City Council to debate closed-door sessions

SOUTH PORTLAND — The South Portland City Council agreed Monday to stage a series of workshop sessions on how they conduct business, particularly behind closed doors, but only after one councilor was shut down for talking out of turn.

Councilor Rosemarie De Angelis has been a vocal critic of how her peers have handled two recent lawsuits – one in which former librarian Karen Callaghan won the right to campaign for a seat on the school board, and another in which resident Al DiMillo seeks to have health insurance polices held by some councilors revoked as a violation of the city charter, which limits “compensation” to a $3,000 stipend.

The council has refused two settlement offers proffered by DiMillo and recently agreed to appeal the court’s decision in the Callaghan case. All three votes took place behind closed doors in executive session.

That, says Mal Leary, president of the Maine Freedom of Information Coalition, puts the council on dangerous ground, in jeopardy of have those actions declared “null and void.”

De Angelis argued that while it was appropriate for the council to debate the lawsuits in executive session, final decisions on how to proceed should have been roll call votes taken in public.

She likened the issue to council hearings on poverty abatements, where personal information is poured over in private, but the vote on whether to forgive all or part of a tax bill is done in the open, albeit with no names mentioned.

“That you are required to do by law,” said the city’s contracted attorney, Sally Daggett, of Portland firm Jenson Baird Gardner Henry, who was on hand for a council workshop session Monday.

“But you are not obligated to discuss legal strategy,” said Daggett.

“I agree with the discussion on strategy being privileged,” countered De Angelis. “But this was a decision, it was a vote that should have taken place in public, so that everyone knows where each councilor stands.”

De Angelis went on, repeatedly referencing the Callaghan and DiMillo suits, noting that decisions to appeal or not settle were “certainly not consensus decisions.”

Finally, after nearly five minutes, Councilor Maxine Beecher, who had squirmed forward in her seat throughout, spoke out.

“I think we really need to not be having this discussion,” she said, intimating that De Angelis was coming too close to telling tales out of school by stumping for her right to say she had been in a minority that opposed the actions approved by the council.

Mayor Patti Smith agreed, shutting down De Angelis and asking the remaining councilor to honor Beecher’s request for discretion.

But Leary says De Angelis is the one with the law on her side.

“That councilor is absolutely right,” he said Tuesday. “In court, any decision taken by the council in executive session is null and void under state law. The whole purpose of the executive session is to give the council the flexibility to discuss legal issues, but any decision has to be made in public.

“This is well established in Maine law,” said Leary. “I am really kind of baffled at what the city attorney must be thinking. I would advise the council to consult with the Maine Municipal Association.”

In previous interviews, City Manager Jim Gailey has said the council decisions to appeal one case and refuse settlement in the other were “not really votes,” but consensus decisions.

Leary backs De Angelis, who says any agreement on how to proceed necessarily involves a vote of some kind.

“They have to vote at some point,” he said. “It’s just ludicrous to say we reached a consensus. How do you know you reached it? At some point you have to count heads.”  

More recently, Gailey has refused to say what decision was reached regarding DiMillo’s second settlement offer, discussion in a June 11 executive session that lasted 45 minutes.

“I don't talk about executive sessions,” he said, via email the following day.

According to DiMillo, he initially agreed to drop his suit if the council would agree to hold a public workshop session on the issue of councilor compensation. After that was turned down, sending the suit into “alternative dispute resolution,” DiMillo said he made a stronger request of demanding a public vote on the issue.

“I don’t really expect them to agree to that,” he said. “They don’t want any public admission that they are in violation of the city charter, so they just want to ignore this in hopes that it will eventually go away, or that I’ll give up fighting it.”

At its most recent meeting, the council agreed in public to launch a Rule 80-K lawsuit against a couple who had refused to move a shed that encroached on property lines. Daggett said she did not feel comfortable moving on that case without public affirmation from the council. Although Councilor Gerard Jalbert argued that the council was “micromanaging” by weighing in on a matter normally handled at the code enforcement level, Tom Blake argued the council had a “fiduciary responsibility” to vote, because it would cost taxpayer money to wage a court battle.

According to Gailey, the city has spent $2,513 through June 12 defending DiMillo’s suit. The most recent number provided by Gailey on the Callaghan case, given in early May before the decision to appeal, put the cost of that suit at more than $17,000, before her attorney submits his bill.

Noting that it could “spend hours on each topic,” the council agreed to future, as yet unscheduled debate on five issues raised by councilors in recent weeks for discussion.

One session will debate, “taking votes in public after items have been discussed in executive session,” and “public disclosure of executive session privileged information.”

A second will cover “use of social media and electronic communications” and “city councilor interaction with city boards and committees.”

These two appear to spin out of recent controversy regarding debate conducted via email about the city’s downtown farmers market, which ended with several councilors appearing before the Planning Board to discuss a street closure aimed at giving the market a new home.

A third workshop could see the council debate the need for a code of ethics.

How far future questions get could depend on other action taken by the council on its standing rules. One suggestion raised Monday was the concept of requiring assent from two councilors before any item is placed on a workshop agenda.

Some councilors, including Jalbert, talked that idea down from Gailey’s original proposal of three nods, saying discussion of three councilors outside of a public meeting could be a violation of Maine’s Freedom of Access laws. However, De Angelis said even the one-on-one discussions needed to obtain a second for an agenda request could devolve into too much private talk on public business.

But De Angelis did not get a chance to really argue the point as, following Beechers’ request, the remaining councilors agreed to forestall debate for later workshops.

Leary said De Angelis had a right to air her grievances on how the council handles its business, up to and including revealing how she weighed in on any decision.

“Privileged information is one thing, but by not letting her say how she felt about a decision, or not letting her say how she voted, the other councilors are really denying her freedom of speech,” he said. “It really goes again the fundamental nature of democracy.”