ELLSWORTH — A March 5 letter signed by all seven City Council members and sent to state Sen. Louie Luchini (D-Hancock County) and Rep. Nicole Grohoski (D-Ellsworth) may not have been in compliance with state right-to-know laws.
Emailed to the two legislators, with the subject line “Urgent Request,” the letter opens: “It is important to state that this letter is being written from the point of view as citizens. Although we are elected officials of the City of Ellsworth, this letter was not constructed from that role.”
However, public officials declaring they are acting in a private capacity does not free them from the constraints of the Maine Freedom of Access Act (FOAA), which bars public boards and councils from holding public proceedings in private if a quorum – or a majority of members – is present.
FOAA defines “public proceedings” as “the transactions of any functions affecting any or all citizens of the state.”
Under FOAA, email communications are considered public proceedings, whether an email is sent to a group or in serial manner, for deliberating or deciding substantive matters.
The contents of the letter ask the two legislators to “aggressively advocate for the immediate removal of all restrictions imposed on schools” due to the COVID-19 pandemic and for the Legislature to resume its “oversight responsibility.”
Council Chairman Dale Hamilton said he did nothing wrong in creating the letter. Hamilton told The American that he discussed the subject matter with two other councilors, then wrote the letter on his own before emailing each councilor asking if they wished to sign it as private citizens.
The letter and its subject matter were not debated upon in a quorum, he said, and he did not bring the letter before the council as a resolution because he sees the subject matter as personal to him.
Hamilton serves as executive director of Community Health and Counseling Services, and the continued school closure is “a personal and professional issue for me and something I’m advocating for in other parts of the community,” he said. Ellsworth schools are currently operating under a hybrid model with students receiving both remote and in-person instruction.
“I am advocating on behalf of the kids,” he added.
But at the March 15 council meeting he did speak to the issues raised by the manner in which the letter was sent: “I realize this [letter] creates the appearance of council action when none existed, and I apologize for this.”
He continued, “I can understand a letter submitted with all the names of council members might be misconstrued,” but said he “feels” the letter complies with FOAA. He said the topic of the letter was a state-level issue.
On her part, Councilor Heather Grindle said, “I want to publicly state that my intentions in signing this letter is my way of pushing the five days a week in-person learning.”
The question of FOAA compliance hinges on whether advocating for legislative action on behalf of constituents outside of a public proceeding fulfills the definition of a transaction “of any functions affecting any or all citizens of the state.”
Brenda Kielty, the state’s public access ombudsman, who was provided with a copy of the letter and the legislators’ responses, said without further investigation she could not determine whether it was definitively in violation of FOAA. In addition, she said there are First Amendment rights that may come into play if raised as a defense, which Hamilton did not specifically do.
But public perception plays a role, she said.
“It’s important to go past the issue of FOAA compliance. The real issue is: Is the statement you’re making going to be reasonably understood to have the backing of your political authority? And if so, you’re exercising that political authority without having an open meeting, without allowing voices. You’re speaking for your constituency.”
Both legislators responded to “Councilors” or “City Councilors” in their replies. Luchini noted to The American that he often receives requests and letters from councils and boards, “but I don’t recall receiving a joint letter from all members but only in their personal capacity.”
Newly elected officials to town and city councils, school boards and boards of selectmen take a training workshop that includes training on the state’s Freedom of Access Act.
“They all have taken the same certification within 120 days following taking their oath of office as is required by M.R.S.A subsection 412,” said City Clerk Heidi Grindle.