February 16, 2016 VIA ELECTRONIC MAIL Maryland Open Meetings Compliance Board c/o Attorney General's Office 200 St. Paul Place Baltimore, MD 21202 [email protected]. Dear Members of the Open Meeting Compliance Board: “The past refuses to lie down quietly,” Nobel Peace Prize winner, the Archbishop Desmond Tutu has written. To reconcile and overcome the injustices of the past, we must openly and honestly confront them. This complaint, filed on behalf of the American Civil Liberties Union of Maryland and the Talbot County Branch of the NAACP, challenges the Talbot County Council’s refusal in violation of the Maryland Open Meetings Act to confront its past by publicly debating and voting upon the NAACP’s request that the “Talbot Boys” Confederate monument be removed from the County Courthouse lawn as a relic of oppression and racism. I. History and Nature of the Controversy As background, the “Talbot Boys” monument, pictured below, is a statue, erected in 1916, celebrating soldiers from Talbot County who fought for the Confederacy against the United States during the Civil War. Although many more Talbot County men fought for the Union, Talbot County leaders refused to memorialize Union soldiers from the community, electing instead to honor only those who died for the Confederacy. The statue depicts a Rebel soldier with a Confederate battle flag draped across his back, and bears the caption “To the Talbot Boys, 18611865, C.S.A.” The names of 84 “Talbot Boys” who died fighting against the United States are listed on the sides of the monument.
Transcript
February 16, 2016
VIA ELECTRONIC MAIL Maryland Open Meetings Compliance Board c/o Attorney General's Office 200 St. Paul Place Baltimore, MD 21202 [email protected]. Dear Members of the Open Meeting Compliance Board: “The past refuses to lie down quietly,” Nobel Peace Prize winner, the Archbishop Desmond Tutu has written. To reconcile and overcome the injustices of the past, we must openly and honestly confront them.
This complaint, filed on behalf of the American Civil Liberties Union of Maryland and the Talbot County Branch of the NAACP, challenges the Talbot County Council’s refusal -‐-‐ in violation of the Maryland Open Meetings Act -‐-‐ to confront its past by publicly debating and voting upon the NAACP’s request that the “Talbot Boys” Confederate monument be removed from the County Courthouse lawn as a relic of oppression and racism. I. History and Nature of the Controversy As background, the “Talbot Boys” monument, pictured below, is a statue, erected in 1916, celebrating soldiers from Talbot County who fought for the Confederacy against the United States during the Civil War. Although many more Talbot County men fought for the Union, Talbot County leaders refused to memorialize Union soldiers from the community, electing instead to honor only those who died for the Confederacy. The statue depicts a Rebel soldier with a Confederate battle flag draped across his back, and bears the caption “To the Talbot Boys, 1861-‐1865, C.S.A.” The names of 84 “Talbot Boys” who died fighting against the United States are listed on the sides of the monument.
To many African American Talbot Countians, the statue is an affront to humanity – an impossible-‐
to-‐avoid symbol of racism, human bondage, and injustice at the one place in the community meant to be dedicated to serving justice for all, the County Courthouse. As eloquently captured by Sherrilyn Ifill, in her 2007 book1 about the legacy of lynching in America, “On the Courthouse Lawn:”
For blacks in Talbot County, the fact that Confederate soldiers who had fought against their country on behalf of the seceded Confederacy of states are honored on the courthouse lawn seemed insult enough—an insult magnified by the fact that Maryland had never even been part of the Confederacy. Walter Black of the NAACP remarked, “Think about today if we had someone who fought against the U.S. government. They might be called terrorists now. But here we had the Talbot Boys. ... ‘They certainly didn’t fight for my freedom.’” The Talbot County Branch of the NAACP has long believed that the Talbot Boys statue does not belong
on the Courthouse lawn, but in some location within the County dedicated to historic preservation. Accordingly, in July of 2015, shortly after the horrific massacre of African Americans by a Confederate flag-waving murderer at a Charleston, South Carolina church, the Branch formally asked the Talbot County Council to move the Talbot Boys statue from the Courthouse to another, more appropriate, location.
It is difficult to overstate the public interest and concern this request triggered among those in the
community and beyond, with vehement and heartfelt opinions voiced from all sides. The NAACP request to remove the statue, and an opposing campaign organized by descendants of Confederate veterans,2 raised enormous public interest and discourse about the racially-charged issue, and about what action, if any, the Talbot County Council would take in response. If one Googles the phrase “Talbot Boys statue removal,” it generates more than 100,000 hits.
It bears noting that Talbot County officials are hardly alone in confronting requests to remove
Confederate flags and monuments from public property in the aftermath of the Charleston massacre and the U.S. Supreme Court’s decision last June in Walker v. Texas Div., Sons of Confederate Veterans, 578 U.S. ____ (2015).3 Communities all over America -- small towns and big cities, both north and south – are confronting similar requests challenging as racist and unacceptable the government’s continued display of Confederate emblems on public property. See C. Robinson, M. Davey & J. Bosman, New York Times, “Calls to Drop Confederate Symbols Spread Nationwide,” available online at http://www.nytimes.com/2015/06/24/us/south-carolina-nikki-haley-confederate-flag.html.
As the Times authors wrote:
1Sherrilyn A. Ifill, ON THE COURTHOUSE LAWN: CONFRONTING THE LEGACY OF LYNCHING IN THE TWENTY-FIRST CENTURY, Beacon Press (2007) at Ch. 1. 2Although largely organized and supported by people outside of Talbot County, a highly publicized social media campaign and petition drive called “Save the Talbot Boys” generated substantial opposition to the NAACP request. 3In Walker, the Court held that display of the Confederate flag on specialty license plates issued by the State of Texas constituted government speech, which the government was free to restrict and regulate as it wished, so that messages it considered offensive or inappropriate could not be attributed to the state. Shortly after this ruling, the State of Maryland secured federal court approval to revoke the Sons of Confederate Veterans specialty plates displaying the Confederate flag in our state, so that this symbol found offensive by so many would no longer be endorsed by the State of Maryland.
For decades, images of the Confederacy have been opposed by people who viewed them as painful symbols of slavery, racism and white dominance, and supported by those who saw them as historical emblems from the Civil War, reminders of generations-‐long Southern pride. Yet the new calls, after the church massacre last week, came with surprising force and swiftness. The demands straddled lines of partisanship and race, drawing support even from Southern conservatives who for years had defended public displays of the flag as a matter of regional pride. The movement also reached far beyond the political sphere, and beyond the South itself. In response, public officials around the country – including officials from several communities in
Maryland4 – have committed to consider and debate requests to remove Confederate symbols from public property. Almost without exception,5 these issues have been debated in public, with government officials gathering information and listening to the views of constituents, openly stating and defending their own views, holding a public vote, and reaching decision. And while the process in Talbot County began in an open fashion, with the County Council inviting community residents to attend public forums to air their opinions, it shifted dramatically at the critical juncture when it came the Council’s turn to debate and vote upon removal or retention of the Talbot Boys statue. When Council members themselves were called upon to discuss the matter and vote, they flouted all principles of openness, deciding in secret to retain the monument, and subsequently providing no minutes of whatever closed discussions occurred.
By carrying out their debate in secret, not even conducting a public vote, Council members have
improperly sought to shield themselves from accountability for their views on the controversial measure, in violation of the Maryland Open Meetings Act. II. The Process Following the NAACP Request
Talbot County officials initially acknowledged the significance of the NAACP’s request for removal of the Talbot Boys statue, and the public interest the proposed removal would generate. The Council promised careful consideration of the request, inviting input from throughout the community and proposing a series of open meetings for discussion of the matter by residents. First, on July 29, four of the five Council members met with NAACP officials in a public forum, to hear the organization’s presentation of its proposal.6 Opportunity for community input continued on September 9, 2015, at a public “listening session” organized by the Talbot Association of Clergy and Laity for County Council members to hear the public’s views. The government also invited public input through written, telephonic, and electronic submissions. Finally, the County Council hosted
4Communities in Maryland that have undertaken this process openly and transparently, in compliance with the Open Meetings Act, include: Baltimore City; Montgomery County, and the City of Frederick, among others. In each of these jurisdictions, government officials conducted public meetings, debated and publicly voted to remove Confederate monuments from public property. In Montgomery County, for example, a statue of a Confederate soldier similar to the Talbot Boys statue is being removed from the County Courthouse and officials are in the process of finding a new, more appropriate home for it. See http://montgomeryhistory.org/confederate-soldier-statue/. 5Outside of Talbot County, the one exception to this rule of which we are aware comes from Portsmouth, Virginia, where officials triggered an enormous outcry by convening in closed session to debate removal of a Confederate monument in that City. See Bob Gibson, “Secret Talks About a Statue,” Roanoke Times, December 20, 2015, available at http://www.roanoke.com/opinion/commentary/gibson-secret-talks-about-a-statue/article_078d5227-ed8d-51e9-b4a1-488da159670f.html. 6See The Talbot Spy, July 30, 2015, “The Talbot Boys Conversation: The NAACP & County Council Begin the Dialogue”, available at http://wheelan3.rssing.com/browser.php?indx=21561873&item=171.
a special meeting on October 27, 2015,7 following its regular Council meeting, allowing community members to speak out further about their views.8 Again, the role of the Council at this meeting was simply to listen, and no members spoke about their own views on the controversy.
The first County Council meeting after the October 27 special meeting was a November 10 work session that did not involve the Talbot Boys matter. The minutes from November 10 reflect no discussion or mention of the monument, except at the very end, where the minutes state:
Mr. Pack concluded his comments by stating that the Council had reviewed emails and other correspondence from the public, as well as the articles, editorials, and guest comments in the newspaper regarding the Talbot Boys statue and will be announcing its decision regarding the statue at the next Council meeting scheduled for Tuesday, November 24, 2015.
The November 10 minutes make no statement at adjournment referencing any plan to discuss the Talbot Boys monument among Council members – either in open or closed session – before the public meeting on November 24. Rather, the minutes reflect only a very general statement that the Council would be convening in executive session both following the November 10 meeting and preceding the November 24 meeting, to discuss “legal, personnel, and real estate matters.”9 This vague statement, coming right on the heels of Mr. Pack’s specific mention of the Talbot Boys matter being decided at the November 24 public meeting, certainly was not sufficient to convey that the Talbot Boys decision would be debated and voted upon by the Council behind closed doors. It suggested exactly the opposite. And yet, it now appears irrefutable that at some point or points between October 27 and November 24, the Talbot County Council met secretly to discuss and vote upon its decision to retain the Talbot Boys statue on the Courthouse lawn. This is because at the public portion of the November 24 Council meeting – where members of the NAACP were present, among many others from the community, to hear the County Council
7Oddly, the October 13 Council meeting minutes reflect that no notice of this special October 27 meeting was given at the October 13 meeting, which Council President Pack did not attend. NAACP officials only learned that the meeting was occurring and that its purpose was to discuss their Talbot Boys request on the morning of October 27, and quickly had to rearrange their schedules in order to attend. On the other hand, many people from the Save the Talbot Boys campaign seemed to have been given advance notice of the special meeting, which they attended in force, many from outside the County.
8See Chris Polk, Star Democrat, October 27, 2015 “Talbot Boys Debate Continues,” available at http://www.stardem.com/news/local_news/article_2743253f-ba80-5d8b-acdd-55608bca12a9.html. The minutes of the October 28 Council meeting describe the forum as one for members of the public to offer their opinions about the Talbot Boys statue removal, and reflect no statements or discussion by the Council members themselves. See Exhibit 1, at p. 5, part IX.
9The following statement was made:
XVI. Upon motion by Ms. Price, seconded by Mr. Callahan, the Council voted to adjourn to Executive Session for discussion of legal, personnel and real estate matters; to reconvene for a work session with Chesapeake College at 4:30 p.m.; and to reconvene on Tuesday, November 24, 2015 at 5:00 p.m. in Executive Session for discussion of legal, personnel, and real estate matters, and for the regularly scheduled Council meeting at 6:00 p.m. by voting 5 - 0 as follows: Mr. Pack – Aye Ms. Williams – Aye Mr. Bartlett – Aye Ms. Price - Aye Mr. Callahan - Aye The meeting adjourned at 3:44 p.m.
debate and vote upon the Talbot Boys issue – Council President Council President Corey Pack instead simply announced that the decision had already been made by the Council to retain the statue in its current location.10 NAACP members were mystified and extremely upset that the County Council – well aware of the enormous public interest in the matter – had nevertheless made its decision to retain the statue without even deigning to debate the matter in public. It might be understandable for government officials to want to dodge public confrontation about sensitive issues concerning the continuing legacy of our country’s history of slavery and racial injustice. But the law does not allow this, and it does not allow this for a reason: Public decision-making is how the citizenry holds elected officials accountable. The citizens of Talbot County—or any other locality—have a right to know how elected officials make decisions that affect them and this right is at the core of our democratic tradition. Notably, the Talbot County Council conducted itself very differently 12 years ago when the issue was whether and where to erect a statue honoring Talbot native son, the famed abolitionist Frederick Douglass. There, as here, all acknowledged the public interest in the racially divisive debate surrounding the statue’s location.11 But there, County officials debated and voted upon the measure in public, consistent with the Maryland Open Meetings Act. Indeed, it was at least in part because of the public nature of the Council’s debate and vote – as painful as it might have been – that, after months of heated discussion one Council member changed his vote from no to yes, clearing the way for erection of the Douglass statue on the Courthouse lawn. See C. Guy, “Douglas to Get Place by Easton Courthouse,” Baltimore Sun, March 17, 2004, available at http://articles.baltimoresun.com/2004-03-17/news/0403170268_1_frederick-douglass-easton-talbot-county. III. Explanations for the Council’s Failure to Debate and Vote Openly Have Shifted, But Remain
Unavailing. Since being confronted about the County Council’s failure to comply with the Open Meetings Act in
deciding the Talbot Boys matter, County officials have offered two different excuses, both unpersuasive. First, shortly after announcement of the Council’s decision, Council President Corey Pack was asked by the Star Democrat newspaper about the reason the Council discussed and reached decision about retention of the monument behind closed doors. Specifically, the newspaper noted concerns voiced by the NAACP that the process followed by the Council violated the Maryland Open Meetings Act, pointing out that § 3-‐102(b)(1) of the Open Meetings Act states:
The ability of the public, its representatives, and the media to attend, report on, and broadcast meetings of public bodies and to witness the phases of deliberation, policy formation, and decision making of public bodies ensures the accountability of government to the citizens of the State.
How, Mr. Pack was asked, does the Council’s secret decision-‐making about the monument square with this law?
10 Mr. Pack read a statement purporting to explain the decision, and took no questions. No Council Member chose to comment, either before or after the Council’s decision was read, and no information was revealed about how individual Council members had voted. The statement read by Mr. Pack in lieu of a public debate and vote is available here: http://www.talbotcountymd.gov/uploads/File/council/minutes/.
11 For a detailed discussion of the turmoil surrounding the Douglass statue, see ON THE COURTHOUSE LAWN, at Chapter 1.
In response, Pack said the Council is allowed to, and frequently does, go into executive session for
matters relating to “personnel, legal or real estate issues.” He claimed the statue’s location on county property means the issue constitutes a real estate matter and the Council was thus allowed to debate it privately.
Such an interpretation of the Open Meetings Act is plainly wrong, for several reasons. First, to state the obvious, the notion that a decision fraught with racial import about the County’s continued display of a Confederate monument at the halls of justice is a “real estate matter” is preposterous. Second, the exemption cited by the Council President about real estate is not, as he seems to believe, a generalized exemption for all real estate matters. Rather, it is an exemption limited by its terms to “real estate acquisitions,” § 3-305(b)(3), intended to protect the bargaining power of the government during sensitive real estate acquisition negotiations. See Open Meetings Act Compliance Manual at p. 30, §C and citations included therein. It has no applicability whatsoever to property the government already owns, such as the Courthouse lawn or the Talbot Boys statue (which is not, in any case, “real estate.”) See, e.g., 9 OMCB Opinions 29, 34 (2013) (“Th[e] exception does not apply to discussions about real property the public body already owns.”). Third, even if a decision about continued retention of a Confederate monument at the Courthouse could somehow be nonsensically transformed into a “real estate acquisition” properly addressed in closed session, the notice provided by the Council to the public justifying its adjournment to executive session was unquestionably insufficient to alert members of the public of the intended topic of discussion.12 Indeed, no one present who heard the Council vote to adjourn to closed session to discuss some unspecified “real estate matter” would have understood the subject of discussion to be the NAACP’s request for removal of the Talbot Boys statue. Perhaps recognizing the inapplicability of the real estate acquisition exemption to discussions about the Talbot Boys statue, County Attorney Mike Pullen more recently changed course. Both in correspondence with the NAACP and in newspaper commentary, Mr. Pullen disregarded the Council President’s explanation for the closed meetings as pertaining to a real estate matter, instead claiming that any County Council debate and decision about the statue was not covered by the Open Meetings Act at all, because it was a routine “administrative” function. In a letter dated December 21, 2015, responding to an NAACP request for information about the Council’s deliberations, Mr. Pullen wrote:
As you know, the Talbot Boys statute is County property. The NAACP requested the County to remove the statue from the courthouse lawn. Whether the statute was to be removed or to remain concerns management and control of County property, an administrative function that is not subject to the [Open Meetings] Act.
Mr. Pullen, expressing displeasure at being challenged by the NAACP, repeated a similar claim in an email to the Star Democrat on January 19:
“That is an administrative decision no different from many others all local governments routinely make regarding management of public property. The (Open Meetings) Act does not apply to administrative decisions,” Pullen said.
12 Under the Act,
[t]he closing statement must disclose three items of information: the citation to the section of the Act that authorizes the exclusion of the public (the statutory “exception”); a description of the topic to be discussed; and a statement of the reason for excluding the public. The presiding officer should disclose as much information as he or she can without compromising the confidentiality of the session. Mere repetition of the words of the statutory exception is almost always insufficient. The disclosures should establish the applicability of the claimed exception. 9 OMCB 29, 32 (2013). None of these elements was present here.
A. Sharp and K. Willis, “Talbot NAACP Considers Open Meetings Act Complaint Over Statue,” Star Democrat, January 20, 2016, available at http://www.stardem.com/news/local_news/article_8c2ab540-‐9e40-‐5d8e-‐acdd-‐cddbb35fb192.html.
While we have great regard for Mr. Pullen, in this instance we differ very strongly with his
sweeping mischaracterization of the Open Meeting Act’s administrative function exclusion, and we disagree even more strongly with the dismissiveness with which the County Attorney treats the public interests at stake here. We have already discussed in detail the significance of the statue’s retention to Talbot County’s African American residents and need not repeat ourselves. The claim – made in the local newspaper – that County officials consider this matter so unimportant that it is “no different from many others all local governments routinely make regarding management of public property” and thus that it is unworthy of the Council’s attention and vote in a public forum is, quite simply, an insult. It is a painful affront to those citizens who believe in their hearts that Talbot County’s continued display of a Confederate monument on the Courthouse lawn sends the message that their government does not represent them—that their government refuses to even acknowledge, let alone attempt to remedy, the enduring effects of more than two centuries of slavery.
It is clear that the administrative function exception to the Open Meetings Act cannot properly be
applied here. As the Open Meetings Compliance Board has repeatedly emphasized, “discussions about prospective policies and recommendations of future actions on subjects of public concern very seldom, if ever, qualify for the administrative function exclusion.” 9 OMCB Opinions 1, 8 (2013), citing 7 OMCB Opinions 250, 254 (2011).13 We do not see how Mr. Pullen, or any Talbot County official, could genuinely deny that the discussions at issue here concern “prospective policies and recommendations of future actions on subjects of public concern.” Certainly, County officials did not treat the issue as a routine administrative matter at the outset, as discussed above. Only much later, after the Council had made its decision in secret and faced questions about non-‐compliance with the Open Meetings Act did County officials reference the administrative function exemption. IV. The County Council Must Revisit and Publicly Debate Removal of the Statue
Maryland courts have made clear that the requirements of the Open Meetings Act are not mere technicalities. Rather, the failure of the government to conduct itself in compliance with the Act is a serious matter that can result in the voiding of any action taken during a secret meeting. Community and Labor United for Baltimore Charter Committee (CLUB) v. Baltimore City Board of Elections, 377 Md. 183 (Md. 2003) (voiding ballot measure adopted during an unannounced meeting of a quorum of the Baltimore City Council.) In keeping with the Maryland Court of Appeals decision in CLUB, actions taken by the County during its unlawful meeting(s), specifically including the Council’s decision to retain the Talbot Boys statue on the County Courthouse lawn should be voided.14
13 For a discussion to constitute a public body’s exercise of an “administrative function” exempt from coverage under the Open Meetings Act, it must satisfy a two-‐part test. Maryland Open Meetings Act Manual at 5 OMCB Opinions 42, 44 (2006). First, the discussion must not fall within one of the five functions excluded from the “administrative function” definition under §10-‐502(b)(2) of the Act. These five functions excluded from the exclusion are: advisory, legislative, quasi-‐legislative, judicial, and quasi-‐judicial functions. If it does fall within one of those functions, it is not “administrative” in nature, and the inquiry stops. Second, if the discussion does not fall into one of the five excluded functions, it still must involve the administration of existing law in order to be exempt from the Act’s coverage. Id.
14While we understand that the Open Meetings Compliance Board does not itself have the power to void the Council’s decision, we ask the Board to declare that the County’s actions violated the Open Meetings Act, leaving it for the Council voluntarily to reverse its unlawful action or for a court to void the decision under §3-‐401(b)(1).
As other governmental bodies – in Maryland and throughout America – have recognized in
confronting requests for removal of Confederate emblems, this is not a “routine” matter. Rather, to those most affected by Talbot County’s decision, it is a racial justice issue of extraordinary importance – one that County officials owe it to their constituents to debate, vote, and decide upon openly, in full public view.
Talbot County officials violated the Open Meetings Act by discussing and deciding in secrecy to
retain the Talbot Boys Confederate monument on the Courthouse lawn.
