Gen. 275] 275

OPEN MEETINGS ACT

“EXECUTIVE FUNCTION”

July 28, 1993

Richard S. McKernon, Esquire

Town of Poolesville

On behalf of the Commissioners of Poolesville, you have

requested our opinion about the nature and application of the term

“executive function,” as defined in §10-502(d) of the State

Government Article, Maryland Code (“SG” Article). Specifically,

your questions are as follows:

1. Does the Open Meetings Act apply to the Commissioners

of Poolesville when they are carrying out an executive function?

2. What are executive functions?

3. What type of notice, if any, must be given to the public

when the Commissioners of Poolesville schedule a meeting to carry

out an executive function?

4. What is the relationship between the exceptions set out in

§10-508(a) and an executive function? Do some of the exceptions

describe activities that fall within the term “executive function”?

For the reasons stated below, we conclude as follows:

1. The Open Meetings Act does not apply to the

Commissioners of Poolesville when they are carrying out an

executive function.

2. The inexact definition of “executive function” does not

lend itself to a catalog of activities encompassed by the definition.

In general, a public body carries out an executive function whenever

(i) it is not carrying out an advisory, legislative, quasi-legislative, or

quasi-judicial function, as those terms are defined in the Act; and (ii)
276 [78 Op. Att’y

it is engaged in any part of the process of implementing a statute or

other form of preexisting law. 

3. The Open Meetings Act does not require any type of

notice if the Commissioners of Poolesville meet to carry out an

executive function.

4. The Open Meetings Act does not apply to a public body

that is engaged in an executive function. Therefore, the

Commissioners of Poolesville need not cite an exception in SG §10-

508(a) in order to hold a closed meeting about an executive function,

even if the activity is encompassed by one of the exceptions. 

I

Scope of Open Meetings Act

The scope of the Act is set out in SG §10-503: 

(a) Except as provided in subsection (b)

of this section, this subtitle does not apply to:

(1) a public body when it is carrying out:

 (i) an executive function;

 (ii) a judicial function; or 

 (iii) a quasi-judicial function; or

(2) a chance encounter, a social gathering,

or other occasion that is not intended to

circumvent this subtitle.

(b) The provisions of this subtitle apply to

a public body when it is meeting to consider:

(1) granting a license or permit; or 

(2) a special exception, variance,

conditional use, zoning classification, the
Gen. 275] 277

 A “judicial function” can be carried out only by elements of the 1

Judicial Branch of State Government. SG §10-502(e). The term “quasijudicial” function refers to certain adjudicatory proceedings before

administrative agencies. SG §10-502(i). This opinion does not discuss

whatever quasi-judicial functions the Commissioners of Poolesville might

perform. 

Under SG §10-502(b), the Act does apply to an executive or quasi- 2

judicial function that involves the grant of a license or permit or a zoning

matter.

Prior to the 1991 amendments to the Open Meetings Act, the 3

general requirement that, “[e]xcept as otherwise expressly provided in this

subtitle, a public body shall meet in open session” was modified by the

additional language “whenever the public body is carrying out” an

advisory function, a legislative function, or a quasi-legislative function.

Former SG §10-505. All three of these terms remain in the definitional

(continued...)

enforcement of any zoning law or regulation,

or any other zoning matter.

This provision must be read together with SG §10-505, which states

that, “[e]xcept as otherwise expressly provided in this subtitle, a

public body shall meet in open session.” Thus, the determination of

the function carried out by the public body – that is, whether the

public body is engaged in an executive, judicial or quasi-judicial

function – will often be crucial in determining whether a public body

that held a closed session did so lawfully. See generally Office of

the Attorney General, Open Meetings Act Manual Ch. 2, at 3-12

(1992). And, since instruments of general government like the

Commissioners of Poolesville would never carry out judicial

functions and only rarely quasi-judicial ones, the determinative point

will often be whether the public body is engaged in an executive

function. 

1

If the Commissioners of Poolesville are engaged in an

executive function, the Act generally does not apply. If the 2

Commissioners of Poolesville are not engaged in an executive

function, then the Act generally applies. In that event, the

Commissioners must give proper notice of the meeting, and the

meeting must be open unless one of the 14 exceptions in SG §10-

508(a) may be invoked.3
278 [78 Op. Att’y

 (...continued) 3

section of the Open Meetings Act, see SG §10-502(b), (f), and (j), but they

are no longer decisive in terms of a public body’s obligation to hold an

open meeting. In other words, if a public body is carrying out a function

that cannot be categorized under any one of the six defined functions, then

its meeting must be open unless one of the exceptions in SG §10-508(a)

applies.

II

Nature of “Executive Function”

The definition of “executive function,” set out in SG §10-

502(d), was left unchanged by the 1991 amendments: 

(1) “Executive function” means the

administration of:

 (i) a law of the State;

 (ii) a law of a political subdivision of

the State; or

 (iii) a rule, regulation, or bylaw of a

public body.

(2) “Executive function does not include:

 (i) an advisory function;

 (ii) a judicial function;

 (iii) a legislative function; 

 (iv) a quasi-judicial function; or

 (v) a quasi-legislative function.

This “per se exemption for executive functions” was said by the

Court of Appeals to be “unique” among the open meetings laws of

the 50 states. Board of County Comm’rs v. Landmark Community

Newspapers of Md., Inc., 293 Md. 595, 601, 446 A.2d 63 (1982).
Gen. 275] 279

Because the affirmative aspect of the definition, “the

administration of ... a law ...,” is so amorphous, we begin with the

comparatively precise negative aspect of the definition. Under SG

§10-502(d)(2), if an activity falls within any of the other five

functions defined in the Act – advisory, judicial, legislative, quasijudicial, or quasi-legislative – then perforce it is not “an executive

function,” even if the activity involves the administration of a law.

Whenever the Commissioners of Poolesville enact an ordinance, for

example, in one sense they are administering State laws – that is, the

constitutional and statutory provisions relating to municipal home

rule. But in enacting an ordinance, the Commissioners are “enacting

... a law or other measure to set public policy” and therefore are

engaged in a “legislative function” as defined in SG §10-502(f) and

not an executive function. See Landmark Community Newspapers,

293 Md. at 607 (“entire budgetary process” is quasi-legislative and

therefore not executive).

Thus, the first step in the analysis is to consider whether

another functional definition fits the activity to be carried out at a

meeting. If so, the activity by definition does not involve an

executive function, and the Act would apply unless the activity is

quasi-judicial and not related to the grant of a license or permit or to

any zoning matter. If, on the other hand, a public body conducts

business that is not encompassed by the definitions of any of the

other functions, the activity would be an executive function – and

the Act would not apply – if the activity “looks to or facilitates the

administration, execution or implementation of a law already in

force and effect.” Scull v. Montgomery Citizens League, 249 Md.

271, 282, 231 A.2d 92 (1968). 

In this passage, the Court of Appeals was describing the

“recognized test” for determining whether a municipal ordinance

was “legislative” in nature, and therefore subject to referendum, or

“executive or administrative,” and therefore not. The drafters of the

Open Meetings Act of 1977, which originated the functional

definitions at issue, presumably were familiar with Scull. The

portion of the definition of “legislative function” in SG §10-

502(b)(1), for example – “approving, disapproving, enacting,

amending, or repealing a law or other measure to set public policy”

– is quite similar to Scull’s description of a “legislative” ordinance

– “an enactment of general application prescribing a new plan or

policy.” 249 Md. at 282.
280 [78 Op. Att’y

See note 2 above.

4

As you point out in your letter, the Court of Appeals applied

the test set out in Scull to hold that construction of public

improvements pursuant to existing law is executive in character.

Eggert v. Montgomery County Council, 263 Md. 242, 282, A.2d 474

(1971). So, too, is the issuance of previously authorized debt for

public works. City of Bowie v. County Commissioners, 258 Md.

454, 267 A.2d 172 (1970). In an earlier case, moreover, the Court

held that the acquisition of property for county office space is an

executive activity. Hormes v. Baltimore County, 225 Md. 371, 170

A.2d 772 (1961). In addition, the Open Meetings Compliance Board

has held the following activities to be executive functions: a

discussion between county commissioners and members of the board

of directors of a hospital (Opinion No. 92-2 (October 23, 1992)

reprinted in 1 Official Opinions of the Maryland Open Meetings

Compliance Board (hereafter “Official Opinions”) 6); the work of

a local planning commission (Opinion No. 92-3 (November 9, 1992)

reprinted in 1 Official Opinions 10); the processing of a complaint

by an occupational licensing board (Opinion No. 92-4 (November

17, 1992) reprinted in 1 Official Opinions 13); discussion between

county commissioners and school board members over

implementation of budget cuts (Opinion No. 93-2 (January 7, 1993)

reprinted in 1 Official Opinions 23); and the investigatory and

advisory opinion activities of a local ethics commission (Opinion

No. 93-4 (February 24, 1993) reprinted in 1 Official Opinions 30).

As the Compliance Board continues its work, these examples

will multiply. The open-ended nature of the statutory definition,

however, precludes any exhaustive list here. 

III

Notice of Meetings

The requirement that a public body give “reasonable advance

notice” of both its open and closed meetings is set out in SG §10-

506, part of the Open Meetings Act subtitle. If a public body is

engaged in an executive function, “this subtitle does not apply to”

the public body. SG §10-503(a)(1)(i). See Landmark Community 4

Newspapers, 293 Md. at 605. “Because the Act as a whole is

inapplicable, the provisions of the Act governing notice to the public
Gen. 275] 281

 Your letter advises that no provision in the Poolesville charter or 5

code requires notice under such circumstances.

and voting prior to the conduct of a closed session themselves do not

apply.” Compliance Board Opinion 93-4, at 2. Hence, when the

Commissioners of Poolesville meet to carry out an executive

function, they are not required by the Open Meetings Act to provide

any notice of the meeting.5

As a matter of sound practice, public bodies often give notice

of meetings even when the Act does not require them to do so. As

a matter of law, however, they are not required to do so by the Open

Meetings Act. 

IV

Exceptions Allowing Closed Meetings

SG §10-508(a) sets out a list of 14 circumstances under which

a meeting that is otherwise subject to the Open Meetings Act may be

closed. This section also requires certain procedures to be followed

before one of the exceptions may be invoked. See generally Open

Meetings Act Manual at 14-19.

As you point out, many of these exceptions describe activities

that appear to be within the executive function. If a public body, for

example, is “consider[ing] the acquisition of real property for a

public purpose and matters directly related thereto,” SG §10-

508(a)(3), the public body would ordinarily be doing so in the

conduct of an executive function. See Hormes v. Baltimore County,

225 Md. at 377-78. Others of these specific exceptions – for

instance, those having to do with the administration of examinations,

SG §10-508(a)(11), or with the conduct of criminal investigations,

SG §10-508(a)(12) ) also describe activities that ordinarily

constitute executive functions. If the public body is indeed carrying

out an activity that is an executive function, even one that is

precisely described by an exception in SG §10-508(a), the public

body is not subject to the Act and need not invoke the exception. It

may simply close the meeting. 
282 [78 Op. Att’y

This construction does not render these exceptions a nullity,

however. Under some circumstances, a public body might be

carrying out a quasi-legislative function – in particular, the

approving, disapproving, or amending of a budget or contract –

involving activities that might otherwise be an executive function.

See Part II above. If a public body is considering whether to

appropriate money to buy real property, for example, it is engaged

in a quasi-legislative function, not an executive function, and

therefore might have occasion to invoke the exception in §10-

508(a)(3). If, on the other hand, money were already budgeted for

land acquisition and a public body were considering the choice of

sites available, then the matter would be an executive function, and

the exception in SG §10-508(a)(3) need not be invoked for the

public body to hold a closed meeting lawfully. 

V

Conclusion

The “executive function” component of the Open Meetings Act

is probably the most difficult portion of the Act to administer,

particular for public bodies like the Commissioners of Poolesville

that carry out both legislative and executive functions. This opinion

tries to provide as much guidance as the definition of “executive

function” allows. If an activity does come within the definition,

which the Open Meetings Compliance Board in its annual report

rightly called “troublesomely vague,” any meeting about that activity

is outside the Act. 

J. Joseph Curran, Jr.

Attorney General

Jack Schwartz

Chief Counsel

Opinions & Advice