City says it has no power over Hotel Advisory Committee — response to Open Meetings Compliance Board complaint

The City Attorney Saundra Nickols is trying to persuade the Open Meetings Compliance Board (OMCB or Board) of the State Attorney-General’s Office that the City is not responsible for the behavior of the downtown Hotel Advisory Committee (HAC) and therefore it was alright for it to operate behind closed doors over the past seven years. “The HAC is a committee of the Chamber of Commerce and as such is a private entity,” claims the City’s official response (Response) to my complaint.

In support of this novel idea the City Response dated November 2, 2017 cites a letter signed by Elizabeth Cromwell presently president of the Chamber of Commerce of Frederick County (Chamber.)  The letter dated September 25, 2017 is a response to an inquiry apparently made by Richard Griffin as to how the HAC was originally formed.   That is odd in itself. Cromwell only took on her job here in Frederick in late 2014 whereas Griffin himself has been here since 2000. Griffin has been familiar with the downtown hotel project for that whole period, talking to Pete Plamondon about it since before 2005.

Ms Cromwell writes that she called Paul Frey, her predecessor as acting president of the Chamber to get his take on the origins of the HAC, and writes: “The Frederick Downtown Hotel Advisory Team (Team) was formed as an ad hoc committee of the Frederick County Chamber of Commerce at the request of the Major Employers Group. The MEG identified key stakeholders in the project and put together a team that spanned public and private sectors, as they were all major employers.”

A second item Exhibit B on Chamber letterhead is an undated document headed Major

Elizabeth Cromwell

Employers Group Meeting, subject Downtown Hotel Advisory Team Overview. The document kicks off saying that the MEG “have selected the development of a Downtown Hotel and Conference Center as their “number one project” and the big employers “have asked the Chamber to spearhead its development.”

“The Chamber is establishing the Downtown Hotel Advisory Team (HAT) to facilitate and advise Chamber leadership and partners on the strategy to develop a Downtown Hotel and Conference Center.”

The chamber Team was initially 1. Ric Adams Chamber president, 2. Tourism Council’s John Fieseler, 3. Downtown Partnership’s Kara Norman, 4. City Director Economic Development (DED) Richard Griffin, 5. County DED Laurie Boyer plus 6. Others as needed.

“Team Chairman — The Chamber will appoint a chairman of the team in consultations with the Mayor. It s preferred that the chairman be a current or past member of the Chamber Board of Directors.”

There’s a hand-written note “ — Kickoff Pinnacle Market Survey — Shared expense “

A City attorney says the date is “in or around 2008.”  That is probably a bit early. The Pinnacle study apparently referred to was “kicked off” in the summer of 2009 as the report released in January 2010 refers to “our engagement letter dated June 26, 2009…” so it is more likely to be notes for members on a meeting in the spring or early summer 2009. In any case it was still before Mayor McClement became Mayor at the end of 2009 and before he announced he was setting up his own hotel advisory committee (HAC) in February 2010.

The City Response makes no attempt to explain the Mayor’s own statements that he established the HAC. Or to explain statements by Richard Griffin that the HAC was appointed by the Mayor. Or that the Frederick Preservation Trust, wanting a seat on the HAC, was told it would be up to the Mayor to decide. (He decided against.)

Claims the City Response: “The Act defines ‘public body’ by reference to its method of creation….”

Also: “The HAC was created, and its members chosen, by the Chamber.”

The City Response then  acknowledges that the Mayor “did appoint, or suggest, Earl Robbins to chair the HAC” but adds “in  consultation with Chamber officials.”

“The appointment was done at the request of the Chamber and on an informal basis. It was not made by means of any associated executive order or other document issued by the City. Thus, the Mayor participated in the formation of the HAC but did not appoint its members.”

The Response concedes that the ultimate origins of an organization are not the only test of whether it is a ‘public body’ subject to the Open Meetings Act. An Open Meetings Compliance Board finding 10 OMCB Opinions 117 (2016) found that it could come within the Act “when the governance and functions of the entity, viewed as a whole, are such that the entity is truly governmental in nature.”

The City Response doesn’t deal with the HAC’s role in the City’s procurement. It simply avoids discussing how the HAC:

— chose and managed the City provided-consultant Jones Lang LaSalle

— specified the hotel for the City, making it a requirement it be ‘upscale’ with nightly rates twice that typically changed, that it be ‘full service’ or self-contained with multiple in-house restaurants, bars, a business center, gym, pool etc

— wrote the RFP

— limited sites, reducing competition, then

— scored the proposals, in effect selecting the developer

There was no attempted rebuttal of the central role in the HAC of Richard Griffin, a City officer subject to the direction of the Mayor, who recommended Earl Robbins as chairman, called meetings, wrote the agenda, and generally managed its activity.

The City Response asserts that Earl Robbins appointment as HAC Chairman “was done at the request of the Chamber,” leaving unanswered why the Chamber would need to request the Mayor appoint him if the HAC was a Chamber body. Wouldn’t a Chamber HAC would appoint the Chairman itself?

The City notes that the appointment was done “on an informal basis.” No Executive Order was issued, no Mayoral document generated. But that seems to be more a product of the fact that the Chairman was not being paid for his time, or appointed for any fixed term, both him and the Mayor agreeing the chairmanship would run for an indefinite period as mutually agreed.

Also the City says the HAC “is not a legal entity of any kind,” not a corporation, not an official entity “but rather it is an informally created group of individuals.” But that was because all its major costs like consultants and lobbyists and staff support were carried by the City, and lesser expenses for trips to Annapolis etc were volunteered by the  business groups also represented on the HAC. There was no need for legal formality precisely because the HAC was so thoroughly carried by the City.

The City has no power over the HAC, the Response claims, citing the lack of any formal mechanism to direct its activities… a variation on the observation that the HAC is informal.   But the City doesn’t need formal powers to direct or control the HAC. Since it depends so completely on City provided staff and consultants and half its members are City and County officials the merge hint of withdrawal of support provides control. Without that support it would be little more than a rump lobby group.

Then City Response continues: “The HAC functions as a private entity. Its activities over the course of the past several years have included retaining consultants, meeting with state officials, testifying before state agencies, and providing advice to the City regarding various aspects of the overall objective of bringing a hotel and conference center to downtown Frederick. The downtown hotel and conference center is not a purely public project, but rather is being undertaken through a public-private partnership. Nothing in the Act dictates which tasks must be undertaken by which partner in pursuit of the project. The activities in which the HAC has participated may reasonably be characterized as private activities, done in partnership with the City to further a common goal. The HAC has not exercised governmental or quasi-governmental functions.”

Development of a procurement strategy, determining the desirable amount of competition to be allowed, then conducting the procurement of a hotel developer for the City and the drafting of a City-developer contract, these are “private activities”?

The City Response: “…the HAC’s participation in the City’s purchasing process does not make it a public entity. Nothing in the Act regulates the City’s ability to utilize its RFP process to obtain proposals regarding a project being undertaken by the City in coordination with private partners. In implementing the process and creating the RFP, the Mayor determined that it was desirable to allow the HAC to serve as the selection team. The HAC was best positioned, by virtue of its collective expertise, to evaluate the proposals received.”

The HAC members had no expertise at all in conference center hotels or in government procurement. The HAC has its origins in a coalition of business interests wanting a fancy if uneconomic conference center hotel, meeting first under the auspices of the Chamber of Commerce. This lobby group was embraced and in effect taken over by Mayor McClement when he appointed a chairman, threw the full resources of the City Department of Economic Development behind it, and engaged consultants paid by City taxpayers. The consultants Jones Lang LaSalle (JLL) provided the only expertise.

Under the head ‘Other Considerations’ the City Response says my Complaint refers to “various facts that are simply immaterial to the determination of the Act’s applicability (or lack thereof) to the HAC.” Nothing in the Act “prohibits a City employee such as (Richard) Griffin from participating as a member of a private entity,” they write. My Complaint didn’t suggest that of course. It cited Griffin’s dominant role in the HAC by way of calling the meetings, generating the agenda, and in the Mayor’s words being the project’s “driving force” as very relevant to the core issue of whether the HAC is considered a public body. If public officials dominate a mixed organization then that defines it as a ‘public body’ under the terms of the Open Meetings Act.

In a Conclusion the City Response reasserts that the HAC “is not a public body under the Act” so the Act’s requirements do not apply to it.

I had five business days to file any Comment on the City Response and filed this:

Downtown Frederick Hotel Advisory Committee — Comment by Peter Samuel on the City Response to my Complaint to the Open Meetings Compliance Board (dated 2017.11.13)

The central error in the City’s response (Response) to my complaint (Complaint) is the claim that the hotel advisory committee (HAC) is merely “a committee of the Chamber of Commerce and as such is a private entity.” Citing Exhibit A, a letter from Elizabeth Cromwell its chief executive as supporting this is absurd. Her letter only makes the claim that the HAC originated with the Chamber. And that was about six years before she arrived there. Her letter says little or nothing about how it has functioned or how it the  functions now. The City Response also goes back to an announcement (Exhibit B) by the Chamber of Commerce that it was establishing a Downtown Hotel Advisory Team (Team) to “spearhead its development.” The announcement is undated, oddly. But a City attorney puts its date as “in or around 2008.” I’ll go with that. About 2008 makes sense.

A search of the archives of the Frederick News-Post archives 2007 through 2009 turns up no report of this Chamber hotel Team being formed, so it was likely little known.

Origins further back than Chamber of Commerce initiative

I submit, however, that if we are focussed on the origins of this committee we should go back a bit further… to November 2005. That was when news came that the State Highway Administration had $105m of funds and was ready to begin construction of a new I-70 interchange and a new gateway into the eastside of downtown Frederick. According to Pete

Pete Plamondon

Plamondon Jr (Plamondon) who was subsequently chosen as the City partner it was November 2005 when he began strongly pushing for City sponsorship of a downtown hotel. He has said that when he read the news of the new Interstate interchange he immediately called the City’s  director of the Department Economic Development (DED) Richard Griffin to say that it was now time to start talking about a  joint effort to develop a downtown hotel. Plamondon and a former senior employee Paul Frey were both prominent in the Chamber of Commerce, Frey going from Plamondon’s employ into the Chamber, so it is hardly surprising the City-Plamondon hotel became a Chamber of Commerce priority.

(see DFH&CC press conference  2016.04.13)

Pete Plamondon: “I’ll never forget like it is yesterday, picking up the Frederick News-Post (of Nov 17, 2005… it was announcing the funding of the Interstate 70 interchange project… building a new means of access into our beautiful city. And I called Richard (Griffin) and I said ‘This is the time we can start talking about a downtown hotel.’” just after 22 minute mark in this video: https://www.youtube.com/watch?v=41AkVsQxrXw

But the ultimate origins of the HAC are somewhat beside the point of the Open Meetings

Richard Griffin

Act. This 12-year-and-still-running saga of a City-sponsored hotel in downtown Frederick is a long one, and its lobbying arm has evolved — apparently from (1) Plamondon-Griffin discussions to (2) a Chamber of Commerce /City DED lobby/advocacy group, finally to (3) a lobbying/advocacy/planning/procurement City HAC.

Complaint is post-2010

So my Complaint is about the third iteration. It is a complaint against the closed-door conduct of the hotel advisory entity AFTER Mayor Randy McClement came to office at the beginning of 2010. In 2008 and 2009 the Chamber of Commerce ‘Team’ was not obviously a public body. Although City and County economic development officers participated in the Chamber of Commerce group it had most of the hallmarks of a private lobby group working for City sponsorship of a hotel and for public funding for a chosen hotel developer.  As a private body the Chamber’s hotel Team, so-called, was not, I accept, subject to the Open Meetings Act. It was perfectly free to machinate behind closed doors.

My Complaint is that after Mr McClement became Mayor he took over the Chamber of Commerce entity, and changed it sufficiently that it became a ‘public body’ subject to the Open Meetings Act. Mayor McClement made his first moves early 2010, just weeks into his first term. These moves were obviously with the agreement of the Chamber of Commerce and other participants in the former Team. It was a friendly City takeover, but I submit, a takeover all the same.

The AP reported Feb 3, 2010 that “Frederick Mayor Randy McClement has appointed a local businessman (Mark Gaver) to lead a public-private effort to establish a downtown hotel and conference center.”

https://www.fredericknewspost.com/archive/frederick-names-point-man-for-downtown-hotel-plan/article_ced4ec15-a3ca-5960-b079-f5d3aeba6812.html

Next day the Frederick News-Post reported: “McClement identified Frederick businessman Mark Gaver as the leader of a group that will guide the hotel project in coming years.”

https://www.fredericknewspost.com/archive/feasibility-of-downtown-hotel-project-examined-video/article_a741396f-875a-5ce8-ad7d-e95e311d0788.html

Mayor McClement

July 15, 2010 Mayor McClement issued his first annual State of the City report. The local paper put it this way: “‘Even in the toughest economy, the city should be focused on expanding opportunity and helping the private sector to create jobs and wealth,’ he said in his speech. To achieve that goal, he appointed a task force to support efforts to develop a hotel/conference center downtown.”  The Mayor appointed the HAC, that says.

https://www.fredericknewspost.com/archive/mcclement-city-is-moving-forward-video/article_3e8156b8-4fdf-500c-b68d-e1839102c50d.html

The text of most of the Mayor’s annual State of the City reports are posted to the City’s website. But not the 2010 address. The City has provided an MS Word version which has the Mayor saying that “we’ve established a team to look at how best” to develop a downtown hotel “(i)n conjunction within the Chamber of Commerce.” Again ‘we’ means the City has established the HAC.

In the MS Word version provided by the City, Mayor McClement’s State of the City report for 2010 included this on the HAC: “Even in the toughest economy, the City should be focused on expanding opportunity and helping the private sector to create jobs and wealth. I am looking at every opportunity to make this happen. One of the most important ways to help achieve this goal is development of a downtown hotel/conference center. In conjunction with the Chamber of Commerce, we’ve established a team to look at how best to fill this important void and continue our successful downtown development effort.”

Present Mayor-appointed chairman is second

Complaining that taxes were getting too high here, the first HAC chairman Mark Gaver departed Frederick MD mid-2011 to live in Florida. The City’s Richard Griffin quickly found a replacement in Earl H Robbins Jr who received a telephone call from the Mayor a few days later inviting him to join as HAC chairman, he has said. And Robbins has chaired it ever since.  Mr Robbins is a sincere believer in the project and has put in hundreds of volunteer hours doing advocacy for the project in Annapolis, the kind of work he did professionally for ALCOA before his retirement. Robbins has said several times publicly that he was honored to be invited by the Mayor to join the HAC as chairman.

And at a ‘press conference’ April 13, 2016 Griffin introduced the HAC chairman as follows:  “Our first speaker this morning is Earl H. Robbins Jr. He’s our project chairman. He is a retired businessman who was appointed by Mayor McClement as chairman of Downtown Hotel and Conference Center Advisory Committee…”

— starts at about the 2 minute mark here  https://www.youtube.com/watch?v=41AkVsQxrXw

The major historic preservation citizen group Frederick Preservation Trust wanted to get a seat on the HAC in 2012 because they feared historic buildings would be damaged. Their chairman Anthony Moscato has recounted that when he inquired about being allowed to join the HAC he was told that it was immediately told it was the Mayor’s committee and he should ask the Mayor. Moscato asked the Mayor and was initially welcomed. But minds changed in the Mayor’s office and the end result was: no seat on the HAC for a preservationist.

(email chain Moscato-Josh Russin Sept 5, 2012 onward)

The Mayor did add his personal assistant to the HAC and occasionally sent his budget director so he wasn’t completely reliant on his director of economic development (City DED) Richard Griffin. The HAC was bulked up on the public sector side with the County Executive’s personal assistant placed on the HAC as well as the county economic development chief. The County government was being asked to rustle up at least as many millions of $s as the City after all! The Mayor’s direct appointees (Chairman, three City, two County) then exceeded in number the business agency representatives (Chamber, Major Employers Group, Downtown Partnership, Tourism Council, East Frederick Rising) changing the public/private balance of power from 2/5 to 6/5.

Compare this list of members of Mayor’s Committee and the small private sector membership of the Chamber’s Team.

The HAC under Mayor McClement has been repeatedly described in Frederick as a City or Mayoral committee, not only in off the cuff speech but in carefully composed formal statements and submissions. An example: the Executive Summary written by Richard Griffin on behalf of the HAC for a Mayor & Board of Aldermen workshop in July 2013  has an item head HISTORY followed immediately by: “The Downtown Frederick Hotel Advisory Committee was appointed by Mayor Randy McClement to oversee a public-private effort to attract a full-service  meeting space to Downtown Frederick….”  Not a suggestion there of the Chamber of Commerce leading it!

see nearby the asterisk’d sentence

The City’s contention to you that “the HAC was formed by the Chamber” is plainly false. The evidence is overwhelming in statements by Chairman Robbins, the City’s Richard Griffin and Mayor McClement himself that he appointed the HAC in early 2010. Contrary to the City, I submit the HAC clearly meets the ‘Executive Appointment’ test.

 

 

HAC chief executive Griffin is a senior City employee

Perhaps even more important in getting to the essence of the HAC than the Mayor-appointed chairman has been the Mayor’s director of economic development, Richard Griffin. He has been deeply involved in all iterations of this entity. Conversation with HAC members and documents obtained by Public Information Act requests show that this City employee of Mayor McClement called the HAC meetings on an as-needed basis, the need being determined by him. Copies of the agendas sent out to HAC members were written by Griffin. HAC presentations to the Mayor & Board were prepared by Griffin  and his staff in the City Department of Economic Development. Though he has had no formal title he has been, in effect, chief executive officer of the HAC.

Here is a description of the HAC by the Mayor at a podium in a public meeting 18 months ago: “(First my thanks go to) the Downtown Frederick Hotel and Conference Advisory Committee led by Earl Robbins. From site selection  to request for proposals, to creating the memorandum of understanding between the City and Plamondon, testifying at every meeting we asked them to, this team has worked very hard to get us to this milestone. I would like to recognize the members of the team: Earl Robbins committee chair, Elizabeth Cromwell Frederick County Chamber of Commerce, John Fieseler Tourism Council of Frederick County, Kara Norman Downtown Frederick Partnership, Bob McCutcheon East Frederick Rising, Roger Wilson Frederick County Government Affairs, Helen Propheter Frederick County DED, Katie Barkdale City of Frederick Director Budget & Purchasing, Nikki Bamonte my executive assistant, and all the City Department of Economic Development staff Donna Goff, Michelle Kirshner, and Bobby Baumler. And of course a very special thank you to my director of economic development Richard Griffin who has been the driving force behind this project. We are here today in no small part because of his many sleepless nights and long hours he has spent working on this project.

Downtown hotel ‘press conference’ April 13 2016 thanking people for their help in getting state funding transcribed from here McClement at 5:20:  https://www.youtube.com/watch?v=41AkVsQxrXw

Chaired by a person of the Mayor’s choice, its meetings initiated and managed by a Mayor’s departmental head, six of its eleven members directly appointed by the Mayor, the others appointed at the discretion of the Mayor, meeting always in closed session in City Hall, the HAC has been used to cast a veil of secrecy over public discussion of important public policy issues and questionable behind-closed-doors conduct.

“The City has no veto power over any activity of the HAC”

The City Response suggests the City has “no veto power” over the HAC. But the Mayor made sure to bulk up its City and County members who can outvote the private sector members.

The city “does not review any HAC budgets…” says the City Response. But the HAC has no budget because its major expenses — such as $335,000 worth of consulting work by Jones Lang LaSalle are fully funded by the City, and its staff work is done by City Department of Economic Development employees on the City payroll. Minor expenses such as trips to Annapolis and lobbying are covered by members on a volunteer basis.

The City has “no power to enact or amend bylaws,” says the City Response. The HAC has no bylaws. It doesn’t need them because it meets and works according to the dictates of the Mayor and his staff.

The City has “no power to dissolve the HAC, or to appoint, or remove its members, or direct its activities,” says the Response. Nonsense on all counts. Without the support of the City, without the City doing the staff work, without it paying for consultants, without Griffin directing it, the HAC would shrivel to nothing. The Mayor HAS appointed members.

The HAC “was not created to implement a government plan or to function as a sub-agency of City government,” says the City Response. But it WAS created by Mayor McClement explicitly to implement the City government plan to sponsor a conference center. And it HAS functioned very much as a sub-agency of City government in drawing up hotel specifications, assessing sites, managing a procurement, scoring proposals, drafting a contract (MOU) between the City and the developer, as well as seeking tens of millions of state funds via advocacy and lobbying.

Procurement discussions “would not be a public meeting” City says

Interestingly the City Response makes the sweeping statement that “even if the HAC were a public body, any meeting convened for the purpose of conducting discussions relating to procurement would not be a public meeting.”  This is an important statement of the City of Frederick’s unwillingness to practice open government on this project, and its reflexive tendency to keep the hotel project behind closed doors.

Of course there are times when the HAC would be justified in going into closed session in parts of a procurement — such as when dealing with material tendered as confidential, or when discussing a negotiating tactic to be used in a forthcoming deal. But the City suggestion that procurement discussion generally must be behind closed doors is mistaken. Procurement issues are among the most problematic aspects of the City-sponsored, HAC-enabled  downtown Frederick hotel project. It is precisely  procurement issues which should have been exposed to the sanitizing light of open government.

For brevity just one example: Was the public interest best served in Frederick by the design of the hotel procurement in which proposals were limited effectively to two sites by the requirement that the proposer own or have a contract to buy the site proposed, proposals to be completed in six weeks.

A four week extension was granted when one of the two proposers said he would have to withdraw without extra time.

Unbeknown to the public and to the Board of Aldermen the City HAC had decided in one of its regular closed door sessions to disregard the advice of its lead consultant Jones Lang LaSalle (JLL) precisely in order to limit competition. JLL suggested four sites were about equal in quality and proposed a two stage procurement. First the City would negotiate with all four landowners and obtain a contract to buy one site. After the site was secured the RFP would be open to an unlimited number of proposals to build and operate a hotel on that site. Lots of potential competition  under that two-stage strategy.

Public Information Act requests for the JLL reports to the HAC on procurement were initially rejected by the City — on grounds of deliberative privilege. (They hadn’t at that point thought to contrive the tall tale that the HAC was a Chamber of Commerce outfit!) I protested and got the help of Alderman Donna Kuzemchak who threatened to raise hell if they continued to withhold the JLL advice on procurement.

The JLL report Downtown Frederick Hotel: Site Acquisition Strategy Recommendation asserting the need for a two-stage procurement process dated October 11, 2013 was released to me, and via my blog to the public, August 23, 2017.

Open HAC meetings on procurement procedures would have allowed elected representatives and the public to focus on procurement options and ask why the consultant-proposed two-stage strategy producing, say, eight or ten proposals was being passed over in favor of the procurement that produced just two proposals.

The City’s statement to you that the HAC is a Chamber of Commerce entity is a novel narrative. Uttered within a mile of City Hall in Frederick it wouldn’t pass a simple laugh test. I submit that this is a desperate and tawdry contrivance on the part of cynical City officials to mislead this Board.

The City has not contested important parts of my Complaint, namely that his Richard Griffin has throughout the period 2010 to today been the heart of the HAC, calling its meetings, setting its agenda, preparing its presentations, managing consultants, acting as spokesman and lead advocate. Griffin is not employed by the Chamber of Commerce or subject to Elizabeth Cromwell’s direction. He is on the City payroll and answers to the Mayor. This alone could make it substantively a ‘public body’ but along with other evidence of the Mayor’s executive role makes it, I suggest, a clearcut case of violation of the Open Meetings Act.

I thank you for considering the submission of a private citizen, and look forward to hearing your finding.

end my Comment on City Response

City’s Answer to my Comment

The City then had five business days to answer my Comment (City Answer) and submitted a 2-pager dated November 17, 2017. It reasserted the claim that the HAC is “not a public body and is therefore no subject to the Act. It dismissed as “irrelevant to the determination to be made by this Board” statements by the Mayor that he had established the HAC.

“While certainly officials are responsible for the things they say, Mr. Samuel inappropriately seeks to ascribe a near scientific level of precision to their words. The Mayor saying ‘we’ve’ established a team [in conjunction with the Chamber] cannot, in light of all the circumstances be described in the City’s response, reasonably be held to mean that the HAC is a public body under the executive appointment test. Mayor McClement’s use of he word ‘we’ was likely an attempt to be inclusive. The mayor’s words, made informally or as part of a formal speech do not transform the Chamber’s HAC into a public body of the City.”

The City Answer avoided comment on statements by Richard Griffin that the City had established the HAC, and many statements by the HAC Chairman Earl Robbins that he’d been appointed by the Mayor.

My suggestion that the City HAC had originated in the City’s takeover of the earlier Chamber of Commerce Hotel Advisory Team was called “illogical and unfounded.”

“Mayor McClement has no power or mechanism by which to ‘take over’ a private entity,” it asserts, as if providing hundreds of thousands of dollars worth of consultant time, putting City Department of Economic Development staff at the disposal of the HAV, and endorsing and leading the activities of then HAC does not count as power. I had made the point that the City takeover was a friendly takeover. In other words the Chamber was only too happy to have the City take over the HAC.  What had been a little-heard-of lobby group of the Chamber was transformed by the City takeover into an semi-official planning and procurement agent of the City, while the HAC’s lobbying strength was greatly enhanced by official adoption of the project as a City priority.

The City Answer then claims that the Mayor directing City staff to attend HAC meetings doesn’t make them members of the body: “To the extent that Mayor McClement once indicated that staff members were members of the HAC, his words have been misinterpreted.” Griffin and other City and County officials apparently in the thinking of City lawyers, were merely outside attendees, not members of the HAC.

In this case the RFP14-J of February 2014 seeking proposals from developers got it wrong. It states on page 8 that the HAC “is chaired by Earl H Robbins Jr, appointed by Mayor Randy McClement.” And goes not to say the Committee “is composed of leadership” from the Chamber, Major Employers Group, Tourism Council, East Frederick Rising, Downtown partnership and the City and County Economic Development Departments. And a table lists among the names of the HAC members Helen Propheter of Frederick County DED, and of course Richard Griffin City DED.

Every official presentation on the project and the all the various ‘two-pager’ summaries list the local government officials as full members of the HAC.

“The City did not create the HAC or convert it to a public body after its creation,” says the City Answer. “The Mayor did not appoint a majority of its memo era and has no power to remove members or disband the HAC.” They conclude requesting the Board “determine that the complaint is un founded and the City has not violated the Act.” Signed like the previous City submission by Saundra A. Nickols, City Attorney.

The four documents have now been sent by the State Attorney General’s office to the Open Meetings Compliance Board which I’m told aims to craft a verdict within 30 days which would make it December 17th. The holidays however may delay it until the new year.

PSam 2017.11.26

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