Original complaint about Maryland health exchange board violating open meetings law

Related story: Maryland health insurance exchange board violated open meetings law, compliance panel says

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03/11/14
Open Meetings Compliance Board
Attorney General’s Office
200 St. Paul Place
Balto, MD 21202
Maryland Health Exchange Board: $261 Million Doesn't Buy Open Meetings Compliance (I)
Dear Members of the Board,
We have concluded that the MHBE has consistently violated the Open Meetings Act.
We have struggled to obtain minutes and closing statements from the MHBE legal and press offices. In
common with too many other agencies, the press office has a poor grasp of the Open Meetings Act and
is acting to impede, rather than facilitate, media access to basic meeting information. In turn, the
MHBE's chairman is unversed in his obligations. Further, the MHBE's counsel has mistaken notions
about her client's statutory obligations.
In this situation, pleading ignorance is effectively identical to outright stonewalling. It cannot be differentiated from willful violation of the Open Meetings Act.
Without an adequate and robust public record, the public can have no true idea of how the MHBE created a failed website, nor what they are doing to fix it. In a word, the board's compliance is dismal and
its broad array of violations are of long standing, since January 2012 and likely since inception.
(I) Failure to Timely Approve Minutes, 2014
Disregarding for the moment past practices, we see the MHBE met on the following dates in 2014:
January 4; January 27; January 31
February 14; February 18; February 23
March 6 (postponed to March 7).
A phone call March 11 to Dori Henry, in the press office, turned up no information on whether any
minutes were approved on March 7 for the earlier dates. Henry said the board does not have to publish
closed minutes. She did not know if the board approved any minutes March 7.
She said those minutes would be handled "as a PIA request," which further delays public access to documents which should be readily available; it does not excuse failure to timely publish minutes.°
As of March 13: no minutes from 2014 have been approved and published. This includes open session minutes from the date of otherwise secret meetings and the supposedly public open meetings of
the MHBE board.
Item: The Act requires minutes to be available to anyone who come into the office during normal business hours. Potentially, lack of published minutes after 2-1/2 months is a violation. Furthermore, for
anyone whose goal is to determine whether to appear in person to inspect 2014 minutes, "I don't
know" is not an adequate answer.

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(II) Illegal "Emergency" Meetings
Otherwise, this complaint focuses on three recent MHBE board meetings. All were by phone; two were
"emergency" meetings. Each raises several serious compliance issues.
One, Dec. 6, 2013, does not exist in the public record. The only information available is a news report
the following day (Baltimore SUN 12-7-2013; PDF attached). There is no closing statement, no published notice on the website where every other meeting notice appears††, no set of minutes from the
open session immediately before/after a closed session, no evidence that closed session minutes were
adopted, and no summary of the "emergency" meeting in the minutes of the next open session. Q.E.D.
The meeting was an illegal closed session which violated all openness provisions in the Act.
As reported the next day:
The board of the Maryland Heath Benefit Exchange accepted Pearce's resignation during an emergency session Friday night. In a statement, Joshua
Sharfstein, the state health secretary and board chairman, said Pearce
"worked tirelessly and with tremendous dedication."

Nothing is attached concerning 12/6, because nothing is to be found. The MHBE website is supposed
to be a complete record of all documents. It falls short. The press office "cannot find" any documents.
As we note below, a press release is neither a closing statement nor minutes.
Dec. 6, 2013 Allegations: Violation of the Act's openness provision. Failure to notify. Failure to properly close meeting. Failure to provide public with dial-in number for telephone meeting. Failure to prepare and publish minutes. Failure to summarize closed session in minutes of next open meeting. Failure to complete mandatory written closing statement. Failure to make mandatory closing statement
available to the public.
Notice Violation: There was none. Aside from this violation, see Bylaws, Article VIII, Section 9: " ...
As soon as practicable after any Board meeting has been scheduled, the Executive Director shall post
the time and place of the meeting on the website of the Exchange." Section 5 says the "chair shall
give three days' notice of any special meeting to all Board members, except where the Chair determines that special circumstances warrant shorter notice."
So: when did the Chair decide to call the Dec. 6 meeting? When were the members of the board notified? What prevented notice being posted at the same time the board members were notified? Why did
notice never appear?
Each meeting, in theory, has its web page in sequence on the MHBE website. The page serves as a
meeting notice and as a place for electronic document attachments. A search online from 12/1/13 to
2/24/14 revealed nothing about a Dec. 6 "emergency meeting." There is no last-minute announcement
in the Press Releases online.
Meeting notices and required documents are supposedly posted on this web page in calendar grid format: http://marylandhbe.com/events/2013-12.
Meeting notices are supposedly posted here too: http://marylandhbe.com/exchange-board/board-meetings.
By scrolling to the bottom of this second page, something called Meeting Archive is visible. For Dec.
2013 the Meeting Archive has:

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Board Meeting December 15, 2013
Implementation Advisory Committee (IAC) - canceled December 12, 2013
Board Meeting POSTPONED DUE TO WEATHER December 10, 2013
Oral Health Summit December 6, 2013
Maryland Learning Collaborative Fall Meeting December 5, 2013

Therefore, there was no public notice for the so-called "emergency meeting," unless it was disguised as
a discussion of oral health. It was held on a Friday night in order to evade press attention, without notice and without ever having the legally required documentation prepared.
Feb. 23, 2014: Contracts Illegally Discussed in Secret Meeting
A propensity to hide embarrassing stuff in "emergency" meetings crops up on Feb. 23, 2014. We note
the meeting was the night before MHBE officials were to appear before a General Assembly joint oversight committee. The public is justified in assuming shenanigans.
The Annapolis Daily Record noticed the "emergency meeting" and commented on the shenanigans (attached).
Violations Alleged Generally: (1) failure to properly notify the public; (2) failure to prepare and make
available written closing statements; (3) failure to prepare and publish minutes, including timely summaries of closed sessions and (4) violation of the Act's openness provision.
Attached are PDF files of two 2/23 closing statements and a press release dated 2/24.
Sunday night is an odd time to discuss terminating, approving or amending contracts. Notice was apparently posted sometime on Feb. 22, according to the web page http://marylandhbe.com/event/7793.
Bylaws require notice to board members by Thursday, leading to the question why public notice was
delayed.
We allege the meeting was illegally held, because it was not truly an emergency. Public notice was deliberately posted at a time outside normal business hours and procedure in bylaws. It was a deliberate
attempt to evade public scrutiny, very much reminiscent of the UM Regents in November 2012.
Timing: We have no way to know if any other notice was used, for example, an email or phone call
alerting the media. The time the notice was posted on Feb. 22 can't be determined. The notice observes
the form of the legal requirement but neglects to clarify the emergency.
(8 p.m.) THIS WILL BE A PUBLIC MEETING FOR THE PURPOSE OF
VOTING ON A MOTION TO CLOSE THE SESSION. THE MEETING
WILL BE CONDUCTED BY TELEPHONE. Open session dial-in: 605-4756767 Code: 891-6755

(III) Emergency Meetings Require Explanation
If it was an "emergency" meeting, the public is entitled to know what the "emergency" is. After all, if
an "emergency" can't be articulated, a claim is bogus. While the OMCB may not be inclined to decide,
after the fact, whether a public body really had an "emergency" or not, it is clear that the Act requires
enough information for the public to understand what the "emergency" might have been.

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In one case, when there is an "emergency" and a meeting is not closed, the openness requirement still
mandates adequate public notice, including, if nothing else, the opportunity for members of the press to
attend. At the open meeting, anyone in attendance will hear discussion and any action. If the body decides, during the meeting, it must deliberate behind closed doors, all of the Act's requirements apply.
And the meeting must be followed by published minutes, no matter how brief the meeting might be.
In the second case, as here, the "emergency meeting" is substantially a completely closed session.
Someone's decision that there is a bona fide "emergency" cannot preclude public notice entirely, nor
the proper actions to close, and the Act requires adequate description of topics and reasons when exceptions are invoked. Clearly then part of the "reason" for an "emergency closed session" is the nature
of the emergency.
It stretches credulity – the public is supposed to believe that, all of a sudden, the MHBE had to act on a
Sunday night to cancel a contract with one entity and modify and extend a contract with another.
In truth there was no "emergency" for the Noridian and Optum contractual agreements. Disputes within
state government over the proper functioning of the website were going on for three months, the press
reports. One is left to conclude only political expedience was the "emergency."
Press Release Feb. 24.
Excerpt:
Dr. Joshua M. Sharfstein, chair of the Board of the Maryland Health Benefit
Exchange (MHBE), today issued the following statement on behalf of the
Board:
Last evening, at the recommendation of Secretary of the Department of
Information Technology Isabel FitzGerald, the Board of the Maryland
Health Benefit Exchange voted to end the role of Noridian Healthcare
Solutions as the prime IT contractor for the Exchange. The Board also
voted to transition the role of prime IT contractor on an interim basis to
Optum/QSSI, the general contractor that the Exchange hired in December
2013.

Discussion:
Isabel FitzGerald is a cabinet secretary with, as far as we can determine, no official standing within the
MHBE board or organization. A meeting of the MHBE board with a cabinet secretary is not a cabinet
meeting.
In December, the Baltimore SUN reported, "Behind the scenes, Brown and other officials said, much
of [fired Ex. Dir. Rebecca] Pearce's day-to-day control of the exchange had recently been handed to Information Technology Secretary Isabel FitzGerald." Fitzgerald appears in minutes of 12/17, for example, but not in published minutes of any meetings prior to that date.
We find it odd that the 12/17/13 minutes have Fitzgerald announcing to the board a contract between
MHBE and Optum/QSSI when nothing in the public record hints at any MHBE board activity to discuss and approve any contracts between Oct. 1 and Dec. 17. We have here a contract that was secretly
adopted outside of the board's legally required process in December, and now it is being amended, etc.,
in secret.

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The public is left to wonder (1) who is calling the shots for the board and (2) how the decisions were
actually arrived at. Was FitzGerald the messenger on Feb. 23 carrying a demand from the Governor
and Lt. Governor, or was there a substantive discussion of alternatives? We do not know.
Attempt to Obtain Closing Statement
Upon receiving emailed PR, we immediately asked for the closing statement by email. It was not forthcoming. Although a closing statement was not made available, it is clear that action was taken during
the teleconference. A press release, as the Regents learned, is not a closing statement nor does it serve
as minutes.
The first (and legally erroneous) explanation for the absence of a closing statement was from the press
office:
Minutes of the open meeting have not been drafted yet. Minutes of the closed
session are not made public. The "Statement for Closing a Meeting" has not
been signed yet, but will be attached to the Minutes of the Open Meeting,
which is posted after the next regular Board meeting. A role [sic] call vote related to the closure of the meeting will be reflected in the minutes.

Next we tried phone calls. The MHBE's counsel, Kristine Hoffman, claimed she did not have to provide a closing statement until the minutes were approved. Further, the closing statement was "not complete" because the "chairman had not signed it." We need not belabor the point; she is wrong.
MHBE's attempt to hold statements from public view until minutes are approved shows they do not understand the Act.* What is worse, the MHBE has utterly failed in the legal requirement to timely produce and publish minutes, so the excuse about "attaching" a closing statement is absurd. We are not
sure who is driving the bus. We have examined the minutes we could find online; although many indicate closed sessions, there is not one closing statement attached either to minutes or posted as a separate document.
(IV) Oops: There Are Two Closing Statements
One closing statement (attached as 10 02-23-2014 Closing Stmt.pdf) was emailed on 2/25 after the series of phone calls and emails. We believe this one was made up after the fact only to satisfy our demand. To do such is illegal.
Next, it is necessary to understand the contents of the two different closing statements. They both claim
a(7) and a(14) as exceptions. The first one received ("Faux Closing") was unsigned, did not include
Reasons for closing, and was filled out by computer:
TOPICS TO BE DISCUSSED/ REASON FOR CLOSING
Noridian tentative work out of transition plan.
QSSl/Optum Contract Modification.
Statement of Board on end of Noridian's role.

Item: No evidence actual legal advice was requested during this meeting; lawyers could have
been "potted plants."
Item: a(14) does not apply to contract termination, approval or amendment or to press releases.
That was the business conducted during this secret meeting.
The OMA Manual says:

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A quasi-legislative function includes the process of rulemaking, “approving,
disapproving, or amending a budget,” and “approving, disapproving, or
amending a contract.” §10-502(j). A contract can include an employment
contract or a franchise assignment [or an MOU].

Item: "Statement of Board"?
How does a press release, or "statement of board" language, falls under either exception? Certainly it is
not a matter of "legal advice" when a statement has already been drawn up, before the meeting is held
and before the ceremonial, secret vote to act on contracts has occurred. The second of the two closing
statements supplied indicates that the "statement of board" was prefabricated. We do not know by
whom (FitzGerald? Sharfstein?)
In our view, this a description of the result of discussions that should have been done in open session. It
is also a statement of policy going forward.
Items: We allege terminating the "Noridian" contract was illegally discussed in a secret meeting.
We allege amending the "Optum" contract to extend it -- "transitioning" is meaningless jargon
-- was illegally discussed. The conversation about the "statement," merely a vote to approve, was
conducted impermissibly.
Item: No plausible reason given for citing (a)7. As far as the details provided by the closing statement, the board does not explain how and why 10-508(a)7 applies to this discussion. We allege that it
did not; the board was not seeking specific legal advice on specific matters. Rather, this is deployed
generically as a colorable pretext to bar the public from a meeting already called with, effectively, no
meaningful notice and, we allege, a predetermined outcome.
We find it very hard to believe all legal ramifications of tossing Noridian out on its ear were not discussed over and over in preceding month' many closed sessions (all, by the way, failing to follow statutory OMA requirements).
Board fails to make a convincing case (a)14 applies to anything discussed. The exception does not
apply to negotiations generally nor to executed contracts. The MHBE must be specific about what is
being "procured" and under what criteria if it claims a(14).
In fact, the actions involved contracts or MOUs already approved – Noridian, in Feb. and Sept. 2012**
and Optum sometime in Dec. 2013. (A press release dated Dec. 20 indicates "In addition, this week the
Maryland Health Benefit Exchange brought in Optum/QSSI—a
Columbia, Maryland company—to improve the overall performance of the website.")
Why were these were discussed in closed session aside from political sensitivity? The MHBE offers
nothing.
Why did the MHBE believe it could claim (a)14 when contracts had already been awarded? The action
does not fall under the narrow "procurement" definition underlying (a)14. The closing statement fails
to provide a convincing "reason."

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We believe the MHBE intentionally uses the "emergency" meeting as an evasive device, something
which violates the Act's general openness provision. Issuing a press release, as in the case of the UM
Regents in November 2012, does not remedy the violation.
Chairman Sharfstein misunderstands the narrow limits of (a)14. He appears convinced that a public body can exert a blanket claim to closed sessions about contracts. In a Feb. 23 SUN news article, he
explained the board has operated this way:
The (2012) Noridian contract extension was approved seven months after its
original contract award in a closed session of the exchange board.** Sharfstein said all exchange procurements are done privately so board members can discuss and debate bids.
Sharfstein said the Board of Public Works, which rarely goes into closed session, does not go through the same deliberative process when it votes on
contracts because agencies make recommendations.
Sharfstein also has said the exchange board followed a strict procurement
system incorporating best practices of the state.

What he said is irrelevant. We don't comprehend his comment that the BPW "does not go through the
same deliberative process..." -- it's entirely irrelevant to the Open Meetings Act and his board. Rather,
the OMA Manual says:
“[T]hose who participate in a closed session are accountable for the decision to close” while "If a
meeting is within the scope of the Open Meetings Act, it must be open unless one of the specific reasons for closing it can legitimately be identified."
Moreover, "A public body may not avoid an open meeting merely because a topic is controversial
or potentially embarrassing."
(V) Feb. 23, 2014: Comparing Two Closing Statements, or Closing Excuse Beach Blanket Bingo
We have the first case of Open Meetings Act TMI: the MHBE sent two different closing statements for
a single meeting.
Faux Closing Statement
This is the file 10 02-23-2014 Closing Stmt.pdf sent on 2/25 by email. The first one revealed enough
to spur a complaint:
STATUTORY AUTHORITY TO CLOSE SESSION:
_x_ (7) to consult with counsel to obtain legal advice;
_x_ (14) to before a contract is awarded or bids are opened, discuss a matter
directly related to a negotiating strategy or the contents of a bid or proposal,
if public discussion or disclosure would adversely impact the ability of the
public body to participate in the competitive bidding or proposal process.
TOPICS TO BE DISCUSSED/ REASON FOR CLOSING
Noridian tentative work out of transition plan.
QSSl/Optum Contract Modification.
Statement of Board on end of Noridian's role.

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Nothing else appears on the paperwork except five board members attending and four absent.
Closing Statement #2
The file 11 02-23-2014 Closing Stmt 2.pdf was sent on 2/28 in part a collection of minutes and closing statements.
"Faux Closing" is a sanitized and cleaned-up version. (See * below. We have no clue which closing
statement the MHBE board counsel referred to when she told us, on Feb. 25, that the closing statement
was "not completed." We did however have a long and interesting discussion about her creative interpretation of the Act.)
The other, equally obviously, from the scribbles, is the closing statement in use at the time of the illegal
Feb. 23 meeting. Whose writing is it? We don't know. It also is unsigned.
There are no Reasons on Closing #2 either. Topics:
"Noridian tentative work out of transition plan"
"QSSI/Optum [R?][K?] Modification"
"Statement of Bd on end of Noridians Role"

Somewhat more is also revealed across the bottom, apparently "actions taken."
"Bd agrees to framework with details to be developed, for Noridian to transition from Prime Contractor, assigning subcontracts to QSSI"
"Bd approves contract modification, subject to additional clarification re:
DDI"
"Bd approves statement, subject to minor edits"

There was nothing involving competitive procurement, nor was a competitive process going on. These
were general, quasi-legislative discussions about terminating and extending/modifying contracts. They
were sole-source contracts; cost or bid information is hidden from the public.
Statement #2 also includes the following information:
"late - not at open meeting - Goldberg, Apfel" (substantially different from Faux Closing)
Persons attending ... "also - Hoffman, Auerbach, FitzGerald, Quattrocki."
Additional research shows Hoffman and Auerbach are with the Attorney General's office.
Item: Creating a "faux" closing statement to put off a member of the public is a violation of the
Act. If there is no closing statement, the public body takes its lumps. If there is one, it must be provided
in its original form, no matter how poorly executed.
We do not know where or why the Faux Closing originated. It is obvious: there is only one bona fide
written closing statement. If prepared in advance, it will probably look typed out. But it must be
amended on the spot to reflect the actual topics and exceptions of a closed session. It may not be
amended after the fact, abridged, changed, etc., etc., etc. The MHBE violated the Act along that dimension as well. Of course, maybe the handwritten one is actually the bogus document. Who knows?

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This is an unfathomable action by the board chairman or legal staff. It raises significant ethical questions about the MHBE's actions in meetings and the integrity of its public records.
(VI) March 7, 2014
Attached is a closing statement. On it we see a(7) and a(14) checked. It appears that this was yet another conference call where only the first minute or so were open to the public.
The description of topics includes "Contract modification for hosting."
We allege this is a violation of the Act, since one topic was quasi-legislative, and moreover, a(14) does
not apply.
We also notice that the Sharfstein "signature" has been pasted in electronically. This does not make up
for the many violations the MHBE board has accumulated.

Craig O’Donnell
Kent County News
1 Feb 242 014_Noridian Statement.pdf
2 September_11_2012_Meeting_Agenda.pdf
3 Board-agenda09252012.pdf
4 Minutes-12.12.13.pdf
5 Minutes-12.15.13.pdf
6a MHBE-Board-Meeting-12172013-REV.pdf
6b Minutes-12.17.13.pdf
7 Minutes-12.30.13.pdf
8 Agenda.1.26.14.pdf
9 MHBEBoardAgenda2.18.141.pdf
10 02-23-2014 Closing Stmt.pdf
11 02-23-2014 Closing Stmt 2.pdf
12 Daily Record.pdf
13 MHBE Closing 3.7.14 2.pdf

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14 marylandhbecom notice-other webpage-.pdf

15 MHBE Reply re 2-23.pdf

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° We are aware that the Act does not mandate web posting of minutes. However, the MHBE has
adopted the practice of posting minutes on its website; functionally a website can be considered an extension of any agency's record-keeping process. This week is the 25th anniversary of the "Word Wide
Web." Time for government agencies to catch up.
In addition the MHBE's bylaws mandate web posting of meeting notice. This is a relatively advanced
notion for a state agency. With that requirement in place, it is trivial for staff members to routinely post
minutes and they have posted some, though not all.
†† As shown in Bylaws Section 9, MHBE meeting notice shall be posted on the board's website.
*Clarification is necessary.
MHBE counsel Hoffman told me on 2/25 that the closing statement "had yet to be completed." She insisted that it must have a signature. She also insisted that there is a space at the bottom "which hasn't
been filled out yet." So it could not be handed out to a member of the public.
She was referring to the OMCB's revised form, which includes a handy spot FOR USE IN MINUTES
OF NEXT MEETING to note "Topics Discussed/Actions Taken."
Cart before horse time. A written statement is not required to have a signature, although many of us
feel comfortable when one is placed on the form directly after the vote to close. The note field at the
bottom contains space for summary information which is required to be included in (1) minutes of that
day's meeting or not later than (2) the minutes of the next open session. This revised form is merely a
convenient reminder.
The requirement to meaningfully summarize a closed session does not control public access to the
written statement. Furthermore, the public is entitled to inspect or have a copy of the original and unaltered closing statement as approved by the public body immediately before the closed session, no matter how deficient the statement is.
** The minutes and closing statements concerning meeting at which contracts were discussed
and approved are missing. We expect to address such issues in a followup.
In 2012: The Noridian contract was apparently approved in February 2012. There were two meetings
then and two in September 2012. The MHBE has no statements for closed sessions Feb. 12 and 25,
Sept. 11 or Sept. 25 and minutes for only three of the four.
In 2013: No minutes for meetings have surfaced where Optum contracts were were discussed prior to
approval, or approved. Meetings occurred on 12/12 and 12/15. Deficient minutes exist for these.
The closing statement for 12/12 concerns a contract amendment for "Maximus" and no reference to
Optum.
There are no closing statements 12/15 and 12/17.
Minutes of Dec. 17 report:

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Ms. Fitzgerald discussed how the MHBE has entered into a contract with Optum/QSSI, which will focus on enhancing the consumer experience by providing end-to-end project management and operational support, as well as
technological assessments and recommendations. She noted that additional
support will accelerate the pace of improvements. Optum/QSSI began their
work with the MHBE on December 16.

The earliest date on which a closing statement mentions Optum is Jan. 27, 2014.