MHC Letter to the Thoroughbred Racetrack Operating Authority re Compliance with Maryland Open Meetings Act

On September 8, the Maryland Horse Council sent the following letter to Greg Cross, the Chair of the new Thoroughbred Racetrack Operating Authority.  We copied Gov. Wes Moore, Secretary of Agriculture Kevin Atticks, Attorney General Anthony Brown, key members of the General Assembly leadership, the county executives of Anne Arundel and Baltimore counties, Baltimore City Mayor Brandon Scott, MHIB Executive Director Ross Peddicord, and Counsel to the Authority, Eric London.

“Dear Mr. Cross:

I am writing on behalf of the Maryland Horse Council (MHC), the trade association that represents all sectors of the Maryland horse industry, including racing.[1] We are concerned that the Thoroughbred Racetrack Operating Authority (TROA) is not complying with the Maryland Open Meetings Act, and we are concerned that the Thoroughbred racing sector will be unfairly penalized by the public as a result. 

Specifically, TROA has: (i) not provided adequate public notice of its meetings; (ii) not given the public an opportunity to observe the members of the body during the meetings; and (iii) not complied with the legal requirements for going into a closed session.

I.               Adequate Notice

TROA has not provide adequate notice of its meetings. Maryland’s Open Meetings Act requires that “the public be provided with adequate notice of the time and location of meetings of public bodies, which shall be held in places reasonably accessible to individuals who would like to attend these meetings.”      § 3-102(c) (emphasis added). The Act also requires that TROA “make an agenda available when [it] posts notice, or, if the agenda has not been determined at the time of notice, . . . make the agenda, available as soon as practicable, but, for most bodies, at least 24 hours before the meeting.” § 3-302.1

The first public meeting on August 3 was sufficiently poorly advertised that virtually no-one in the industry, much less the general public, was aware that it was happening. Neither the Maryland Horse Industry Board (MHIB), which is the state agency that licenses and promotes the Maryland horse industry (including Thoroughbred racing), the Maryland Horse Council, nor the editor of The Equiery magazine – which covers the Maryland horse industry (including Thoroughbred racing) – received notice. Numerous other journalists who cover the industry for The Baltimore Sun, The Washington Post, and the racing trade press, were unaware, as were several members of the Maryland Racing Commission itself. The only reason some of these individuals and organizations learned about the meeting was because select individuals who had received an email from TROA forwarded the information to others.

The second public meeting, on August 23, was equally poorly advertised, and many of these same horse industry members learned of it less than two days ahead of time. No information of any kind about the meeting is posted on TROA’s website, not even the fact that it occurred, nor are any future meeting dates posted there.

The third public meeting, on September 8, was also never posted on the TROA, or any other, website. TROA emailed the notice to an incomplete distribution list at 1:13 p.m. the day before the meeting. The horse industry did not learn of the meeting until 2 p.m. that day by virtue of a privately-run Facebook group. It is unclear whether the rest of the interested public ever learned about the meeting at all. In addition, the meeting was scheduled for a live racing day during the Maryland State Fair, making it unreasonably difficult for an important part of the interested public to attend.

According to the Open Meetings Compliance Board (“the Board) “the touchstone of ‘reasonableness’ is whether a public body gives notice of a future meeting as soon as is practicable after it has fixed the date, time, and place of the meeting,” 5 OMCB Opinions 83, 84 (2006), and whether the method of notice is calculated to reach the interested public. TROA must surely have known earlier than 1:13 p.m. on September 7 that it planned to hold a meeting at noon on September 8.

In addition, the Open Meetings Act defines “reasonable notice” to include publication in the Maryland Register and “delivery to representatives of the news media who regularly report on sessions of the public body or the activities of the government of which the public body is a part.” The Equiery magazine is the only industry-wide publication dedicated to covering Maryland’s horse industry, and the Maryland Horse Council is the only industry-wide organization that monitors the legislative and executive branches of Maryland state government.

Moreover, in early August, we at the Maryland Horse Council asked Darlene Rondinelli in your office to include us on the distribution list for the TROA meeting notices, which request she has not honored. I repeated my request to both you and Ms. Rondinelli at 4:45 p.m. on September 7, the day before the last meeting. I have received no response.

Even if TROA had posted information about the August 3, August 23 and September 8 meetings on its website, however, website notices “are not always the most effective way (or even an effective way) for every public body to reach its own interested public.” 13 OMCB Opinions 9 (2019) (emphasis added).    In addition, the Act permits a public body to “post the notice on an Internet website ordinarily used by the public body to provide information to the public” only if “the public body previously has given public notice that this method will be used.” § 3-302(c).

TROA has not only never told the public that it plans to use the website for public notices (presumably because it is not, in fact, using the website), it has never told the interested public what method it will use at all – if any. 

We recommend that TROA comply with the Open Meetings Act notice requirements by providing written notice, with agendas, on its website as soon as each meeting is scheduled; and by sending the notice and agenda by email to a minimum of MHIB, MHC and The Equiery (as now requested twice); each individual member of the Maryland Racing Commission; and all of the journalists at racing desks at The Baltimore SunThe Washington Post; and all local Maryland press, such as the Baltimore Banner. MHIB, MHC, and the local press can help TROA reach the vast majority of the rest of TROA’s interested public.

II.              Opportunity to Observe

TROA has not given the public an opportunity to observe its meetings. Section 3-303(a) of the Open Meetings Act says that “whenever a public body meets in open session, the general public is entitled to attend.” The Board has explained that the right to attend includes the right to “observe the members’ conduct of public business during a public meeting.”14 OMCB Opinions 29, 31-32 (2020).

Part of providing a “place reasonably accessible” is holding the meeting in a room large enough to hold them. See 3 OMCB Opinions 118, 120 (2001). For electronic meetings, TROA “must provide the public with the opportunity to observe the meeting while it is in progress,” even if the body also invites the public to attend the meeting in person. § 3-307(b)(3). This can be accomplished by live streaming or by using a virtual meeting platform.

TROA never told the interested public ahead of time where any of the three meetings to date were to be held, nor is that information available to this day on TROA’s website. TROA did not provide the public an opportunity to observe the August 3 meeting online at all.

TROA tried to provide a virtual meeting platform for the August 23 meeting, but the video was angled so that the public could not see the members or the speakers, and the audio was not functioning at all for a substantial stretch of the time, despite the efforts of the on-line public to bring that fact to the attention of the organizer. The name and identities of the speakers were not announced in a way that the on-line attendees could hear, if at all; and the documents presented to the authority were shown in only brief snatches and were summarized in only the vaguest of terms. In addition, the substantial volume of public comments made in the chat feature for the on-line meeting were neither read into the record nor preserved for the minutes, as far as we can tell. 

The September 8 meeting was conducted on Google Meets but with the lone exception of Ms. Nicole Earle, the board members did not turn their cameras on, even after being specifically asked to do so by a member of the public. The public had no opportunity to observe the members’ conduct.

We recommend that in the future, TROA use a virtual platform that: allows online participants to see the in-person participants; allows presenters to share their documents on the screen; allows presenters to speak into a microphone, and that; preserves the public comments for the record. Such platforms have been used routinely and with great success by government agencies the world over since the onset of the COVID-19 pandemic.

We also ask that TROA require its members and presenters to turn their cameras on before the meeting convenes, and that it require public commenters to turn their cameras on while speaking.

III.             Justification for Closed Session

TROA has not complied with the legal requirements for going into closed session. The Open Meetings Act requires the presiding officer to “make a written statement of the reason for closing the meeting” including the statutory exception relied upon and the topics to be discussed. See § 3-305(d). The statement must be made before the body votes to go into closed session.

TROA’s meeting agendas did not contain the required written statements to justify going into closed session. TROA then voted to go into a closed session at each meeting without explaining in open session which of the 15 exceptions to the open meetings rules it was relying on, and on August 23 and September 8, without summarizing the topics to be discussed. Moreover, TROA did not post an agenda online for any of these meetings, so the public had no notice that TROA intended to go into closed session in the first place.

In addition, the Open Meetings Act requires a recorded vote before going into closed session, and requires the presiding officer to allow the public an opportunity to object to the closed session. None of the TROA meetings to date included a recorded vote in open session, and none of the meetings afforded the public an opportunity to object to the closed session. Indeed, at the August 3 meeting, TROA did not provide the public an opportunity to comment on any agenda items at all once the meeting began.

Lastly, the Open Meetings Act requires TROA to disclose who attended the closed session, and it requires that the minutes describe the compliance checklist it followed in the event that no member properly trained on the Open Meetings Act was in attendance. § 3-213(d)(3)(ii). The minutes of the August 3 closed session do not include either of these items. The minutes of the August 23 and September 8 meetings are not available at the time of this writing, so we cannot confirm whether TROA complied with requirement or not.

We recommend that in the future, TROA include the statutory justification and topics to be discussed for any closed session in the agenda that it circulates with the meeting notice, that TROA clearly state the justification again in open session before it votes on whether to go into closed session, that TROA ask the public whether there are any objections to the closed session TROA votes, and that TROA include in the minutes all of the information about the closed session that are required by the Open Meetings Act.

* * * * *

As a fellow attorney, I know that you do not need the Maryland Horse Council to explain why it is critical that public bodies comply with the Open Meetings Act. 

In turn, I hope you can appreciate that rightly or wrongly, the public trust in the state’s oversight of Thoroughbred racing is low, possibly its lowest ever, and that some in the General Assembly are developing the view that supporting the contracting Thoroughbred racing industry with increasingly large amounts of public money is no longer in the public interest. 

We hope that TROA can re-establish the public’s trust in the state’s oversight of Thoroughbred racing, and that TROA can prove that the state’s oversight can withstand the full sunlight of public scrutiny.

The Thoroughbred racing sector comprises about 25% of the $2.1 billion horse industry in Maryland, and 4% of Maryland’s 101,100 horses. The Maryland horse industry would very much like Thoroughbred racing to survive. 

Kimberly K. Egan, President  | Maryland Horse Council

[1]  The Maryland Jockey Club, the Maryland Thoroughbred Horsemen’s Association, the Maryland Horse Breeders Association, and the Maryland Steeplechase Association, are life members of MHC. The Retired Racehorse Project, the Thoroughbred Retirement Foundation, the Fair Hill Training Center, Thoroughbred Placement Resources, Inc., the Maryland Horse Foundation, and several individual breeders and trainers, are also members of MHC.”

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