South Portland councilor who used private email skips right-to-know meeting

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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. 

‘Abuse of public trust’

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.

City’s recourse 

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.” 

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.
  • beachmom H

    The issue of NGL shouldn’t be the only emails the city is concerned about.
    What other city business did Fox use his private email for?
    Come on City Council! Get a spine and take legal action.

  • SierraTango

    It’s fascinating that this is just now considered a problem.

    I have in my possession many emails from many current and former city councilors who communicated about city business via private email servers while they were serving on the council.

    I completely agree that city councilors should use their city email accounts to communicate about city business, but that has not always been the case and Fox is definitely not the first councilor to violate this supposed “rule,” so why is he the only one taking the heat for it? How come Morgan never said anything when it was being done by Beecher or Jalbert or Soule or Boudreau?

    • beachmom2

      You can file a request yourself.
      If you are going to make accusations with no proof provided, (actual, court admissible proof) you open yourself up to accusations of dishonesty and even lawsuits.
      So please provide proof instead of throwing around unsubstantiated accusations at others.

      • MCHaye

        go to web . archive .org and look up the South Portland city web site from previous years. You’ll see the previous council members listed on the City Council page and you’ll see that many of them were using private email accounts, including the ones I mentioned in my post. Unlike you I don’t make unsubstantiated allegations.

        • beachmom H

          I did not make unsubstantiated accusations. I asked for proof.

          • MCHaye

            oh yes you did, you said the first council debate was rigged and that eben rose and brad fox had the questions ahead of time

          • beachmom H

            They did. The other candidates saw them with their list and their answers already written out. I called the organization and they did not take my call or get back to me.

          • MCHaye

            prove it

      • MCHaye

        2005 City Council Members Contact Info page (archived from southportland .org)

        Mayor Maxine Beecher mbeecher @ maine . rr . com

        Claude V.Z. Morgan info @ claudemorgan . com

        Kay Loring kloring @ maine . rr . com

        Rosemarie De Angelis rdeangelis @ southportland . org

        James Hughes jhughes @ hbisoftware . com

        Linda R. Boudreau lrb @ maine . rr . com

        Ralph C. Baxter, Sr. no email

      • MCHaye

        2007 City Council Members Contact Info page (archived from southportland . org)

        Mayor Claude V.Z. Morgan cvzm @ maine . rr. com

        Kay Loring kloring @ maine . rr . com

        James A. Soule jsoule @ southportland . org

        Maxine R. Beecher mbeecher @ maine .rr . com

        James Hughes jhughes @ hbisoftware . com

        Linda R. Boudreau lrb @ maine . rr . com

        Ralph C. Baxter, Sr. no email

  • Chew H Bird

    This is the electronic equivalent (in today’s world) of an elected official communicating city business on personal letterhead instead of municipal letterhead. And then there is the issue of text communications… And what about voice? We need to have line somewhere as to what is proper, what is legally required, what is an “emergency situation” and what is disregard for policy.

    These rules are typically outline in employee handbooks across nearly every industry and every business. Why would a municipal entity not have such policies written up with appropriate disciplinary actions?