Wednesday, September 17, 2014

Letter from a Livermore Resident about FOAA violations--- by D. Hines Phd

Dear Ms. Kielty and Ms. Castonguay:

There are some points in your email of September 16, 2014 that you wrote in response to my concerns of FOAA violations in Livermore on August 25, 2014, that need to be clarified because we appear to have substantive differences in interpretations of the Maine FOAA.

First, Mr. Schaub greatly misled you about providing the summary of the warrants to me.  Note that my original complaint was a sworn affidavit, his response to you was just a letter which had errors of fact. The issue was "did Mr. Schaub have to provide a copy of the warrant summaries, as well as other documents provided to the Selectmen, at the beginning of the Board meeting?"   I thought you agreed that he did, and he did provide the summaries after my letter to you.

Second, at the August 25, 2014, meeting, I made my interruption a "point of order" and that means the meeting was not proper because the documents provided to the Board were not available to the others attending the meeting.  It is my understanding that when the Selectmen are provided documents in a public meeting, those documents must be provided to the public.  Other documents were provided, minutes of last meeting, agenda, and brief finance statements.  The meeting can not be a public meeting if the documents are not available to the public.  No FOAA request is required or necessary. Ms. Kielty, if you have supporting case law for not providing the documents to the public when they are made available to the Selectmen, please let me know.  Viewing the summary warrants is the only timely way I know to keep timely track of what expenditures are being made.

Third, I agree with you that the administration can, and probably should implement procedures to keep track of FOAA requests, but to require that the requester complete a form or even make the request in writing puts an additional hurdle in the process.  A yellow pad with columns for date, time, request, when response was completed, is all that is necessary to keep track. Again, at the meeting under discussion, I was making a point of order, that the meeting could not be a public meeting if the documents distributed to the Selectmen were not available to the public.

Fourth, because it was Ms. Castonguay's first meeting, I thought she did not know the law on providing documents and on the problems meeting with 2 or more selectmen to discuss material outside of a public meeting.  I'm not sure I understand why Ms. Castonguay meeting with two selectmen outside a public meeting is not a violation of the FOAA.  I thought just two or more Selectmen meeting to discuss the business of the town was a violation, regardless of intent.  I'm also not sure how to measure intent.  Please provide me with citations to specific statutes and case law on that interpretation because, if you are correct, that interpretation allows for too many, if not an infinite number of exceptions to the FOAA. My understanding of the meeting was that historical information was discussed about how a resident believed the town was responsible for damages to her property. A decision was made that the town was not responsible.  The discussion and decision have implications, direct implications for how the town should respond to similar complaints, and should be part of a public discussion.

I raised the issue of polling because it would be a logical extension of meeting with two selectmen, outside the public meeting and not on the agenda.  If I understand your interpretation of the open meeting law, Ms. Castonguay could phone the selectmen to get their views, or meet with less than a quorum, two at a time, for several meetings and there would be no violations.  

I am glad the Selectmen attended the training.  I did not complain about Selectman Kachnovich because I thought he still had time to take the course. Mr. Newman was way out of compliance.

Ms. Kielty, I am surprised that a document that certifies someone has completed training does not require a signature.  In the south, years ago, not having signatures on documents required to register to vote meant they were not acceptable.  Unsigned checks are not honored without signatures and reimbursements require signatures.  How can unsigned certificates be admitted into evidence, unless, maybe, a sworn affidavit or sworn testimony accompany them?

Please work with me to narrow down what differences we have on:
1) Providing documents to the public at the beginning of a public meeting;
2) Meeting with two or more selectmen outside of a public meeting, without public notice;
3) Unsigned certificates, or other documents that need a signature to be valid, being acceptable (quite a few people have signed certificates so I'm not sure of the variability);
by providing cites to statutes and case opinions in support of your interpretations.

Dwight E. Hines, Ph.D.
42 Israelson Rd.
Livermore, Maine 04253

P.S.  Please note that Mr. Newman stated in the last selectmen's meeting that the Town only needed to keep minutes on votes and motions.  I think his FOAA training focused on statutes and did not include Maine Common Laws and practices for over three hundred years, not to mention common sense.

On Tue, Sep 16, 2014 at 11:13 AM, Kielty, Brenda <> wrote:
Mr. Hines and Ms. Castonguay,

I am responding to Mr. Hines’ August 26, 2014 letter addressed to Mark Chretien, Chair of the Livermore Board of Selectpersons and his September 13, 2014 letter to Carrie Castonguay, administrative assistant to the board. The issues that Mr. Hines now raises concern some of the same complaints he addressed to my office within the last six months.

Ms. Castonguay took over for Mr. Schaub on August 18th and her first Board of Selectpersons meeting as administrative assistant was August 25th. The alleged FOAA violations occurred at this meeting.

Requests in writing
Mr. Hines’ previous complaint involved access to the document handed out to the board, particularly the summary of warrants. Mr. Schaub asserted that he provided Mr. Hines with a copy of the board packet and invited him to the town office to inspect the original warrant that was signed at the meeting. It was unclear what the root of the dispute was in March, as Mr. Schaub met Mr. Hines’ request to provide the packet and gave him an opportunity to inspect the original document that was not part of the packet.

The warrant is brought to the board meeting as a single, original copy to be signed at the meeting and archived as a record copy. It is not included in the packet.

Mr. Hines states that Ms. Castonguay “told me at the meeting that all requests for documents must be in writing ahead of time, even for a copy of the docs handed out in the meetings.”

Ms. Castonguay asserts that copies of the packet are available for the public at the meeting. According to Ms. Castonguay, Mr. Hines interrupted the board proceedings to ask that he be given a copy of the warrant. She then requested that he submit a written FOAA request for the warrant. Ms. Castonguay explains that she is aware a written request cannot be required under FOAA. However, a board meeting was underway and she was unable at that time to process a verbal request.

A municipality may implement administrative procedures to manage FOAA requests in order to verify receipt of the request, clarify the records that are sought, confirm the contact information of the requester and track the status of the request. While it cannot be demanded, asking that a request be put in writing does not constitute a FOAA violation.

Administrative Assistant Communication
Mr. Hines asserts that an illegal meeting occurred when Ms. Castonguay talked with two board members and a town employee after the board meeting was adjourned.

According to Ms. Castonguay, she sought historical information about an issue that occurred seven years prior and was not pending before the board. She asserts that this communication was limited to background information she needed as part of her new job.

Communications outside of public proceedings between members of a public body are not prohibited unless those communications are used to defeat the purposes of FOAA. In this instance, less than a quorum of board members and an employee sharing relevant information with the administrative assistant about a topic that was not pending before the board does not establish intent to defeat the open meeting requirements of FOAA.

Mr. Hines mentions “polling” of selectpersons by the administrative assistant. There is no evidence presented to support an allegation of such activity.

FOAA Training
Mr. Hines asserts that Selectperson Newman failed to have a signed FOAA training certificate on file at the Livermore town office.

Selectperson Newman and Selectperson Kachnovich attended Maine Municipal Association’s Elected Officials Workshop on August 28, 2014 and their certificates of completion, identifying the training and the date completed, are on file at the Livermore town office. This satisfies the requirements of FOAA, as a signature is not required.

Pursuant to amendments of FOAA in 2012, public records and proceedings training for certain elected officials, including municipal officers, is required within 120 days of taking the oath of office. Selectperson Newman was elected in June 2013 and unless he completed a self-administered review of the Frequently Asked Questions on the FOAA website or completed another related training, he was out of compliance with the training requirement until last month.

Please let me know if you have further questions.


Brenda L. Kielty

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