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Dwight E. Hines, Ph.D.
IndyMedia
Livermore, Maine 04253
May 2, 2014
Ms. Brenda Kielty, Esq., Ombudsman,
Office of Maine Attorney General
Augusta, Maine 04333
Dear Ms. Kielty:
My response to your
response to my sworn affidavit has taken me longer than I planned
because I am a high-level procrastinator and my condition worsened with
retirement. I wrote it as a separate letter. Also, Mr. Schaub resigned,
effective over two weeks ago, to become Town Manager in Turner. I hope
Mr. Schaub does well at Turner. I have tons of family there.
My complaints are not
so much against the actions of Mr. Schaub, but his inactions. Because
he was supported by the Board of Selectmen, I think it is best to let
them and you know that the lack of adequate notice for meetings is not
acceptable and, not to be forgotten, his not providing warrant summaries
with the other documents at the selectmen’s meetings is equally
unacceptable. This response is going to be mostly telegraphic, with
some pertinent, relevant, probative, well-chiseled prose thrown in to
keep it fascinating. I like the idea of an affidavit because it keeps
me specific, saves you wasted time from checking on validity of my
complaint, and places the other person(s) in the position of being
honest or swearing an affidavit and facing consequences.
My concerns about the
low levels of citizen attendance, and participation in, Livermore
Selectmen’s meetings are not a technicality. There is no doubt that
Mainers are highly creative and are excellent problem solvers. As
Madison observed over 200 years ago, and current research confirms,
democracy’s strengths are in the superiority of groups over individuals
in openly defining and solving problems.
““.
. . the power of sharing ideas as opposed to individual thinking is
clear. When we study decision making in small groups, we find that the
pattern of communication — who talked to whom and how much they talked —
is far more important than the characteristics of the individuals. In
studies of workplaces ranging from call centers to drug-discovery
groups, communication patterns are usually the single most important
factor in both productivity and creative output. And in our recent study
of 300 cities in the US and Europe, variations in the pattern of
communication accounted for almost all of the differences in average
earnings — much more important that variations in education or class
structure. Importantly, income per person grows exponentially larger as
more people share ideas, so it is the sharing that causes the growth,
not just having more individuals contributing.
“Instead of individual
rationality, our society appears to be governed by a collective
intelligence that comes from the surrounding flow of ideas and examples;
we learn from others in our environment, and they learn from us. A
community with members who actively engage with each other creates a
group with shared, integrated habits and beliefs. What social physics
shows is that, when the flow of ideas incorporates a constant stream of
outside ideas as well, the individuals in the community make better
decisions than they could by reasoning things out on their own.”
...
“It is time that we
dropped the fiction of individuals as the unit of rationality, and
recognized that our rationality is largely determined by the surrounding
social fabric. Instead of being actors in markets, we are collaborators
in determining the public good. Indeed, our research has demonstrated
that people are much more influenced by their social networks than by
individual incentives. For example, in one experiment aimed at promoting
more healthy behavior we compared the strategy of giving participants
cash when they improved their behavior to the strategy of giving cash to
the participants’ buddies. We found that giving buddies the reward was
more than 4 times as effective as giving rewards directly to the
participants. Similar social network incentives have yielded even more
dramatic results when used to encourage energy savings and voting.” (1)
Mr. Schaub’s job
description for Administrative Assistant at Livermore states his duty of
posting notices on page one — it is the second duty listed for his
position, right after prepare the Annual Report. The same duty of
posting notices is listed again on the second page of his job
description.(2) Primacy and frequency for his ‘notice’ duties strongly
indicate that his providing adequate notice to citizens is a priority
among his duties. In addition, Mr. Schaub was approved by the Board to
be the designated Freedom of Access Officer for Livermore, which he
expanded to include handling all information requests to the Registrar
and Town Clerk, Ms. Renda Guild. Responsibility for FOAA requests is
not specifically noted in the job description but “handling” requests
for information is stated as a duty on the first and second pages.
Mr. Schaub has complete responsibility for the Livermore webpages <http://livermoremaine.org/town-office-livermore-maine.html> and there is a calendar page <http://livermoremaine.org/calendar.html>
that shows the times and dates for the Board of Selectmen meetings for
the current and future months. Recently added to the calendar are
monthly planning board meetings. Budget meetings are still not listed.
Please note that
Livermore has an excellent Highway Department and they had no problem
keeping the Town Office parking area and driveway cleared all winter.
All Mr. Schaub had to do was request that they clear a path to the
marquee when they came to plow the driveway, the parking lot, and to
shovel clearance to the front door. Mr. Schaub had a duty, for which he
was paid, to post the meeting notice on the marquee. If necessary, he
should have kept the snow cleared to the marquee By not doing his duty,
a lot of money the town spent building the marquee to provide notices
of different types, even in the winter, was wasted. Ms. Kielty, my wife
and I live in a secluded area and, like all the people in our
neighborhood, some of whom are in their 70s, we know to keep the snow
shoveled. As a result of our reasonable practices, no one in our
neighborhood had any problems with snow blocking their paths, preventing
us from our chores and our recreations. If we start interpreting job
descriptions as not being applicable in predictable Maine winters, then
we are on a cold road to perdition.
I’m listing the
statutes after Mr. Schaub’s job description because the job description
likely precedes the state law by many years and has the force of common
law (3a), if not just common sense. Note the last paragraph in §401, the
“subchapter shall be liberally construed. . .” (3). And note that
Maine Statute §406, Public Notice states “This notice shall be given .
. in ample time to allow public attendance and shall be disseminated in
a manner reasonably calculated to notify general public. . . “ (4)
Ms, Kielty, I searched
through the Maine Statutes to get some idea of their required parameters
for posting notices (5). There was not a single statute in the 28 I
read that would have accepted a posting inside the office (To conserve
space, only 13 of the statutes are listed of the 28 i read, with many
more statutes having notice requirements I did not have time to read).
Because the meeting notice was posted high on the wall, in an
inconspicuous place, by Mr. Schaub last year was unreadable and did not
list the meeting (Budget committee) at issue for my complaint, not even a
Pharisee would claim it would meet the requirements of the Maine
statutes. There were more statutes with notice requirements so I might
have missed the statute that states it is acceptable to put a tiny typed
page on the far wall, up high, every two years or so.
A true copy of the
typed page posted on a crowded bulletin board in the Livermore town
office for 2013 and 2014 is attached (6). Please note the small font
and that there are no mentions of the combined budget committee and
selectmen meetings — the ones that were the grounds for my initial
complaint. Given the average age and height of the population of the
Town of Livermore and the height of the notice posted, I believe that
many people in Livermore would not be able to read the type size that
far away from their eyes any better than I could. Also, Livermore may
be a small town but we pay over $9,000.00 per year on computer systems
and the posted notice was typed on a computer. I don’t believe there is a
typewriter in the town office. Once the notice was typed, I know at
least one 9th grader in the local Livermore school who could create a
link to the electronic version of the notice on one of the town
computers in less time than it took Mr. Schaub to type the notice. Once
the notice was linked it would be available for sending as an
attachment to emails or to download from the town webpage at any time
day or night, from close and far distances, without requiring any staff
time. The schedules on the Livermore webpage still do not list the
budget committee meetings, as required by law and good practices.
A true copy of a
Sun-Journal newspaper invoice for advertising Livermore bid requests for
sand is enclosed (7a). When I requested ads published as notices for
town meetings, there were none. Mr. Schaub emailed me that he was not
required to advertise meetings in the newspaper. Similarly, when I
emailed a request for dates & times for when the newspaper, any
newspaper, ran any notices of the town meetings, Mr. Schaub did not
respond. I never saw any notices in the newspapers inside a news article
or as a standalone advertisement.
Ms. Kielty, you
objected to my statement that the old notice on the town marquee, with
the word “cancelled” on it, negated the tiny typed notice up high on the
town office wall that Mr. Schaub claimed was adequate notice, even
though it did not contain the budget or planning committee meetings.
There is an extensive research literature on “anti-marketing” (much of
it on smoking and drinking and drugs, some on NOT calling 911, see (7b)
for example of marketing research) that would support my statement in
that 1) Negation does exist for factual information; 2) Negation can be
demonstrated in real and laboratory conditions. Given that the study by
Margaret Chase Smith Center and the University of Maine on Maine towns
several years ago found the problem that all the towns shared was a lack
of public participation, and given that Mr. Schaub was Administrator of
Livermore for more than 10 years, and given that the level of citizen
attendance and participation has been near zero for some time, and given
that Mr. Schaub did not use a competitive sealed bid system for
awarding town contracts and purchases, the failure to comply with simple
laws, like §401, et seq, creates optimal conditions for violations of
other laws, like Maine Statute §2607, Neglect of Official Duty (8) and
Maine Statute §608, Official Oppression (9).
As you read through my
complaints and the inadequate, if not down-right misleading and false
responses of Mr. Schaub to you about my complaints, you can see that
other, more serious violations are likely to occur in an environment
where transparency and public accountability are weak or absent. See
Maine Statute §604, Improper Compensation for Past Action (10) and Maine
Statute §605, Improper Gifts to Public Servants (11). A fascinating
law review article by Loewenstein, Sunstein, and Golman, “Disclosure:
Psychology Changes Everything”, is attached (12) has some fresh insights
on how the discloser of information is effected that aids in
understanding the lack of transparency in Livermore. Indeed, authors
recommend standardization to enhance the effectiveness of disclosure
(see (13) for the form the Massachusetts Attorney General uses for Open
Meeting complaints).
Indeed, some of the
secondary violations, such as lacking “full disclosure” when the town
issues bonds, are too often not considered until the violation, say U.S.
Code 18 USC §1001- Statements or entries, (14) or 17 CFR §240.10b-5,
Employment of manipulative and deceptive devices, is completed and later
detected.
There is an extensive
research literature, much of it in law journals, often including solid
empirical research, on the value of public meetings and access to public
records from the different perspectives of enforcement and economic
development (16-20). Reading these thoughtful articles helps me view
transparency and accountability as interacting components of a complex
human ecosystem that helps me understand not just the continuing string
of failing grades that Maine earns from independent, objective groups,
and allows for statistical descriptions and prediction, with confidence
intervals, as required by Maine and Federal Courts, that reveal Mainers
are next to the bottom of states who do not trust their state
government; (21-23). While Maine earns a C on transparency of state
spending; (24) Maine has a substantial underground economy that makes it
difficult for the state to make ends meet (25). The slippage that
occurs with a lack of transparency may be a partial contributing cause
for more than half of Maine Fire Departments not reporting their call
data to the State Fire Marshal, as required by law, and may possibly
explain why Maine’s number of fire deaths and relative risk of dying by
fire for 2010 are unknown (26), and why there is great uncertainty in
the Maine numbers that are reported for 2001-2010 (27). A local
newspaper, the Rumford Meteor, continually satirizes a number of Maine
Fire Departments as pursuing a “Save the Basement Strategy” (28). Thus,
it is not surprising that Maine scores at the bottom of the states for
three years in friendliness to business (29) and earns solid Fs for
public integrity (30a, 30b), and has the lowest per capita income of all
the New England states (31). I am surprised that Maine and federal
authorities have not had multiple complaints from a number of counties
and towns on deprivation of citizens’ rights under color of law
(32a,b,c).
Ms. Kielty, my going to
meetings, making public records requests, and complaining when the
responses to my requests are not adequate, are for helping Maine out of
an economic and governance basement, a basement others have left and are
leaving (33-39), with unreasonable effectiveness (40-41). The more
people who become actively engaged in Maine government at different
levels, the healthier we will all be (42-43). Mainers deserve much
better than what we are getting (44-45).
The U.S. DOT has one of
the best methodical approaches to increasing public attendance and
involvement (46) and they have been my guide.
Sincerely,
Dwight Hines
