The recent kerfuffle surrounding an inspection tour of Fort Gorges by members of the Portland City Council, along with a preservation specialist from the Planning and Urban Development Department, confirms philosopher and essayist George Santayana’s observation that “those who cannot remember the past are condemned to repeat it.”

Even though Maine’s Freedom of Access law defines a “public proceeding” as “any functions affecting any or all citizens of the state,” members of city government seem surprised, if not actually put out, by the assertion voiced by this newspaper and others that their fact-gathering mission to Fort Gorges – which came to light after the city and at least one councilor posted photos on social media – was a “public proceeding” requiring notice under the state’s open meeting law.

When asked about the need for public notice, the city’s communications director, Jessica Grondin, replied, “No. Not required. It’s not a meeting.”

Apparently believing that only “action items” trigger a need for notice, Councilor Justin Costa said, “There is no action item, there is no potential action item … .” Another councilor, Spencer Thibodeau, asked, “What constitutes a public proceeding?” and then added that the fort tour was “quite informal.”

Unfortunately, and as Santayana predicted, those currently acting for the city have apparently forgotten the case of Guy Gannett Publishing Co. (the former owner of the Portland Press Herald) v. the City of Portland, a 1992 decision that handed the city 16 pages of guidance on what constitutes a “public proceeding” requiring legal notice. The case raised, discussed and decided many of the arguments heard today, and the positions of various councilors, then and now, are strikingly similar. The decision was authored by Superior Court Justice Kermit Lipez, who rose from Maine’s trial court to the Maine Supreme Judicial Court and then went on to the prestigious U.S. 1st Circuit Court of Appeals.

The Gannett case involved what the city of Portland characterized as an “informal” and “information-gathering” session with investor Daniel Burke and Charles Eschbach, commissioner of the Eastern League, regarding the possibility of bringing an AA baseball team (eventually our “Sea Dogs”) to Portland.

After hearing the city’s evidence and arguments, Lipez specifically rejected the city’s position that mere fact-gathering in an informal setting did not trigger the need for legal notice of a City Council gathering under Maine’s “open meeting” law. In simple and unequivocal words, he wrote:

“Actions by a public body are the product of discussions and deliberations which sift and evaluate information acquired in many ways, including meetings with people who have information to share. Since those informational meetings are an integral part of the decision-making process, they must be exposed to public view.”

In its declaration of purpose, our Freedom of Access Act says that it exists “to aid in the conduct of the people’s business” and that the act “shall be liberally construed and applied.”

In rendering his decision in Guy Gannett v. City of Portland, Lipez harkened to the definition of public proceedings set forth in the Freedom of Access Act.

Public proceedings are any “transactions of any functions affecting any or all citizens of the state.” Clearly, that definition includes the City Council’s recent fact-gathering inspection tour of Fort Gorges with a city employee.

It’s unlikely that giving notice of an inspection tour of Fort Gorges would have produced throngs of people to watch. But that’s not the point. The people of any municipality have a right to know when their councilors are gathering, what types of information they are seeking and absorbing and what types of collective experience may influence future decisions – like capital expenditures, services and taxes.

It’s certainly understandable that current staff and councilors at Portland City Hall don’t recall a court ruling from 25 years ago. Nonetheless, it’s most likely that a brief inquiry to the city’s attorney would have turned up the wisdom and guidance provided to the city a quarter-century ago in this landmark case.