2016-02-25 / Editorial

Biddeford council’s executive sessions under scrutiny again

Executive Session Watch
Ben Meiklejohn, staff writer

The Courier has a history with holding the Biddeford City Council to task for the manner in which it uses executive sessions to conduct city business.

It all started in 2013, when the council entered executive session under the guise of “personnel” to discuss the personnel line of a budget it was developing, even though Maine statute specifically states that a body may not discuss a budget or budget proposal in executive session.

The Courier caught the council’s indiscretion and filed a complaint in York County Superior Court. The city eventually settled with the newspaper, agreeing it would not discuss a budget in executive session again.

In the course of monitoring the council’s use of executive sessions, it became increasingly clear that there were several facets of the executive session statute that the Biddeford City Council and sometimes the school board were blatantly ignoring. Namely, the city rarely offered a “precise nature” of the business for the session, as required by law, typically using the most vague and nondescript language possible to describe the purpose of their sessions. The city also habitually negotiated labor contracts or proposals without naming the parties they were negotiating with, despite that the law requires that the parties be named.

For a year, the Courier ran a column titled “Executive Session Watch,” in which the councils and school boards of Biddeford, Saco and Old Orchard Beach were regularly evaluated and graded on their uses of executive session and the extent to which they complied with the intent of the laws.

From the start, Biddeford got failing grades of D’s and F’s, while Old Orchard Beach almost consistently received A’s. Saco sat mostly in the middle with B’s and C’s. However, after hammering the issue for a year, and exposing the deficiencies in how the Biddeford City Council presented information to the public in regard to these executive sessions, the council’s grades eventually improved. After a year of criticism, the council was finally earning A’s and B’s – following the full intent and spirit of the law.

It’s been a year now, since the last “Executive Session Watch” column ran, and true to form, the city council has relapsed in its addiction to secrecy. On Feb. 16, the Courier sent the following Freedom of Access Act request to the city:

Dear City Manager James Bennett, Mayor Alan Casavant, City Solicitor Keith Jacques, Council President John McCurry and City Clerk Carmen Morris,

Under the Maine Freedom of Access Act § 402 et seq., I am requesting information that should have been made publicly available under statute, about executive sessions entered by the Biddeford City Council.

I request to know:

1) Which union the council negotiated a contract with in an executive session held on Dec. 15, as the statute cited as the basis for the session, 1 M.R.S.A. 405(6)(D), requires that, “The parties must be named before the body or agency may go into executive session;” and who, other than the mayor and councilors, was present for the session;

2) Which party the council negotiated a contract with in an executive session held on (Jan.) 19, as the statute cited as the basis for the session, 1 M.R.S.A. 405(6)(D), requires that, “The parties must be named before the body or agency may go into executive session;” and who, other than the mayor and councilors, was present for the session;

3) Whether an attorney was present, and if so, which attorney was present during an executive session on (Jan.) 19, for an “update on ongoing litigation,” as the statute cited, 1 M.R.S.A. 405(6)(E), requires that the council must be in consultation with an attorney; and who, other than the mayor and councilors, was present for the session;

4) “The precise nature of the business of the executive session” entered into on (Jan.) 19 for consultation with an attorney, as is required to be indicated by statute 1 M.R.S.A. 405, as “update on on-going litigation” fails to suffice as “precise,” and a more descriptive indication could have been made, without jeopardizing the nature of the discussion, of whether the litigation discussed was litigation against the city or its employees, or litigation initiated by the city against another party or parties;

5) Who, other than the mayor and councilors, was present for the (Jan.) 19 executive session held to discuss the evaluation of an employee;

6) Whether the topics of “labor contract negotiations,” “update on on-going litigation” and “evaluation of an employee” discussed in the (Jan.) 19 executive session were intermingled throughout the whole session; or whether specific times were noted when the discussion of business relevant to a citation of statutory authority was concluded and the business relevant to a separate citation of statutory authority initiated, so as to ensure that matters other than the precise nature of business for each statutory authority were not considered during discussions authorized under separate statutory authority, and if so, the exact times when the council switched its discussion from one precise nature of business allowable under a certain statute to another;

7) Who, other than the mayor and councilors, was present for the Feb. 2 executive session held to discuss hardship abatement;

8) “The precise nature of the business of the executive session” entered into on Feb. 2 as is required to be indicated by statute 1 M.R.S.A. 405, as “real estate” fails to suffice as “precise,” especially considering that the statute cited, 1 M.R.S.A 405(6)(C) offers at least five examples of a “precise nature” of business that could have been indicated without jeopardizing the nature of the discussion, including “condition,” “acquisition,” “use,” or “disposition” of property, or “economic development,” any of which could have been clarified as a more precise nature of the discussion than simply “real estate,” and without even naming said property;

9) Who, other than the mayor and councilors, was present for the Feb. 2 executive session held to discuss “real estate;”

10) Who, other than the mayor and councilors, was present for the Feb. 2 executive session held to discuss the evaluation of an employee;

11) Whether contract negotiations or labor proposals were discussed in the Feb. 2 executive session held to discuss a “personnel issue” under the authority of statute 1 M.R.S.A. 405(6)(A), and if so, why was statute 1 M.R.S.A. 405(6)(D) not cited instead, and the party with whom contract negotiations or labor proposals were being considered not named, as required by the statute, that, “The parties must be named before the body or agency may go into executive session;”

12) Who, other than the mayor and councilors, was present for the Feb. 2 executive session held to discuss a “personnel issue;”

13) “The precise nature of the business of the executive session” entered into on Feb. 2 as is required to be indicated by statute 1 M.R.S.A. 405, as “personnel issue” fails to suffice as “precise,” especially considering that the statute cited, 1 M.R.S.A. 405(6)(A) offers at least 13 examples of a “precise nature” of business that could have been indicated without jeopardizing the nature of the discussion, including “employment,” “appointment,” “assignment,” “duties,” “promotion,” “demotion,” “compensation,” “evaluation,” “disciplining,” “resignation,” or “dismissal” of officials, appointees or employees, or “investigation” or “hearing of complaints” against persons, any of which would have been a more “precise” descriptor of the discussion than simply “personnel issue,” and which could have been indicated without naming any individual;

14) Whether the topics of “hardship abatement,” “real estate,” “employee evaluation,” and “personnel issue” discussed in the Feb. 2 executive session were intermingled throughout the whole session; or whether specific times were noted when the discussion of business relevant to a citation of statutory authority was concluded and the business relevant to a separate citation of statutory authority initiated, so as to ensure that matters other than the precise nature of business for each statutory authority were not considered during discussions authorized under separate statutory authorities, and if so, the exact times when the council switched its discussion from one precise nature of business allowable under a certain statute to another;

I also request a statement of explanation from an appropriate spokesperson for the city, as to why the council unanimously voted on repeated occasions to violate the requirements of the statute and enter executive sessions illegally, by not naming parties with whom labor contracts or proposals were being negotiated, and why the council continues to unanimously vote to enter executive sessions using motions that are vaguest in nature as can be, so as to fail to represent any minimal intention to meet the statutory requirement that, “A motion to go into executive session must indicate the precise nature of the business of the executive session.”

Thank you for considering my request,

Ben Meiklejohn,

Staff Writer,

Biddeford-Saco-Old Orchard Beach Courier

In a letter dated Feb. 19, City Solicitor Jacques responded with information that should have been offered before the executive sessions, not afterward. Jacques’ answers, however, still fall short of what most other governing bodies would simply just disclose. The executive sessions on Dec. 15 and Jan. 19, said Jacques, were a “for a status update regarding union contract negotiations involving the Biddeford Fire Department,” while Jacques still did not name the party. The litigation update on Jan. 19 involved pending litigation filed against the city and one of its employees. City Manager James Bennett and Jacques were present for the labor negotiations and litigation updates.

As to whether the various executive session topics were intermingled or considered separately during their common session, Jacques answered, “As has been the practice of the City Council, the topics were not intermingled during Executive Session. Each topic was discussed individually.”

Jacques, Bennett, Health and Welfare Director Vicky Edgerly and the property owner were present during the Feb. 2 session on hardship abatement. The precise nature of the Feb. 2 session to discuss real estate was “economic development,” and Jacques, Bennett and Economic and Community Development Director Daniel Stevenson were present.

Jacques and Bennett were present during the Feb. 2 evaluation of an employee. The precise nature of the personnel issue discussed on Feb. 2 was “duties.”

The Biddeford City Council might learn from the Old Orchard Beach Town Council. What the Biddeford City Council refrains from disclosing, the Old Orchard Beach Town Council freely reveals. There is no reason to shield which employee a governing body is evaluating. If the town council in Old Orchard Beach can willingly publicize when they evaluate Town Manager Larry Mead, then why cannot the Biddeford City Council freely admit when they evaluate City Manager James Bennett? It’s not an indictment for a person to be evaluated, and it doesn’t damage an employee’s reputation or invade their privacy to publicly state they are being evaluated. Indeed, it’s the council’s job to evaluate the city manager, which should be done on a regular basis.

Just say it like it is. The council should let the public know that it is doing its job and stop playing around with sneaky, vague, ambiguous games of complete nondisclosure.

When a junkie is trying to earn back the trust of others, he has to demonstrate that he is strong enough to resist relapsing. Here’s to Biddeford finding its way back on the wagon.

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