Letter to Maine FOAA Ombudsman on Violations, (references available)

People can email me if they want the actual articles.  As you can see by the attached list of footnotes and first chunk of referenced articles, all the referenced sources are in pdfs. dh

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Dwight E. Hines, Ph.D.

IndyMedia

Livermore, Maine 04253

dwight.hines@gmail.com

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