2015-07-24 / Front Page

Board rejects ethics request

The move was part of annual review of bylaws and policies
By Duke Harrington Staff Writer

KENNEBUNK — Amid charges that its members sometimes violate state law by discussing public business outside of open meetings, the Kennebunk Board of Selectmen has rejected a request that it update its ethics policy to prevent the practice.

At its July 14 meeting, the board addressed what, on the surface, appeared to be boilerplate work — electing new leadership and taking action, as it does at this time every year, to approve its working bylaws and ethics policy.

The bylaws were last amended in 2013, while the ethics policy has remained unaltered since it was adopted in 2006. Among other things, that policy states that selectmen shall “make no disparaging remarks, in or out of board meetings, about other members of the board, or their opinions.”

By signing the policy, selectmen also promise to “support graciously a decision once it has been made by a majority of the board,” to “not criticize employees publicly,” and to “refuse to make a promise as to how he/she will vote on a matter.”

However, on the latter requirement, former selectman Albert Searles intimated that if promises are not actually made, lobbying for votes in advance of public meetings, at the very least, is a common practice.

After seven years in office — he was first elected to fill an unexpired term, then won two, three-year terms outright — Searles finished fourth June 9 in a six-way race for three open seats on the board of selectmen. On July 14, he attended his first board meeting since 2008 as a member of the audience, from which he rose to request an addition to the ethics policy.

“I think it would be appropriate to add a line on the end about conducting the public’s business in public and not in phone calls and emails amongst yourselves,” he said. “In my dealings when I was on the board, I always found that to be wrong.”

Selectman Christopher Cluff countered that state law already makes all written communication subject to public information requests, while a gathering of three or more board members, he said, constitutes a public meeting.

Presenting his case as a hypothetical, rather than as a concrete example of something that happened during his tenure, Searles suggested one selectman might contact another to lobby for or against something on an upcoming agenda without triggering the state’s right-to-know laws. That, he said, is a practice that ought to be curbed.

While Searles did not actually say horse trading takes place, he left a distinct impression that members of the board routinely contact each other in advance of meetings to discuss upcoming agenda items.

“The town’s business needs to be discussed in public, right here in this room,” he said. “I just think it’s very unethical to be discussing the public’s business in private.”

However, Ed Karytko, who finished second in the June 9 selectmen’s race after long service as a board gadfly, said, as a new board member, he needs to speak to his fellow board members outside of meetings.

“If I asked all of the questions I would like to ask right here at this meeting, we wouldn’t get out of here until 4 o’clock in the morning, and I seriously mean that,” he said.

Selectman Deborah Beal said soliciting background information on a topic, or quizzing board members for news from the committees which they serve as liaisons, should not create an ethical dilemma.

“There’s a difference between asking for information and having a discussion,” she said.

Meanwhile, Town Manager Barry Tibbetts backed Cluff, saying almost any subject is within bounds, so long as only two selectmen are involved in the conversation.

“Two board members can talk about any topic at any time. It’s the inclusion of the third where state law kicks in,” he said.

However, that is not quite correct. Maine’s Freedom of Access Act (FOAA) — also known as its right-to-know law — does not actually say that a gathering of three elected officials constitutes an official meeting. What it says, in Title 1, Chapter 13, Section 406 of Maine statute, is that for a meeting of a body consisting of three or more persons, public notice must be given in advance of the gathering.

In the sixth edition of the “Open Meeting Guide,” prepared in 2011 by Jonathan Piper and Sigmund Schutz of Portland law firm Preti Flaherty, the authors point out that nothing in Maine law defines a “meeting” as three or more elected officials. Schutz is particularly well-versed in Maine’s open meeting laws, given that he serves as attorney for the Maine Press Association.

“The term ‘meeting’ is not defined in the act,” he and Piper write. “If the body in question has three or more members and is otherwise subject to the Freedom of Access Act open meetings requirements, it generally must meet in public, regardless of the number of members present. There are no exceptions for information gathering, fact-finding, deliberations, workshops, and the like.”

However, the office of the Maine Ombudsman also backs Beal, noting on its “Frequently Asked Questions” page that, “The law does not prohibit communication outside of public proceedings between members of a public body, unless those communications are used to defeat the purposes of the FOAA.

“The underlying purpose of the FOAA is that public proceedings be conducted openly and that deliberations and actions be taken openly,” the FAQ says.

Although speaking primarily of email, the FAQ notes that communication between members of a public body outside of an open meeting should be limited to “non-sustentative matters, such as scheduling meetings, developing agendas, and disseminating information and reports.”

The ombudsman FAQ says “email or other communication among a quorum of the members of a body that is used as a substitute for deliberations or decisions which should properly take place at a public meeting may likely be considered a ‘meeting’ in violation of the statutory requirements for open meetings and public notice.” That would seem to support the “fewer than three” theory supporting outside conversations among pairs of selectmen. However, Piper and Schutz point out “the act does not refer to or require a quorum.”

At the July 14 meeting, newly elected selectman Shiloh Schulte suggested that any communication between board members outside of regularly scheduled meetings take place on an Internet message board, where conversations could be viewed by the public. However, that idea was quickly dismissed.

“I don’t know if state law has caught up with that level of technology yet,” Cluff said.

Like most on the board, Schulte said some level of communication among board members outside of official proceedings is necessary. However, Schulte said he supposed the level of nonpublic deliberation would be “self-policing.”

“The idea is, with this board, there’s enough of us that if any one of use slips up, the rest of us are going to bring it back,” he said.

In the end, the board chose not to act on Searles’ request, preferring instead to assert the right of selectmen to discuss town business in groups of two.

“I don’t want to restrict two members of the board of selectmen on Main Street from talking,” Chairman Kevin Donovan said. “There’s seven of us. Two of us doesn’t amount to anything, quite frankly.”

As to new leadership for the coming year, it will be “new boss, same as the old boss.” Selectmen voted unanimously to re-elect Donovan, Richard Morin and Beal as chairman, vice chairman, and secretary, respectively.

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