Opinion: Maine has lost its long time commitment to open government

By Mal Leary, Guest Contributor to LWVME blog

When I was growing up, my dad would take me to the annual town meeting where the long tradition of New England open government was on display. Every expenditure of the town was voted on and the town books, the physical ledgers of expenditures, were on a table for townspeople to examine. And they did.

Everyone who was a resident of the town could comment and ask questions, and sometimes it seemed they all did as the day wore on. They participated. Some ran for office, often reluctantly saying somebody has to do it. Most simply showed up and voted for selectmen and participated in the town meeting.

As towns have grown and government at all levels has gotten more complex, there is less direct democracy and more representative democracy. Town Councils have replaced town meetings in many places, and cities have developed more and more services that require more and more employees and a more complex bureaucracy removed from the voters.

The state legislature used to meet once every two years and special sessions were rare because of the difficulty of getting lawmakers to Augusta. Concerned about the loss of transparency with more and more bureaucracy, lawmakers passed Maine’s first open meetings and public records law in 1959.

It stated all records were public and open for inspection and copying, unless the legislature had passed a specific exemption. Those first exemptions were the obvious ones like ongoing criminal investigations. But they have grown to hundreds of exemptions over the years.

All representative government meetings, from selectmen meetings to state lawmakers committees, were also declared open for any in the public to attend. Some specific exemptions were added such as the ability to consult the town attorney on a legal matter or one concerning personnel. But no action could be taken by any board, commission or legislative committee in a closed session.

In recent years the legacy of open government has been eroded. Sometimes it is difficult, even painful, to discuss issues in public. It’s often easier to discuss something on the phone or by email or text, than in front of the public. Particularly if the issue is controversial.

As Ed Muskie once told me, no one asks you to run for public office. It’s something you decide to do and you should be ready to conduct yourself in public. He was a key supporter and author of some of the provisions in the 1974 federal Freedom of Information Act that updated and expanded the original 1966 law that we celebrate this year, fifty years after it was enacted.

In the last few years, we have seen an erosion of the law in Maine.  Last year, worried they were running out of time to get the state budget passed by the start of the new budget year, legislative leaders met privately to craft a budget that would get the needed votes. It was hard. Very hard, but in the end they reached an agreement and rushed the budget to the floor for a vote.

Only they knew all the details in the hundreds of pages, lawmakers had only hours to study the budget and the public had even less time. They made a travesty of the law and their own rules and the budget was passed, and as a reporter I remember finding out about sections and the impact they would have only weeks after the budget was law.

I had served on the legislature’s Right to Know Advisory Committee since it was created in 2005, and decided to resign in protest of the flagrant disregard of the law. The committee has done a lot of good work reviewing proposed exceptions and stopping some bad laws before they were passed. It also has reviewed existing laws and in many cases recommended improvements that were adopted by the legislature.

Recently it was the Executive branch that flagrantly violated the law. Gov. Paul LePage met with members of a statutorily created commission to study education in Maine.  They met at the Blaine House for the first meeting and members of the public and reporters were turned away at the gate.

The meeting was illegal, but there is no easy enforcement mechanism in Maine law. An individual must go to court and get an injunction to stop a meeting. Yes, we have a Public Access Ombudsman in the Attorney General’s office, but they are not independent and do not have the authority to go to court without the Attorney General’s approval. The ombudsman can issue only advisory opinions.

It is not that way in all states. In Connecticut, since 1975, they have had the Connecticut Freedom of Information Commission that has the authority to investigate and fine agencies and individuals that violate the law and can go to court to seek further action against violators.

Other states are looking at developing a simple process to appeal records or meeting decisions with an administrative process far less expensive than the courts.

Since its creation in 2000, the Maine Freedom of Information Coalition has worked to educate lawmakers, and the public, about open meetings and access to public records. It has had some success, like the requirement all elected officials take an online course about the law. Clearly some either take the course and forget what they learned, or they ignore the law.

We need a stronger law, with penalties for those that willfully violate the law. It will take a lot of work, but advocates for open government need to take up the cause.

 

Mal Leary is Vice President of the Maine Freedom of Information Coalition and is currently serving as President of the National Freedom of Information Coalition. 

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