2015-12-04 / Front Page

Adherence with open meeting laws at issue

By Duke Harrington
Staff Writer

SOUTH PORTLAND — A 2.5-hour training session on the Maine Freedom of Access Act for local officials, held Monday, revealed city councilors may be breaking the law in three areas.

Although not referred to explicitly, an apparent undercurrent question at the session concerned recent complaints leveled against City Councilor Brad Fox. Since his 2014 election, Fox has freely used a private email account to communicate with constituents and the press, as well as with other city councilors.

Those emails picked up in pace following the application of NGL Supply Terminal Co. to build a liquid propane storage and distribution facility at Rigby Yard. Fox repeatedly passed on communications on the topic among city officials, all public records anyone could have accessed, had they known the items existed. However, Fox also shared links to information about liquid propane and NGL. While the emails rarely solicited his fellow councilors for action – at least the ones copied to the press – many emails, such as one with an overhead photo indicating the distance from the proposed propane complex to nearby homes made clear Fox’s feelings on the issue.

The practice came to a head at an Oct. 14 council workshop, in the form of accusations leveled by Councilor Claude Morgan.

“I can tell you that this council has been conducting public meetings without announcing them, electronically, and that’s an abuse of public trust,” Morgan said at the time, adding “we are ripe for a lawsuit.”

On Monday, Morgan sought input from City Attorney Sally Daggett and Maine’s ombudsman for public information, Brneda Kielty.

Fox’s explanation in October was he was not communicating solely with his fellow councilors.

However, Daggett said Fox’s violation was implicit in state law, as well as an explicit one, according to city policy, which requires all councilor communication to be sent via a city-provided email address.

“Copying the press on an email doesn’t make it any more public,” Daggett said.

The biggest problem with Fox using a private email, Daggett said, is that it potentially impedes the public’s right to access those communications with a right-to-know request.

“I don’t have a good feeling when councilors have public information on private servers and we have to sort of just take their word for it (that all relevant emails were handed over),” she said.

The answer was less clear, however, on how the city can guarantee all emails sent from a private account have been shared, following a FOAA filing.

“Does the city just say, we’ve tried waterboarding, we’ve tried everything, we just can’t get the password out of this councilor?” Morgan asked.

“There’s nothing specific in the FOAA statute that says the municipality is obligated to go after all private accounts, but the municipality has an obligation to retain these records and make them available to the public,” Daggett said.

Councilor-elect Eben Rose questioned the assertion by Daggett and Kielty that any communication discussing public business is public record. Kielty added that any email sent from a cityowned account that does not discuss public business is not subject to FOAA.

“You can drive a huge bus though this term, ‘government business,’” Rose said.

On other topics, Daggett warned public officials from the use of social media.

“FOAA really hasn’t caught up with technology,” she said. “The test is, does the communication relate to the transaction of public business. If you are talking about public business on your Facebook page, then yes, your Facebook page has become a public record.”

This past summer, Linda Cohen “unfriended” a host of reporters after The Sentry quoted a post from her Facebook page in which she announced her intent to run for re-election. She has blocked her timeline from view by anyone she has not friended.

At about the same time, Rose also unfriended The Sentry reporter.

Daggett and Kielty said the rules that apply to elected officials do not cover candidates. However, once Rose is sworn in, postings on a Facebook page that discuss public business must not be deleted.

One final area that may trip up the council is the practice of caucusing behind closed doors when selecting the mayor.

Kielty said the Maine attorney general supports the private caucusing of political parties at the state Legislature, but that does not apply at the local level.

“I don’t think you can apply it from the legislature to the municipalities, because the legislature is such a creature of its own,” she said.

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