Meeting tonight: To discuss applicants in executive session

Thu, 02/07/2019 - 12:00pm

Lynda Clancy

ROCKPORT — At 6:30 p.m. this evening, in a meeting that will not be broadcast, the Rockport Select Board will begin talking with, and talking about, the 19 applications from citizens who want to serve on the new town manager search committee. The board is then to convene in executive session, discuss the applicants, exit executive session and appoint selected members to the committee. It is to consist of five to seven members.

The agenda for the meeting, which will take place at the Rockport Opera House, begins with a discussion about the duties of the Town Manager Search Committee, the charter provision, anticipated schedule, and Select Board comments on the process.

Then, the board will consider statements of the applicants, either verbally or written.

After consideration of those items, the board is to enter executive session to discuss the applicants.

Entering executive session to discuss citizens who are volunteering to serve on the committee is being done on the advice of the town attorney, Ann Freeman, who is with the Portland-based firm Bernstein Shur, said Board Chairman Ken McKinley.

The town attorney suggested the entire meeting be conducted in executive session, he said, but the board chose to conduct a portion of its meeting in public prior to entering executive session.

When questioned why the board wants to enter executive session to discuss the candidates, McKinley said the lawyer told him it is to “protect the rights of people being considered.”

McKinley said he agreed with the attorney.

“It’s talking about people and it’s better, I think, to have it in executive session,” he said.

He added that it is, “very important to have diversity of candidates from all areas of town.”

He noted that the Select Board took the same approach in 2013, when 28 candidates wanted to serve on the town manager search committee.

Rockport citizens offering to serve on the Town Manager Search Committee are:

David Barry

Julie Clement

Sally Cook

Stephen Corson

Jared Cronkite

Clark Doran

Linda Greenlaw

Leni Gronros

Zachary Herrick

David Jackson

Kerry Leichtman

Allen Mitchell

Geoffrey Parker

Gretchen Richards

Jennifer Roper

Joe Sternowski

Maggie Timmerman

Maynard Tolman

Ralph Wallock

The board has cited state statute governing executive session: “Discussion and Consideration of the Appointment of members of the Town Manager Search Committee pursuant to 1 M.R.S.A. Section 405(6)(A)

The section relevant to entering executive session for talking about people is as follows:

(1) An executive session may be held only if public discussion could be reasonably expected to cause damage to the individual's reputation or the individual's right to privacy would be violated.

Exactly why the discussion about applicants in open session will be cause for concern for an individual’s reputation or right to privacy has yet to be defined by the Rockport Select Board.

Entering executive session to discuss the applicants also raises the question of whether those individual applicants are entitled to be present in the executive session, as well.

Title 1: GENERAL PROVISIONS

Chapter 13: PUBLIC RECORDS AND PROCEEDINGS

Subchapter 1: FREEDOM OF ACCESS

§405. Executive sessions

Those bodies or agencies falling within this subchapter may hold executive sessions subject to the following conditions. [1975, c. 758, (NEW).]

1. Not to defeat purposes of subchapter. An executive session may not be used to defeat the purposes of this subchapter as stated in section 401.

[ 2009, c. 240, §2 (AMD) .]

2. Final approval of certain items prohibited. An ordinance, order, rule, resolution, regulation, contract, appointment or other official action may not be finally approved at an executive session.

[ 2009, c. 240, §2 (AMD) .]

3. Procedure for calling of executive session. An executive session may be called only by a public, recorded vote of 3/5 of the members, present and voting, of such bodies or agencies.

[ 2009, c. 240, §2 (AMD) .]

4. Motion contents. A motion to go into executive session must indicate the precise nature of the business of the executive session and include a citation of one or more sources of statutory or other authority that permits an executive session for that business. Failure to state all authorities justifying the executive session does not constitute a violation of this subchapter if one or more of the authorities are accurately cited in the motion. An inaccurate citation of authority for an executive session does not violate this subchapter if valid authority that permits the executive session exists and the failure to cite the valid authority was inadvertent.

[ 2003, c. 709, §1 (AMD) .]

5. Matters not contained in motion prohibited. Matters other than those identified in the motion to go into executive session may not be considered in that particular executive session.

[ 2009, c. 240, §2 (AMD) .]

6. Permitted deliberation. Deliberations on only the following matters may be conducted during an executive session:

A. Discussion or consideration of the employment, appointment, assignment, duties, promotion, demotion, compensation, evaluation, disciplining, resignation or dismissal of an individual or group of public officials, appointees or employees of the body or agency or the investigation or hearing of charges or complaints against a person or persons subject to the following conditions:

(1) An executive session may be held only if public discussion could be reasonably expected to cause damage to the individual's reputation or the individual's right to privacy would be violated;

(2) Any person charged or investigated must be permitted to be present at an executive session if that person so desires;

(3) Any person charged or investigated may request in writing that the investigation or hearing of charges or complaints against that person be conducted in open session. A request, if made to the agency, must be honored; and

(4) Any person bringing charges, complaints or allegations of misconduct against the individual under discussion must be permitted to be present.

This paragraph does not apply to discussion of a budget or budget proposal; [2009, c. 240, §2 (AMD).]

B. Discussion or consideration by a school board of suspension or expulsion of a public school student or a student at a private school, the cost of whose education is paid from public funds, as long as:

(1) The student and legal counsel and, if the student is a minor, the student's parents or legal guardians are permitted to be present at an executive session if the student, parents or guardians so desire; [2009, c. 240, §2 (AMD).]

C. Discussion or consideration of the condition, acquisition or the use of real or personal property permanently attached to real property or interests therein or disposition of publicly held property or economic development only if premature disclosures of the information would prejudice the competitive or bargaining position of the body or agency; [1987, c. 477, §3 (AMD).]

D. Discussion of labor contracts and proposals and meetings between a public agency and its negotiators. The parties must be named before the body or agency may go into executive session. Negotiations between the representatives of a public employer and public employees may be open to the public if both parties agree to conduct negotiations in open sessions; [1999, c. 144, §1 (RPR).]

E. Consultations between a body or agency and its attorney concerning the legal rights and duties of the body or agency, pending or contemplated litigation, settlement offers and matters where the duties of the public body's or agency's counsel to the attorney's client pursuant to the code of professional responsibility clearly conflict with this subchapter or where premature general public knowledge would clearly place the State, municipality or other public agency or person at a substantial disadvantage;[2009, c. 240, §2 (AMD).]

F. Discussions of information contained in records made, maintained or received by a body or agency when access by the general public to those records is prohibited by statute; [1999, c. 180, §1 (AMD).]

G. Discussion or approval of the content of examinations administered by a body or agency for licensing, permitting or employment purposes; consultation between a body or agency and any entity that provides examination services to that body or agency regarding the content of an examination; and review of examinations with the person examined; and [1999, c. 180, §2 (AMD).]

H. Consultations between municipal officers and a code enforcement officer representing the municipality pursuant to Title 30-A, section 4452, subsection 1, paragraph C in the prosecution of an enforcement matter pending in District Court when the consultation relates to that pending enforcement matter. [1999, c. 180, §3 (NEW).]

Reach Editorial Director Lynda Clancy at lyndaclancy@penbaypilot.com; 207-706-6657