2016-10-20 / Front Page

‘Friends’ question disclosure protocol

By Anthony Aloisio
Staff Writer

SACO – A citizens’ group, Friends for the Conservation of River Bend Farm (Friends), has objected to some provisions of a recently proposed financial disclosure protocol. for economic developers.

The protocol, which was tabled by the city council on Sept. 19, would have defined what information developers do and do not need to disclose to the public when they ask the city for development benefits. Friends has objected that the protocol would allow developers to keep confidential information which Maine’s Freedom of Access Act (FOAA) requires to be publicly disclosed.

The disclosure protocol, presented to the council by Economic Development Director Bill Mann, followed an email exchange between Friends and Mann in which Friends requested to inspect budget information relative to the development of The Ecology School on the land of the former River Bend Farm on Simpson Road. The developer for that project has requested a contract zone amendment from the city. Mann denied the request in an Aug. 12 email to Friends, explaining that the budget information was provided to him “with an explicit prohibition on public disclosure.” In the same email, Mann wrote that the school’s executive director, Drew Dumsch, was willing to meet with Friends members to address their questions.

Three weeks later, Sept. 2, Mann received a letter from Friends’ attorney John Bannon of Murray, Plumb, & Murray, a Portland law firm, objecting to the denial and arguing that it violated the FOAA.

“The review of (The Ecology School’s) (contract zone amendment) application by you and (City Planner Bob Hamblen) plainly constitutes and/or relates to ‘the transaction of public or governmental business,’” Bannon’s letter read. “You and Planner Hamblen received the budget ‘for use in connection with’ (the Ecology School’s) (contract zone amendment) application, and the budget contained information ‘relating to’ that application. . . . The budget is therefore a public record that my clients have a right to inspect and copy under the FOAA.”

“The only type of ‘confidential’ records that the FOAA exempts from the definition of ‘public records’ are ‘those that have been designated confidential by statute,” the letter continued. “Your email of August 12, 2016 does not claim that any statute designates the budget as confidential.”

According to their most recent letter, Friends did eventually receive a copy of the budget information at a meeting with Dumsch on Sept. 9.

The disclosure protocol was presented another two weeks later at the Sept. 19 city council meeting. It would require applicants for contact zone amendment, tax increment financing (TIF), “or some other development benefit that involves some level of city contribution” to disclose names and contact information of owners and investors, and a summary of the project, including construction cost and “a summary of the benefits to the city of Saco.”

Regarding confidentiality, the protocol would allow applicants to keep information confidential where “the applicant demonstrates that the application materials submitted contain ‘financial or proprietary information’ and is (sic) granted confidentiality under Maine Law.”

According to Mann, confidentiality is vital to developers in a competitive environment. If a developer has to disclose confidential information too early in the process of dealing with a city, Mann told the Courier it can put them at a competitive disadvantage.

“The (Maine) Legislature, for very reasonable and appropriate reason, provided a statutory exemption (from public disclosure),” Mann said.

The substance of the proposed protocol was only discussed briefly at the Sept. 19 meeting before it was tabled. Mann was asked what problems the change would address.

“If we’re looking to give someone a TIF, which is a rebate of tax dollars from the citizens of this community, I think the citizens are entitled to know who they’re dealing with,” Mann said in response.

The disclosure protocol was tabled for workshop, on suggestion of Mayor Roland Michaud, after two councilors suggested amendments that were both unrelated to the disclosure provisions.

In an Oct. 10 letter to the mayor and city council, Friends objected to the proposed protocol on the grounds that it was too broad in scope. According to the letter, Maine law allows confidentiality for some application materials in connection to programs like TIF, but it does not clearly allow the same confidentiality for other development benefits such as contract zone amendments. The letter is not signed by Friends’ current attorney, but they claim that it contains that attorney’s opinions. The letter is addressed from Henry Beeuwkes, Inga Browne and Elizabeth DeSimone, but it is not signed. Members of Friends declined further comment.

“We feel our letter speak(s) for (itself),” Browne wrote to the Courier.

According to Friends, the crucial definition is a statutory definition of “program of assistance,” from Maine’s Economic and Community Development statute, which establishes the confidentiality allowed. That statutory definition reads as “any financial or technical assistance program established or authorized by the department or a municipality and providing assistance to persons for the improvement and development of housing, community and development opportunities.”

Mann denies that the disclosure protocol changes or was intended to change the confidentiality afforded to developers.

“In (the Friends’) letter they erroneously suggest that the financial disclosure protocol that was discussed would weaken the level of disclosure required from development applicants,” Mann told the Courier.

Mann maintained that the disclosure protocol change was aimed at establishing identities of developers, and not connected to Friends’ document inspection request.

“I have had a situation where somebody comes in with an LLC and they say ‘I’m representing the LLC,’ and I say ‘are you the majority owner?’ and the response is ‘I don’t need to tell you that,’” Mann said. “That’s the genesis. It had nothing to do with (The Ecology School).”

The conclusion of Friends’ letter was cautionary.

“Before approving or voting on any new or revised financial disclosure protocols,” the letter reads, “we urge (the) city council to request a legal review.”

Mann said he doesn’t know what will ultimately happen with the proposed protocol.

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