The Portland City Council once again met behind closed doors with the city’s attorney Monday to discuss its legal rights and obligations as it implements a slate of citizen initiatives approved by voters.

It was the third time since the Nov. 3 election that councilors huddled with their attorney outside of public view to discuss various interpretations – and the associated legal risks – of how to enact five voter-approved ordinances, including a minimum wage increase, rent control and other reforms.

While city officials said they needed confidential legal advice, activists who successfully campaigned for the initiatives have pushed for the council to hold the discussion in public. In addition, a lawyer representing the Portland Press Herald questioned whether the city could keep the discussions private.

The council emerged from the latest meeting Monday evening without making any statements about the discussions or implementation plans.

Earlier Monday, Mayor Kate Snyder said that she expected the city to issue a news release Tuesday to outline “implementation planning for all five questions,” including “A Green New Deal for Portland” and “An Act to Protect Tenants.”

The council held its first closed door meeting on Nov. 10 and Snyder announced afterward that the city’s legal interpretation of a hazard pay provision in the minimum wage ordinance, setting the minimum wage at time and a half during declared emergencies, meant it would not take effect in December as advocates intended. Instead, the provision would not apply until the first minimum wage hike in 2022.

After a second closed session on Nov. 16, Snyder said the council had finished its review of a question that added enforcement provisions to the city’s current prohibition on city officials using facial recognition technology. But she did not outline any additional steps or implementation strategies.

People First Portland, a political committee established by the Southern Maine Democratic Socialists of America to campaign for the initiatives, accused the council of undermining the will of voters with its minimum wage announcement and last week criticized the private discussions, saying “Welcome to the Soviet Union circa 1987.”

“There is no lawsuit here, folks! None,” People First Portland tweeted. “If the council met in secret every time there was the potential for a lawsuit, they would meet in secret every time they made a decision.”

Maine’s Freedom of Access Act is intended to keep the public’s business in view of the public, unless it falls under certain list of exemptions, such as discussing lawsuits or specific employee evaluations.

Danielle West-Chuhta, the city’s top attorney, responded to criticism last week by saying the council needed to understand the legal risks associated with various interpretations of the ordinances written by advocates and approved by voters. She equated an elected public body to a private citizen meeting with his or her lawyer.

“There may be times though when we come out and provide further guidance in a public session after we have discussed it behind closed doors,” West-Chuhta said. “That’s just a way in which anyone – whether you’re private person just doing your own business with your lawyer or a public body doing the business of the people – where you can talk about those things behind closed doors.”

City Councilor Belinda Ray said having those discussions in a public setting could compromise the city’s legal position.

“You don’t want your discussion of your legal rights and duties to be made in front of someone who might then choose to sue you because then they have every discussion you had about what choices you might make,” Ray said. “It just would place us in a really precarious situation. It’s not just the council – it’s any person seeking the advice of a lawyer would do so in confidence.”

Sigmund Schutz, an expert on Maine’s Freedom of Access Act and an attorney who represents the Press Herald, said confidential communications between government bodies and their lawyers are generally supposed to be public. Lawyer-client privilege doesn’t apply to communications between a lawyer and a public body unless disclosure would “seriously impair” the municipality’s ability to process a claim or carry out a pending investigation or litigation, he said.

The fact that the council is publicly announcing the decisions it reaches based on the legal advice also means that advice should be public, he said.

“So, they’re suppressing the legal analysis and recommendations that form the basis for the public positions they’re taking,” he said. “It’s hard to see how public disclosure of the basis for the public positions they’re taking would ‘seriously impair’ their ability to act in the public interest.”

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