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Closed planning group meetings invite litigation
Commentary by Tom Stauss

The mechanism by which the OPA will begin consideration of the future of its aging amenities like the Yacht Club, Country Club and Beach Club is General Manager Bob Thompson’s facilities planning group. Regrettably, the structuring of it as an advisory committee, different from Ocean Pines’ other advisory committees only in that its members report to the general manager, and not the board of directors, means it’s running afoul of the Maryland Homeowners Association Act’s open meeting provision.

Unless there is some way to finesse the issue, Thompson’s decision to close some of the meetings to the membership, while opening others, will probably draw a lawsuit, the result of which could be a judge enjoining the committee from meeting except in open session.

Thompson’s decision, backed in May by a 6-1 vote of the board of directors, is based on an opinion from OPA attorney, Joe Moore, whose reading of the Maryland HOA Act probably is in need of updating. For years, the law had a loophole in it that said HOA boards and committees could meet in closed session for almost any reason, by an affirmative super majority of members. That loophole was closed a year ago by the Maryland General Assembly. Now meetings can be closed for legal and personnel reasons only, perfectly legitimate pretexts for closing meetings that go back decades.

Before filing a legal action against the OPA to enjoin Thompson’s committee from meeting in private, Ocean Pines Forum owner/manager Joe Reynolds wisely is authorizing his attorney, Bob McIntosh of Berlin, to attempt to discuss the legal justifications for closed meetings with Moore. By all means every means should be taken to avoid litigation if at all possible, so let the attorneys meet, greet and maybe reach some accord.

If Moore is basing his opinion on the OPA bylaws, as opposed to the Maryland HOA Act, he needs to reconsider before he runs up OPA’s legal expenses unnecessarily in defending the indefensible. If he was unaware of the change in the act’s provisions as they relate to closing advisory committee meetings, then he needs to be honest about that and so inform his client.

Without Moore’s legal opinion to stand on, Thompson would no doubt figure out a way to do so. Here’s an idea: Ask OPA board members not to attend otherwise open meetings so as not to influence the process in any way before Thompson, with the assistance of the advisory committee, makes some concrete recommendations to the board.

The decision to close some of the planning group’s meetings apparently is related to the perceptions that last year’s Major Facilities Task Force, the immediate ancestor of the reconstituted planning group, foundered in part because of too much involvement by then members of the board of directors.

During board discussion at its May 18 monthly meeting, Director Pete Gomsak alluded to the presence of three board members on the task force, nominally run by former General Manager Tom Olson last year but in reality run by former OPA President Bill Rakow, who’s been appointed by Thompson to serve on his planning committee. Gomsak said the group essentially produced little of consequence, and he seemed to blame its failures on the presence of board members. He’s probably right to some degree.

Rakow has said he wouldn’t serve on the committee unless at least some of its meetings are closed. Therein lies the heart of it. If Rakow was not so insistent on closed meetings, for what in his mind are entirely legitimate reasons, then Thompson’s default preference for openness, demonstrated during his brief tenure as a director before his appointment as general manager, probably would have prevailed.

And the need to shop for a supportive opinion from Moore would not have arisen.

Closing any of the planning meetings is a misdirection and overreaction to the ostensible reason for the task force’s failure: board interference. Keep any current board member away from the planning group meetings and, voila, problem solved.

It would have to be voluntary, of course. OPA board members would have every right to attend. It would be simply better if they did not, because history shows they can gum up the works.

They might do that anyway, but at least allow Thompson’s planning committee to produce some concrete recommendations before they do.

Uploaded: 6/1/2011