Confidentiality Crisis?
Some Town Councilors Seem Shaken by Confidential Information Leak
BAR HARBOR—Disclosing confidential discussion that occurred during the Bar Harbor Town Council’s executive sessions elicited multiple comments from councilors at the end of the council’s December 5 meeting.
The comments began with Councilor Kyle Shank expressing displeasure over reading information disclosed in an online news blog, The Quietside Journal, this Monday. The information was about the town’s dealings with Versant. That discussion allegedly occurred during a November 21 executive session about the town’s Higgin’s Pit solar project.
Councilor Joe Minutolo was not at the November 21 executive session. Councilor Earl Brechlin was not at the December 5 meeting.
An executive session is a closed discussion that is not open to the public because it contains potentially sensitive material. That material can be about litigation, personnel issues, and contract negotiations. The Maine state statutes stipulates what is allowed to be discussed in executive session. It is meant to give a body (like a council or nonprofit board) the ability to meet outside of an open forum so that the discussion won’t have a detrimental impact on issues that are specified in Maine statute.
Councilors Kyle Shank, Matt Hochman, and Chair Valerie Peacock all expressed displeasure that confidential material was disclosed. Councilor Maya Caines said she wasn’t upset about the information that was released but would prefer it if the councilors didn’t enter the sessions often because it creates public distrust.
Shank said that he’d like to discuss the curtailing of the use of executive sessions, especially if there are leaks that occur afterward. He said, “If that’s going to happen, I’d just like us to stop using it.”
Hochman said, “I was very, very disheartened” to see an online blog detailing information that had only been discussed in the executive session.
Peacock stressed that the council goes into the session on advice of the town attorney and that the statute is listed on the agenda as to the reason for the privacy. Earlier this year, there was an error and the reason was not listed on the agenda. Almost all agendas do state the statute as part of the item.
“Executive session is not taken lightly,” Peacock said and later added, “Things that are in executive session shouldn’t be shared.”
MAINE’S EXECUTIVE SESSION STATUTES
Executive sessions are part of the Maine Freedom of Access Act, specifically, Maine Statute Title 1, Chapter 13, Subchapter 1, Section 405. The statute lays out what bodies are eligible to enter executive sessions and the allowed reasons for entering executive sessions. These sessions are allowed by state law in order for those eligible bodies to be able to discuss matters of a confidential matter as long as they fit under the allowed reasons. What the statute does not cover is any penalty for breaching this confidentiality.
The Maine Municipal Association’s website says this about enforcement of executive session confidentiality breaches.
“Question: Is it illegal to breach the confidentiality of an executive session, and if so, what’s the penalty?
“Answer: Surprisingly perhaps, Maine’s Freedom of Access Act (FOAA) or ‘Right to Know’ law does not explicitly prohibit disclosing the contents of an executive session to a non-participant, nor does it specify any penalty for doing so. There may be a reasonable expectation that all participants in an executive session will respect its confidentiality, but this assumption is neither imposed nor enforced by the FOAA itself.
“This doesn’t mean, though, that a person who is the subject of an executive session has no legal remedy if confidential information is made public. Depending on the circumstances, the person may have grounds for a private civil lawsuit against those responsible for the disclosure. But if so, this is for the claimant to pursue privately if they wish, with their own attorney and at their own expense.
“As for a board whose executive session is breached, if the offender is a member of the board itself, one appropriate response may be to convene another executive session, ideally with the board’s attorney, to reiterate the purposes of executive sessions and to emphasize not only the importance of discretion but also the risks of public disclosure, including potential personal liability for the offender. A board may also publicly censure or scold a member who breaches an executive session, though doing so has no legal consequences.”
THE QUIETSIDE JOURNAL ARTICLE
On December 4, Lincoln Millstein’s The Quietside Journal published information about Bar Harbor’s Higgins Pit solar farm proposal. In the article, he wrote,
“A $1.1 million estimate by Versant Power for connection fees which was discussed at an executive session of the Town Council Nov. 17. The town had budgeted only $500,000. Town council vice chair Gary Friedmann questioned whether the cost to upgrade the grid should be borne partially by Versant.”
He also wrote three other bullet points and an additional sentence about the project, detailing whether the project should be reduced and other costs and a potential bond to support the project.
He said that on November 18, “the QSJ challenged the town’s refusal to disclose the latest financial information publicly.”
Four days later, Town Clerk Liz Graves wrote, “We are concerned that portions of this document may be confidential and need to do a thorough review to determine which portions, if any, can be released. We expect to be able to respond within 30 days.”
According to Millstein, the town’s reason for the statement was
“the executive session discussion was held pursuant to 1 MRSA Section 405(6)(C), ‘Discussion or consideration of the condition, acquisition or the use of real or personal property permanently attached to real property or interests therein or disposition of publicly held property or economic development only if premature disclosures of the information would prejudice the competitive or bargaining position of the body or agency.’”
COUNCIL REACTION
At last night’s meeting, both Councilors Hochman and Shank recognized this information as having come from the executive session held by the Town Council prior to its regular meeting on November 21. Councilor Earl Brechlin was not at the meeting.
In a December 5 email to the Bar Harbor Story, Peacock said, “The Town has not publicly released any information about Higgins Pit solar project recently. We did receive a FOAA request that is being processed but hasn't been completed.”
According to Peacock’s email, councilors are aware of the rules of executive session and the expectation of confidentiality.
“I reviewed the rules of executive session with councilors at our July organizational meeting and there have been reminders since then,” she wrote.
BAR HARBOR’S CODE AND CONFIDENTIAL INFORMATION
Also in a December 5 email to the Bar Harbor Story, Assistant Attorney General and Maine Public Access Ombudsman Brenda Kielty said,
“The Freedom of Access Act (FOAA) provides lawful executive session for the purpose of protecting certain categories of confidential information or deliberations. While the statute does not explicitly address the breach of executive session confidentiality, the legal basis for entering an executive session is compromised if information is then leaked.
“The Town of Bar Harbor Code, Article II, section 78-7 prohibits the disclosure of confidential information from executive session without an affirmative vote of the body. Procedures for resolving allegations of ethics violations are guided by the Town of Bar Harbor Code, Article III, section 78-17.”
Article II, section 78-7 of the Town of Bar Harbor Code says,
“No member shall, without proper legal authorization, disclose confidential information concerning the property, employees, government or affairs of the Town, nor shall he/she use such information to advance his/her financial or private interest or the financial or private interest of others. Information received and discussed during an executive session of any Town agency called pursuant to 1 M.R.S.A. § 405 et seq. (the Freedom of Access Law) shall be considered within the constraints of this section and shall not be disclosed to any third party unless permitted by affirmative vote of such body.”
Thanks for your thorough airing of this controversy. Anne Trotter is right. Those not in the secret meeting are going to suspect the worst. It is a pity that the public does not have a right to know what went on when Versant was discussing their approach to this. Suspect the worst. Versant wants to kill renewable energy even though they are not in the supply business in Maine. What better way to do it than to make it uneconomical.