2016-01-08 / Front Page

City sends fire code update for staff review

Councilors try to prevent release of workshop video
By Wm. Duke Harrington
Staff Writer

SOUTH PORTLAND — The South Portland City Council has sent a fire code amendment submitted by residents to planning department staffers for further review. Meanwhile two councilors tried to block release of video from the workshop meeting at which that decision was made.

In an Dec. 29 morning email to City Manager Jim Gailey, Councilor Brad Fox said statements made by Councilor Maxine Beecher about Franklin Terrace resident George Corey — reputed to be main author of the amendment proposal — were “false and malicious.”

Fox also said Councilor Claude Morgan’s critique of the proposal was designed “to make Mr. Corey appear foolish and inept.”

Afterward, Fox sent an email to Mayor Tom Blake, asking him to step in and stop the “ongoing personal attacks” by Beecher and Morgan. The targets, Fox said, include himself and Councilor Eben Rose, as well as Corey.

“Morgan's ongoing pattern of character assassination at our meetings . . . reveal more about his character than they do about any of his victims, but they are still highly inappropriate. He needs to be stopped,” Fox wrote, adding, “Is their no longer any common decency on the council?”

On Dec. 31, Blake sent an email to all councilors in which he said, “We have a responsibility to be civil, to respect all, and to work together.” (See full message in sidebar)

While Fox has been criticized by Morgan for “amateur” attempts to thwart development of a propane storage and distribution complex within the Rigby Yard rail terminal — through the fire code amendment, a proposed development moratorium (due for review before the planning board Jan. 12), and for peppering his peers with emails on the topic — Fox countered in emails to Gailey and Blake that it is Morgan who is dragging down the council’s credibility.

“I believe it is these councilors' lack of concern for the health and safety of our residents by making these kinds of false, distracting charges, that has the negative effect on our community,” Fox said.

Rose concurred, supporting Fox’s call to withhold or edit the meeting video by writing to Gailey that Maine’s Freedom of Access Act, “expressly exempts disclosure of communications between constituents and elected officials that involve the ‘personal history, general character or conduct of a constituent.’”

In a subsequent email to a constituent Rose added that Corey “deserves, as any constituent, a right of due process as protection against personal character assassination as a permanent part of a public record.”

In response to the redaction requests, Gailey wrote back: “I will not be the one making this determination and will rely on the public access channel's personnel and/or the attorney to review and determine the request.”

That led to an exchange of emails between Rose and Gailey in which the councilor complained about being denied direct access to the city attorney. While the city charter says the attorney’s job is to “furnish the council or department heads of the city with opinions on legal subjects which may be requested by them,” a longstanding council policy maintains such questions are to be posed thoughtthe manager or mayor.

It was at that point that Morgan and Councilor Linda Cohen asked not to be copied on any further communications on the topic.

“If there are topics to be discussed, please request them at our next workshop topic list review,” Cohen said, suggesting Rose and Fox, by sending repeated emails to Gaily and Blake, while copying them to the other councilors, had, by default, convened an illegal meeting of the council.

Video of the meeting was posted on the city website within hour of the exchange, at about the time of day such videos are generally archived.

On Jan. 4, Beecher acknowledged in an interview that she had erred when saying Corey had been disbarred in Massachusetts.

“I was wrong to have said anything,” she said. “Unfortunately, I was more wrong because I used the wrong word.”

In fact, Corey’s license to practice law is under administrative suspension in the Bay State, which does not necessarily imply any wrongdoing. Still, Beecher said she will not heed Fox’s call for her to issue a public apology, in part because Fox drew the criticism by repeatedly referring to Corey as an attorney.

“The point is, really, except for the fact (Fox) was claiming (Corey) was an attorney and a scientist and the author of the great Chapter 8 document, I probably would not have even mentioned it,” Beecher said, referring to the section of city code that houses the fire safety rules

And although she admitted she misspoke in her claim about Corey, Beecher was adamant that the city not redact her comment from video of the meeting, as Rose suggested should be done, if the video was to remain online for public access.

“Where’s the big transparency thing?” she asked, rhetorically. “The bottom line is, it was said at a public meeting and there were plenty of ears there to hear. Who determines what ears can hear and which cannot? Certainly not me.”

Morgan also dismissed the call to withhold or edit the meeting video, as well as Fox’s assessment of his conduct during the session.

“I have never in my 10 years of public service ever heard of anyone trying to withhold a public document like that,” he said. “It sounds like they want to redact not only what Maxine said about Mr. Corey, but they also want to redact my criticisms of his document.

“While I will say it does not bring me comfort to know we are being presented with a legal instrument authored by someone who does not appear to have earned a dime from the legal practice in 15 or 20 years, I think the public needs to know that city councilors are going after ideas, not people,” Morgan said. “Our job is to test the integrity of those things we want to implement into public policy. Some ideas do not make it to the top, but that does not necessarily mean the author of those ideas is bad.”

A connection to the author aside, Morgan made no bones about the idea, as presented in the fire code amendment written by Corey and presented by Fox.

“That document is a mess,” he said. “That may hurt somebody’s feelings, and that person may be George Corey because he was stood up and told us he is the author — that that he wrote it on behalf of Brad Fox — but that’s my job as a city councilor.”

Corey did not respond to a request for comment, saying only in an email, “Thank you for your note. I will think about it.”

What’s at stake

The fire code amendments were offered in response to an application by NGL Supply Terminal Co. to build a propane storage and distribution complex at the Rigby Yard rail terminal. NGL currently has a similar, if slightly smaller facility across the Fore River in Portland, near the Casco Bay Bridge, but is being forced out by expansion on the International Marine Terminal.

But Fox and Rose have opposed the development — Rose on the grounds that the application conflicts with current city zoning rules, even before any fire code update, Fox for fear of a devastating industrial accident. Echoing that concern at the Dec. 28 workshop were several Thornton Heights residents, including Devin Deane of Thirlmere Avenue, an attorney who was afforded the opportunity to lobby the council in favor of Corey’s amendment.

If adopted, the new rule would establish a safe zone of 1,257 feet between any large propane tank and “critical infrastructure of the city,” such as the Cash Corner Fire Station. That could effectively bar NGL from setting up on the 10 acres it plans to lease from Pan Am railways.

“If my family or anyone else’s has to live next to a large propane storage facility that was not there when we moved in, the city, at a minimum, ought to make sure emergency response facilities and other critical infrastructure not be so close that they are destroyed or rendered useless in the event of an explosion,” Deane said.

“This is meant to protect residents from the worst case scenario of a propane tank fire or explosion,” he added.

“I’ve been extremely concerned since learning of this for my safety and the safety of my community,” agreed Skillings Street resident Katie Johnson.

“The people who live in the community should be the decision makers and their voice should be heard,” she said. “If you talk with those in the community, I can assure you, we don’t want this here. I don’t want to live where there is a chance something might blow up.”

Others in the audience said the update was less about safety than throwing a block on NGL.

“Everybody in this room knows this legislation was drafted by the same people behind the moratorium,” said Ross Little, a member of the city’s economic development committee. “It’s back-door legislation that purports to be one thing when it’s really trying to get at something else. It’s deceptive.”

Summit Street resident Jeff Selser was even more direct.

“I respect each and every one of you,” he told the council, “but if you pass this ordinance it will be, in my opinion, bordering on incompetence. This is not an ordinance; this is a manifesto against the petroleum and propane industries. This is an advocacy piece.”

Although the fire code amendment is only a little more that three pages, it was presented with 15 pages of establishing language — the so-called “whereas” statements — designed to define the need for the change.

Selser called that section of the proposal “filled with extraordinary inaccuracies.”

Morgan agreed, picking it apart during the meeting for errors that included citing the wrong authors, as well as sources he deemed dubious at best, such as a school paper written for a master’s thesis.

“Accepting a basketful of inaccuracies and saying we wouldn’t want to hurt anybody’s feelings, so let’s go ahead and pass this, would be absolutely contradictory to what I am elected to do,” he said, after the meeting, adding, “The public arena is not for the feeble, it can be a little rough.”

Ultimately, Fox could not muster the four votes needed to move the proposal from the workshop session to a first reading at a regular business meeting. However, with many councilors sympathetic to the safety concerns of the Rigby Yard neighbors, there also was not enough of a consensus to kill the measure outright.

Instead, the council requested staff review of the proposal, asking Gaily to return with a game-plan for creating a stakeholders group that might include residents and industry experts — if not anyone from NGL itself — to weigh in.

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