Every community in Maine should have an elected leader like South Portland Mayor Jerry Jalbert.
Presiding over a City Council workshop on Monday, Hizzoner peeled back the wrapping on an issue that is as central to local government as it is uncomfortable for many municipal officials to confront in the light of day: the use of executive sessions to, let’s say, avoid the political hot seat.
Complained Jalbert to his colleagues, “I feel that we’re not being transparent.”
Don’t get him wrong. Jalbert fully understands that as elected officials go about their business, they occasionally need to retreat behind closed doors to discuss a sensitive personnel issue, a lawsuit, a real estate deal, a property tax abatement or any of the other secret deliberations permitted under Maine’s Freedom of Access Act.
But too often, he maintains, such sessions also provide a convenient hiding place.
“I think what we’re really doing is we’re providing a means for political protection as to what position we’re taking,” he said.
Monday’s 40-minute discussion came with two documents attached – a memo from Sally Daggett, South Portland’s attorney, and a list of do’s and don’ts from the Maine Municipal Association. Both left little doubt as to when – and only when – the council can, by a three-fifths vote, go into an executive session.
Less clear was how to characterize exactly what goes on once the doors are closed and members of the public either go home or wait patiently for the public meeting to resume.
Jalbert’s take: There’s a fine line between voting in executive session, which is illegal, and offering “direction” to the city manager, attorney or other administration official on how to proceed with a matter that’s best kept confidential.
Take lawsuits, for example. Or more specifically, a lawsuit the city just lost and now must decide whether to appeal.
Daggett told the council that to vote in public on whether to file such an appeal, while perfectly within the council’s rights, might not be such a smart thing to do.
“You know, the judges read the newspaper,” said Daggett. “And I think if it’s, say, 4-3 (among the councilors) to appeal a decision to court, that sort of discloses that there’s some dissension among councilors.”
With all due respect to attorney Daggett, that’s the first time I’ve ever heard anyone suggest with a straight face that judges base their rulings, even in part, on what they read in the newspaper.
But beyond the newfound influence of the Fourth Estate, Jalbert maintains that such strategic thinking masks a much more important consideration. Namely, money.
Jalbert said the city of South Portland pays Daggett’s Portland law firm, Jensen Baird Gardner & Henry, $160 to $175 per hour, depending on the work being done, for Daggett’s services. Thus the decision to appeal a court case, sensitive as it may be, involves the expenditure of public funds – something Jalbert maintains should always be done with the doors wide open.
So, asks Jalbert, why not come out of executive session, entertain a simple motion to appeal the court case and vote on it for the record – without divulging the city’s legal argument, negotiating strategy or any other information that might not be ripe for public consumption?
“There’s a motion, there’s a second, there’s a vote,” Jalbert told his fellow councilors. “Sure, that represents some risk. But in my opinion, that’s a much more transparent way so that people can see how city councilors are making decisions and also how city councilors are spending taxpayers’ money.”
That said, Jalbert’s suggestion had all the appeal of a wet blanket.
Several councilors said that while they do give “direction” to the city’s administration during executive sessions, it never rises to the level of an actual vote. (So how, you’ve got to wonder, do they do convey their feelings on the matter at hand? By blinking their eyes once for “yes” and twice for “no?”)
“I don’t see that it’s broke,” said Councilor Maxine Beecher. “And I don’t think we need to fix it.”
Still, the more they discussed it, the more apparent it became that South Portland’s policy on executive sessions could use a few tweaks after all.
Councilor Melissa Linscott, elected for the first time last fall, said the mere appearance of “executive session” on an agenda often leaves her scratching her head.
“There have been situations where we’ve gone into executive session and I’ve had no idea what it was we were going to be discussing,” Linscott said. “That happens. And we don’t really know until we get in there and start talking about it.”
Councilor Tom Blake, a seven-year veteran, agreed.
“I’ve been in the same situation,” he said. “I look at the agenda and I don’t know why we’re (going into executive session). I don‘t know what the issue is.”
All of which suggests that South Portland’s council (not unlike many local governing bodies) tends to get a little sloppy when it comes to telling the public, as the state law requires, “the precise nature of the business of the executive session and … a citation of one or more sources of statutory or other authority that permits an executive session for that business.”
(Then again, South Portland is light years ahead of a Waterville Planning Board to which I paid a surprise visit one evening a few decades ago. The members actually had a handwritten sign on their closed door proclaiming, “Private meeting. Public not invited.”)
In the end, Mayor Jalbert got nowhere with his suggestion that South Portland’s City Council make a habit of coming out of its executive sessions with something, anything, for the public record. Still, considering how often local officials shoo away the public and how rarely they engage in any collective soul-searching on whether it’s truly necessary, this week’s discussion was time well spent.
“I’m going to continue to pursue it,” Jalbert vowed later. “I think it’s very worthwhile.”
Anyone care to second that motion?
Bill Nemitz can be contacted at 791-6323 or at: