# Morrell v. Board of Selectmen

> Superior Court of Maine · February 27, 2001

URL: https://www.frixlaw.com/law-library/cases/10807252

## Case

- **Court:** Superior Court of Maine
- **Decided:** February 27, 2001
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Judges:** S. Kirk Studstrup
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

t NTERED AIJG o 8 2014

STATE OF MAINE SUPERIOR COURT
.CIVIL ACTION
LINCOLN, ss. DOCKET NO. CV-01-001

5k5-UN-O~-J'7-r7l
PRIOR MORRELL,

Plaintiff/Appellant

v. DECISION ON
STATUTORY APPEAL
BOARD OF. SELECTMEN,
T0\1\TN OF WISCASSET I

Defendant/Appellee

This matter came on for hearing before the court on the p_laintiff's appeal of a

decision of the defendant denying the plaintiff access to a specific piece of

correspondence from the town's attorney to the First Selectman. The''~tion is
brought pursuant to the Freedom of Access Law, specifically 1 M.R.S.A. § 409.

Although entitled an "appeal" in the statute, the court must conduct a trial de novo

and determine whether the defendant's denial of access to the record was for a just

and proper cause, the burden of proof falling on the defendant. Springfield

Terminal Railway Co. ·v. Dep't of Transpqrtation, ME , 754 A.2d 353. Such trial

was conducted and the court has fully considered the testimonial and other

evidence presented at that hearing.

Background

On January 5, 2001, Mr. Morrell wrote to First Selectman Benjamin Rines, Jr.

of the town of VViscasset, requesting the following, "Please provide a copy to me of

the tax payer funded legal opinion regarding 'Conflict of Interest' pertaining to Mr.

1
D. Thompson using proprietary information from Liberty Group for potential

personal gain." On January 8, 2001, Selectman Rines responded to Mr. lvlorrell

acknowledging that legal advice had been requested from the town attorney but

denying the request for a copy of the letter on the theory that it is not a public record.

Mr. Morrell then brought this timely appeal. At hearing, the court conducted an in

camera inspection of the requested document.

Discussion

The town argues that it was correct in denying access to the letter from the

town attorney to the First Selectman on two theories. First, pursuant to 1 M.R.S.A.

§ 402(3)(B), the town argues that the letter is entitled to the attorney I client privilege

against discovery or use as evidence, as set forth in M.R. Evid. 502. Second, the town

argues that the document is one which has been designated confidential by statute

in 30-A M.R.S.A. § 2702.

With regard to the lawyer-client privilege, the privilege has a specific

exception which denies the privilege between public officers or agencies and their

lavvyers unless the communication concerns a pending investigation, claim or

action and it is determined that disclosure would seriously impair the col}duct of

that investigation or proceeding. Based on the testimony of the First Selectman, the

Board has considered the factual allegations and no further action is anticipated.

Therefore, there is no pending investigation or proceeding which could be seriously

impaired by disclosure of the document.

With regard to the municipal employee record confidentiality argument,

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certain records of municipal employees are declared confidential and not open to

public inspection by statute. 30-A M.R.S.A. § 2702(1)(B). The question which

remains is whether the subject of the document is an identifiable municipal

employee. In the present case, the subject of the document did perform certain

services for the town in his capacity as Town Planner, but it is unclear whether he

did so as an employee or as an independent contractor. According to the testimony

of the First Selectman, the individual began performing these services as an

independent contractor, but his position has evolved over the years. The witness

was unclear as to what the product of the evolution has been. On the one hand, the

town planner receives a total annual compensation divided into monthly payments

and answers to the Board of Selectmen. Such manner of compensation or reporting

is not inconsistent with being an independent contractor. On the other hand, as

noted, the individual began as an independent contractor and his name does not

appear any where on the town payroll listed in the 1999 Annual Report of the town.

Therefore, the court is not satisfied that the individual who is the subject matter of

the correspondence is in fact a municipal employee and that the document is

entitled to the statutory confidentiality allowed to municipal personnel records.
I .

Since the town has failed to satisfy the court that its denial to release the

document was for just and proper cause, judgment will be entered for Mr. Morrell.

The entry will be:

(1) After trial de novo, the appeal is GRANTED and
judgment will be entered for the plaintiff/ appellant.

(2) The defendant/ appellee shall provided the appellant with

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a copy of the document at issue within 10 working days of the date of
this decision. The original of the document, which was introduced in
evidence as defendant's exhibit no. 1, will remain a sealed exhibit in
the record.

Dated: 2/27/0 I

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10807252. Public record. Not legal advice.