South Portland city councilor’s email use scrutinized

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SOUTH PORTLAND — A city councilor is being called out by fellow councilors who say he’s conducting council business via a private email account, out of the public’s eye and in violation of city policy.

“I can tell you that this council has been conducting public meetings without announcing them, electronically, and that’s an abuse of public trust,” Councilor Claude Morgan said in an Oct. 14 City Council workshop.

The bulk of the workshop was devoted to discussing a possible moratorium on the NGL Supply Terminal Co. application to construct a liquid petroleum gas storage facility at Rigby Yard. Morgan’s allegations, in large part, referred to emails about the application and LPG storage at Rigby.

“This has been going on for months now,” Morgan said. “It’s disturbing to me; it’s disturbing, I think, to almost every other councilor on this panel.”

While Morgan that night did not publicly attach a name to the accusation, by phone this week he said Councilor Brad Fox is responsible. Fox is in the first year of a three-year term representing District 5.

Morgan’s allegations refer to emails sent from Fox’s personal Gmail account – not his City Council account – to the other six councilors, and, occasionally, City Manager Jim Gailey and members of the press. Fox’s use of a private email account violates a city policy that requires councilors to use city-provided email for city business.

The messages include discussion of the NGL proposal and, earlier this spring, Martin’s Point Healthcare’s ill-fated bid to build a new facility on the site of the former Hamlin School.

A concern, Morgan said, is that the emails make the city more vulnerable to a lawsuit, especially if the council votes for a moratorium on the propane project.

“I think we are incredibly vulnerable as a result of this abuse of process,” Morgan said. “We are ripe for a lawsuit.”

Fox responded to the allegations Wednesday evening. “I don’t know what Councilor Morgan is talking about,” he said.

But Fox, who has helped mobilize a grassroots effort among residents who oppose the propane project, also said “I email as much information as I can gather about this issue to as many people as I can, including councilors.”

“I’ve been working with others for about seven months now to try to educate the public on this issue and have expressed my views at the recent council workshop. How secret is that?,” he said.

The emails, almost two dozen of which included The Forecaster as a recipient, show Fox initiating communication with other councilors about the NGL application, but little to no engagement from other councilors.

Some of the emails pass along information and links to published material without any expression of opinion by Fox. Others include questions and comments that convey Fox’s opposition to the project – questions and comments that, because they are shared with three or more councilors, violate the public’s right to know, Morgan said Monday by phone.

In an email Fox sent Sept. 29 about the NGL application to Mayor Linda Cohen; Councilors Melissa Linscott, Patti Smith, and Maxine Beecher; Gailey; several city residents, and news outlets, he asked why the city wasn’t opposing the company’s proposal.

“Why aren’t we fighting this catastrophe-in-the-making? This is the question we’ve been asking since this past March, when we first asked for an urgent council discussion,” Fox wrote. “Perhaps we’ll get some answers, and some action, on Oct. 14th, at a council workshop. I hope everyone attends.”

In another email, dated Oct. 4 and sent to four councilors, Gailey, several residents and members of the press, Fox included three links about a train derailment in Massachusetts involving LPR storage cars.

“Pan Am (Railways) owns Rigby Yard and leases space to Amerigas, who currently transload propane to trucks there. (We just found this out.),” Fox wrote. “They have leased space to NGL/DownEast Energy who want to do the same thing on a large scale. Pan Am may also do the same, just as they have proposed to do in Portsmouth, MA. The City of Portsmouth is fighting Pam Am’s plan. What will South Portland do?”

In another email from Fox, sent March 4 to all councilors and Gailey, he wrote: “There are plenty of fun facts on (LPG) if you Google it, nice pictures of explosions, etc., but one thing sticks in my mind. If having (LPG) facilities makes you a target for terror, how does one protect these big tanks and rail cars? It seems as though an RPG, or a small plane hitting one would make a big bang. Why don’t they put them underground?”

On May 19, regarding Martin’s Point Healthcare’s application, Fox suggested via email that the council hold a workshop on the matter.

Cohen responded that the “Council’s workshop planning is done in public, not in emails or behind the public’s eye. We are already accused of not being transparent.”

I hardly think it’s going behind our citizens backs in an attempt to get a public workshop on a matter of their concern,” Fox replied. “If the public believes there’s a lack of transparency, it’s because we haven’t discussed this issue in the open and come to a conclusion. I would like to see that happen now.”

Fox, unprompted, provided the email exchange to The Forecaster the same day. During the last six months he has willingly provided hundreds of other emails to the newspaper.

When elected last November, Fox spoke at length about his desire to improve council transparency. He believes he does that, in part, by including the press in his email communications.

Nonetheless, he has been warned by councilors about his conduct. Morgan shared his concerns with Fox in a May 18 email exchange.

“Brad, I am concerned about your emails to the Council. I believe you can bring up these issues at round robin or solicit response in workshop. My own take here is that this kind of communication is an electronic meeting because it invokes conversation,” he wrote. “At the very least these emails anticipate a public conversation and so deny the public the fullness that (the Freedom of Access Act) attempts to preserve.”

In response, Fox told Morgan he was “not worried” because, “I’m not asking anyone to discuss anything online. I’d be more worried if I was a responder.”

“I think it’s important to get our thinking out there before it’s long gone,” Fox continued. “I think council rules keep us from bringing up issues and the round robin is not discussion time.”

South Portland, Fox said, “has a unique version of meeting rules. I don’t keep anything I send out secret. As a matter of fact, I send many of my emails to the press. I’d like all of my emails posted on the city website. Ask a reporter who’s the most transparent councilor.”

The city’s protocol concerning councilor communication, last updated in August 2011, urges them to “avoid” electronic communication for “deliberation, discussion or voting on matters properly confined to public meetings.”

The protocol regarding personal email accounts is just as clear: “City Councilors will each receive a separate email account that shall be used to send City Councilors official City documents and shall be used by City Councilors to send all emails relating to city business.”

The protocol outlines no punishment if a councilor disregards either of the rules. 

Unlike the city’s “three or more” rule, the state’s Freedom of Access Act does not limit communication outside of public meetings to any specific number of elected officials, unless that communication undermines the intention of the act.

Judy Meyer, managing editor of the Sun Journal in Lewiston and vice president of the Maine Freedom of Information Coalition, agreed that while there is no “three or more rule when it comes to email or other written communication, one councilor cannot email another, and then another, and so on, to build consensus.”

“Discussions and deliberations must be held in open and at public meetings at all times, unless there’s an exception for an executive session,” Meyer said Tuesday by email. “And copying (media) on the mail doesn’t make it any more ‘public.'”

A lot of Fox’s exchanges appear “ostensibly generic unless you start adding it up into conversations that have already taken place and then, to me, this looks like a continuation of conversations that have already taken place,” Morgan said by phone Monday afternoon.

“They look to me very much to try and color and to try to persuade councilors thinking outside of the public forum,” he said.

On Wednesday evening, Fox called the situation “a distraction from a serious issue before the council and the city.”

“It’s my right to try to prevent any new, dangerously large liquid propane tank farms from being built in South Portland, which I believe is what our current ordinances were enacted to do,” he said. “I also believe that is the way to protect the health, safety and welfare of our residents.”

The council is slated to have a Freedom of Access Act workshop with City Attorney Sally Daggett in the near future, Gailey said Tuesday.

On Wednesday afternoon, when asked about Fox’s conduct, Cohen wrote in an email, “We are not supposed to be having these types of conversations out of public view.”

It’s been a long time since a Councilor was publicly reprimanded for his or her behavior. I would prefer that the emails stopped, rather than punishing a councilor,” she said.  

When deciding whether Fox should be reprimanded more formally, Morgan said, “I guess I would just let the public make that determination.”

Alex Acquisto can be reached at 781-3661 ext. 106 or Follow Alex on Twitter: @AcquistoA.




South Portland and Scarborough reporter for The Forecaster. Graduate of Western Kentucky University and the Salt Institute for Documentary Studies. Alex can be reached at 781-3661 ext. 106.

  • spcitizen

    Uh oh, looks like a cat fight brewing in Emperor Blake’s Kingdom between Clod “I Have Two Middle Initials” Morgan and Brad “The Sly Fox” Fox. Look for The Emperor to set forth a decree demanding there be no discord among his loyal disciples. Then once again all will be serene in The Emperor’s kingdom and he will get everything he asks for.
    All hail Emperor Blake!
    spcitizen has spoken

  • Triple 3


  • beachmom H

    Fox and his candidate Rose both love the off the record, back room discussions and deals out of the public eye.

    • Eben Rose

      I have reached out to city staffers and council members repeatedly over the propane issue both in televised public forums and in newspapers as well as face-to-face. Some have engaged, others have not. Cohen as mayor has steadfastly refused to talk to me, a constituent, about this issue. I do not understand how to reconcile this with her election season refrains that she always talks to her constituents. She told me I can talk to her during the 2 minute comment period during public workshops on the topic. I said that 2 minutes is not very much time to contain all the details of this issue. She responded that she’s been “keeping up on things”. How? How has she been keeping up on things? There is an asymmetry of access here that we all should be concerned about, where some are shut out while others are selected for more extended consultation.

      I know you are a fan of transparency and open government, as am I. So please consider this: private developers like NGL are not subject to the same scrutiny under FOAA. They can enjoy broad privacy to develop their legal strategy and then can engage (and have engaged) in hours-long private meetings with Planning and Development staff. There were no announcements of these meetings, no invitation for public discourse, no minutes taken, and no official record of who attended and what was said.

      In any case, it would help for you to read the FOAA and consider what it does and does not include. Specifically, see 1 MRSA sec 402(3)(C), sec 403(6) as they pertain to advisory discussion, and sec 402(C-1(I)) as it pertains to charges of misconduct which has been a central issue with the handling of the NGL application. Yes, it helps to know the law and have a rational basis for crying “foul”, and, as FOAA specifically states (sec 401), it “…does not prohibit communication outside of public proceedings between members of a public body unless those communications are used to defeat the purposes of [the Act].”

      Political speech is perhaps the most protected of our First Amendment rights. We two can enjoy this very discussion on-line without concern for violating FOAA. I would expect to retain this right even as an elected official. That is because discussion about what makes good governance is fundamental to a free society. This includes immanent issues such as whether this private propane development is allowed under our local zoning and why our city officials are allowing it if it is not. FOAA was never intended to have a chilling effect on such discussion. Where FOAA comes in is when these discussion become deliberations on official actions, and deliberations take place during City Council Meetings. All the rest is advisory.

      There is no cloak-and-dagger here. I appreciate face-to-face discussion and would like to extend such detailed debate and discourse to the public much more openly. Please see, for example, the essay “opening up the legislative process” on my website at and tell me what you think!

      • beachmom H

        Uh uh. You wanted to have a private meeting with her.

        • Eben Rose

          Yes. I still do. She says she meets with constituents. I am a constituent. Is this too much to ask?

          • spcitizen

            Every time you open your mouth, Mr. Rose, it leads to another vote for Mr. Stanhope. Keep up the good work, the more you say, the more people will realize what a truly poor councilor you would make.
            All hail Emperor Blake!
            spcitizen has spoken

          • Eben Rose

            I am not one to agree to disagree because I truly believe that rational people who have come to different conclusions have done so because they have differing data that allow them to lead to those conclusions, and by sharing their data they may come closer to accord. I think we share more core values than our apparent divides reveal, and if you are willing to take the time to talk through these issues, I think we will both find that we are in agreement with regards to good governance. Are you willing to engage in such a dialog, spcitizen? (Is that you, Mr. Russel?)

          • spcitizen

            What? Who are you trying to impress with this? Man, speak in plain English. You are making a fool of yourself.
            All hail Emperor Blake!
            spcitizen has spoken

          • Eben Rose

            I am not trying to impress, but I do want to invite a dialog. And maybe taking the time to comb through these issues we may find that we have more similar goals than different ones. That’s all.

          • SierraTango

            Yeah, how’d that work out for your buddy Ernie?

          • spcitizen

            Doesn’t matter how it worked out for Mr. Stanhope, what matters is that it is horrible for the once proud city of SP. This council will continue to force SP into the abyss.
            Evan “Thorny” Rose is not a leader, he is a follower of the Emperor.
            Heaven help SP.

            All hail Emperor Blake!
            spcitizen has spoken

          • beachmom H

            You were at the front of the tar sands ban and at the front of banning propane and it would have raised questions of ethics and corruption. Things you said yourself you think are running rampant in South Portland City government.

          • Eben Rose

            I am not sure exactly what you are saying here. Are you suggesting that community groups such as Protect South Portland held meetings in violation of FOAA? This sort of thing has been tested in court with Dow v. Caribou Chamber of Commerce (2005) and established the “Dow factors” to determine whether an entity like the Chamber of Commerce is a governmental body. It is not, the court determined, and is not subject to FOAA laws. Same with PSP or any other community group in town.

          • beachmom H

            Now you know that’s not what I said. You in fact asked Linda Cohen for a private meeting while you were in the forefront of the tar sands ban push.
            She told you what she tells everyone. Keep discussions public and in the open.
            You keep trying to deflect the issue that you did indeed ask for a private meeting and she addressed that in the first forum, where you and Andy had the questions ahead of time.
            None of that sounds like you have a leg to stand on when it comes to accusing the city’s government departments of corruption with no proof to back it up.

          • SierraTango

            “…in the first forum, where you and Andy had the questions ahead of time.”

            “…with no proof to back it up.”

            Where’s your proof that they had the questions ahead of time?

            How come you and Jim didn’t attend and ask any questions?

            Mike Pock made similar complaints, and yet he didn’t ask any questions either, even though he was there. He’s not a shy guy so I’m not sure why he didn’t stand up and ask a question or two if he felt like his issues weren’t being addressed by the candidates.

          • Eben Rose

            Oh, yes, indeed I asked Cohen to meet face-to-face. I expect this of my representatives in office. I will be happy to meet with you privately, too. I see it as my duty. And what we two say will be as public or as private as you like. That is because I represent you as an inhabitant of South Portland, and I want you to feel comfortable talking to me.

            My experience with Cohen is that she says she talks privately one-on-one and does so from time to time selectively. The thing is lawmakers have to get their information somehow. They do so by consulting constituents, constituent groups, members of city staff, sometimes businesses, etc. Some of these meetings are formalized and subject to FOAA, some are informal and are exempt.

            As to corruption, executive staff that actively undermines our Code of Ordinances with impunity needs to be reigned in. That’s where I stand on that issue.

      • Chew H Bird

        My limited understanding of this article is in regards to the use of non-approved email addresses. It seems to me the elementary ability to follow basic rules by utilizing an approved email address is something that an elected official should be able to follow, and if not that elected official should be replaced by someone able to follow basic rules.

        Discussions about alternative communications are great, but this article seems to deal with a very specific issue. If someone disagrees with the rules, they are free to proposes a different rule structure, but blatant disregard of rules simply demonstrates a lack of ability to follow them.

        • Eben Rose

          The problem is that these rules aren’t basic, and there is no agreement among councilors about what is allowable and what is not. Morgan refused early on to receive e-mails from Fox containing links to published reports and court cases (all public information) via the city-assigned e-mail. No other councilor expressed that this was any sort of violation except him. Do you?

          Morgan claims that such e-mails count as forbidden “secret meetings”. It is not clear if he considers face-to-face meetings with constituents as “secret meetings” as well, but probably he does not. I say this because I have appreciated the hours-long face-to-face meetings I have had with him at his home over this propane issue and other germane city issues. I would expect to be available to you or to any constituent for such meetings if I am elected to the Council. To me this is how I make government accessible, not the opposite.

          Indeed FOAA specifically states (1 MRSA §401) that it “…does not prohibit communication outside of public proceedings between members of a public body unless those communications are used to defeat the purposes of [the Act].” This is because such meetings are not deliberations, and such groups, even if they involve other elected officials, do not have decision-making authority and are therefore not considered “public proceedings” (see MRSA §403(6)).

          In any case, these council rules will be a topic for a workshop in a month or two, and I hope you can consider where you would draw the line after reading the FOAA with all of its justifications for exception (see 1 MRSA §402(3)(A-T)). One exception, by the way (item C-1), is for “…charges of misconduct”, and this whole propane terminal issue has come this far precisely because key staffers charged code enforcement are not enforcing code. The exception here is to protect the reputation of these folks so that the public doesn’t judge them prematurely, as seems to be happening ironically with Fox.

          So, you see, there is much more here than meets the eye, and the broader questions of openness I hope we all will consider in the fine-grained details as the council contemplates its own rules in its new session. Again, I hope you will read the essay “opening up the legislative process” on my website at and offer your thoughts about how to set up public dialog in new, more flexible and open venue.

          • Chew H Bird

            So you are saying the article is incorrect in the statement: “Fox’s use of a private email account violates a city policy that requires councilors to use city-provided email for city business.”

            That is the only focus of my thoughts on this article. I know that in my role as an outsourced IT administrator, use of a client approved email address is mandatory for communications that represent the client (and has been for years) to protect the client (and myself) from a legal perspective.

          • Eben Rose

            The article is incomplete. If Morgan’s accusation is all about some clearly articulated city policy regarding use of e-mail, then it should be manifestly known that there is no handbook given to Councilors when they are sworn in, that the FOAA training they receive upon inauguration does not address this issue in any detail that allows Morgan to call “foul” as he has done, and that the written version of city policy regarding e-mail (which was lifted from Falmouth in 2011 and still says “Falmouth” interchangeably with “South Portland”) was made known to Fox and given to him for the first time just two weeks ago. These seem like rather important details in understanding “transparency”, don’t you think?

  • dfortin

    I think Mr Rose and his pal councilor Fox should go back where they came from no need of what is going on with the e mails that is wrong wrong wrong as far as mr fox goes he is not an honest man has no job lives in tax payer assisted housing you people are creating a big mess in this city and we will have to foot the bill you are not as smart as you think you are. trying to scare people with half truths just like the tar sands issue

    • spcitizen

      Ultra liberal, eco-terrorists from away are ruining SP.
      All hail Emperor Blake!
      spcitizen has spoken

    • SierraTango

      “has no job”? I’m pretty sure he’s retired. Are retired people not allowed to be city councilors? That would rule out several current and most past councilors.

  • spcitizen

    So, Eben “Thorny” Rose is now a city councilor. Just another ultra liberal eco-terrorist on an all ready horrible city council who are determined to drive the once proud city of SP even further into the abyss.
    All hail Emperor Blake!
    spcitizen has spoken

  • spcitizen

    Emperor Blake has been holding top secret meetings in the attic of Campbell’s Market for years, why isn’t this a problem?
    All hail Emperor Blake!
    spcitizen has spoken

  • Spspeaks

    Another deceitful move by fox. The man is out for his own agenda. Does not care about south Portland citizens. He can not be trusted to guide this city. He recently also filed for bankruptcy. How can someone who can’t handle their own finances be trusted to help set the finances for the city.

    • Eben Rose

      Ever hear of the trend in the US of people having to go into bankruptcy because of their medical bills? Brad is a cancer survivor. He had a choice to live in bankruptcy or die. Now you know.

      BTW, his own agenda is to promote the health, safety, and general welfare of South Portland’s inhabitants. This is what the Charter requires of us. If you are unhappy with this agenda, then you can bring your own ideas to a city wide vote as a change of Charter.

  • spcitizen

    Hence is nickname Brad “The Sly” Fox. Since dirty laundry is being aired about The Sly One, why hasn’t anyone aired the considerable dirty laundry possessed by Emperor Blake. From what I have heard, it will make your head spin.

    All hail Emperor Blake!

    spcitizen has spoken

  • SoPoWatcher

    Fox bankruptcy case 14-20511. Filed in Portland. 76-thousand in credit card debt. 25-hundred in unpaid domestic support. Public information. Look it up for yourself.