City of College Park v. Cotter

ELDRIDGE, Judge,

dissenting:

The majority holds that the open meetings provision of the Municipal Charter of College Park is a more stringent law than the Maryland Open Meetings Act, Maryland Code (1984, 1986 Cum.Supp.) §§ 10-501 through 10-510 of the State Government Article, and that, therefore, the Charter provision governs meetings of the College Park City Council. Under the Court’s holding, the City Council of College Park cannot privately meet with its attorney to discuss pending or potential litigation. Nor can the Council meet privately to discuss sensitive personnel issues. Instead, the majority requires the City Council of College Park to discuss these matters only in open public sessions. Because I disagree with the majority’s view of the College Park *596Charter and its relationship to the Maryland Open Meetings Act, I dissent.

The resolution of the dispute in this case depends upon the application of § 10-504 of the Maryland Open Meetings Act which provides:

“Whenever this subtitle and another law that relates to meetings of public bodies conflict, this subtitle applies unless the other law is more stringent.”

Therefore, it must first be determined that a conflict exists between the College Park Charter and the Maryland Open Meetings Act. If there is a conflict, § 10-504 directs us to apply the “more stringent” law.

It is undisputed that a conflict, within the meaning of § 10-504, exists between the Charter and the State Act. Article 10, § 24, of the Charter provides: “All meetings of the Mayor and Council herein provided for, shall be open to the citizens of the city.” Conversely the State Act permits sessions to be closed to the public in very limited circumstances, § 10-508. Section 10-507 of the State Act, however, requires that most meetings be open to the public generally, without any limitation based on citizenship or any other connection with a particular jurisdiction or geographical area. Consequently, under the plain language of the enactments, there is a conflict in two respects. The issue, then, is which law is more stringent and therefore controlling.

Section 10-504 of the statewide law does not define “more stringent.” Nevertheless, the policy of the State Act is “that, except in special and appropriate circumstances [,] ... public business be performed in an open and public manner____” § 10-502. See Carroll Co. Educ. Ass’n v. Bd. of Educ., 294 Md. 144, 147, 448 A.2d 345 (1982); Avara v. Baltimore News American, 292 Md. 543, 545, 440 A.2d 368 (1982). Consequently, when the State Act and a local open-meeting provision conflict, the policy behind the State *597Act is furthered only when the more stringent provision, i.e., the one allowing greater public access, applies.1

Moreover, in determining whether the Charter or the Maryland Open Meetings Act allows greater public access, we must compare the entire State Act with the entire comparable provision in the Charter. This is made clear by § 10-504 of the state statute which provides that when “this subtitle ” and “another law ” conflict, “this subtitle applies unless the other law is more stringent.” (Emphasis added). See Tahoe Regional Planning Agency v. McKay, 590 F.Supp. 1071 (D.Nev.1984), aff'd 769 F.2d 534 (9th Cir.1985) (in order to determine which of two state open meetings acts imposed “greater requirements,” the court examined all parts of the acts, including closed meeting and record keeping provisions).

The majority initially compares the provisions in the Charter and the State Act relating to the permissibility of closed meetings. The College Park Charter, as the majority correctly points out, flatly prohibits closed meetings, while the State statute allows closed meetings in narrowly drawn circumstances. As a result of this comparison, the majority concludes that the Charter is less restrictive of public access and is therefore more stringent under § 10-504. I would agree with this conclusion if there were no limitation *598in the Charter concerning who may attend a council meeting.

As previously pointed out, the State Open Meetings Act requires meetings to be open to the “general public” (§ 10-507(a)) whereas the Charter merely requires meetings to be open to the “citizens of the city.” The majority, however, concludes that neither the Charter nor the State Act is more stringent than the other in this respect because, in the majority’s view, “citizens of the city” “is consistent with, and not any narrower than, the term ‘general public’ as used in section 10-507(a)____” This construction is incompatible with the plain language used and with prior opinions of this Court.

The provision in § 10-507(a) of the State Act, that “the general public is entitled to attend” meetings of a public body, and the provision in the Charter that meetings are “open to citizens of the city,” lack ambiguity in the present context. The meaning of “public” is “relating to or affecting the people” or “relating to the international community or to mankind in general.” Webster’s Third New International Dictionary 1836 (1981).2 Thus the State Act requires that meetings be open to persons generally, without any geographical or jurisdictional limitation. The phrase “citizens of the city,” however, given its broadest meaning, refers to the inhabitants or residents or domiciliaries of College Park. See Crosse v. Board of Elections, 243 Md. 555, 559-560, 221 A.2d 431 (1966); Risewick v. Davis, 19 Md. 82, 93 (1862). If the framers of the College Park Charter had intended meetings to be open to the “general public,” they would have said so, as did the framers of *599numerous other charters.3 Instead, the framers of the College Park Charter deliberately chose to limit meetings to “citizens of the city,” and we are not free to ignore the limitation.

To bolster its conclusion that “citizens of the city” means “general public,” the majority invokes the principle of statutory construction that, if there are two constructions of a provision which can reasonably be made, a court will avoid the construction that renders the provision invalid or which would involve a decision as to its validity. See, e.g., Heileman Brewing v. Stroh Brewery, 308 Md. 746, 763-764, 521 A.2d 1225 (1987); Davis v. State, 294 Md. 370, 377, 451 A.2d 107, 111 (1982); Pickett v. Prince George’s County, 291 Md. 648, 661, 436 A.2d 449 (1981); Moberly v. Herboldsheimer, 276 Md. 211, 217, 345 A.2d 855 (1975); Prince Geo’s Co. v. Chillum-Adelphi, 275 Md. 374, 383, 340 A.2d 265 (1975); District Land v. Wash. S.S.C., 266 Md. 301, 311-312, 292 A.2d 695 (1972). The majority’s reliance upon this principle is entirely misplaced. Under the principle invoked by the majority, the construction which avoids a holding that the provision is invalid “must be reasonable; it must be permitted by the statutory language.” Heileman Brewing v. Stroh Brewery, supra, 308 Md. at 764, 521 A.2d 1225. As previously discussed, the language “citizens of the city” is not reasonably susceptible to the construction embraced by the majority. Moreover, I see no reason to adopt a strained construction of a local provision in order to save it from an express preemption clause in or a conflict with a state statute. Cf. Montgomery County v. Atlantic *600Guns, Inc., 302 Md. 540, 489 A.2d 1114 (1985); Rockville Grosvenor Inc. v. Mont. Co., 289 Md. 74, 422 A.2d 353 (1980). To do so would circumvent the intent of the General Assembly.

As earlier mentioned, under the majority’s construction of the College Park Charter, the Mayor and City Council of College Park may not meet privately with the municipal attorney to discuss pending litigation. Similarly, they may not meet privately to discuss sensitive personnel issues. This is unworkable and impractical. No attorney and client team could effectively plan litigation strategy when its discussions are open to its adversaries, yet this is the result required by the majority. The majority opinion cannot be reconciled with the longstanding principle that courts should avoid constructions which are absurd, unreasonable, illogical, or inconsistent with common sense. Kaczorowski v. Mayor and City Council of Baltimore, 309 Md. 505, 512, 525 A.2d 628 (1987); In re Special Investigation No. 281, 299 Md. 181, 200, 473 A.2d 1 (1984); Cider Barrel Mobile Home v. Eader, 287 Md. 571, 583-584, 414 A.2d 1246 (1980); Hoffman v. Key Fed. Sav. & Loan, 286 Md. 28, 43, 416 A.2d 1265 (1979); Francois v. Alberti Van & Stg. Co., 285 Md. 663, 670, 404 A.2d 1058 (1979); Curtis v. State, 284 Md. 132, 149, 395 A.2d 464 (1978).

In summary, the College Park Charter prescribes that City Council meetings shall be “open to the citizens of the city.” Under the broadest reasonable construction of the language, access to City Council meetings is limited to those who reside or are domiciled within the corporate limits of College Park. In light of this limitation, it is obvious that the Maryland Open Meetings Act is less restrictive of public access and is, therefore, more stringent under § 10-504. Consequently, the state statute should apply to meetings of the City Council. I would reverse.

Judges COLE and RODOWSKY have authorized me to state that they concur with the views expressed herein.

. Three other states also have express conflict of laws provisions in their open meetings statutes. The statutory language in each of these states indicates that municipalities may enact provisions providing greater public access, and that such local provisions will prevail over state law. Cal. Gov’t Code § 54953.7 (West 1983) (“legislative bodies of local agencies may impose requirements upon themselves which allow greater access to their meetings than prescribed by the minimal standards set forth in this chapter”); Ill.Ann.Stat.Ch. 102 § 46 (SmithHurd Supp.1986) ("any home rule unit may enact an ordinance prescribing more stringent requirements binding upon itself which would serve to ... facilitate public access to meetings”); N.Y.Pub.Off. Law § 110 (Consol.Supp.1986) ("Any provision of a charter ... which is more restrictive with respect to public access than this article shall be deemed superseded here.... Any provision of ... [a] charter ... less restrictive with respect to public access than this article shall not be deemed superseded hereby”).

. See, e.g., Pub. Ser. Commn. v. P., B. & W. R.R. Co., 155 Md. 104, 120-121, 141 A. 509 (1928); State v. Christine, 239 La. 259, 118 So.2d 403, 405 (1959); People v. Powell, 280 Mich. 699, 274 N.W. 372, 373 (1937); Hiner v. Wenger, 197 Va. 869, 91 S.E.2d 637, 641 (1956); Peacock v. Retail Credit Company, 302 F.Supp. 418, 423 (N.D.Ga.1969), aff’d 429 F.2d 31 (5th Cir.1970).

. All of the charters I have examined provide that meetings shall be "open to the public,” although many provide in addition that residents of the town be given a reasonable opportunity to be heard. See, e.g., the Charters of Berwyn Heights § 304 (1978); Bladensburg § 3-10 (1965); Brentwood § 303.0 (1977); Cheverly Art. IV § C-13 (1978); Cottage City § 9 (1982); District Heights § 7 (1962); Glenarden § 6 (1976); Greenbelt § 5 (1984); Landover Hills § 304 (1980); Riverdale § 63-14.14 (1975); University Park § 304 (1980). See also Charter for Prince George’s County, Maryland, § 316 (1983). I am not aware of any charter other than the College Park charter that opens its meetings only to "citizens of the city.”