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.”