR §8-1804(c)(6). The Governor must determine whether the member's reasons for nonattendance were satisfactory and whether to "waive the resignation." Put another way, the Governor must determine whether he is willing to accept the member's resignation. Until he does so, that resignation is not effective.9

C. The De Facto Officer Doctrine

Even if NR §8-1804(c)(6) were to be properly read as providing for Commission members' automatic and immediate ouster from their positions, the validity of the adoption of the Commission's criteria would be unaffected. If the members who did not attend the requisite number of the Commission's hearings lacked actual authority to participate in the Commission's decisionmaking thereafter, they nonetheless properly exercised such authority as de facto members. "A de facto officer has been defined as one in actual possession of an office under some colorable or apparent authority." Kone v. Baltimore County, 231 Md. 466, 471 (1963). "Where there is a de jure office [i.e., an office is legally authorized], all that is required to make an officer de facto is that the individual claiming the office be in possession of it, performing its duties, and claiming to be such officer under color of right." Grooms v. Lavale Zoning Bd., 27 Md. App. 266, 273-74 (1975). The Court of Appeals has held that "an elected or appointed officer may remain in office at the expiration of his term and is entitled to exercise the powers of the office until his successor qualifies, whether or not the statute creating the office so provides." Reed v. President and Commissioners of North East, 226 Md. 229, 242 (1961).

During the time that the resignation procedure in NR §8-1804(c)(6) goes forward, the affected members are at least de facto members of the Commission. See Reed, 226 Md. at 240 ("[T]he public interest requires, in the absence of any provision to the contrary, that public offices should be filled at all times, without interruption.").

"[A]ll official actions of de facto officers are, upon grounds of public policy and necessity, to be considered as valid and binding as if they had been performed by de jure officers." 226 Md. at 246. Thus, for example, in Kone v. Baltimore County, a disciplinary board convened and headed by a de facto officer was held to have validly and effectively discharged a public employee. See also Reed, 226 Md. at 246 (powers of de facto officers extend to issuance of properly authorized bonds); Grooms, 27 Md. App. at 275 (powers of de facto officers extend to issuance of zoning ordinance and zoning map). By the same token, it is clear that the powers of de facto members of the Chesapeake Bay Critical Areas Commission extend to adoption of the Commission's program development and approval criteria. Therefore, whatever the membership status of the majority of the Commission at the time those criteria were adopted, the action by which they were adopted was fully effective, and the criteria are valid and binding on the public.

III
Conclusion

In summary, it is our opinion that:

1) Although the question is a very close one, public hearings held by the Commission need not be counted for purposes of the statutory attendance requirement as "meetings of the Commission."

2) The question of Commission members' compliance with the statutory attendance requirement does not affect the legality of the Commission's adopted criteria for local program development and approval. That is, even if one concluded that a majority of Commission members had failed to attend the required number of meetings, nevertheless these members continue to serve on the Commission and are legally entitled to participate fully in the Commission's actions.

Stephen H. Sachs
Attorney General
Jack Schwartz
Chief Counsel
Opinions and Advice

Editor's Note: After the issuance of this opinion, the General Assembly enacted legislation dealing in part with attendance by Commission members at public hearings. Chapter 601, Laws of Maryland 1986.

1 "Any member of any State board or commission appointed by the Governor who shall fail to attend at least 50 percent of the meetings of the board or commission of which he is a member during any period of twelve consecutive months shall be considered to have resigned and the chairman of said board or commission shall forward or cause his name to be forwarded to the Governor, not later than January 15 of the year following such nonattendance with the statement of such nonattendance, and the Governor shall thereupon appoint his successor for the remainder of the term. If the member has been unable to attend meetings as required by this section for reasons satisfactory to the Governor, the Governor may waive such resignation if such reasons are made public."

2 The phrase "shall meet in open session" in SG §10-505 does not imply that agency members are prohibited from assembling for the functions identified in SG §10-505 unless a quorum is present. The Open Meetings Law sets out certain requirements that an agency must follow once a quorum is present for the consideration or transaction of public business. If the quorum is carrying out one of the functions identified in SG §10-505, it "shall meet in open session"; if it is carrying out one of the functions identified in SG §10-508(a), it "may meet in closed session." The Open Meetings Law does not prescribe the circumstances under which a quorum is required in the first place. See note 4 below.

3 The Rogers case held that even an informal, information-gathering meeting called by a citizen's association, at which a quorum of the city council attended for the purpose of answering questions, was a "meeting" within the meaning of the Open Meetings Law: "[T]he Act applies, not only to final decisions made by the public body exercising legislative functions at a public meeting, but as well to all deliberations which precede the actual legislative act or decision, unless authorized by [the Open Meetings Law] to be closed to the public." 287 Md. at 72.

4 As discussed in Part I B above, counsel to the Commission advised that the presence of a quorum was not a prerequisite to the holding of a public hearing. This advice was based on the principle of administrative law summarized in the text accompanying this note. Moreover, we have found no case that requires the presence of a quorum at a quasi-legislative hearing at which no agency decisionmaking occurs. Thus, we suggest that if the General Assembly desires to assure the presence of a quorum of Commission members at public hearings, it should specify that requirement in the statute. See SG §2-1606(a)(2) (quorum requirement for investigating committee hearings).

5 We understand that all public hearings of the Commission were transcribed and available to members who had not attended any particular hearing.

6 As it was, Commission members were encouraged (but not required) to attend hearings, and the Commission held more hearings than it was required to.

7 The term "period of twelve consecutive months" is ambiguous. It might refer to the annual periods following the Commission's initial meeting, which occurred in October 1984. Alternatively, the phrase might refer to calendar years, even though the life of the Commission in the first year (1984) was much less than 12 months. The Chairman of the Commission has construed the provision to mean the latter and has informed the Governor early each year of compliance with the attendance requirement for the preceding calendar year. Under the Commission's construction of the term "meetings," discussed in Part I above, all members met the attendance requirement.

8 This construction is confirmed by the legislative history of Article 41, §4. As originally enacted, the provision required the resignation of any board or commission member "who shall fail to attend the meetings of the Board or Commission of which he is a member for a period of twelve consecutive months." After being notified of this failure, "the Governor shall thereupon appoint his successor for the remainder of the term." There was no provision for excusing the nonattendance. Chapter 329, Laws of Maryland 1947. In 1964, Article 41, §4 was amended to provide for the 50 percent attendance requirement now in the statute and to add the language giving the Governor the authority to "waive such resignation." The bill title described the latter as "providing for gubernatorial pardon." Chapter 114, Laws of Maryland 1964.

9 As noted in Part I B above, the Commission had received advice of counsel, on the basis of which the regional public hearings were not regarded as meetings, for purposes of the attendance requirement. For the reasons stated in Part II C above, we agree with this reading of the statute. But even if the contrary view were taken, the Commission members' good faith belief that they were not missing a "meeting" when they failed to attend a hearing might well be regarded by the Governor as a satisfactory reason to waive the resignations.