South Portland City Council maintains right to secret vote

SOUTH PORTLAND — A pair of experts on Maine’s Freedom of Access Act say the South Portland City Council got “bogus” advice from their attorney last week regarding secret votes.

In a Sept. 24 workshop on the council’s standing rules, the city’s contracted attorney, Sally Daggett, of Portland firm Jenson Baird Gardner Henry, said the council “is not legally required” to vote in public when deciding whether or not to accept settlement offers on pending lawsuits, or to appeal a Superior Court ruling. Councilors can debate those decisions behind closed doors, she said, and direction given to her on how to proceed with ongoing lawsuits can be similarly secret.

But Mal Leary, president of the Maine Freedom of Information Coalition, and Sigmund Schutz, attorney for the Maine Press Association, both say Daggett got it wrong.

“Those are official actions of the board, and as such are decisions that have to be made in public,” said Schutz.

“It sounds like she is trying to slide the exemption for discussing legal advice into the voting requirement,” said Leary. “They can go into executive session with their legal council 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.”

That was the argument made by Councilor Rosemarie De Angelis in June. She became at that time a vocal critic of how her peers handled two 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 tried to get council health insurance polices revoked as a violation of the city charter.

The council refused two settlement offers from DiMillo and agreed to appeal the court’s decision in the Callaghan case. All three votes took place behind closed doors in executive session. De Angelis then spoke about the decisions in subsequent news interviews.

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

By contrast, councilors questioned at the Sept. 24 workshop whether one of their number – De Angelis was not named specifically – should be censured for revealing to the press that the votes had taken place and that, “they were not unanimous.”

Meanwhile, some councilors continued to maintain that decisions on whether to appeal, or accept settlements, were not actual votes.

“No one is taking a vote,” said Councilor Gerard Jalbert. “No one is making motions or raising hands or anything like that.

“If we’re having a consult with legal council, and legal council has questions about what direction to take, and it becomes clear [from the conversation], can someone say that somehow is taking a vote?” Jalbert asked Daggett.

“If that was to be in front of a Superior Court judge, the judge would absolutely support saying the courts have recognized that municipalities, in certain instances, do not need to be transparent about everything,” said Daggett.

“So,” asked Jalbert, seeking further clarification, “if we have a discussion with legal council about a pending lawsuit and we don’t take a vote, but something is becoming clearer, does that mean in any shape, way, or form that we have to come back into public session and in some way say that we are voting to press an item, or appeal an item?”

“It is permissible to take a vote but the city council is not legally required to,” said Daggett.

The reason, she explained, is that Maine’s public disclosure law does not compel officials to divulge information helpful to the opposing side in a legal case or negotiation.

“If there was a split vote, that necessary undercuts one side of the issue, one way or the other, showing to the other side in any litigation that the council maybe does not all agree on it,” she said.

While the South Portland City Council accepted that advice, Leary and Schutz each discount it.

“That is the most tortured, bogus misinterpretation of the law,” said Leary. “There’s a big difference between saying the vote was 4-3 and knowing what the arguments were and how strong the arguments were among the seven councilors.”

“The legal standard is that any official action needs to be voted on in public,” said Schutz. “The standard does not say if the decision is unanimous it can be public but if there’s a split decision keep it private.”

Both men, like De Angelis, say instructions cannot be given to the city attorney “by consensus.” If the attorney comes out of an executive session with a set of marching orders, then, by inference, a vote must have been taken.

“This is just a game of semantics,” said De Angelis. “The only way people’s positions become clearer, as Mr. Jalbert says, is by counting heads. That’s how we find out who is OK with an action, and if everybody is OK with what we’ll do next. At least four of us have to line up one way or the other. To me, that’s a vote.”

Leary also points out that a decision to settle a lawsuit or press an appeal necessarily involves spending taxpayer money, if only on the time of the city attorney.

“You cannot spend taxpayer money without a pubic vote,” he said.

“The public is entitled to know who voted how on it,” said Schutz. “It the vote reached resulted in some future liability to the city, the voters should be able to hold their representatives accountable.”

That was De Angelis’ primary argument.

“We’re a public entity,” she said. “We’re spending public dollars. We have an obligation to report that.”

Still, the majority of the council continued to take exception with De Angelis’ assertion that the public should know how council votes break down on sensitive legal matters.

“It’s so important for everybody to know that the executive session is not to be taken lightly,” said Beecher. “It’s for everybody to feel safe. When someone comes out and gives away their position that fractures the council.”

“I don’t want to discuss with a reporter our strategy,” said De Angelis. “I only want to be able to say, here’s where I am on the issue, yay or nay. That’s all.”

“We want to keep thinks confidential,” said Mayor Patti Smith, summarizing the workshop discussion. “It’s a what’s in Vegas stays in Vegas kind of thing.”

However, Smith noted that while the council will continue to give direction to the city attorney behind closed doors, the possibility exists that it might choose to make that decision known “if we all think it’s a good idea to come out with something pubic, if we think it's in the best interest of the city.”

Maine’s new ombudsman, Brenda Kielty, hired three weeks ago to field questions for the Attorney General’s Office about the state’s Freedom of Access Act, declined to answer questions Monday. Kielty said she would not say over the phone what types of decisions, if any, a municipal body can reach in executive session. Instead, she asked that The Current submit the question in writing, although she said she would be unable to reply by the paper’s Tuesday morning deadline.

After the workshop, Smith defended taking advice from Daggett only, and not soliciting input from Kielty or anyone in the Maine Freedom of Information Coalition, or from the Maine Municipal Association.

“If it made sense to have other people here, the council did not make that request,” said Smith. “It’s not like I got an email from Councilor De Angelis saying I want to have this person and this person and this person present, and I ignored her.”

“Sally [Daggett] is the corporation council and she is the one we take our direction from,” said City Manager Jim Gailey.

Having dealt with the question of “taking votes in public after items have been discussed in executive session,” and “public disclosure of executive session privileged information,” the South Portland City Council has two more similar sessions on its workshop docket, although yet to be scheduled.

One 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 controversy this past spring and summer 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.