Does Maryland's Open Meetings Act require a school board to hold public hearings on employee discipline appeals?

Plain-English summary

A member of the House of Delegates asked the Attorney General, on behalf of the Howard County Board of Education, whether the Maryland Open Meetings Act applied to a hearing the Board held on an employee's appeal from an adverse personnel decision by the school superintendent. The employee involved wanted the hearing open to the public and had filed (then withdrawn) a complaint with the Open Meetings Compliance Board after the County Board indicated it planned to close the hearing.

The opinion concluded that this kind of appeal hearing, conducted under Education Article § 4-205(c), was a "quasi-judicial function" because state board regulations treated the whole process, including a further appeal to the State Board of Education, as a "contested case" subject to judicial review under specific court rules. Because the Open Meetings Act by its terms does not apply to a public body carrying out a quasi-judicial function, the County Board did not need to rely on any of the Act's closed-session exceptions to close the hearing, and closing it would usually be required anyway to protect personnel-record confidentiality under the Public Information Act. The opinion further concluded that even if the employee waived confidentiality and asked for an open hearing, the Board could still close it if it identified some other interest, its own or a third party's, that an open hearing would harm.

Currency note

This opinion was issued in 2005. 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 or procedure mentioned here.

Common questions

Did a 2005 Maryland opinion say a county school board had to open its employee-appeal hearings to the public?
No. The opinion concluded that a hearing on an appeal from a superintendent's personnel decision under ED § 4-205(c) was a quasi-judicial function to which the Open Meetings Act did not apply, so the board could close the hearing.

Did the opinion say an employee could force a school board to hold an open hearing by waiving confidentiality?
Not automatically. The opinion concluded that if the employee waived confidentiality and requested an open hearing, the board could still close it if it identified some other interest, its own or someone else's, that would be harmed by opening the hearing.

Did the opinion say all school board meetings are exempt from the Open Meetings Act?
No. The opinion addressed only this specific type of quasi-judicial personnel appeal hearing under ED § 4-205(c); it noted that the Act still applies when a public body considers matters like zoning or licensing even if those matters are otherwise quasi-judicial in nature.

Background and statutory framework

At the time of this opinion, Maryland's Open Meetings Act, codified in Title 10, Subtitle 5 of the State Government Article, generally required public bodies to meet in open session but did not apply when a public body was carrying out a "quasi-judicial function," defined to include the determination of a "contested case" subject to a specific form of judicial review. Under ED § 4-205(c), an employee could appeal an adverse personnel decision by a school superintendent to the county board of education, and further to the State Board of Education, and State Board regulations expressly treated that appeal process as a contested case reviewable under Maryland Rules Title 7, Chapter 200.

The opinion reasoned that because the State Board's own regulations characterized the entire appeal process, from the county board hearing through further State Board review, as a contested case with statutory judicial review, the hearing satisfied the Open Meetings Act's definition of a quasi-judicial function and fell outside the Act entirely. The opinion distinguished this from a separate Education Article provision requiring open meetings for a school board's "executive" functions, since a quasi-judicial hearing could not simultaneously be an executive function under the Act's own definitions. It also touched on personnel-record confidentiality requirements under the Public Information Act and on whether an employee's own waiver of confidentiality could compel an open hearing.

Citations and references

Statutes:
- SG § 10-503(a)(1)(iii), exempting a public body's quasi-judicial function from the Open Meetings Act
- SG § 10-502(i), defining "quasi-judicial function" to include the determination of a contested case
- ED § 4-205(c), governing appeals from a school superintendent's personnel decisions to the county and State boards of education
- SG § 10-508(a)(1), the Open Meetings Act exception permitting closed sessions for specific personnel matters
- SG § 10-616(i), the Public Information Act provision restricting public disclosure of personnel records

Cases:
- Tharp v. State, 362 Md. 77, 94, 763 A.2d 151 (2000), on a criminal defendant's right to an open trial and its limits
- Fitzgerald v. Hampton, 467 F.2d 755 (D.C. Cir. 1972), holding an employee had a due process right to an open hearing where a closure rule was based solely on protecting the employee's own privacy

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/2005/90oag17.pdf

Original opinion text

Gen. 17] 17

                  OPEN MEETINGS ACT

PUBLIC SCHOOLS – COUNTY BOARDS OF EDUCATION – HEARING
CONDUCTED BY LOCAL BOARD UNDER ED §4-205(c) IS A
QUASI-JUDICIAL FUNCTION TO WHICH THE OPEN MEETINGS
ACT DOES NOT APPLY

                        January 5, 2005

The Honorable Elizabeth Bobo
House of Delegates

  You have requested our opinion on the application of the

Maryland Open Meetings Act, Title 10, Subtitle 5 of the State
Government ("SG") Article, to a hearing held by the Board of
Education of Howard County ("County Board"). The type of
hearing in question involves an adverse personnel action by the
Superintendent of Schools against an employee, who then takes an
appeal to the County Board pursuant to §4-205(c) of the Education
("ED") Article. Your primary question is whether this appeal
hearing is a quasi-judicial function under the Open Meetings Act, or,
if not, whether it is an executive function. Your other questions are
contingent; they address the situation if such an appeal hearing were
deemed to be not a quasi-judicial but instead an executive function.1

 1
     These contingent questions are as follows:

              Assuming that such an appeal hearing is an
         executive function, may that hearing, including
         oral argument, be conducted by the Board of
         Education in closed session under SG §10-
         508(a)(1) if the hearing involves the evaluation,
         dismissal, or discipline of an employee?
              Assuming that the appeal hearing may be
         closed under SG §10-508(a)(1), may the Board of
         Education close the hearing if the employee who
         is the subject of the proposed personnel action
         waives any confidentiality rights that he or she
         may have?
                                                        (continued...)

18 [90 Op. Att'y

  For the reasons stated below, we conclude as follows: An

appeal hearing conducted pursuant to ED §4-205(c) involves a
quasi-judicial function. Therefore, the Open Meetings Act does not
apply. Consequently, the County Board may close the hearing
without invoking any exception under SG §10-508. If the employee
who is the subject of the hearing requests the County Board to hold
an open hearing, the County Board may do so, but it need not grant
the request if it identifies an interest, its own or that of another,
which would potentially be harmed by an open hearing.

                                  I

                           Background

  According to your inquiry and the material supplied with it, the

Superintendent of Schools of Howard County took an adverse
personnel action against a managerial level employee. Given the
reference in your request to ED §4-205(c), we take it that the
Superintendent acted under his power to "decide all controversies
and disputes that involve ... [t]he proper administration of the county
public school system." ED §4-205(c)(2)(ii). The employee appealed
to the County Board. Under ED §4-205(c)(3), "[a] decision of the
county superintendent may be appealed to the county board if taken
in writing within 30 days after the decision of the county
superintendent. The decision may be further appealed to the State

 1
     (...continued)
               Assuming that the appeal hearing is an
          executive function, may that hearing, including
          oral argument, be conducted by the Board of
          Education in closed session under SG §10-
          508(a)(2) if it involves information about other
          employees that is private or involves statements
          that question, challenge, or impugn the reputation
          of other employees who testify at the hearing?

We do not address these questions in light of our conclusion that the
hearing is quasi-judicial and that the Open Meetings Act does not apply.
We do address their substance, however, in Part IV of the opinion.

Gen. 17] 19

Board [of Education] if taken in writing within 30 days after the
decision of the county board." 2

   Prior to the County Board's hearing, the employee requested

that the hearing be open to the public. The County Board indicated
that it planned to close the hearing pursuant to SG §10-508(a)(1),
which permits closed sessions when the topic of discussion is a
specific personnel matter. The employee, indicating an intention to
waive the right to a closed hearing, filed a prospective complaint
with the Open Meetings Compliance Board.3 Before any action by
the Compliance Board, however, the prospective complaint was
withdrawn. Therefore, the Compliance Board was unable to offer
guidance about the application of the Open Meetings Act in these
circumstances. The County Board, concerned about its legal
obligations should a similar situation recur, sought your assistance
in requesting our opinion.

                                II

          Status of Hearing: Open Meetings Act

   With certain exceptions not relevant to your inquiry, the Open

Meetings Act "does not apply to a public body when it is carrying
out ... a quasi-judicial function." SG §10-503(a)(1)(iii).4 The Act
defines a quasi-judicial function as "a determination of a contested
case to which Subtitle 2 of [SG Title 10] applies" or "a proceeding
before an administrative agency for which Title 7, Chapter 200 of

  2
    We understand that the employee contends that the hearing by the

local board should have been conducted under ED §6-202, which sets
forth procedures for the suspension or dismissal of certain categories of
professional personnel. Even if this contention is correct, it would not
affect our conclusion. See footnote 7, below.
3
Under SG §10-502.6, any person may file a complaint with the
Compliance Board "that a meeting required to be open under the
provisions of [the Open Meetings Act] will be closed in violation of the
[the Act] ...."
4
If a public body is meeting to consider granting a license or permit
or any zoning matter, the Open Meetings Act applies, whether or not the
matter is quasi-judicial. SG §10-503(b).

20 [90 Op. Att'y

the Maryland Rules would govern judicial review." SG §10-
502(i)(1) and (2).5

  In our view, the correct analysis of the hearing before the

County Board is not to consider it in isolation, but rather to treat it
as ED §4-205 does: as the first hearing in a process that provides for
judicial review after a State Board hearing. The characterization of
an ED §4-205 hearing in the State Board's regulations unmistakably
deems it a contested case for which judicial review is governed by
Title 7, Chapter 200 of the Maryland Rules.

  The State Board's regulations provide as follows: "In an

appeal of a local board decision on a controversy or dispute
regarding ... the proper administration of a local public school
system, the State Board shall review the appeal on the record made
before the local board." COMAR 13A.01.05.06. The State Board
views the matter as a contested case under the Administrative
Procedure Act. See COMAR 13A.01.05.01B(2) and
13A.01.05.08A(5). The State Board's regulations further provide
that the appeal of its decision "is governed by Maryland Rules of
Procedure 7-201 et seq. and 7-301." COMAR 13A.01.05.11B.

  Under Rule 7-201(a), Title 7, Chapter 200 "governs actions

for judicial review of an order or action of an administrative agency,
where judicial review is authorized by statute ...." The relevant
statute here is the APA's provision on judicial review, SG §10-
222(a), which provides that "a party who is aggrieved by the final
decision in a contested case is entitled to judicial review of the
decision ...." As we have explained, the State Board's regulations
make the ED §4-205 hearing process a contested case.6 Therefore,
SG §10-222(a) applies and supplies the necessary statutory basis for
the kind of judicial review specified in the Open Meetings Act
definition of "quasi-judicial function."

 5
   The definition also includes the determination of a complaint by

the Open Meetings Compliance Board. SG §10-502(i)(3).
6
A contested case that is not denominated as such by statute
becomes one if an agency's regulation – here, the State Board's –
"expressly, or by clear implication, requires the hearing to be held in
accordance with [the APA]." SG §10-202(d)(2).

Gen. 17] 21

  In our view, then, the entire process, from the hearing at the

County Board to the hearing at the State Board, is a "quasi-judicial
function." 7 As such, it is not subject to the Open Meetings Act.

                               III

               Status of Hearing: Other Law

A. Education Article

  The County Board is subject to the following special provision:

"Notwithstanding any other provision of law, this subsection applies
to the county board when it is carrying out an executive function
described under Title 10, Subtitle 5 of the State Government
Article." ED §3-704(b)(1). The subsection goes on to require all
actions to be taken at a public meeting unless one of the exceptions
in SG §10-508 permits a closed session. ED §3-704(b)(2) and (3)

  By its terms, this subsection applies only when the County

Board is carrying out an executive function. In Part II above, we
explained why a hearing under ED §4-205(c) is a quasi-judicial
function. For this reason, it cannot be an executive function. See
SG §10-502(d)(2)(iv). Therefore, the County Board need not invoke
any of the exceptions in SG §10-508 in order to close the hearing.

B. Regulation

 A regulation of the Office of Administrative Hearings

("OAH") declares that, unless prohibited by law, all OAH
proceedings are open to the public. COMAR 28.02.01.21A. But the

  7
    If the hearing were required to be conducted under ED §6-202, the

State Board would apply a different standard of review. See COMAR
13A.01.05.05F (de novo review). However, the regulations make clear
that the State Board also views such a hearing as a contested case hearing.
COMAR 13A.01.05.07D. Judicial review of a State Board decision in
such a case would also be governed by Rules 7-201 et seq. and 7-301.
COMAR 13A.01.05.11B. Thus, our analysis as to whether the County
Board's hearing is a quasi-judicial hearing would be the same.

22 [90 Op. Att'y

hearing before the County Board is not an OAH proceeding and is
not subject to this regulation.8

                                IV

           Employee Request for Open Hearing

  Given our interpretation of the State Government and

Education Articles, we conclude that the County Board may close a
hearing held pursuant to ED §4-205(c). Indeed, ordinarily such a
hearing would involve information in personnel records and
therefore must be closed, to avoid a violation of the provision of the
Public Information Act prohibiting public disclosure of a personnel
record. SG §10-616(i). But what if the employee whose status is
contested, and whose personnel records are involved, waives
confidentiality and requests that the hearing be open to the public?

 Although a defendant in a criminal proceeding has a

constitutional and common law right to prevent a trial from being
closed,9 we are aware of no Maryland case holding that a party in a
contested administrative case has a general right to demand an open
hearing. Nevertheless, if the employee waives confidentiality and
requests an open hearing, the County Board should consider whether
any other interests would justify a closed hearing. If it identifies
such an interest relating to its own processes or other individuals (for
example, protecting the privacy of employees not party to the
proceeding), whether or not included among the exceptions in SG
§10-508, it may close the hearing. If it can identify none, it should

  8
    An open hearing under this regulation might occur if an appeal of

an action under ED §4-205 is taken from a county board to the State
Board, depending on the State Board's handling of the matter: "Upon
review of the record, the State Board may transfer the case to the Office
of Administrative Hearings for the scheduling of a hearing before an
administrative law judge." COMAR 13A.01.05.06. If the hearing were
deemed an appeal of an action taken under ED §6-202, the case would be
transferred to OAH for a proposed decision. COMAR 13A.01.05.07A(2).
9
See, e.g., Tharp v. State, 362 Md. 77, 94, 763 A.2d 151 (2000).
This right is not absolute, however. Id. A court may close a criminal trial,
for example, if the need to protect a confidentiality interest is strong
enough. Walker v. State, 125 Md. App. 48, 69, 723 A.2d 922 (1999).

Gen. 17] 23

open the hearing, to avoid a later claim of error (or even of a due
process violation) based on an arbitrary and unreasonable response.10

                               V

                          Conclusion

  In summary, it is our opinion that an appeal to the Board of

Education of Howard County under ED §4-205(c) is a quasi-judicial
function not subject to the Open Meetings Act. The hearing before
the County Board may be closed without need to invoke any of the
exceptions in the Act. Should the employee against whom the
personnel action was taken waive confidentiality and request an
open hearing, the request may be denied if the County Board can
identify an interest (its own, or a third party's) that would be harmed
were the hearing to be open.

                                        J. Joseph Curran, Jr.
                                        Attorney General

                                        Jack Schwartz
                                        Assistant Attorney General

Robert N. McDonald
Chief Counsel
Opinions and Advice

  10
     One federal case holds that, when an administrative hearing

involved an employee's constitutional rights and the agency's regulation
closing the hearing was based solely on protecting the employee's privacy,
the employee had a due process right to an open hearing. Fitzgerald v.
Hampton, 467 F.2d 755 (D.C.Cir. 1972).