2014-05-16 / Front Page

Secret sessions to remain status quo

By Duke Harrington
Contributing writer

SOUTH PORTLAND — An attempt by South Portland Mayor Jerry Jalbert to increase the transparency of city council actions failed Monday when a majority of councilors agreed to stay the course on how they handle executive sessions.

“I don’t think it’s broke and I don’t think we need to fix it,” said Councilor Maxine Beecher.

In recent years, the council has taken heat for giving direction behind closed doors to City Attorney Sally Daggett on how to proceed with pending lawsuits against the city. In one case, Colchester Drive resident Al DiMillo sued the city over health care benefits the council had granted itself, which, in his view, violated the compensation line of the city charter. In another, two city employees, including then-librarian Karen Callaghan, filed suit over a city policy that prevented them from running for positions on the school board.

Rosemarie De Angelis, a member of the city council when both cases were filed, has revealed that councilors decided in private how to proceed in those cases. While being careful not to divulge anything actually said behind closed doors, De Angelis has noted that the decisions “were not unanimous.”

As an audience member at several council meetings since losing a 2012 reelection bid, De Angelis has publicly faulted her former peers for not coming out of executive session to conduct a public vote on whether to appeal court rulings in the Callaghan case.

Jalbert adopted the same stance during Monday’s workshop session.

“When we don’t come out of an executive session and vote on an item that’s votable, I don’t think we’re being transparent and I don’t think we’re acting as public servants at that time,” he said. “I think what we’re really doing is providing a means for our own political protection as to what position we are taking.”

As De Angelis did before him, Jalbert is concerned that private decisions can lead to an expenditure of public funds.

When Callaghan prevailed in Superior Court, the city filed two separate appeals to the Maine Supreme Court, agreeing to do so both times in secret. Those decisions ultimately cost the city more than $96,000, including $42,531 billed by Daggett’s Portland law firm, Jenson Baird Gardner & Henry, and $54,771 the court ordered South Portland to pay Callaghan’s attorney, David Lourie of Cape Elizabeth.

Jalbert said that, in retrospect, decisions to file those appeals should have been made in public, even if debate leading up to each vote was conducted in executive session.

“Then the public knows that the councilors made a decision and it’s clear what that decision was,” he said. “It doesn’t just become clear when an appeal is filed in a certain number of days.

“Sure, that represents some risk,” said Jalbert, “but in my opinion that’s a much more transparent way, so people can see how city councilors are making decisions, and how we are spending taxpayer dollars.”

Asked by Councilor Linda Cohen if a public vote might jeopardize the city’s case, Daggett said with a shrug, “If it’s not a unanimous vote, it might.”

“The judges read the newspapers,” she said. “If it’s, say, 4-3 to appeal a decision, that sort of discloses that there is some dissension among councilors.”

“Judges, whether we like it or not, are people,” agreed Beecher. “They are going to look at that vote. What you are asking is to put us at a greater risk of losing and legal decisions are tough enough.”

But Jalbert wasn’t buying that line of logic, saying over Beecher’s protestations that she was wasn’t interested in his reply, “I don’t know that there’s anything that can be shown that’s definitive that judges make decisions based on what they read in the newspapers about council split votes.”

Even so, Beecher said, the council should continue to give Daggett her marching orders in secret, and let the public discover what had been decided if and when court actions are filed.

“If you’re uncomfortable with that, I think that’s your personal agenda,” she told Jalbert about his call for voting in public when it’s appropriate, following an executive session

“I’m just not OK with it. I think you’re putting the city at risk.”

While state law requires a public vote on some executive session discussions, such as whether to grant an abatement on taxes for reasons of poverty — in which case the applicant’s name is withheld — revealing other actions agreed to behind closed doors is a matter of council discretion, Daggett said.

“We don’t always want to tip our hand,” said City Manager Jim Gailey. “But we don’t propose an executive session just to get an item behind closed doors. It’s only when an item might be compromised if it was discussed out in pubic.”

One example, said Gailey, was a recent round of talks with Fore River Sound Stage on early termination of its lease on the South Portland Armory building.

“If we had put that in the executive session language, the world would have known it,” he said. “It would have got out in front of us and not been managed and worked behind closed doors to come to a mutual agreement.”

Ultimately, only Councilor Patti Smith sided with Jalbert.

“In terms of representing our constituents, I think we do owe them a sense of transparency,” she said.

Smith did point out, however, that state law does allow councilors to enter executive session for union contract negotiations, real estate transactions and consultations with legal counsel if premature disclosure of information could harm the city’s position.

“But is that best for the residents of our city, or is it best for our legal counsel, to make her job easier?” Smith asked.

For the majority of the council, the answer to that question was clear. Most also identified a difference between conducting a vote and giving Daggett direction on how to proceed on an issue.

“Executive session is for each councilor to give their feelings on an issue, and then we proceed in a direction, but that’s not a vote,” Cohen said. “I think we’re good.”

“Once we go into executive session, whether a vote is 7-to-zip, or 5-2 or 4-3, it is a decision we have reached by majority,” said Councilor Tom Blake. “There are many times I have been in the minority on executive decisions, but once we leave that executive decision, we have decided and we have to proceed as best we can.

“If something needs public discussion, that should be decided up front,” Blake said. “But coming out of executive session, we just can’t open that door, because then you have to have pubic debates.”

Although it was clear the tide was against him, Jalbert made a point of again noting that the South Portland City Council has, in the last few years at least, made a habit of taking action in secret.

“I hope everyone realizes the statement was that ‘We decided in executive session,’ he said, quoting Blake. “In my opinion, that’s part of the problem, speaking as one person on this council.”

In a recent email to the city, Michael Stultz, head of the legal services department at the Maine Municipal Association, pointed out that any motion to go into executive session must include both the “the precise nature of the executive session” and the chapter and verse of state law that allows private discussion on that particular item.

Stutlz acknowledged that how to word “the precise nature” of a motion to enter executive session can walk a fine line between public disclosure and protecting sensitive information, especially when personnel matters are involved. However, the practice in South Portland has been to state only the statutory exceptions to the Maine’s Freedom of Access Act that allow an executive session, such as consultation with the city attorney on a pending legal matter, and never the “precise nature” of the issue to be discussed.

That can be important because Maine law states that municipal officers can only talk about the single item from which they have barred the public, and nothing else. Moreover, Stutlz wrote, only the discussion is private, the resulting actions are not.

“An executive session is for the purpose of discussion only,” he wrote. “No decision can be reached by the board, no motion can be made, and no final action can be decided or taken in executive session.”

In a pair of 2012 interviews, two of Maine’s leading experts on Maine’s Freedom of Access Act sided with that view, and against the prevailing practice in South Portland.

“They can go into executive session with their legal counsel to discuss taking legal action, but they can’t vote to take a legal action in a secret session. Eventually, they have to do it in public,” said Mal Leary, president of the Maine Freedom of Information Coalition.

“Those are official actions of the board, and as such are decisions that have to be made in public,” agreed Sigmund Schutz, attorney for the Maine Press Association.

While the council agreed it would continue to “reach consensus” in secret, it did agree that more disclosure might be appropriate before closing the door on certain discussions. Apart from providing the public with more information on what it plans to discuss in private, some councilors said they often don’t know themselves, essentially casting blind votes to enter executive session.

“There have been situations where we’ve gone into executive session and I had no idea what it was we were going to be discussing,” said Councilor Melissa Linscott. “We don’t know until we get in there and start talking abut it.”

“There’s probably some room to be a little more specific on some of them,” said Blake, who also admitted to voting to enter executive session many times over the past seven years without knowing why.

“Our biggest mistake is not what we do coming out, it’s whether or not we should go into executive session,” he said “Still, I’m pretty comfortable with the way we handle the process.”

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