A day after defending an unadvertised meeting of city councilors, Portland said Tuesday that it will institute a policy that any future events involving at least three councilors will be listed on the city’s online calendar.

Portland City Manager Jon Jennings said Tuesday that the new policy would show that the city is being fully transparent, as well as in compliance with Maine’s Freedom of Access Act.

The Portland Press Herald reported Monday that at least seven city councilors toured Fort Gorges that afternoon in apparent violation of state law, since there was no advance notice of the gathering. The meeting came to light after it occurred, when the city and at least one councilor posted photos on social media showing the councilors at the fort.

Jennings said the policy is being adopted immediately, even though city officials feel “we were within our rights to have a tour of Fort Gorges” without notifying the public or news media that at least seven councilors would get a briefing on safety upgrades currently in the works at the Civil War-era fort.

“I feel as though we are extremely transparent,” Jennings said. “We’re not trying to do anything that’s not transparent. We’re not trying to pull the wool over anyone’s eyes.”

The councilors rode the city’s backup fireboat to the fort for an update on steps that the U.S. Army Corps of Engineers is taking or plans to upgrade safety at the fort. The city is using a $20,000 grant from the Maine Historic Preservation Commission to help pay for the work, which includes railings and gates to help make sure boaters who visit the island fort, which is owned by Portland, avoid dangerous parts of the structure.

Jonathan Piper, a senior attorney with Preti, Flaherty, Beliveau and Pachios, said the trip appears to have violated the state’s Freedom on Access Act, which generally bars three or more councilors from convening on city business without prior notice to the public that a meeting is taking place and an opportunity provided for the public to observe the proceedings. Piper’s firm represents the Press Herald on some matters, including cases involving freedom of information laws.

“It’s an absolute total violation of Maine open meeting law,” Piper said. “A public proceeding isn’t just where you sit down and deliberate and vote. … It’s where you gather information. It’s where you do you job as a city councilor.”

Calls to the state Attorney General’s Office seeking an opinion on the open meetings provision in Maine’s Freedom of Access Act were not returned Tuesday,

Some of the councilors on the trip said that they primarily received information about the fort and insisted they did not discuss the future of the structure or any action they might take about the fort.

“It was quite informal,” Councilor Spencer Thibodeau said. “From my perspective, it was a voluntary event that councilors could or could not attend. It was enlightening in that it showed us the work that was going on out there, but my sense is that it was not a public proceeding.”

Thibodeau said the councilors were given a tour of the fort and saw areas that posed safety concerns, pointed out by a city parks department employee. Another councilor, David Brenerman, said a historic preservation specialist from the planning department explained the history of the fort, which was commissioned after the War of 1812 but not completed until after the Civil War. The safety upgrades are part of a larger effort by the city, the nonprofit Friends of Fort Gorges and the Army Corps to preserve the fort named after Sir Ferdinando Gorges, who is credited with discovering the land that is now Maine in the early 1600s.

Brenerman maintained that the councilors didn’t discuss what they had learned, or any other city business, on the boat ride back to the mainland.

“We don’t get to see each other socially that often, so it was an opportunity to see how people are doing and talk about lots of things going on in peoples’ lives and conversations about the hurricane and the Red Sox and the Patriots. I don’t think that there was any thought that this was a meeting,” he said. “We just talked individually or in small groups about the issues of the day, not necessarily city business.”

Brenerman said he considered the trip “a fact-finding mission, so to speak,” which could be conducted without public notice.

Councilor Justin Costa said the council generally doesn’t concern itself with public notices of meetings, which is left up to staff members to handle.

“If there’s been some type of error, we’ll be sure to notice it going forward,” Costa said, adding that he didn’t think that the council had crossed any line because there’s no item about the fort currently before the council.

“There is no action item, there is no potential action item, there’s nothing like that that I’m aware of,” he said. “It was just a high-level background discussion.”

Thibodeau said it can be difficult for councilors to make sure they’re not violating the public notice law because the nature of what constitutes a public proceeding isn’t always clear. For instance, he said more than three councilors have been at the same events, such as a Democratic Party post-election gathering or a recent re-dedication of part of Deering Oaks park. But, he said, councilors might not even realize that other councilors are there at the same time.

“My question would be, ‘What constitutes a public proceeding?’ ” Thibodeau said. The fort tour, he said, “was quite informal. From my perspective, it was a voluntary event that councilors could or could not attend.” Thibodeau said councilors might get invited to dozens of events every month and don’t know if other councilors will be there.

Jennings said the new policy would only apply to city-sponsored events and the city will not try to monitor events, and provide notice of, outside organizations to which councilors are invited.

Before Jennings announced the new policy, city spokeswoman Jessica Grondin said no notice was provided about the fort tour because councilors did not transact any business affecting the public.

She also said that the city publicized the event on Twitter, Facebook and Instagram, and that some councilors and Mayor Ethan Strimling did so as well on their social media accounts after the trip took place.

“Those three actions alone probably reached more citizens than we would have with a simple calendar item on our website,” she said in an email.

Jennings said that councilors are told about the state’s laws on open meetings, as well as the requirement that they maintain records of correspondence, such as emails, during an orientation that is held after they are elected.

“My colleagues are very well aware” of the state’s Freedom of Access Act, said Strimling, who also went on the Fort Gorges trip. “Councilors are more than aware of the fact that when we get together outside of a public meeting, we cannot be trying to make decisions.”

Edward D. Murphy can be contacted at 791-6465 or at:

emurphy@pressherald.com

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