Joan Floyd v. Baltimore City Council, et al. , No. 1687, September Term, 2017. Opinion

by Kenney, J.

LEGISLATIVE PRIVILEG E

– MOTION TO QUASH SUBP OENAS

The trial court did not abuse its discretion in granting a motion to quash subpoenas for two Baltimore City Council members based on legislative privilege. Appellant sought to ask questions related to why certain actions were taken by Council members in regard to the passage of legislation. Such actions are within the sphere of legitimate legislative acti vity and are protected by legislative privilege , but a ppellant was able to pursue questions related to compliance with the Open Meetings Act with a legislative staff member.

ONLINE VIDEO RECORDI NGS NOT IN EVIDENCE In a bench trial, the court may not rel y on facts that are not in the record. The litigant has the burden to introduce evidence into the record for the court’s consideration in a manner that it could be preserved for the possibility of appeal. I t was not an error for the court , when asked to do so, to decline to go onto an external web site to view video recordings.

OPEN MEETINGS ACT

– MINUTES REQUIREMENT

M inutes reflecting that the Land Use Committee recommended Bill 12

- 0152 “ favorable with amendments ” satisfied the requirements, under Md. Code Ann., General Provisions § 3

- 306 (c), that the minutes reflect each “item” considered, each “action” taken, and each “vote” that was recorded. The City Council Rules require that a C ommittee report to the Council on bills on which it has taken action, and that the report must be either favorable, favorable with amendments , unfavorable, or witho ut recommendation. T he report on the bill was the “item” under consideration in the Committee meeting, and the minutes reflect the Committee’s action on that bi ll.

OPEN MEETINGS ACT

– NOTICE AND MINUTES R EQUIREMENT

– LUNCHEON With regard to the Council’s luncheon, the purported notice did not comply with § 3

- 302(b) of the Act because it did not state the time or place of the luncheon. And, it is undisputed t hat no minutes were kept or posted for it.

OPEN MEETINGS ACT

– WILLFUL VIOLATION

– OTHER RELIEF

The violations of th e Act related to the luncheon did not rise to the level of a willful violation that would permit voiding the legislation. The circuit c ourt did not clearly err in finding that the only evidence presented at trial showed that Council members did notdiscuss Bill 12

- 0152 at the luncheon. Because the circuit court may assess reasonable

counsel fees and other litigation expenses in an Act en forcement claim , rema nd to the circuit court is appropriate to determine whether such fees and expenses should be award ed and, if so, the amount of any award.Circuit Court for Baltimore City

Case No. 24

- C

- 16

- 006515 REPORTED

IN THE COURT OF SPECIAL APPEA LS

OF MARYLAND

No. 1687 September Term, 2017

______________________________________

JOAN FLOYD

v.
BALTIMORE CITY COUNCIL , ET AL.

______________________________________ Fader , C.J. , Friedman , Kenney, James A., III (Senior Judge, Specially Assigned),

JJ.

______________________________________

Opinion by Kenney, J.

______________________________________ Filed: June 4, 2019In December 2016, Baltimore City enacted legislation known as “ Transform

Baltimore , ” which was its first comprehensive rezoning plan since 1971

. Appellant , Joan Floyd, has challen ged the legislation under the Open Meetings Act , Md. Code Ann.
( 2014, 2018 Supp. ), General Provisions (“GP”) §§ 3

- 301 et seq. (the “Act”) , alleging that

the Baltimore City Council (the “Council”) and the Land Use and Transportation Committee (the “Committee”) 1
, had violated the Act with respect to several meetings

conducted near the time of the bill’s passage

. T he Circuit Court for Baltimore City , finding no actionable violations of the Act , entered judg ment in favor of the appellees

. In her timely appeal, a ppellant presents five questions 2 , which we have

consolidated and reorder ed as:

1 Appellant’s p etition named “Baltimore City Council” and “Land Use and Transportation Co mmittee” as respondents. The circuit court noted that only the Mayor and City Council entered an appearance and “the parties proceeded as if the case was filed only against the Mayor and City Council.” We will refer to the Council and the Committee collectively as the “City” in t his opinion.

2 Appellant asked the following questions :
1. When the evidence established that dozens of votes were excluded from the “minutes” of the Committee’s October 20, 2016 meeting, did the trial court err in determining that Open Meetings Act 3

- 306(c) was not violated ? 2. When the evidence established that a City Council luncheon meeting took place on October 24, 2016 for which no reasonable advance notice of the date, time and place was provided, did the trial court err in determining that Open Meetings Act 3

- 302 was not violated? 3. Did the trial court err in determining that Open Meetings Act 3

- 306 was not violated as to minutes of the October 24, 2016 luncheon meeting? 4. Did the trial court err when it granted the [ City’s Motion to Quash Subpoenas ] and barr ed [appellant] from compelling the testimony of the President of the City Council and the Chairman of the Committee?2

1. Did the trial court er r in granting the City ’ s Motion to Quash Subpoenas based on legislative privilege?

2. Did the trial court err in not considering online audio

- visual recordings of certain Committee and Council meetings ?

3. Did the trial court err in determining that there was no violation of the minutes requirement of the Act in the Committee’s October 20, 2016 meeting?

4. D id the trial court err in determining that there was no violation of the notice or minutes requirement s of the Act in the Council luncheon meeting on October 24, 2016?

Fo r reasons that follow, we answer the first three questions in the negative and the

fourth in the affirmative.

F ACTUAL AND PROCEDURA L BACKGROUND

Bill 12

- 0152, the legislation known as “ Transform Baltimore , ” was introduce d in the Baltimore City Council on October 22, 2012, and assigned to the Land Use and
Transpo rtation Committee

. O ver th e next four years , the Committee conducted over 80 public hearings and considered hundreds of amendments to its text and zoning map in open session. On October 19 and 20, 2016, the Committee me t in open session, and , on October 20, voted to recommend Bill 12

- 0152 “favorable with amendments.” The

online

- posted min utes of that meeting reflected the following: A motion was made by Councilmember Kraft, seconded by Councilmember Middleton, that Bill 12

- 0152 be recommended Favorable with Amendments. The motio n for carried by the following vote:
(...continued) 5. Did the trial court err when it refused to view to official online audio

- visual recordings of the October 19, 2018 Committee meeting and th e October 20, 2016 and October 24, 2016 5:00pm City Council meetings?3

Yes: 6

– Reisinger, Kraft, Branch, Clarke, Henry, and Middleton Absent: 1

– Mosby

On the evening of October 24, 2016, the full Council convened in open s ession to

consider Bill 12

- 0152

. 3 Some proposed amendments we re adopted by the Council ; some were not. Ultimately, th e Council voted favorably on Bill 12

- 0152 with amendments.

The o fficial minutes reflecting the Council’s votes on amendments and the final vo te

were recor ded in the Council ’s Journal and posted onli ne on the Council’s Legistar

website.

Earlier on October 24, there was a “ luncheon meeting ” of the Council hosted by Mayor Stephanie Rawlings

- Blake in the Mayor’s e xecu tive conference r oom. No minutes of that “luncheon meeting” were recorded.

On Decembe r 2, 2016, a ppellant , along with others , filed a “ Petition for Enforcement of the Open Meetings Act ” against the Council and Committee

. The

p etition alleged that the Council and Committee violated the Act’s provisions with respect to the Committee meeting s of October 19 and 20, 2016 and the Council’s luncheon meeting of October 24, 2016.

3 The Council ’s legislative procedure is a three part process : first reading, second reading, and third reading. On first reading, a fter a bill is introduced by a Cou ncil member , it is assigned to a C ommittee. The Committee receives agency reports, holds public hearings, and does “much of the work of the Council.” On second reading, the Committee reports the bill at a Council meeting with its recommendation . If the Council passes the bill on second reading, the Department of Legislative Referen ce prepares and prints it for third reading , which is when the Council takes final action on the legislation. See Baltimore City Charter, Art. III, § 14(c); City Council Rule 12

- 1 et seq. ; Balt imore City Council, http://www.baltimorecitycouncil.com/legislative

- process

.4

The Council passed Bill 12

- 0152 on December 5, 2016, and the Mayor signed it

into law that s ame night

. 4 The new zoning code and accompanying zoning map took

effect on Jun e 5, 2017

. The circuit court denied the City’s motion to dismiss on February 22, 2017, a nd

trial was set for June 9, 2017. On June 2, 2017, appellant served the City with subpoenas to compel testimony of Council President Bernard C. “Jack” Young, Council member and Committee Chairman Edward Reisinger, and the Director of Legislative Affairs for

the Council President, Kara Kunst. The City moved to quash the subpoenas for the

Council members on the grounds o f legislative privilege , and it moved in limine t o limit the testimony of Ms. Kunst to only those matters related to the Council’s compliance

with the requirements of the Act. The circuit court , finding that “legislative privilege applies , ” granted both motions.
At trial, appellant and Ms. Kunst both t estified

. When the proceedings closed, the

court stated that it had “some reviewi ng to do” and would issue a written ruling. On Ju ne 30, 2017, the court entered summary judgment in favor of the City . It found that appellant had “failed to produce any ev idence to support the [] claim that [the City ]

committed any actionable violation of the Open Meetings Act,” and that “[w]hile the

4 Appellant points out that a new M ayor was about to be sworn in on December 6, 2016 and a new Council two days after that. To pass Bill 12

- 0152 by th e end of that legislative session, it was necessary that the second r eading vote occur o n October 24, 2016. It is
a ppellant ’s position that the rush to the pass the bill prior to the change in administration
res ulted in willful violations of the Act.5

process was not perfect . . . there is no indication that the errors were the result of anything more than human error . . . [ that] does not give ri se to a cause of action.”

STANDARD OF REVIEW

When a cause of action is based on a violation of the Open Meetings Act, there is a statutory presumption that the public body did not violate the Act, and the complainant

has the burden of proving the violation. See GP § 3

- 401(c). 5

In our review of an action tried without a jury , we:

must consider evidence produced at the trial in a light most favorable to the prevailing party and if substantial evidence was prese nted to support the trial court’ s determination, it is not clearly erroneous and cannot be disturbed. Questions of law, however, require our non

- deferential review. When the trial court’s decision involves an interpretation and application of Maryland statutory and case law, [we] must de termine whether the lower court’ s conclusions are legally correct. Where a case involves both is sues of fact and questions of law, [we] will apply the appropriate standard to each issue. Clickner v. Magothy River Ass’ n Inc. , 424 Md. 253, 266

- 67 ( 2012) (cleaned up); Md.

Rule 8

- 131(c). We review the trial court’s ruling on a motion to quash subpoenas under an abuse

of discretion standard. See Doe v. Maryland Bd. of Social Workers , 154 Md. App. 520,

527

- 28 (2004); WBAL

- TV Div., Hearst Corp. v. State , 300 Md. 233, 247 (1984) (holding no abuse of discretion in denial of TV station’s motion, based on a qualified First Amendment privilege, to quash summons by the State to produce the unbroadcast

5 In an action under this section: (1) it is presumed that the public body did not violate any provision of this title; and (2) the complainant has the burden of proving the violation.6

portions of a videotaped interview with criminal defendant for possible use at trial). Generally, a n abuse of discretion occurs “where no reasonable person would take the view adopted by the [trial] court.” Metheny v. State , 359 Md. 576, 604 (2000) (internal quotations omitted ). W hen , however, the ruling “ invol ves an interpretation and application of M aryland statutory and case law, we must de termine whether the trial court’s conclusions are legally correct under a de novo standard of revi ew.” Johnson v.

Francis , 239 Md. App. 530, 542 (2018) (internal quotation s omitted).

DISCUSSION

I
. Legislative Privilege
As indicated, t he City moved to quash the subpoenas for the two Council members based on legislative privilege and moved in limine to limit the testimony of Ms. Kunst to

administrative details. The trial c ourt , finding that “legislative privilege applies , ” granted

the motions.

Contentions

B ecause the Act expressly a uthorizes a court to determine whether a public body’s

violation of the Act was willful , appellant contends that direct examination of the

memb ers of a public body is required. And, for that reason, “legislative privilege” has no place in an Open Meetings case, because it would allow “[a]ny public body composed of legislators . . . [to] effectively violate the Act with impunity.” It is her posi tion that legislative privilege is “anathema to enforcement of the Act.”7

More specifically , she argues that Council President Young and Committee Chairman Reisinger were “uniquely positioned and qualified to elucidate the proceedings of these two public b odies” o ver which they presided. By restricting her ability to elicit testimony from t he Council members, the trial court prevented her from obtaining

infor mation from competent witnesses, which severely prejudiced her efforts to succeed

on her claim.

C iting Community and Labor United For Baltimore Charter Committee v. Baltimore City Bd. of Elections , 377 Md. 183 (2003) (which we will refer to as “ CLUB ” in this opinion), she contends that both Mr. Young and Mr. Reisinger had been Council members during t he period of 2002

- 03 when the facts underlying that case occurred and

would have particular insight into how, or if, the Council had taken any post

- CLUB steps to reform their procedures and to comply with the Act. In addition, their involvement , in

what s he characterizes as a prior willful violation of the Act in CLUB , would be

circumstantial evidence of a willful violation in th is case.

She further argues that she needed the testimony of Mr. Young and Mr. Reisinger

because Ms. Kunst , a staff member, was not competent to testify on matters relating to

the Act

. Even if she was qualified to “support and possibly to implement the policy of
the [Council] and [Committee] regarding the [Act],” she was not qualified “ to make or explain that policy.” Nor was sh e competent to testify “ as to what [Council] and Committee members themselves discussed, and with whom, during the ‘recess’ between the evening meetings of Oc tober 20 and 24, 2016.”8

The City responds that the court correct ly quash ed the subpoenas based on the

well

- developed doctrine of legislative privilege , which protected Mr. Young and Mr. Reisinger from having to testify about actions taken within the sphere of legitimate legislative activity. It asserts that Maryland law does not recognize an Open Mee tings

Act exception to legislative privilege , and that the CLUB Court did not discuss legislative privilege at all. Analysis Judge Wilner, writing as the Chief Judge of this Court , has expounded on the

doct rine of legislative privilege : Members of Congr ess and members of the Maryland General Assembly have a separate Constitutional immunity from being called upon, in any official non

- legislative forum, to defend their conduct in legislative proceedings. Article I, § 6 of the U.S. Constitution provides th at “for any Speech or Debate in either House [Senators and Representatives] shall not be questioned in any other Place.” A similar provision, applicable to members of the General Assembly, has appeared in the Ma ryland Constitution since 1776. Article 10 of the current Maryland Declaration of Rights states that “freedom of speech and debate, or proceedings in the Legislature, ought not to be impeached in any Court of Judicature.” Article III, § 18 of the State Constitution adds that “[n]o Senator or Deleg ate shall be liable in any civil action, or criminal prosecution, whatever, for words spoken in debate.” These Constitutional clauses trace their immediate history to the English Bill of Rights of 1689, although there is evidence of a much earlier origin

. See discussion in Holmes v. Farmer , 475 A.2d 976, 981 (R.I. 1984). They have long been regarded as “an important protection of the independence and integrity of the legislature” and, in this country, as also reinforcing the core doctrine of separation of powers. United States v. Johnson , 383 U.S. 169, 178, 86 S. Ct. 749, 754 (1966); also Blondes v. State , 16 Md. App. 165 ( 1972)

. The State privilege [arises from the same sources as] the Federal ( Blondes , 16 Md. App. at 175 ), and thus both are to be “re ad broadly to effectuate [their] purposes” ( Johnson , 383 U.S. at 180 ) and to protect not only words spoken in debate “but anything ‘generally done in a session of9

the House by one of its members in relation to the business before it.’ ” Johnson at 179 , quo ting from Kilbourn v. Thompson , 103 U.S. 168, 204 (1881). Montgomery County v. Schooley , 97 Md. App. 107, 113

- 14 (1993) (cleaned up).

While federal and state constitutional immunity provisions expressly refer to the Congress and the General Assembly, res pectively , the doctrine of legislative privilege

extends to local and municipal legislators as a matter of common law. See Manders v.

Brown , 101 Md. App. 191, 205 (1994) (“ federal and local privilege s are essentially co

extensive”); Schooley , 97 Md. App. at 114

- 15 (explaining the common law doctrine of official immunity and that it is applicable to “members of local and regional legislative bodies as well as to State legislatures” ) ; see also State v. Holton , 193 Md. App. 322 , 362

- 64 (2010) (recognizing a s tatutory source for legislative immunity for local legislators
under § 5

- 501 of the Courts and Judicial Proceedings Article) , aff’d , 420 Md. 530 (2011)

. Federal courts have interpreted the privilege to cover not just “speech or debate,”

but also “matters . . . integral [to] the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation ,” which includes a legislator’s “conduct at l egislative committee hearings.” Gravel v. United States , 408
U.S. 606, 624

- 25 (1972)

. But, the privilege does not extend beyond “ the sphere of legitimate legislative activity , ” see Schooley , 97 Md. App. at 115, and “ only when10

necessary to prevent indirec t impairment of such deliberations , has it been extended beyond pure speech and debate in the legislative body.” Gravel , 408 U.S. at 625

. 6

6 Gravel involved a federal cr iminal investigation arising from the release and publication of classified Defense Department documents, known as the “Pentagon Papers.” One area of inquiry was a Senate subcommittee meeting chaired by U.S. Senator Mike Gravel of Alaska, at which the cla ssified documents were read and placed in the public record. Among the witnesses subpoenaed was a staff aide to Senator Gravel. Senator Gravel moved to quash the subpoena citing privilege under the Speech or Debate Clause. The U.S. District Court deni ed the motion to quash, but limited the questioning of the aide based on legislative privilege. The U.S. Court of Appeals for the First Circuit affirmed the denial of the motion to quash, but modified the protective order. It agreed that the Speech or De bate Clause barred inquiry of the Senator and his aide with respect to legislative acts, but added that neither could be questioned with respect to the private publication of materials introduced into the subcommittee record based on “a common

law privileg e akin to the judicially created immunity of executive officers from liability for libel contained in a news release issued in the course of their normal duties.” 408 U.S. at 612. The Supreme Court held: that the Speech or Debate Clause privilege appli es both to the Senator and his aide; and that privilege would forbid “questioning any witness . . . (1) concerning the Senator’s conduct, or the conduct of his aides, at the . . . meeting of the subcommittee; (2) concerning the motives and purposes behind the Senator’s conduct, or that of his aides, at that meeting; (3) concerning communications between the Senator and his aides during the term of their employment and related to said meeting or any other legislative act of the Senator; (4) except as it prov es relevant to investigating possible third

- party crime, concerning any act, in itself not criminal, performed by the Senator, or by his aides in the course of their employment, in preparation for the subcommittee hearing.” Id. at 628

- 29. The Court explai ned, “[P]rivate publication by Senator Gravel through the cooperation of Beacon Press was in no way essential to the deliberations of the Senate; nor does questioning as to private publication threaten the integrity or independence of the Senate by impermi ssibly exposing its deliberations to executive influence.” Id. at 625. And, “[i]f republication of these classified papers would be a crime under an Act of Congress, it would not be entitled to immunity under the Speech or Debate Clause.” Id. at 626. Ma ryland courts have adopted similar rules for state and local legislative immunity. See Blondes v. State , 16 Md. App. 165, 178

- 79 (1972); Schooley , 97 Md. App. at 114

- 17.11

The purpose of legislative privilege is to protect the “legislative function” and to permit it to “ be performed in dependently without fear of outside interference.” Schooley , 97 Md. App. at 116 (quoting Supreme Court of Va. v. Consumers Union , 446 U.S. 719,

731

- 32 (1980) (“To preserve legislative independence, we have concluded that legislators engaged in the sphere of legitimate legislative activity . . . should be protected not only from the consequences of litigation’s results but also from the bur den of defending themselves.”); see also United States v. Mandel , 415 F. Supp. 1025, 1030

- 31 (D. Md.
1976) (holding tha t legislative privilege could not be invoked to stop inquiry into a governor’s approving or vetoing bills and recommending legislative matters to the General Assembly because that “ does not interfere with the due functio ning of the legislative process” or “ threaten the independence of the legislature. ”). Legislative privilege may be invoked to protect a legislator from being “required to testify regarding . . . actions” taken within the sphere of legitimate legislative activity. Marylanders for Fair Repre sentation, Inc. v. Schaefer , 144 F.R.D. 292, 298 (D. Md.
1992)

. It extends as well to legislative staff members, officers, or other employees of the legislative body, but , as to them, it is “less absolute” t han to the “ legislators themselves.”

See Dombro wski v. Eastland , 387 U.S. 82, 85 (1967)

. In regard to the subpoenas in this case , t he circuit court allowed appellant’s counsel to proffer questions and the specific areas of inquiry that he intended to pursue

with the two Council members. A summary of that proffer is provided in an appendix to this opinion. Many of the questions were directed to c ertain amendmen ts to the legislation , and why certain actions were taken in regard to its passage

. Such questions12

involve “ the deliberative and communicative processes . . . with respect to the

considerat ion and passag e or rejection” of the legislation at issue. Gravel , 408 U.S. at

625

. As to the questions about the luncheon, appellant was able to pursue some of them

with Ms. Kunst, whom the court found comp etent to answer as the Director of Legislative

Affairs. In short, w e perceive neither error n or abuse of discretion by the court in quashing the subpoenas for the two Council members and limiting Ms. Kunst’s testimony

to administrative details and matters related to the Council’s and Committee’s

c ompliance with the Act and its requirements.

As noted , a ppellant contends that the application of legislative privilege to her subpoena requests strips the Act of all force and purpose, and therefore it should not be applied in cases based on a violation of the Act

. 7 We are not persuaded because questions specifically related to compliance with the Act would not be protected by legislative privilege and appellant was able to pursue these questions with Ms. Kunst.

7 In Avara v. Baltimore News Am. Div. , 292 Md. 543 (1982) , which was a declaratory ju dgment action that involved the exclusion of the press and the public from a Conference Committee meeting on a budget bill, the Court of Appeals declined to reach the State’s argument that Maryland ’s constitutional Speech and Debate Clauses prevented appli cation of the Open Meetings Act to state legislators. It explained: Courts consistently adhere to a policy of not deciding constitutional issues unnecessarily. See Simms v. State , 288 Md. 712, 725 (1980). Consequently, in view of our disposition of this case, we do not consider the Attorney General ’ s argument that the Speech and Debate Clauses of the Maryland Constitution and Declaration of Rights render the provisions of the Act inapplicable to members of the Legislature.

Id. at 554 n.7. The Court , although it agreed that the Act was applicable, held that the declaratory judgment remedy was not available in the case.13

But, even if we perceive d a tension between the doctrine of legislative privilege and the requirements of the Act, a judicial carve

- out of an exception to the application of that

doctrine in such cases would be inappropriate

. That, in our view, would be a policy issue

to be addressed by the General Assembly and not by the courts

. See Kleitman v. Superior

Court , 87 Cal. Rptr. 2d 813, 821

- 22 ( Cal. Ct. App. 1999)

. 8

8 In Kleitman , the complaining resident contended that an unrecorded closed session violated the Brown Act, a California state law, providing for, among other thi ngs, open meetings and disclosure of tape recordings of closed sessions under specific circumstances. The resident moved to compel interrogatory answers, and the trial court issued an order essentially requiring disclosure of the council members’ personal recollections of the closed session. On appeal, the Court of Appeal, Sixth District, h eld that the trial court could not compel disclosure of personal recollections of city council members with respect to a closed session : [P] rocedural safeguards seem particularly appropriate when the discovery
sou ght concerns matters which may impinge on the legislative privilege

. As this court has previously held, discovery into the subjective motives or mental processes of city council m embers is prohibited. ( City of Santa Cruz v. Superior Court , [48 Cal. Rptr. 2d 216 (Cal. Ct. App. 1995)]) Finally, we believe that [the resident’s] contention that interested persons must be able to compel the members of legislative bodies to disclose th eir recollections of unrecorded closed sessions whenever a Brown Act violation is alleged, is one which should be addressed to the Legislature, rather than the courts

. (Emphasis added).14 I I
. Online Audio

- Visual Recordings

Contentions Appellant a ssert s that her p etition for e nfor cement of the Act provided the trial court with “the location on the City’s own Charm TV website

— including time stamps

— of relevant portions of the official audio

- visual recordings of the Committee meeting of October 19, 2016 and the Council’s 5:00 p.m. mee tings of Octobe r 26, 2016 and October
24, 2016. ” She provided the time stamped segments to show that what was discussed at the meetings did not m atch the meeting agendas , that portions of the recordings were inaudible, and that during those meetings membe rs “spoke among themselves and consulted with staff away from the microphones. ” She contends that the recordings were

a “unique form of the evidence

— official, archived audio

- visual recordings on the City’s own website, which the Act expressly recognizes a s constituting official minutes,” and

therefore should have been viewed by the court before making its decision. 9
The City respond s that appellant never produced or introduced t he recordings as evidence at trial, and therefore, it would have been inappropr iate for the trier of fact to

co nsider evidence that was not part of the record. Analysis

When appellant brought up the online recordings at trial , appellant’s counsel asked her what “specific footage” she was asking the trial court to see. When a ppellant

9 To the extent that appellant is suggesting that the trial court sh ould have taken judicial notice of the contents of the videos , the court was never asked to do so.15

responded that she could show the footage on her iPhone or tell the court the time stamps

that sh e “like d for the court to see,” the following exchange took place: [Appellant’s counsel:] Your Honor, at the present time, I ’ m not sure how you would wish us to proceed. [The Court:] I’ m not trying this case. [Appellant’s counsel:] Okay. All right. [The Court:] I don’t know what you’ re asking me. [Appellant’s counsel:] Well, the question is, is it possible that we could bring this up? I’d asked the Clerk be fore the hearing started whether it could be brought up in the courtroom because it’ s online from the City. And I don ’t . . . have an answer

. . . . [The Court:] Did you contact the administrative office and figure out what the procedure is to make that h appen? [Appellant’s counsel:] No, I did not, Your Honor. [Appellant:] I have an iPhone. [Appellant’s counsel:] I’ m not sure that iPhone’s doing

– [The Court:] Problem is preservation of evidence.

At that point, a ppell ant’s counsel stated to appellant , “I know you would prefer to show it, but at this point, we may or may not be able to show it.” Counsel then proceeded to ask appellant to explain what she had observed in her viewing of the recordings, which

she did.

In its June 30, 2017 opinion, the tr ial court explained: This court did not go into any external website as suggested by [appellant] to view the meetings that were available on Charm TV as . . . [appellant]16

had an obligation to produce, in court, any evidence [appellant] wished for the court to review and consider.

“I n a bench trial, the court may not rely on facts that are not in the record. ”
Massey v. State , 173 Md. App. 94, 125 (2007) . Simply put, a ppellant had the burden to
introduce evidence into the record for the court’s considerat ion in a manner that it could be preserved for the p ossibility of appeal. T hat was not done, and therefore we perceive

no error.
II I.

The Committee’s October 20, 2016 M eeting

Contentions With regard to the C ommittee’s meeting of October 20 , 2016, ap pellan t contends

that the A ct was violated because the minutes “failed to reflect all but one of the votes

t aken at the meeting.” She a rgues that , although the Committee considered “hundreds of

amendments” and “took over forty roll call vote s and three voice vo tes” at that meeting, the official minutes reflected only one vote : A motion was made by Councilmember Kraft, seconded by Councilmember Middleton, that Bill 12

- 0152 be recommended Favorable with Amendments. The motion for carried by the following vote:

Y es: 6

– Reisinger, Kraft, Branch, Clarke, Henry, and Middleton Absent: 1

– Mosby17

And, b ecause no audio

- visual recording of the meeting was made available online 10 , she argues that a dequate minutes were “critical” for t he public to “learn what transpired a t the one and only voting sessio n the Committee ever held on a proposed new comprehensive zoning map f

or the entire City of Baltimore. ” The City contends that the minutes comply with the Act. Analysis

The trial court found: While the minutes may not have lived up to [appellant’s] expectations, [she] presented no evidence to support any contention that the minutes either were not provided or that the minutes were insufficient. Instead, Ms. Kunst . . . testified that with respect to the contents of the Cit y Council’s Journal, she looks to the Open Meetings Act, the City Council’s Rules, the Maryland General Assembly and neighboring jurisdictions for guidance on what to include in the minutes. . . . The minutes provided in this case meet the statutory requ irements. [Appellant] did not present through either [her] testimony, through any witness or through any expert testimony evidence to support [her] contention that the [ City ] failed to provide minutes[.]

GP § 3

- 306 of the Act provides: (b)(1) Subject to paragraphs (2) and (3) of this subsection, as soon as practicable after a public body meets, it shall have minutes of its session prepared. (2) A public body need not prepare minutes of an open session if: (i) live and archived video or audio streaming of the open session is available; or (ii) the public body votes on legislation and the individual votes taken by each member of the public body who participates in the voting are posted promptly on the Internet.

10 A n online

- posted video or audio recording would have satisfied the minutes requirement under GP § 3

- 306 (b) (2)

- (3).18

(3) The information specified under paragrap h (2) of this subsection shall be deemed the minutes of the open session.
(c)(1) The minutes shall reflect: (i) each item that the public body considered; (ii) the action that the public body took on each item; and (ii i) each vote that was recorded.

The Attorney General’s Open Meetings Act Manual states, “A s to minutes for an open session, the Compliance Board has explained that ‘[e]ach item must be described in sufficient detail so that a member of the public who examines the minutes can understand

the i ssue under consideration.’” Open Meetings Act Manual (9th ed., rev. June 2017) (quoting 3 OMCB Opinions 164, 166 (2001)).

T he m inutes of the October 20, 2016 meeting , which were posted online, reflect

that what was under consideration was Bill 12

- 0152, a nd that the Committee voted unanimously with one member absent in a recorded roll call vote to r ecommend that bill

“F avo rable with Amendments

. ” Appel lant directs our focus to the requirement that t he

minutes “ shall reflect each item that the public body c onsidered, ” “the action that the public body took on each item,” and “ each vote that was recorded.” GP § 3

- 306 (c)(1) (emphasis added)

. As she sees it, the Committee considered dozens of “items,” involving

text, tables , and zoning map amendments, and took “over forty roll call votes and three
voice votes,” none of which w ere recorded in the minutes. The City c haracterize s the votes referred to by appellant as “straw votes ” used by

the Committee to orga nize its final report on Bill 12

- 0152 to the Council. And , because only the Council, and not the Committee , can adopt an amendment, these organizational19

votes do not constitute official actions of t he Committee and do not have to be reflected

in the minutes. 11

Council Rul e 10

- 9 12 govern s a committee’s actions on a bill : (a) Each committee must report to the Council on all bills on which it has taken action. (b) The report on each bill must be either: (1) favorable; (2) favorable with amendments; (3) unfavorable; or (4) without recommendation. (c) (1) A commit tee may adopt a report only on the affirmative vote of a majority of all committee members. (2) A committee member may vote on a report or other measure only if the member is physically present when the vote is called.

Ms. Kunst testified that , in regard to Council and Committee minutes, she had

looked at the minutes kept by the General A ssembly and at “neighboring jurisdictions in

the state” for guidance, and that the minutes for the General Assembly’s Committee
reports are “ very similar to what we post . . . [including] attendance records and the

outcomes on items considered .” More specifically , she stated that the General Assembly

does not “include in the minutes the individual amendment v otes at Committee level.” 13

11 At trial, Ms. Kunst testified that “s traw votes were taken by the Committee . . . in order to organize the items that the Committee intended to put i nto their final report.” When asked whether the Committee passes or approves amendments, she answered, “No . . . The full City Council [passes or approves amendments] generally on second r eader [or] third reader.”

12 Rules of the City Council of Baltimore, 2016

- 2020 Council Session, available at http://ca.baltimorecity.gov/codes/Co uncilRules.pdf

13 Appellant presented no evidence to the contrary and does not challenge the accuracy of Ms. Kunst’s testimony on appeal.20

R egarding compliance with the Act, w e agree with the City that t he General Assembly’s practice is entitled to some deference

. 14 Not only is it the legislative body

that enacted the Act , GP § 3

- 306 (a) express ly states that that section of the Act does not

“ require any change in the form or co ntent of the Journal of the Senate of Maryland or

Journal of the Ho use of Delegates of Maryland.”

Under the Council’s Rule s , the Committee’s singular responsibility as to Bill 12

- 0152 was to report to the C o uncil in one of four ways. The report on that bi ll was the

“item” under consideration in the October 20 Committee meeting , and it involved the

i nclusion or exclusion of proposed amendments. The minutes of the meeting reflect the

Committee’s acti on on that bill. We perceive no legal error in the circui t court’s

conclusion that the minutes at issue meet the statutory requirements.

IV
.

“ What’s past is prologue ” 15 The Council’s O ctober 24, 2016 Luncheon

Contentions Appellant contends that the Council’s “luncheon meeting” on October 24, 2016

violated bot h the notice and minutes requirements of the Act

. She asserts as an

14 To support this argument, the City analogize s to administrative deference: “[L]egislative acquiescence in a long

- s tanding administrative construction gives rise to a strong presumption that the interpretation is correct.” Lussier v. Maryland Racing Comm’n , 343 Md. 681, 696

- 97 (1996) (quoting Maryland Classified Employees Ass’n, Inc. v. Schaefer , 325 Md. 19, 33 (1991) ).

15 William Shakespeare, The Tempest , Act 2, Scene 1.21

“inc onvenient truth” that the Council has continued a practice “denounced” by the CLUB

Court in 2003

.
In C LUB , civic organizations filed a complaint alleging that the Baltimore City

Counc il violated the Open Meetings Act when considering a ballot initiative to restructure the Council by amending the City Charter

. 377 Md. at 185

- 86. The Court of Appeals held that the passage of that bill was void , and ordered the removal o f the question f

rom the ballot

. Id. at 186. The controversy revolved around the Council ’s meetings held on August 8, 2002 and August 12, 2002. Although the Council President “ generally gave public notice of the regularly scheduled Monday, and occasionally, Thursday nigh t meetings of the Council, no notice

of the [Thursday,] August 8 meeting was given by the President to anyone other than

council members. ” Id. at 189. The Council President “ had indicated that she did not want the media to be p resent at the August 8 meet ing ‘ because of her fear of how the media might portray the Council when it was having heated discussions. ’ ” Id

. at 189.

That effort was thwarted when t he Baltimore Sun learned of the meeting , and two
reporters and a member of the public sought admission to the meeting

. Id. at 190

- 91.

I nformed by the press secretary that a q uorum of the C ouncil was present , they e nter ed the meeting room

. A bout one minute after they entered , however, the Council President

determined that a quorum w as not present and , wi thout a vote, closed the meeting

. Id. The Council met again on Monday, August 12, 2002, holding both a luncheon meeting and a regularly scheduled meeting at 5 p.m. In regard to the luncheon meeting,

t he trial court had found that :22

• No individualized notic e of these meetings is published, but the City Council President prepares a memorandum to the other members with a calendar of the dates of the regularly scheduled Monday evening sessions. Luncheon meetings are noted on this memorandum with an asterisk nex t to the date for the regularly scheduled Monday evening session.... This calendar is prepared on a yearly basis and sent to the press. It is also posted on the website. No notice is given of the topics to be discussed at these meetings.

• Members of the med ia regularly attend the luncheon meetings.

• No record is kept of who attends these luncheon meetings.

• No minutes are kept of who attends these luncheon meetings.

• A quorum of the council is sometimes pres ent at the luncheon meetings.

• Sometimes, but not often , bills are brought to the luncheon by member s and other members sign them as a part of the process to bring the bills out of committee and before the entire Council for a vote.

• The restructuring bills were not discussed at the Au gust 12, 2002 luncheon
mee ting.

Id. at 191

- 92. In the time between the luncheon and the 5 p.m. meeting , “ the chairperson of the Judiciary and Policy Committee had obtained sufficient signatures to bring the bill

on the [ballot question] out of committee and up for a vote under th e rules of the

Council. ” Id. at 192. In regard to the August 8 meeting, the Court held that the Council “deliberately omitted to give notice to the media, contrary to [its] customary practice ,” and that once a quorum had been established and the meeting declared open, “ it should not have been

closed without a vote. ” Id. at 19 4

- 9 5. As to the August 12 luncheon meeting, the Court

noted that “[a ]s was the general practice, there was no individualized notice of this meeting, no record of attendance was take n, and no minutes of the meeting were kep t,”

but it accepted the trial court ’s fact ual finding that the bill in question wa s not discussed

at the luncheon. Id. at 196. “[R]eiterat[ing ] that the Open Meetings Act places an23

affirmative duty on the public b od y to provide notice of meetings, ” the Court concluded

that the Council had “failed to provide adequate notice of this [luncheon] meeting, and . . . violated the [Act].” Id. Analysis

Old habits are apparently hard to break

. 16 It is undisputed that the Co uncil held a “luncheon meeting” on October 24, 2016. Ms. Kunst testified t hat she attended that
luncheon; that “about half of the Ci ty Council [were] in attendance; ” that it was “hosted by the Mayor in the executive conference courtroom o n the second floo r of City Hall; ” and that it started at approximately noon and ended at approximately 1 p.m. When as ked
about notice, Ms. Kunst stated that “notice for the lunch for the 2016 calendar year was in

a memo from October of 2015,” that “ was posted on the balti morecitycouncil.com part of the City Council’s website . . . [and was ] physically posted on the Department of Legislative Reference on their bulletin board outside of their offices.” Appellant testified

at trial that she had looked but did not see the “me mo” and disputed whether it was actually posted online or on the bulletin board.

16 Under the Act, to “meet” means “ to convene a quorum of a public body to co nsider or transact public business. ” GP § 3

- 101(g). A quorum is “a m ajority of the members of a public body; or the number of members that the law requires.” GP § 3

- 101(k). At these luncheons, a quorum of the Council may be present, and, even if not intended, “public business” may be “consider[ed] or transact[ed].” Whether or not the Council considered these luncheons to b e meetings under the Open Meetings Act (the CLUB Court did , and the City does not argue that they are not subject to the Act; for the purposes of this opinion, we will assume that they are), they present concerns. The City Sol icitor, at oral argument, ind icated

— wisely in our view

— that these luncheon s are no longer held. Whether this case played a part in that decision was not stated.24

The “ memo ” referred to by Ms. Kunst appears to be a letter , dated October 19,
2015, from Council President Young addressed to “Honorable C ouncilmembers , ” that is

titled “Draf

t 2016 City Co uncil Meeting Schedule.” It states that “the Council will meet

year

- round on Mondays (unless otherwise noted) at 5:00 p.m. in the Clarence ‘Du’ Burns

Council Chamber.” It lists 25 dates with asterisks next to some of the m. The asterisk s

ar e explained at the bottom of the memo : “*Council luncheons held in the Reeves Conference Room. The Mayor will host luncheons on alternate weeks.” October 24 is a
listed date without an asterisk

. Rega rding this luncheon, the trial court found:
[T]he eviden ce shows that . . . notice was given by way of an October 2015 memorandum that was posted on the City Council’s website and on Legislative Reference’s bulletin board. That [appellant] did not see the notice does not mean it was not provided. The court cr edits Ms. Kunst’s testimony that notice of the luncheon, which was open to the public, was posted in advance of the luncheon.

The CLUB Court did not i nclude the express language of the 2002 meeting memo,

but it appear s to have been very similar to the me mo in this case: No individualized notice of these meetings is published, but the City Council President prepares a memorandum to the other members with a calendar of the dates of the regularly scheduled Monday evening sessions. Luncheon meetings are note d on this memorandum with an asterisk next to the date for the regularly scheduled Monday evening session .... This calendar is prepared on a yearly basis and sent to the press. It is also posted on the website. No notice is given of the topics to be discus sed at these meetings. 377 Md. at 191 (emphasi s added).

The Act states that “[i]t is essential to the maintenance of a democratic society that, except in special and appropriate circumstances[,] public business be condu cted25

openly and publicly; and th e public be allowed to observe the perform ance of public
officials; and the deliberations and decisions that the making of public policy involves.”
GP § 3

- 102(a). T herefore, except for statutorily permitted closed meetings, “ it is the public policy of th e State 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.” GP § 3

- 102(c). More specifically, “[w]henever reasonable, a notice . . . shall . . . be in writing,” and “include the date, time, and place of the session.” GP § 3

- 30 2(b). The trial court’s finding that the Draft 2016 City Council Meeting Schedule was

p osted online and on the bulletin board is not clearly erroneous, but that document is hardly a model of clarit y

. Ms. Kunst explained that “the asterisk indicates the host of the
lunch, not whether or not there is a lunch.” She continued, “[T]he asterisk indicates the host of the lunch is the City Council President in the Reeves room,” and “if there’s not an asterisk, the host lunch is hosted by the Mayor’s office.” T hat is not an un reasonable reading of the notice. But, e ven if a member of the public re cognized that the dates listed

wi thout asterisks indicated that the luncheon would be hosted by the Mayor, it does not

state the time or where the luncheon would be held if it is not in the Reeves Conference

Room. 17

17 Based on Ms. Kunst’s t estimony, the October 24 luncheon was not held in the Reeves Conference Room, but rather in the May or’s executive conference room on the second floor of City Hall.26

In short, the purported notice does not c omply with the requirements of the Act. 18
And, it is undisputed that n o minutes were kept or posted for the luncheon meeting at

issue

. Any errors aside, an action of a public body may be declared void only “ if the court finds that the public body willfull y failed to comply with . . . § 3

- 302 [notice requirement] . . . or § 3

- 306(c) [minutes requirement] of this title and th at no other remedy is adequate.” GP § 3

- 401 (d)(4) (emphasis added)

. The CLUB Court held that “the Council willfully failed to comply with . . . the Open Meetings Act, and that the appropriate remedy was to declare [its] action . . . void.” 377 Md. at 196

- 97. In reaching
that conclusion, it did not focus as much on the luncheon meeting deficiencies as it did on
the August 8 Council mee ting, during which the Council demonstrated its intention to

“ conduct the[] deliberations away from the scrutiny of c itizens and the media ” and

“ successf ully excluded citizens and the media from the meeting, where, presumably, the

bill was discussed. ” Id. at 196. By providing no notice and closing the meeting when the press and the public arrived, the Council “ willfully ” i ntended to “ prevent [] members of the public from observing most of the deliberations on the issue, in direct contravention to the expre ssly stated policy of the Open Meetings Act. ” Id. That is a far cry from what happened in this case.

18 On appeal, the City does not expressly address appellant’s argument that the notice did not satisfy the notice requirements of GP § 3

- 302(b). It focuses on the posting of the notice and t hat the evidence supported the trial court’s finding that Transform Baltimore was not discussed at the luncheon. It contends that any errors related to notice and the lack of minutes were not prejudicial.27

T he trial court found that :

t he only credible evidence presented at the time of trial on the issue of whether [ Bill 12

- 0152 ] was addressed at the meeti ng shows that members of the City Council engaged in no discussion of the Bill at [the] October 24, 2016 luncheon. Thus, [appellant’s] allegation that the deliberative process was a part of the lunch meeting is simply unsubst antiated by the evidence. Ap pellant , who did not attend the luncheon , provided no evidence that Bill 12

-
0152 was discussed

. 19 Ms. Kunst testified that she was at the October 24 luncheon and that “there was not any discussion of Transform Baltimore.” She explained that during

such lu ncheon s , “there’s generally some presenta tion and group discussions,” but “there was no official or formal conversation among the group of Council members or members of the public about Transform Baltimore that day.” When asked if there could have been

in formal discussions, she conceded , “I would suppose so.”

The circuit court found that “the only credible evidence presented ” at trial showed

that “ members of the City Council engaged in no discussion of [Bill 12

- 0152]” at the
October 24, 2016 luncheon. Th at fin ding is not clearly erroneous

. The court concluded: [Appellant] failed to produce any evidence to support [her] claim that [the City] committed any ac tionable violation of the Open M eetings Act. While the process was not perfect in that errors in t he process necessitated corrective legislation, there is no indication that the errors were the result of anything more than human error. That there may have been error in the

19 As previously discussed, a ppellant asserts that the application of legislative privilege prejudiced her ability to acquire such evidence. We note that l egislative privilege was neither raised nor discussed in CLUB

. She also points out that the CLUB Court reached the issue of the Council Pre sident’s mo tives and intentions, stating that the Council President “ had indicated that she did not want the media to be p resent at the August 8 meeting ‘ because of her fear of how the media might portray the Council when it was having heated discussions. ’ ” 377 Md. at 189. We do not kn ow how the information came to the circuit c ourt in that case

.28

zoning map that led to a need for corrective action does not give rise to a
cau se of action.

We understand this to mean that there was no willful violation of the Act. And, we agree
that the violations related to the luncheon do not rise to the level o f a willful violation that would permit voiding the legislation

. See GP § 3

- 401( d)(4). But that does not mean that

some “ other appropriate relief” cannot be granted. See GP § 3

- 401 (d)(6). On appeal, appellant has requested a remand to the circuit court for it to consider

other a ppropriate relief. In her petition for enforcement of the Act , she requested , among other things, that the circuit co urt award her reasonable counsel fees and other litigation

expenses. The record indicates that the issue of counsel fees and litigation expenses was

not addressed by the circuit court, presuma bly because it found no “ actionable violation

. ” To the extent that the trial court may have considered only a “willful” violation to be
actionable, a finding of willfulne ss would not be necessary to an award of counsel fees and litigation expenses.
GP § 3

- 401(d)(5) provides that, as part of its judgment, a court may “assess against any party reasonable counsel fees and other litigation expenses that the party who prevails in the action incurred.” To be sure, appellant’s primary goal was to have Bill 12

-
01 52 declared void based on a willful violation of the Act, but that is not the sole measure of success in litigating a violation of the Act. As the Court of Appeals, i nterp reting an

earlier version of the statute, has explained: In light of the Act’s goal s and purpose . . . we interpret the qualifier “prevails” as being determinable according to the parties’ respective success litigating the seminal Open Meetings Act violation claim, regardless of the specific remedies sought, or whether any or all of thos e29

remedies are achieved. To conclude otherwise that the non

- governmental party qualifies as a “prevailing” party only if that party obtains an injunction, a declaration of invalidity of the legislative act, or achieves other remedies following establishme nt of the merits of its foundational claim seems to us to run counter to the intent of the Act[.] Armstrong v. Mayor and City Council of Baltimore , 409 Md. 648, 693 (2009). In light of our finding regarding the luncheon meeting, w e will remand this case

for the c ir cuit court to determine whether counsel fees and litigation expenses 20 should be

awarded and , if so, the amount of any award

.

CASE REMANDED FOR TH E SOLE AND LIMITED PURPOSE OF C ONSIDERING AN AWARD OF COUNSEL FEES AND LITIGATION EXPENSES. JUDG MENT OF THE CIRCUIT COURT FOR BALTIMORE CITY OTHER WISE AFFIRMED. COSTS TO BE PAID 3/4 BY APPELLANT AND 1/4 BY THE MAYO R AND CITY COUNCIL OF BALTIMORE.

20 The Armstrong Court explained that its “ruling here does not mean necessarily that it would be an abuse of discretion for a trial judge to deny attorney’s fees to a litig ant who proves a violation of the Act. Each case will rise or fall on its own unique circumstances and the trial court’s articulated or discernable exercise of discretion.” 409 Md. at 694.30 APPENDIX Appellant’s counsel proffered questions for Council President Young, which we have rephrased and condensed as follows :

• Were you a Council member when the Court of Appeals rendered its decision in CLUB ?

• Identify t he time and location of the l uncheon meeting on October 24, 2016.

• Identify each person who attended and the purpose of the l uncheon.

• Identify s ubjects that were considered, mentioned , and discussed at the l uncheon

. • Why was the l uncheon not announced at the Council meeting s of September 19 , 2016 or October 20 , 2016 ?

• Identify each person with whom you communicated or met during the period of October 18

- 24 , 2016 regarding the Committee action on Bill 12

- 0152.

• Identify the measures, if any, that you took to ensure that the “packets” of amendments to Bill 12

- 0152 that were placed before the Council at its 5 p.m. meeting of October 24 were true and complete re presentation of the items approved by the Committee.

• Identify the measures, if any, t hat you took to ensure the Council actions on Bill 12

- 0152 at th e 5 p.m. meeting of October 24 would not result in conflicting zoning map designations for the same propert y.

• Identify the da te, time, procedure of the Council’s decision that amendments to Bill 12

- 0152 could be adopted on the floor : o W ithout being read aloud , as set forth in Council Rule 11

- 6

- C

- 1 ; and
o W ithout being formatted as set forth in Council Rule 11

- 5A

. • If there were not eno ugh time before the 5 p.m. Council meeting of October 24 to ensure the “packets” of amendments were true and complete representation of the items approved by the Committee, to conform to Council Rule 11

- 5 , and to ensure no conflicting zoning map designations, why did you go forward with second reading at that meeting?

• Identify the procedure, if any, by which Bill 12

- 0152 could have passed by the end of the legislative session on December 5, 2016 had it not had its second reading on Oct ober 24, 2016.

• Identify each person with whom you communicated or met regarding the Port Covington amendments to Bill 12

- 0 152 during the period of October 18

- 24.

• Identify each person with whom you communicated or met during the period of October 18

- 24 unt il the beginning of the 5 p.m. meeting regarding : o Councilman Mosby’s alcohol amendments;
o S pecifically whether Councilman Mosby’s alcohol amendments presented a threat to t he final pas sage or signing of Bill 12

- 0152;31

o Specifically whether Councilman Mosby’s amendments presented a threa t to the Port Covington project;
o Procedures for defeating Mosby’s amendments

. • At the 5 p.m. meeting on October 24, did you call for a vote instead of a discussion immediately after Mosby’s alcohol amendments were moved and
acce pted?

• At the 5 p.m. meeting, what were you saying and to whom while Mosby had the floor regarding his alcohol amendments?

• Isn’t it true that Council adopted or approved conflicting map designations at the 5 p.m. meeting on October 24?

• Identify each vote t aken by the Council in calendar year 2016 to close a meeting pursuant to the Open Meetings Act.

Appellant’s counsel proffered questions for Councilman Reisinger, which we have rephrased and condensed as follows :

• Why was the l uncheon not announced at th e Council meeting s of September 19 or October 20?

• Identify the date, time, location, and procedure of the Committee’s decision that actions taken at earlier voting sessions on Bill 12

- 0152 could be reversed or altered on October 19

- 20 without votes t o resc ind or to amend.

• Isn’t it true that during the October 19 Committee meeting, you turned the microphone away, or covered it with your hand, and had private discussions involving a quorum of the Committee?

• Is n’t it true that the October 20 Committee meeti ng was the only public meeting
on Bill 12

- 0152 in 2016 for which an audi o

- visual recording was not made?

• W hat time did you recess the October 20 C ommittee meeting in the morning? What time did you reconvene in the afternoon?

• Identify the votes taken at the O ctober 20 meeting on the Bill before the recess , and those votes taken after the recess

. • Identify each person with whom you communicated or met during the recess.

• Why did the Committee make “bed and breakfast” a prohibited use in the R

- 5 through R

- 10 zones on October 20 after voting to making it a CO use in those zones at its February 19, 2016 voting session?

• Why did the Committee make “fraternity and sorority” a prohi bited use in the C

- 4
zone on October 20 after voting to making it a CO use in th at zone at its February 19 voting session?32

• Why did the Committee make “check cashing establishment” a CO use in the C

- 1 through C

- 3 zones on October 20 after defeating the motion to that effect at its March 4, 2016 a.m. voting session?

• Why did the Committee set the minimal lot area per dwelling unit in the C

- 1 zon e at 300 square feet on October 20 a fter voting to make it 325 square feet in that zone in its March 4, 2016 p.m. voting session?

• Why did the Committee set the minimal lot area per dwelling unit in the C

- 1

- E at 550 square feet on October 20 after voting to make it 325 square feet in that zone at its Marc h 4 p.m. voting session?

• Why did the Committee set the minimal lot area for dwelling in C3 zon e at 300 square feet on October 20 after voting to make it 225 s quare fe et in that zone at its March 4 voting se ssion?

• Why did the Committee set the minimal lot area for dwelling units in the C

- 4 zone at 300 square feet on October 20 after voting to make it 225 square feet in that zone at its March 4 v oting session?

• Is n’t it true that the Committee adopted or approved conflicting zoning designations for some pr operties at its October 20 meeting?

• Why di d the Committee “ m inutes” for October 20 not include all votes taken at that meeting?

• I dentify each person with whom you communicated or met bet ween the October 20 Committee meeting and the Council’s 5 p.m. meeting on October 24

. • Identify the measures, if any, that you took to ensure that the “packets” of amendments to Bill 12

- 0152 that you placed before the Council on Octo ber 24 were a true and complete representation of what the Committee had approved.

• Did you attend any portion of the Council’ s l un cheon meeting on October 24?

• Identify each person present at the luncheon meeting.

• Identify the subjects that were considered, mentioned or discussed at the luncheon.

• Identify each person with whom you communicated or m et during the period of October 18

- 24 until the beginning of 5 p.m. Council meeting regarding Councilman Mosby’ s alcohol amendments.

• Identify each person with whom you communicated or met prior to the 5 p.m. meeting of October 24 regarding procedures for defeating Councilman Mosby’s alcohol amendments

.