September 7, 2013

Despite vote, Bath may not release documents to public

Critics who suspended a recall effort say they thought the city had voted to come clean.

By J. Craig Anderson canderson@pressherald.com
Staff Writer

Bath officials may not release some documents related to the city's controversial sale of a former hospital, even though the City Council voted Wednesday to disclose all information about the sale to an investigator.

click image to enlarge

A group of Bath residents is complaining that the city sold the Mid Coast Center for Higher Education, seen here Friday, August 9, 2013, for far too little. Bath officials may not release some documents related to the city's controversial sale of the former hospital, even though the City Council voted Wednesday to disclose all information about the sale to an investigator.

Gabe Souza / Staff Photographer

That has rekindled the anger of critics of the sale who said they mistakenly believed the city finally had decided to come clean to the public.

"It was my understanding ... that all information regarding this sale from all sources would be available," said Larry Scott, a Bath resident who had suspended a recall effort against five councilors Thursday. "I truly hope this isn't a delaying tactic and just another roadblock to allowing a complete understanding of all the information regarding this transaction."

At issue is a Freedom of Access Act request submitted on Aug. 12 by the Portland Press Herald for "all memoranda and written communications, including electronic communications, to or from the City Manager, City Assessor and/or City Solicitor related to the recent sale of Mid Coast Center, 9 Park St."

Mid Coast Center, a former hospital given to the city and converted into an office building, was sold in April to Phippsburg developer Robert Smith for $799,000. Critics of the sale have complained that the city did not solicit competing bids, and that the building was worth significantly more than its sale price.

The Bath Assessor's Office website lists the property's value as $6.5 million.

Bath officials chose to withhold some of the documents that the newspaper requested, arguing that they were not public because they pertained to a Feb. 6 executive session to discuss the Mid Coast Center sale.

An executive session is a closed council meeting to discuss sensitive issues such as legal or personnel matters.

In an Aug. 12 email to the Press Herald, City Manager's Assistant Erika Benson said those documents would be released only if the council voted to "waive" the executive session, thus making its details public.

"Council will also be considering waiving the confidentiality of the executive session that occurred earlier this year regarding the sale," Benson wrote. "If Council does approve that waiver, then it will have the effect of increasing the scope of documentation that would be available."

In the end, the council voted twice on the issue of whether to waive the executive session. The first vote, on Aug. 21, resulted in a 7-1 decision against it.

Several residents complained, and a recall effort was launched against five of the nine council members -- those who had voted against waiving the session and are not up for re-election in November.

On Wednesday, the council held a second vote after Councilor Mari Eosco moved to waive the executive session so the council could discuss it with an investigator. The council voted Aug. 21 to hire an independent investigator to look into the property sale and produce a public report.

The council voted 6-2 Wednesday to discuss details of the executive session with the investigator.

However, Eosco said Friday that she did not intend for the city to share documents related to the executive session directly with members of the public.

"The intent is that any information, including any documents, would be released to the investigator," she said in an email. "Only to the investigator."

Other council members were less certain about the impact of Wednesday's vote.

"I'm not aware of any records from that meeting or whether our vote on Wednesday would make those available to (the press)," Councilor Meadow Merrill said via email Friday.

Bath City Solicitor Roger Therriault said it was his understanding that the council's vote did not authorize city officials to release additional documents to the public, but that he would review the matter and offer a final opinion Monday.

Bath resident Michael Wischkaemper, a critic of the sale who was involved in the now-suspended recall effort, said he didn't know Bath officials still had undisclosed documents pertaining to the sale.

"I'm stunned that Erika Benson says there were documents (related to the executive session), because (Councilor) Carolyn Lockwood said there weren't," Wischkaemper said.

During Wednesday's council meeting, Lockwood had said the only purpose of waiving the executive session was to allow councilors to talk about it with the investigator. The city plans to hire the investigator in October. "There are no documents," Lockwood said during the meeting.

Lockwood did not respond Friday to an email asking whether she was unaware of the documents or simply meant they were not to be shared with the public.

In Benson's Aug. 12 response to the Press Herald's Freedom of Access request, she also said the city was considering withholding some documents to protect the privacy of Smith, the buyer, and the city's real estate broker, Don Spann.

"The city has had contact from lawyers representing the purchaser, Robert Smith, and the realtor, Don Spann," she wrote. "Mr. Smith's attorney has indicated to us that they are not waiving any information regarding Mr. Smith, his company or the purchase."

"Similarly, Mr. Spann's attorney has indicated that he will not be releasing information or discussing the matter unless a release by Council has been issued to resolve any confidentiality issues," Benson wrote.

Sigmund Schutz, a Portland attorney who represents the Press Herald, said neither Smith nor Spann has a right to privacy with respect to the sale because they were doing business with a public entity.

"In fact, there are no privacy rights in public records, and anyone dealing with a municipality knows or should know that such dealings are subject to the public's right to know," Schutz wrote in an Aug. 14 letter to the city.

On Friday, Schutz said the city most likely could be compelled in court to release the documents, because information discussed in the Feb. 6 executive session is no longer sensitive from a legal standpoint.

"The records would no longer be prejudicial to the city's bargaining position now that the property has been sold," he said. "I might add that the public interest weighs particularly heavily in favor of disclosure here where you have published reports of impropriety by the city in connection with the sale of public property at issue."

 

J. Craig Anderson can be contacted at 791-6390 or at:

canderson@pressherald.com

Twitter: @jcraiganderson

 

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