Cumberland Times-News

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July 16, 2013

Asst. Attorney General: BOE's exclusion of commissioner 'would not comply with state law'

CUMBERLAND — The county commissioner sitting as an ex officio member of the Allegany County Board of Education has the right to attend executive sessions of the board, according to a letter from Assistant Attorney General Dan Friedman, the counsel to the General Assembly.

Friedman said his colleague, Elizabeth M. Kameen, the principal counsel to the Maryland Department of Education, agrees with his views.

“You have informed me that the Allegany County Board of Education has excluded one of its members from the executive sessions of the board and asked whether the complies with state law. The short answer is that such an exclusion would not comply with state law,” Friedman wrote.

The letter is not a formal opinion from the attorney general’s office, but the letter does cite previous formal opinions.

The July 16 letter was sent to Delegate LeRoy Myers Jr., who requested the Attorney General’s view on the situation.

Ex officio membership does “not, itself, denote a lesser status on the board or commission,” Friedman wrote.

The dispute, though, is a bit more complicated, said one member of the board of education.

Board member Michael Llewellyn said commissioners have not been excluded from all executive sessions.

Llewellyn said that the ex officio members have been attending executive sessions for some time.

Valentine said he believes the board has decided to exclude him from executive sessions.

“We should have the right to attend,” Valentine said.

Valentine said he participated in a portion of the July 9 executive session before being asked to leave by Edward Root, board president.

No vote has ever been taken to completely exclude commissioners from the executive sessions, Llewellyn said.

An audio recording of the June 9 board of education meeting indicates that the adoption of a rule to allow board members to vote to exclude any member of the board from an executive session failed for lack of a second.

“I guess he wants to be present for everything,” Llewellyn said. “We haven’t excluded them, but we have asked that they not attend certain parts of it,” he said.

Llewellyn added that he’s concerned of a non-voting member participating in student disciplinary hearings, when the board often hears sensitive information.

Llewellyn maintains the law dealing with ex officio members is not clear on its face.

“The county can’t keep its hands off other elected officials,” Llewellyn said. “We’re trying to meet them halfway, but it’s not good enough.”

Llewellyn said he believes the voters elected board members to make decisions about the school system, not county commissioners.

The board’s attorney had sent a letter to the previous ex officio member, Commissioner Michael McKay, on June 24, 2011, outlining a few areas in which the board felt commissioners should not be present during executive sessions.

“Despite the adoption of these regulations, the purpose of this letter is to invite you to attend executive sessions,” board of education attorney Gary Hanna’s letter reads.

“The invitation is made with the understanding that you will be subject to the same rules regarding confidentiality and conflicts of interest as other board members ... you will have additional issues of conflict of interest with issues of relations with county government,” Hanna wrote.

The assistant attorney general’s letter doesn’t address situations involving a potential conflict of interest.

In a press release Tuesday, school board officials said no official action to change policy was taken.

“The school board considered a policy draft that would more clearly delineate the issues that may exclude participation; however, that policy did not pass for lack of a motion.  Therefore, no action was officially taken,” the press release said.

Last week, commissioners revealed that the county is considering a lawsuit against the board of education over the alleged exclusion of Valentine, who also serves as an ex-officio member of the board, from executive sessions.

The board sees the potential lawsuit differently.

“The school board believes that the prospect of the Board of Commissioners initiating a frivolous lawsuit against the board of education would represent a significant waste of precious public resources at a time when they are needed and better used to serve all the citizens of Allegany County,” according ot the press release.

Contact Matthew Bieniek at mbieniek@times-news.com.

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