THE SUNSHINE LAWS AND THE BALTIMORE DEVELOPMENT CORPORATION
 
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and the Baltimore Development Corporation

 
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The Interstate Land Sales Full Disclosure
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Nominations for Distinguished Practitioner Award
 











 

John C. Murphy, Esq.
Law Office of John C. Murphy


    On November 3, 2006, the Court of Appeals issued a 37 page opinion holding the Baltimore Development Corporation (BDC) subject to the State opening meetings and public information laws.

    The sunshine laws have been around since the 1970s and at first glance one would assume that BDC would be subject to these laws. Indeed that was the very first question posed by Chief Judge Joseph Murphy to BDC in the argument before the Court of Special Appeals—why in the world would a powerful City development agency like BDC not be subject to these laws?

    The City’s defense boiled down to the contention that it was a private corporation and, as such, was not subject to the State laws which are aimed at public meetings, that is, meetings conducted by units of government , or public documents, that is documents generated by units of government. For the public meetings law, it came down to a question of statutory construction. The law states that a public body “includes” entities where a majority of the board members are appointed by the Mayor. SG 10-502 (h)(2). The City unsuccessfully argued that “includes” did not extend the reach of the law to non-governmental entities. Instead, the Court of Appeals held that in this case the word “includes” performed the function of extending the law to private corporations where the board was publicly appointed.

    For the public information law, the law applies to an “instrumentality” of government, SG. 10-611 (g)(1)(i). Here the Court of Appeals held that it was obvious that BDC performed public functions and that it fit the normal concept of “instrumentality”.

    So from a purely legal standpoint, it was not a difficult case. It also did not help BDC that it was represented in the proceedings by the City Solicitor who normally represents only units of the Baltimore City government, not private interests or private corporations. The strongest argument asserted for BDC’s, was that it had performed wonderful work over the years like the Inner Harbor, so why hamper it with restrictions that might make its life more difficult. Indeed there have been sporadic efforts over the years in the General Assembly to bring BDC and agencies like it under the Sunshine laws. One can assert that given BDC’s prominence, if it operated with an immunity from the Sunshine laws, that immunity must have flowed from the consent of the General Assembly.

    If the scales needed to be tipped, the Supreme Court case of Kelo v. City of New London, 545 U.S. 469 (2005) was there to do the tipping. Baltimore City undertakes eminent domain on a massive scale, mostly under the aegis of BDC. The Court of Appeals just could not accept the contention that an agency carrying on eminent domain programs was immune from the Sunshine laws. Judge Cathell’s opinion quoted extensively from Kelo and he wrote that given the justifiable concern with the seizure of private property for development projects such as upheld in Kelo, condemnation proceedings “should be even more open to public scrutiny”.

    The public meetings and freedom of information laws are often of great use to practitioners. It is difficult to represent clients, if the agency is meeting behind closed doors. Access to documents is often of immeasurable help. So given that BDC is an incredibly powerful agency, orchestrating the investment of hundreds of millions of dollars in private and public money and having a profound effect on Baltimore City, the decision is of great importance. The decision will also no doubt have application to other organizations both in the City and outside.

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