Portland city councilors gathered to tour two neighborhoods this spring and meet with residents concerned about the location of a new homeless shelter without any public notice, in violation of state laws governing open meetings.
At least one councilor is now calling for public discussion about Maine’s open meetings law.
Both site walks were organized by neighborhood groups concerned about the location of a new shelter. Councilors did not notify the public about the fact-finding missions, effectively preventing others from attending and listening to arguments intended to sway the council’s vote.
Each site walk occurred in the days before public hearings and possible votes on the controversial shelter issue. Each was attended by five councilors, which is a quorum required for the council to conduct business.
Maine’s Freedom of Access Act requires all public proceedings attended by three or more councilors to be advertised to the public by the city through its usual channels, such as a municipal calendar posted on the city website. That did not happen.
“That was clearly a violation of FOAA,” said Benjamin Piper, an attorney with Preti Flaherty, which represents the Press Herald.
Portland has struggled with the issue in the past and was sued over secrecy in the 1990s. A judge affirmed that FOAA should be liberally construed – meaning that if there is any question about whether a proceeding is public, then it should be treated as such.
It’s a common problem in local governments across the country, whether it’s taking a site walk without notifying the public or gathering at a bar after a council meeting, said Daniel Bevarly, executive director of the National Freedom of Information Coalition.
“It’s not an isolated incident” to Portland, Bevarly said. “Decisions that are made under those circumstances continue to have an air of suspicion because it was not done in public.”
Portland is not the only Maine community to struggle with this issue. In April, a Waterville resident requested an investigation into a possible illegal meeting of the City Council there, after four councilors and Mayor Nick Isgro were found eating pizza together at a local restaurant following a meeting.
Waterville Town Manager Mike Roy said it’s the council’s decision about whether to investigate themselves, and it declined to do so. However, the town attorney advised councilors to get trained about public meetings law and avoid actions that appear to violate it.
“Please do not trivialize what occurred,” Attorney Bill Lee wrote, noting that the town was sued several years ago after councilors were caught at a local pub after meetings. “The city spent a lot of money in defense in that suit and received a lot of negative publicity. We do not need that again.”
The most recent examples in Portland happened in the days leading up to council hearings about where to put a new homeless shelter.
The day before the first scheduled hearing and possible vote on May 20, residents in the Riverton neighborhood hosted councilors for a site walk. Councilors Nicholas Mavodones, Jill Duson, Pious Ali, Brian Batson and Kimberly Cook walked the site at 654 Riverside St. with about 35 residents, who expressed concerns about opening a shelter there, according to those who participated. (The council ultimately postponed the May 20 hearing and vote until June 3.)
On May 30, Bayside residents gave councilors a tour of their neighborhood, which has hosted the current homeless shelter for decades. That site walk was attended by Councilors Mavodones, Duson, Ali, Spencer Thibodeau and Belinda Ray.
Riverton resident Stephanie Neuts said she had been warned by a former councilor and another neighborhood group that the participation of three or more councilors would constitute a public meeting. But she said Thibodeau said the group need not worry about it because it was only a site walk and fact-finding mission.
“I don’t remember that exact conversation,” Thibodeau said Friday. “I think I said, ‘You can invite anyone you want.'”
Riverton resident Ashley Souther said she had no idea that councilors had toured Bayside until she was told afterward by a reporter. Souther said she and other Riverton residents would have liked to have gone on the Bayside site walk to hear what councilors were being told.
“The process has been horrible,” Souther said. “I didn’t realize they had gone there. We know they have been pushing to get it out of Bayside for a long time. I think we would have made some valid counterarguments to that.”
Danielle West-Chuhta, the city’s top attorney, declined a reporter’s request to discuss her legal advice to the council and did not respond to questions sent via email about whether she thought the site walks violated state law.
In response to a FOAA request, West-Chuhta said she would likely withhold any advice or legal interpretations she has given the council about public proceedings, citing attorney-client privilege.
When questioned about the site walks, Mavodones, who has been on the council for more than two decades, said he’s not sure that the site walks needed to be publicly noticed. The councilors did not discuss their positions, he said, and the walks were organized by an outside group rather than by the city.
“I have had plenty of FOAA training,” Mavodones said. “It didn’t dawn on me that would be something that needed to be noticed. It wasn’t our meeting, and we weren’t really debating or deciding anything. It didn’t cross my mind on either of those.”
Ray also said she didn’t believe councilors violated the law because it wasn’t an official council meeting and they did not discuss city business.
“It was not a public proceeding,” Ray said. “There was no transaction of any function affecting citizens. … And we didn’t discuss anything.”
Ray also contended that the state law does not mention a number of elected officials – but it clearly does.
It says: “Public notice shall be given for all public proceedings as defined in section 402, if these proceedings are a meeting of body or agency consisting of 3 or more persons.” The city’s Planning Board routinely provides public notice for site walks attended by its members.
Ali, who attended both walks, did not respond to a request to be interviewed.
Brenda Kielty, the state’s FOAA ombudsman, declined to be interviewed, saying her focus is dispute resolution.
Eric Conrad, spokesman for the Maine Municipal Association, an advocacy group for towns and cities, declined to comment on Portland’s situation, but said the organization trains public officials to err on the side of public notification.
“Generally speaking, we say if there’s a majority of you together and you are engaged in the process of talking about municipal business, that could be considered a public meeting,” he said.
Portland’s councilors have been faced with the questions before.
In 2017, seven of the nine councilors boarded the city’s fire boat for an information-gathering trip to Fort Gorges and posted pictures on social media. That meeting had not been advertised.
The meeting led to critical media coverage, but some city leaders publicly dismissed it.
Months later, Mayor Ethan Strimling made light of the issue by tweeting a photo of himself and four councilors at the annual Portland Pride parade. He tagged a news reporter and added the question: “Public Meeting?” No one had suggested it would be a violation for councilors to march in the same parade.
Piper, the attorney, said the recent site walks are more troubling than the boat ride, which he personally criticized in a newspaper column.
“In my opinion, these (recent) site walks are an even more obvious violation,” Piper said. “The site walks were clearly intended to inform an imminent decision by the City Council. What were the councilors doing on the walks if not engaging in the deliberation process for that decision?”
After the Press Herald began asking about the site walks this week, a secretary in the city manager’s office sent an email to all councilors about Maine’s FOAA law. It was followed by an email from West-Chuhta, several councilors said.
Duson said neither email cited a reason, so she asked the council to convene a meeting to discuss the issue and establish a procedure to avoid future violations. Strimling said he will discuss Duson’s request with the city attorney. He also said he thinks the council needs clarification about what constitutes a public proceeding.
In hindsight, Duson said the site walks should have been publicized.
“I want to comply with the spirit of the law,” she said. “I don’t want to quibble about the details about the law.”
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