Monday, October 6, 2014

Letter from a Livermore Resident ------ D. Hines

Dear Ms. Kielty:

I apologize for not responding more quickly but we may have solved the problem of the meeting access to warrants, at least temporarily.  Ms. Castonguay has agreed to let me copy the warrants with my scanner before the meetings.  That avoids the legal issues I raised. 

In summary, because I have not had time to go through all three volumes of the legislative history of the Maine FOAA (I'm now on Volume 2), and because I am still working on understanding and applying canonical interpretations of "construe liberally", and because I've not yet met with history teachers and professors (though I have talked with a couple), my reply to your clarifications is not as detailed as it will be in a court filing.

First, Livermore does not have a formal or semi-formal structure for procedures adopted for Selectmens' meetings.  Thus, stopping the meeting by stating "Point of Order" is the most acceptable way I know of bringing up the fundamental issue of violation of Maine's FOAA.  It is analogous to my standing up in court during a trial, non-jury, of a case where a woman was accused of assaulting 3 small boys with her car, and saying (Following recommendations of the Reporters' Committee for a Free Press): "If it please the Court", my name is. . . ., and then stating that the state attorney was not providing public access to the output of the vehicle's black box.   The Judge just looked at me for a long few moments, and then said that I would need to take this issue to civil court but he thought the state attorney would provide me access.  Everyone in the courtroom was quiet, time and movements stopped during the moments while the Judge considered my statement.   Immediately after the court took a break, the state attorney came over and asked when would I like to see or copy the documents I requested. They even apologized for the misunderstanding.  My conclusion is that when fundamental rights are being violated, it is important to raise the violation to those who need to know about it, being respectful and courteous, of course.

Second, Ms. Kielty, there is no doubt in my mind that intent and purpose of the FOAA is for Mainers and "any person" to understand how our state government works at all levels. Indeed, if you attend any of the Maine Legislative Committee meetings in Augusta or when the Committees take to the road, there are piles of copies of the documents available before  the meeting begins.  Etta for the Government Oversight Committee, Peggy and Colleen for the RTK Committee and the staff person for the Peoples' Treaty Committee go to a lot of effort to not just provide copies but often to color code the copies to make them easier to understand.  More often than not, the Treaty Committee distributes relevant copies via email before the meeting -- which is something Livermore could easily do.  Interestingly, all of the computer copies and distributions are a far cry from the old mimeographs we used to use in the late 60s and into the early 80s in small towns and in the legislature.  Often, when more people showed up at Selectmens' meeting than were expected, you would hear the whomp, whomp, whom, of the mimeo machine making more copies.   Historically, it took much more effort to make copies for people than it does now.  I don't know if you're old enough to remember mimeos and the way they smelled, but that was a part of making democracy public.

Now, given that all the state legislature committees may be in error and have been in error since before Maine was a state (when we were part of Massachusetts, and earlier), there is the problem created by a restrictive interpretation of the FOAA of citizen comprehension of what transpires during the public meeting.  In the FOAA legislative histories there are some excellent quotes about how gappy the newspaper coverage is of selectmens' meetings and how we need minutes to tell the real story.  Now, as I've written to you earlier, it is not possible to follow budgetary and other considerations without a copy of the documents being discussed.  Even with the documents it can be difficult, especially when the selectmen misinterpret or disagree on the meaning of the numbers.  Remember, the human mind can only hold 7 plus or minus objects or figures at any given point in time.  When the numbers are changing, the information because lost.  There is excellent research, peer-reviewed and generally accepted, on comprehension by humans of oral and written information that supports the need for written copies of the documents to be available for those attending the meetings, state or local or regional.

That's all I have time to write right now, but there are other reasons, legal and factual and historical and practical for providing documents to meeting attendees.  I will expand on these in court filings because Livermore is not the only town, as you know, that is not complying with  Maine FOAA.

Dwight Hines

P.S.  Please note that I requested in the past for you to include citations in your opinions and I'm requesting that you do so again.  Without citations, I don't know how to best argue against your opinions with facts and laws.  Second, I believe that a large component of lawyering, especially public lawyering, is education of the people who pay for our democracy.  Citing precedents and relevant, current supporting sources shows people the continuity and strength and depth of our system.  Our basic system, compared to most over types of governments in the world, does not change very much depending on who is in office and who pays the most taxes.  We need that consistency for ourselves and our business and research and development communities.  Ah yes, "Predictability", the old Judge would say, "We must have predictability".

On Fri, Sep 19, 2014 at 5:15 PM, Kielty, Brenda <> wrote:
Mr. Hines,
I will attempt to address the clarifications you sought in your September 17th email. I believe what you consider “substantive differences in interpretations” may be caused by applying standards to the conduct of municipal officials that are not contained in the Freedom of Access Act.
Documents at meetings
FOAA provides access to public records and provides a process for such access. Upon request, responsive records are to be available in a reasonable amount of time. There is no requirement in the statute that documents be made available before a request is submitted or that in every case such documents must be copied and available before anyone asks for them. The statute does not require that all documents available to the members of a board be available to the public at the meeting. A 2011 amendment to FOAA requires that a minimal record of the proceeding be made within a reasonable amount of time and be available to the public. However, the validity of any action taken in a public proceeding is not affected by the failure to make or maintain a record as required by this provision.
A local board’s efforts to inform and engage the citizens, including providing extra copies of the board packet and related materials at meetings, is not a requirement of FOAA.
Point of Order
A point of order notes an infraction of the procedural rules or improper decorum in speaking. My understanding of parliamentarian procedure is that the right to raise a point of order is limited to members of the board.
What constitutes a “public meeting”
Public business undertaken by municipal officers as a board is subject to the open meeting requirement. Case law in Maine allows for informal discussions about (school) matters among less than a quorum of (school) board members. Marxsen v. Board of Directors, M.S.A.D. No. 5, 591 A. 2d 867 (Me. 1991). In 2011, the Legislature amended Title 1 section 401 which provides that FOAA does not prohibit communications between board members outside of public proceedings “unless those communications are used to defeat the purpose…of the Act.”
Certification of Training
Title 1 section 412 subsection 3 requires that the record attesting to the completion of the training “identify the training completed and the date of completion.” FOAA does not require a signature.
I hope that this brings clarity.
Brenda L. Kielty
Assistant Attorney General
Public Access Ombudsman
6 State House Station | Augusta, ME 04333
207.626.8577 (direct) | 207.287.3145 (fax)
Correspondence to and from this office is considered a public record and may be subject to a request under the Maine Freedom of Access Act. Information that you wish to keep confidential should not be included in email correspondence.