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Saturday, May 31, 2014

In Lisbon The Question Is Not What Goes On, But What Goes On Behind Closed Doors


For years now, I have been arguing with the previous and present councils that these councilors have been misusing the Executive Session laws.  In the past, I stated the Maine Statue as justification for my beliefs.  However, like all legal mumbo jumbo there is always room for many different interpretations.  Our current Chairwoman was no different.  However, there is now a document coming right from the Maine Municipal Association (MMA) legal services that is in English and clarifies the use of an Executive Session (See Attached).

email from the MMA legal services

VI. Executive Sessions

Another category of legally non-public municipal activity involves matters of discussion during a
public proceeding, which by its nature could cause any party (other than the members of the
municipal board holding the proceeding) injury if publicly disclosed. In order to avoid such an
injury, board members are allowed to go into an executive session to deliberate on those matters
and no others (see 1 MRSA § 405). Strict rules apply to the calling and conduct of executive
sessions by municipal boards (see 1 M.R.S.A. § 405(1)-(5)). Board members should especially note
the following:

Executive sessions may be held only for the limited purpose of the permitted deliberation, and no final action may be taken in executive session.
>  The law requires that a board must first be conducting a properly noticed public meeting
before it goes into executive session.
>  In addition, before a board enters executive session, there must be a public motion to enter
executive session and the motion must be approved by a public recorded vote of at least
3/5ths of the board members present and voting.
The motion to enter executive session must state “the precise nature of the executive session” and must also “include a citation of one or more sources of statutory or other authority that permits an executive session for that business.” (Note that the parties must be named before going into executive session to discuss labor contracts or proposals.) See “Executive Session Motions – A Quick Guide” above for sample motions.
 If the board members wish to approve an action after they have discussed a matter in
executive session, the board must exit the executive session, return to the public meeting, and take any vote or other formal action in the public portion of its meeting.
>  Finally, the purpose of the Right to Know law cannot be defeated through the misuse of
executive session. Action taken or resulting from an executive session in violation of the Right
to Know law is illegal, and upon complaint would be found by a court to be void and

The “Right to Know” Law itself only permits closed-door deliberation on specific subjects listed in the statute (see 1 M.R.S.A. § 405(6)). (Additionally 36 M.R.S.A. § 841(2) requires that hearings and proceedings related to poverty abatements be held in executive session.) Moreover, the board that meets in executive session bears the burden of establishing the legitimacy of the executive
session if its legality is challenged in court (see Underwood v. City of Presque Isle, 1998 ME 166,
715 A.2d 148). Executive sessions are permitted for the following topics:

1. Personnel matters concerning an individual employee or group of employees, or public officials
and appointees -- but only when public discussion could damage a person’s reputation or, when a
person’s right to privacy would be violated.
NOTE: The individual who is the subject of the executive session may request an open meeting, in
which case the meeting must be open.
2. Real estate and economic development negotiations, but only when premature disclosure
would hurt the town’s competitive or bargaining position.
3. Discussion of labor contracts and proposals between the town and the labor negotiators, but
negotiations may be held openly provided both parties agree.
4. Meetings between the town and its attorney, but only when premature disclosure of the topic
would place the town at a substantial disadvantage. Similarly, the municipal officers (selectmen or
councilors) may consult with the code enforcement officer representing that municipality in a Rule
80 K land use enforcement matter in executive session where the consultation related to that
enforcement matter.
NOTE: In order to enter into an executive session for this purpose, the municipal attorney must be
present - at least to the degree of a telephone hook-up or conference call.
5. Discussion of information contained in records made confidential by statute.
6. Discussion or consideration by the school board of the suspense or expulsion of a public school
student, or a private school student whose costs of education are paid from public funds.
NOTE: The student, and parents/guardians if a minor, and legal counsel are permitted to be
present at the executive session.
7. Discussion, consultation, review or approval of the content of examinations that were
administered by a body or agency for licensing, permitting or employment purposes.
As will be described below in the section on Public Records, minutes taken or any form of written
or electronically recorded record or note is generally not confidential by law and would be subject
to public inspection. It is therefore recommended that no physical record of executive sessions be

From the MMA Municipal Officers Manual, Chapter 6:

The FOAA has some important procedural rules to follow before going into executive

First, executive session can only be entered after a motion has been made in public session
to go into executive session. The nature of the business to be discussed must be a part of that
motion, although the wording of the motion should not reveal the sensitive information that
the law intends to protect by the executive session process. The motion must “include a
citation of one or more sources of statutory or other authority” to justify the executive
session (1 M.R.S.A § 405(4)). See “Executive Session Motions Now Required to Cite Law,”
“Legal Notes.” Maine Townsman, December 2004; “Executive Sessions (Again),” “Legal
Notes.” Maine Townsman, January 2005; and “Executive Session Motion Citations–A
Quick Guide.” The motion must carry by at least 3/5 of the members present. A written
record must be made of the motion and vote, even if the board does not usually keep

Second, no other matters except the specific subject cited in the motion to enter executive
session may be discussed.

Third, an executive session is for the purpose of discussion only. No decision can be reached
by the board, no motion can be made, and no final action can be decided or taken in
executive session. See “Board Vote by Secret Ballot Violates FOAA,” “Legal Notes.”
Maine Townsman, February 2007.

Finally, the purpose of the FOAA cannot be defeated through the misuse of executive
session. Action taken or resulting from an executive session in violation of the FOAA is
illegal, and upon complaint would be found by a court to be void and unenforceable. For an
FOAA claim filed on or after January 1, 2010 alleging that action was taken in executive
session, the court may award reasonable attorney’s fees and costs to a “substantially
prevailing plaintiff” where the court determines that the illegal action was committed in bad
faith (1 M.R.S.A. § 409(2)). Willful violations of the FOAA may result in a fine of $500
(1 M.R.S.A. § 410).

I trust these materials are helpful. Please contact me if you have additional questions.

Kind regards,

Michael L. Stultz
Legal Services Department
Maine Municipal Association
60 Community Drive, Augusta, ME 04330
1-800-452-8786 (in state)
FAX 207-624-0187
**I have not changed the contents of the document but I did highlight several passages to make a point.  I have a copy of the original if anyone wants to see it.**

Previous Councils have had a history of holding illegal Executive Sessions; however, this fact was not divulged to the people until years later.  A few examples are:

a.   A previous council sold the old high school for $1.00 to the Brunswick Housing Authority and then transferred over a million dollars of Federal grant money to renovate the building.
b.  When the Miller Family offer the town to demolish the Worumbo Mill and Gina Mason persuaded the council not to accept this offer.
c. Chairman LaRochelle and Mr. Eldridge meeting on the town purchasing the Worumbo Mill.

I am positive there are many many more cases of illegal Executive Session that have taken place without the people’s knowledge.  Because these meetings are behind closed doors, it is impossible to tell if any other business was discussed or if any final action was taken.

Past and present councils have never been in compliance with telling the people “the precise nature of the executive session”.  A personnel matter is not a “precise” description of the nature of the executive session.  Another violation is when the council goes into Executive Session on a personnel matter that does not damage a person’s reputation or a person’s right to privacy.

Real estate and economic development negotiations, but only when premature disclosure would hurt the town’s competitive or bargaining position.    Another violation is when the council meets in Executive Session to negotiate a labor contract.  The council does not negotiate anything.  There are individuals like the Town Attorney or the Town Manager who do all the negotiations and report back to the council.  So if the council does not negotiate anything, all Executive Session under this false claim is illegal. 

Under Maine’s “Right to Know”, the people have a right to be told what is going on in this town.  Finally, the purpose of the Freedom of Access ACT (FOAA) cannot be defeated through the misuse of executive sessions.  Action taken or resulting from an executive session in violation of the FOAA is illegal, and upon complaint would be found by a court to be void and unenforceable.  Willful violation of the FOAA may result in a fine of $500.00.  Let’s hope our current council gets its act together before this becomes a reality.

Wouldn’t it be nice if these back door sessions were used only for the purpose they were designed instead of covering up shady dealings?

Larry Fillmore


Mary-Ann Morgan said...

Great research Larry. After reading this article, it became very clear that this Town needs a new lawyer. All of these executive sessions etc. have been under the guise of legality, with Therriault at the legal helm. Now that we have a new Town Manager, let's get a fresh start with a new lawyer, ASAP.

Anonymous said...

New Chief of Police and new Town Attorney.

Council should start anew so our community can move forward.

Anonymous said...

Add to that a new
Town Engineer/Public Works/Transfer Station/Sewer Department/Treatment Plant Director.
That would about finish the house cleaning.
Start with a clean slate.

Larry Fillmore said...

Just a note - The Town Attorney receives $190.00 per HOUR. His son receives $175.00 per HOUR. The City Attorney for South Portland receives between $160.00-175.00 per HOUR depending on the work. The City Attorney of South Portland is a member of the Jensen Baird Gardiner & Henry law firm. How bad, do you feel, is Lisbon getting ripped off?