Bath solicitor upholds council's decision to withhold closed-meeting documents from public

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BATH — After the City Council last week reversed an earlier decision and decided to disclose to an investigator details of a closed-door discussion about a sale of city-owned property, the city solicitor is determining whether any documents were created that must also be disclosed.

But even if such documents exist, attorney Roger Therriault said, the council does not have to also make them available to the public.

Roger Therriault said Monday that while no official documents, such as minutes, exist from the Feb. 6 executive session, he is determining whether councilors took any notes during the discussion.

Rarely would there be any notes or minutes from an executive session, Therriault explained. The city clerk does not attend the private meetings; occasionally City Manager Bill Giroux or Therriault will make a note about something that requires followup.

“I don’t have anything, I don’t think Bill has anything, as a result of that meeting, and I just want to make sure council doesn’t have anything,” Therriault said, adding that he is “about 99.9 percent sure” that councilors did not take any notes.

The council’s Aug. 21 decision to maintain confidentiality of the executive session prompted a campaign to recall five city councilors. Organizers suspended the campaign following the council’s 6-2 vote Sept. 4 to reverse that decision.

The council will tell an investigator, who has not been selected, what happened during the executive session about the sale in May of the Mid Coast Center for Higher Education. 

Councilor Carolyn Lockwood said Sept. 4 that there are no documents from the Feb. 6 meeting to reveal – only councilors’ recollections of what transpired. Councilor Mari Eosco, who proposed the waiver of confidentiality, noted that discussion would only be with the investigator, and that “this is not for us to talk about with people on the street.”

Similarly, according to Therriault, any documents relating to the executive session that pertain to the hospital sale would not be available to the public.

“The council approved (waiving) the privilege, and that includes not only … talking about the discussion (at that meeting), it also includes any material that’s prepared for the executive session, or as a result of it,” Therriault said. “That also would remain confidential, except to the investigator. … Whatever we have in waived documents will be provided to the investigator.”

If Therriault finds any documents not related to the closed meeting, those can be released to the public, he said.

“First of all, we have to determine if there are documents that weren’t released,” he explained. “So we have to go through and figure that out. And then secondly, we have to determine whether or not those documents were related to and part of an executive session. … If they were part of documents that were given to council as part of the executive session, given to them at the executive decision … then they are subject to the privilege. They would not be released.”

“If there are documents that we find that are not documents that were given to council as part of their deliberations in executive session, then those would be released automatically,” Therriault added. “There would be no reason, and no basis, to retain any privilege for those documents. I’m pretty sure there are none of those out there at this point.”

He said he wants to confirm with councilors that they do not have any documents that he is not aware of.

The council on April 17 unanimously approved the sale of the former hospital on Park Street. Bath had owned the property for about a decade before selling it to Robert Smith of Phippsburg for nearly $800,000. According to the city’s online database, it had an assessed value of $6.5 million.

Some residents, including Larry Scott and Michael Wischkaemper, have criticized the sale, claiming the city failed to practice due diligence in setting a price, and did not sell the building in an appropriate way.

“My goal was not then, nor is my goal now, to cause disruption to the city of Bath,” Scott said Monday. “My goal was just to ask … how did you get the best possible price for the property if you didn’t list it?”

The Mid Coast Center was listed with a real estate agent, and the city received a full-value offer from Smith six days later, Giroux has said. Part of the offer was that the property would not be advertised until the City Council had an opportunity, soon afterward, to consider the matter, the manager said.

Scott said he does not mind the information from the council’s executive session being available only to the investigator, “as long as, if that information leads that investigator some place … that information then can be part of the report.”

The recall campaign remains in suspension, he said, noting that “I have no reason to go forward with (it). I see no benefit to anyone to try and recall a group of people who are at least, in their minds, attempting to resolve the issue.”

“I think we may, eventually, with an investigation, get to the bottom of what did happen,” Scott added. “I do hope.”

But he also suggested that the questions and suspicions raised about the sale, and the way the council has responded, may undermine the validity of the investigator’s report.

“I’m as satisfied as I can be, he said, “under the circumstances of dissatisfaction.”

Alex Lear can be reached at 781-3661 ext. 113 or Follow him on Twitter: @learics.

A Maine native and Colby College graduate, Alex has been covering coastal communities since 2001, and currently handles Bath, Topsham, Cumberland, and North Yarmouth. He and his wife, Lauren, live in the Portland area, and Alex recently released his third album of original music.