Nov. 1, 2009
STATEHOUSE: Committee's use of e-mails draws scrutiny
BY MATTHEW STONE
Staff Writer
Staff Writer
The Maine Legislature's Education Committee has a big job to undertake while the House and Senate are out of session: trimming more than $38 million from the state's K-12 education budget.
And as the panel's 13 members consider what action to take, they're exchanging ideas by e-mail, outside public view.
Sen. Justin Alfond, D-Portland, the committee's Senate chairman, acknowledged last week that committee members have exchanged more than 20 e-mail messages since mid-September concerning potential budget cuts.
The Kennebec Journal recently requested the e-mails under the Maine Freedom of Access Act. Alfond said they're forthcoming.
Maine's open government laws don't prohibit e-mail communication among elected officials. But, "the question is whether this meets the definition of a public proceeding," said Sigmund Schutz, a Portland lawyer who has written guides to Maine's Freedom of Access Act.
"It's a very quick, useful way to get effective business done where everyone is included. No one is left out, meaning the committee," Alfond said, acknowledging, "the public doesn't get to see the discussion."
Maine law requires that public bodies with three or more members give the public "ample time" in advance of a meeting to allow public attendance.
"If you're sending the e-mail to the group, you're effectively having a meeting in cyberspace," Schutz said. "I think there'd be a very strong argument that (e-mail exchanges) would qualify as a public proceeding, and that would be a violation to have a public proceeding without proper notice."
Alfond said Education Committee members considered open-meeting provisions before beginning to discuss budget cuts using e-mail.
"I still felt that it was incredibly important that we prepare and that we were using our time in session more effectively and more productively, I believe, for taxpayers," he said.
"I just don't think we can show up four days between June and January and be effective without doing a lot of prep work, corresponding and thinking about how we're going to deal with the complex issues that are facing the Education Committee, or any committee in the state Legislature."
With the Legislature not in session, Education Committee members have met more or less monthly since September. They have another session scheduled for November. When the legislative session opens in January, the committee will meet almost daily.
"We are a part-time legislature, but these are issues that we're working on all the time," Alfond said of the potential budget reductions. "For me, the bigger issue here is, issues become more and more complex, and dollars become scarcer and scarcer."
Every time a legislative committee meets, the session incurs the costs of lawmakers' travel and a $55 per-diem amount for each legislator.
"I think, if we're talking about what's essentially workshopping — that is, exchanging ideas and perhaps receiving some input from staff and then reacting to that — particularly if it may be during a period when the Legislature isn't in session, I think it makes pretty good sense as a way to save time and money," said Rick Edmonds, a media and business analyst at the Poynter Institute, a resource center for journalists based in St. Petersburg, Fla.
But if the Legislature's sole concern is cutting the cost of doing its own business, "then we would not go into Augusta for meetings," said Sen. Carol Weston, R-Montville, who sits on the Education Committee.
"I think it's all about transacting business in public," she said. "I don't think (e-mail is) the best form of discussion. I think that it's seeking to influence without the public eye. You could write someone an e-mail, change someone's opinion and then never restate that in a public meeting."
Legislators this winter will consider a bill that would prohibit elected officials from deliberating and arriving at decisions outside of public meetings. The proposal, by Rep. Stacy Dostie, D-Sabattus, would target phone calls, e-mails and other serial communications.
A situation in early September in which a majority of Sabattus selectmen allegedly decided outside of public meetings to tell the town manager to resign prompted Dostie's bill, the Sun Journal reported in September.
Public officials have had e-mail as a communication option for more than a decade. But it's still presenting challenges when it comes to complying with Maine's Freedom of Access Act, said Michael Starn, spokesman for the Maine Municipal Association.
"It's difficult to be 100 percent compliant with the intent of the right-to-know law and the way you would normally conduct your lives," he said.
The Maine Municipal Association advised members in newsletters in 1999 and 2005 to avoid e-mail communication that "turns into a dialogue about substantive matters" and recommended that public officials make their e-mails public at open meetings.
"The media needs to recognize that this is a difficult law in today's world of communication to fully comply with," Starn said. "There's booby traps throughout, and it's very difficult to avoid them if you're a town official."
Maine's Legislative Council, the Legislature's administrative body, hasn't issued guidance to legislative committees about using e-mail.
"I think this is an unusual circumstance," David Boulter, the council's executive director, said of the Education Committee's e-mail exchanges. "In terms of formal guidance, there isn't any at this point because it is so rare. Typically, our way of doing business is a meeting."
Maine's Freedom of Access Act requires that lawmakers elected after Nov. 1, 2008, receive training in state freedom-of-information laws.
The training session, coordinated by the Legislative Council and offered by the Attorney General's office, shouldn't last more than two hours, according to the law. The law says training should make elected officials familiar with freedom-of-access provisions, procedures for complying with a records request and penalties for not complying.
As lawmakers await a new session, Boulter said the Legislative Council might need to more explicitly address the use of e-mail among legislators.
"More people are expecting communication to be by e-mail or teleconference," he said.
Alfond said he looks forward to that guidance.
Meanwhile, "I'm going to attempt to run the most effective committee that I can," he said. "I clearly don't want to violate the public trust and I clearly do not want the public not to be part of these discussions."
Matthew Stone — 623-3811, ext. 435
mstone@centralmaine.com
