Portland charter commissioners have been discussing their budget since they first met in late June.
The details are still murky, and several commissioners plan to meet with City Manager Jon Jennings this week to try to determine the panel’s operating budget.
But because a seven-member quorum of the commission will not participate, the discussion with Jennings will not be open to the public – and at least one expert on the public’s right to know said the meeting does not pass the straight-face test.
Judy Meyer, vice president of the Maine Freedom of Information Coalition and a member of the Legislature’s Right to Know Advisory Committee, on Tuesday said technically the commissioners are allowed to meet with Jennings behind closed doors.
“However, this is not good practice, especially when talking about public money,” Meyer, executive editor of Sun Media Group in Lewiston, said.
Additionally, she said the meeting has the look of a city trying to skirt Maine’s Freedom of Access Act.
The full commission has been meeting remotely every two weeks, and these meetings have been public via Zoom.
Commissioners on Aug. 11 created committees to take deeper dives into some of the major issues they will consider, including the balance of power between the mayor and city manager, the fate of at-large City Council districts, revisiting the relationship between the School Department and City Hall, and others.
While there was no discussion about whether these meetings would also be available to the public via Zoom, Chairman Michael Kebede this week said the committee meetings will have public access.
He said members have been grouped into committees, and the assignments will be formalized Aug. 25. The meeting schedules for those committees haven’t been worked out, he said, but they will take place in public.
State law requires public notice for all proceedings of a governmental body or agency of three or more people. Notice needs to be given “in ample time” to allow for public attendance. If a meeting is considered an emergency, local media must be notified.
But given the Charter Commission’s limited authority, and because it is making recommendations and is not a legislative, decision-making body, Meyer said, the “rule of three” does not apply.
“I don’t think it applies to a committee that doesn’t have authority to take action on something that affects the public,” she said, “(although) the rule of three is a good rule of thumb; every committee should follow that.”
During the commission’s June organizational meeting, James Katsiaficas, an attorney from Perkins Thompson hired by the city to assist the Charter Commission with its work, said if there is a quorum of the seven members acting in the commission’s interest, that constitutes a meeting that requires public access.
Cathy Conlow, executive director of the Maine Municipal Association, agreed with Katsiaficas’ opinion. She said generally a public meeting would be defined as a quorum of the full committee.
“However, the city may have specific rules for subcommittee meetings, (an) ordinance, or (a) charter provision that would better define that,” she said via email.
City Hall spokesperson Jessica Grondin said a meeting of a municipal board, committee, or commission requires a quorum, so in the case of the Charter Commission, that’s seven members. But for the handful of committees the commission created, Grondin said, smaller quorums will be the rule for public access.
“At its last meeting, the commission officially established several substantive and governance committees each of which may have three or more members, and so each will be governed by the (Freedom of Access Act) and will have to meet public notice requirements,” Grondin said. “Which means if two members of a three-member committee meet and talk about public business, there is a quorum, there is a public meeting of that committee, and the public must have notice of that meeting as provided for under the FOAA.”
Grondin confirmed this meant that the planned Aug. 26 meeting with Jennings – which will include Kebede and three other commissioners – does not constitute a public meeting, since the group is not one of the committees and there will not be a quorum of the full commission.
Meyer, on the other hand, acknowledged the FOAA allows for “less than a quorum” to meet with city staff and not have it be considered a public meeting, but said something like the Aug. 26 meeting “has a real odor to it” because meeting privately to talk about public money is inappropriate.
“They should be doing it in full view of the public, and not to do that is not transparent,” she said. “It’s not good government.”
Given that the commission will likely end up making some significant recommendations, Meyer said, those conversations — whether about the budget or policy — should be conducted in public.
“What they’re doing is legal, it’s just not good practice,” she said.
When the Charter Commission first began meeting commissioners had no clear idea what their budget would be, and they still don’t. The city’s top attorney, Danielle West, had said she was aware of only $1,000 that was set aside for the commission, a figure that was rejected by commissioners.
The last time the city convened a Charter Commission in 2010, that panel had a budget of $50,000 over the course of fiscal years 2010 and 2011, and it spent more than $44,000 – most on administrative costs.
But there were recurring costs for monthly expenses, such as food, including one month when the commission spent more than $525 at Amato’s.
Kebede, meanwhile, said there has been “nothing new” in terms of budget clarity ahead of the Aug. 26 meeting.
He said the commission is “more or less where we were when we first asked the question,” although the city has allocated $74,000 for legal fees.
Kebede said commissioners still have to decide how to approach the meeting with Jennings.
“We haven’t yet reached a decision on whether to make a request or simply gather information,” he said.