SOUTH PORTLAND — Emails sent from February through late November show City Councilor Brad Fox engaged in at least 125 discussions with councilors and the city manager about a pending application for a liquid petroleum gas storage depot at Rigby Rail Yard.
Fox used a private email account, instead of the city account required by council rules. The emails were obtained through a Maine Freedom of Access Act request by The Forecaster.
Any discipline in response to a councilor’s use of personal email to discuss city business ultimately falls on the municipality, City Attorney Sally Daggett said Monday during a FOAA training workshop for councilors, city staff and elected officials from greater Portland.
Assistant Attorney General Brenda Kielty, the state public access ombudswoman, who helped lead the workshop at City Hall, agreed with Daggett. “If you don’t have any system in place,” she said, “you’re just asking for trouble.”
The training session was scheduled after, and in part because, Fox was accused in October of discussing city business outside public meetings.
Fox did not to attend the training and did not respond to requests for an explanation of his absence.
Some councilors, Mayor Linda Cohen said, were “upset” about Fox’s absence.
“We all took an oath, and part of that is to uphold the laws and ordinances. How can you uphold something if you’re not trained in what you’re upholding?” she said.
The initial grievance against Fox was aired by Councilor Claude Morgan, who at an Oct. 14 council workshop said “this council has been conducting public meetings without announcing them, electronically, and that’s an abuse of public trust.”
Fox was later chided by other councilors for discussing substantive matters out of the public eye, via his personal account.
An examination of the emails obtained through The Forecaster’s FOAA request revealed Fox often broached the subject of the NGL Supply Terminal Co. application to build a LPG storage facility at Rigby – a proposal that he has openly opposed in public meetings.
As a rule of thumb, Daggett and Kielty agreed, if substantive discussion or deliberation – anything outside of routine scheduling of meetings, developing future agendas or sending information one-way – takes place outside a public setting, a line has been crossed.
Even though not all correspondence was substantive, much of it attempted to prompt discussion because Fox openly tried to persuade councilors to oppose the application.
Some of the emails passed along information and links to published material, without Fox expressing an opinion. Others include questions and comments that conveyed Fox’s opposition to the project and solicited responses from other councilors.
In an email Fox sent Sept. 29 to Cohen about the NGL application Cohen; Councilors Melissa Linscott, Patti Smith, and Maxine Beecher; Gailey; several city residents, and members of the press, 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.”
Anytime an elected official opts to use a private email account to discuss city-related business, it makes that municipality more vulnerable to legal action and public distrust, Daggett said Monday.
Short of accessing information on a personal server through a court order, a municipality has to rely on the integrity of a councilor to turn over all his or her correspondence when it’s requested, for example, through the Freedom of Access Act, and “we don’t know what search terms they use, we don’t know how far back they went, we don’t know if they deleted things … it doesn’t give me, as (the city’s) lawyer, a good feeling,” she said.
“When in doubt, (be) open,” Kielty said. “When in doubt, access.”
In an email in response to the FOAA request, dated Nov. 14, Fox told Mary Perry, assistant to the city manager, “I looked through my deleted emails and did find more emails, but it could take some time to search and read them for anything pertaining to NGL.”
The reliability of email collection, when it takes place outside of the city server, is shifted to a councilor rather than an unbiased third party who can collect all email from the server at any time, is what makes the use of a personal email address particularly problematic, Morgan said Wednesday afternoon by phone.
“When you step away and you do all your business off the city server, now the public has to rely on your integrity,” he said. “The beauty of our system is that you do not have to care about my integrity to have your request responded to.”
Even if email correspondence takes place between less than a quorum of councilors, Kielty said, that discussion or deliberation can still be used to “defeat the purposes of FOAA.”
Deliberations should be conducted openly, she added, and violations can occur even if only two councilors participate.
Although the city has a protocol that requires councilors to use their city-provided email accounts, it does not have a formal procedure to enforce the protocol.
“If you don’t have policies in place to make it clear … about using private accounts, if they don’t understand that they have an obligation and that the municipality has the larger obligation to retain those records and produce them, then maybe you ought to look at reviewing your policies,” Daggett said Monday.
The most “natural, organic way” in which this issue could be publicly addressed, Cohen said Wednesday evening by phone, is for a councilor to suggest the item be discussed in a workshop.
“Even though councilors may not be happy about the fact that he is using his personal email, no one has come to me yet and said, ‘We have to do something about this,'” Cohen said.
But Morgan said Wednesday that he plans to publicly request discussion of the issue. He said the reason City Council email accounts exist all on a common, city-controlled server is “so that the integrity of the councilors would not be eroded.”
When a councilor elects to use a personal email address, it automatically requires more time and manpower for that information to be collected, he said.
“It just takes one councilor deciding that the rules are not meant for them for it to start getting expensive,” Morgan said. “I think that that’s really important for folks to understand. There really is a cost associated with this.
“Am I concerned that there are more emails out there?” Morgan said. “Yeah, I am because I cannot see them with my own eyes, and that’s the whole point.”