BRUNSWICK — The Town Council publicly voted 7-2 Wednesday to begin contract negotiations with Gary Brown to become the new town manager, one week after making the same decision behind closed doors.
Wednesday’s meeting came amid questions about the legality of an Aug. 5 executive session, where a majority of councilors decided to initiate negotiations with Brown, the acting town manager. That decision, which was reportedly followed by a phone call from Chairwoman Hallie Daughtry offering Brown the job, suggested councilors voted in private, which is a violation of the state’s Freedom of Access Law.
But in Wednesday’s meeting, which was preceded by another closed-door session with the town attorney, councilors maintained the Aug. 5 gathering was legal.
During the public session, Daughtry said it was the town attorney’s opinion that the Aug. 5 meeting was legal because the town has not yet hired Brown.
That suggestion was openly refuted by Councilor Karen Klatt, who noted that Daughtry called Brown on Aug. 5 to offer him the job and that he accepted it.
Daughtry responded that the council’s action was not final. She also disputed her own comments to the press about the call to Brown, saying she couldn’t “control what’s written in the newspaper.”
The exchange was a snapshot of a lengthy – and often bizarre – meeting called to legitimize the Aug. 5 gathering and a search process that some residents are now calling tainted.
Even as Daughtry called the search successful and fair, she said it wasn’t perfect because councilors had no written policy to guide them. Councilor David Watson said he would be introducing guidelines to help in the future.
“The council was confused at many times,” Watson said. “… We were stumbling in the dark at many times. … We didn’t do anything intentionally that was wrong.”
Nonetheless, some councilors admitted they they thought the Aug. 5 session would be immediately followed by a public vote.
“The breakdown here is that you cannot have an executive session and not come right out with a public meeting,” said Councilor Joanne King, who was among the 5-4 majority that endorsed Brown on Aug. 5 and the 7-2 majority Wednesday.
Two councilors, Debbie Atwood and Daughtry, joined Wednesday’s majority after originally supporting the second candidate, Laurie Smith. Both said they changed their votes for the sake of council unity.
Klatt and Councilor Ben Tucker, however, maintained their original votes and their criticism of the Aug. 5 meeting.
“I think we should’ve offered the job publicly as we’re doing tonight,” Tucker said. “We should not use executive sessions to hide our decisions or shield ourselves from accountability. When faced with hard choices it’s all too tempting to avoid public scrutiny. But it’s our duty to make decisions in the light of day.”
Advocates of FOA law would agree.
“What they did was not lawful,” said Judy Meyer, managing editor of the Sun Journal in Lewiston and a member of the Maine Freedom of Information Coalition. “They cannot have a vote, formal or informal, in private.”
Prior to Aug. 5, Daughtry said the council would be seeking “a consensus” on a new town manager, an act permitted by the state statute. But according to councilors who were polled after the meeting, each councilor was asked during deliberations to name the candidate they supported, an act that Meyer said constituted an illegal vote.
“There are plenty of ways to gather a consensus without taking a vote,” she said.
Tucker, Klatt and Atwood subsequently called for a public meeting and a formal vote.
Both Daughtry and Vice Chairman Benet Pols said the council was advised by the town attorney that the Aug. 5 executive session was legal because choosing Brown would not meet the standard of “final action,” which is prohibited in executive session. Final action, according to the attorney, will be the ratification of Brown’s contract, which the council isn’t expected to do until Sept. 8.
However, the council’s vote and notification to Brown suggest a council decision. In addition, councilors have publicly discussed deliberations that took place during the closed-door meeting, which violates the intent of executive privilege. On Wednesday, councilors also talked about their reasons for supporting one candidate or the other.
Questions about the council’s actions have mounted after a series of unanticipated special meetings about the town manager search. The momentum was unexpected because some councilors were openly rejecting criticism that the process was meandering and unfair to Brown.
On Aug. 4 Pols said such claims were “absurd” and that he would have continued to support the process even “if it took another three months.”
On Tuesday, Atwood said she always assumed a public vote would follow the Aug. 5 meeting and that she had been led to believe that councilors would be asked only to reach a consensus.
“A consensus, in my world, is when everybody reaches an agreement,” Atwood said. “We didn’t do that. … It never occurred to me that we wouldn’t have a public vote.”
Marybeth Burbank, a former town councilor who was involved in the hiring of former Town Manager Don Gerrish in 1989, said Tuesday that the council’s use of executive session throughout the search was unethical and illegal.
“This whole thing is tainted, from start to finish,” Burbank said. “This is so wrong. I don’t think either candidate got a fair shake.”
On Wednesday, Burbank, who gathered minutes from the council’s manager search 20 years ago, said current councilors used executive session to protect themselves, not the privacy of candidates.
She compared the council’s recent search, most of which was conducted in private, with its previous one, where the council not only publicly identified a field of six candidates, but also outlined the terms of the employment in advance and held a public meeting on the appointment.
“Each one of us had to give a reason for our nomination,” Burbank said. “The point was that the public was able to follow the process from start to finish. Contrast that with what you have now and it’s … unfair, illegal and unethical.”
The town attorney, Pat Scully, said Wednesday that the law governing what information can be divulged about candidates was more stringent than it was 20 years ago. However, Scully acknowledged that the council could still have chosen to conduct public meetings as the council did in 1989.
Steve Mistler can be reached at 373-9060 ext. 123 or firstname.lastname@example.org