Opinion

York Independent, LLC v. Town of York

Court
Superior Court of Maine
Filed
May 13, 2005
Status
Unpublished
On the bench
Paul A. Fritzsche
Cited by
0 cases
Authority
More cited than 34.1%

The opinion

STATE OF MAINE SUPERIOR COURT

CIVIL ACTION

YORK, ss. DOCKET NO. CV-05-019

; { yo Os

THE YORK INDEPENDENT, LLC,

Plaintiff

ORDER

Vv. AND

DECISION

TOWN OF YORK,

Defendant

On July 13, 2004 the Town of York hired Ryan Hada as its interim town manager

pursuant to a written employment contract. The contract was for one year with a

review of Mr. Hada’s performance after three months and again after six months. A

determination regarding permanent status would be made after nine months of

employment. For the first six months Mr. Hada would serve as a probationary

employee whose employment could be terminated for any reason. During the final six

months of the contract he could only be fired “for unsatisfactory performance after the

probationary period.”

During the week before the Selectmen’s meeting of January 11, 2005 the agenda

for that meeting was prepared. The final item, 05-11(10) was described as follows:

Ordered, to enter into Executive Session pursuant to MRSA Title 1, Section

405,6.A & Section 405,6.C (Discussion and action regarding Interim Town

Manager (ITM), ITM contract and its milestones; and the hiring process

and plans for the regular position of Town Manager and Real Estate).

When the final agenda item was reached and a motion was made to go

into executive session a heated dispute arose among the selectmen. The result

was a 3-2 vote to hold an executive session. The two dissenting selectmen chose

not to participate in the executive session. After some confusion and a modest

delay an executive session of approximately three to six minutes was held. The

three participating selectmen returned and a selectman moved to terminate Mr.

Hada’s employment. Without discussion the motion was approved with three

votes in favor, one abstention by a selectman who had opposed the executive

session and not participated and with one selectman absent. ‘I'hat selectman had

also opposed the executive session and had left after the decision was made to

proceed with an executive session.

The York Independent, LLC, is the publisher of the York Independent

newspaper and had extensively covered activities in the Town of York including

the actions of the Board of Selectmen. A reporter from the newspaper was

present on January 11, 2005 and both she and the publisher were concerned that

the state’s freedom of access laws regarding public proceedings, see 1 M.R.S.A.

§S401 - et seq., were being violated in several important aspects. The York

Independent, LLC, filed suit, an abbreviated discovery period was agreed to and

an expedited hearing was held. The dispute in this case involves provisions of 1

M.R.S.A. §405 governing executive sessions. Section 405 states that bodies or

agencies such as the York Board of Selectmen may hold executive sessions but

only subject to a series of conditions. In addition to the specific restrictions the

Legislature has stated initially that, “These sessions shall not be used to defeat

the purposes of this subchapter as stated in Section 401.” 1 M.R.S.A. §405(1).

Section 401 states,

The Legislature finds and declares that public proceedings exist to aid in

the conduct of the people’s business. It 1s the intent of the Legislature that

their actions be taken openly and that the records of the their actions be

open to public inspection and their deliberations be conducted openly. It

is further the intent of the Legislature that clandestine meetings,

conferences or meetings held on private property without proper notice

and ample opportunity for attendance by the public not be used to defeat

the purposes of this subchapter.

This subchapter shall be liberally construed and applied to promote its

underlying purposes and policies as contained in the declaration of

legislative intent.

The disputed agenda item stated that the purpose of the executive session

included “Discussion and action regarding Interim Town Manager.” Both the

dissenting selectmen and the newspaper are correct that “No ... official actions

shall be finally approved at executive sessions.” See 1 M.R.S.A. §405(2), A

concern was expressed that the agenda item was illegal in that it called for action

in executive session.

The agenda item was described by its primary proponent as an attempt to

indicate that he wanted to preserve the option of acting in public session

following any executive session. Given that no official actions were finally

approved in executive session Selectman Marshall’s description of the intent of

the agenda item regarding “action” is convincing. It would have been clearer to

state “Discussion in executive session and any official actions in open session”

but that more detailed phrasing is not required.

The next issue is whether the agenda item and the companion motion to

go into executive session indicated “the precise nature of the business of the

executive session and include(d) a citation of one or more sources of statutory or

other authority that permits an executive session for that business.” 1 M.R.S.A.

§405(4). Also see Vella v. Town of Camden, 677 A.2d 1051, 1054-5 (Me. 1996) for

the suggestion that a detailed statement of the precise nature of the business is

not necessary. It is true that neither the agenda item nor the motion of Mr.

Marshall stated directly that the possible firing of Mr. Hada was going to be

discussed. The motion made clear that the Board would discuss matters of

employment involving Mr. Hada but did not explicitly mention dismissal. It was

clear that the motion was to go into executive session to discuss the “business of”

Mr. Hada’s employment status. In the context of a probationary employee that

was sufficiently precise. Likewise, no violation of the requirement that “No

other matters may be considered in that particular executive session” occurred. 1

M.R.S.A,. §405(5).

The final legal issue is whether deliberations could have been conducted

in executive session. While none were, discussions could have been held as a

discussion of dismissal could have taken place and a public discussion could

have been “reasonably expected to cause damage to the reputation” of Mr. Hada.

1 M.RS.A. §405(6)(A)(1). Regardless of whether Mr. Hada was being

“investigated” and had a right pursuant to 1 M.R.S.A. §405(6)(A) to either be

present in the executive session or to require a public discussion he did not ask

either orally or in writing, either directly or through a Selectman who supported

him, either to be present in the executive session or to hold the session in public.

It is unfortunate that a high level of distrust has developed among

honorable people who each, in their own way, is attempting to serve the public.

I find no violation of the freedom of access provisions though the majority of the

Selectmen could have proceeded differently in ways that would not have

increased suspicion and distrust.

The majority of the then Selectmen honestly believed that Mr. Hada

should not continue as interim town manager and that someone else should be

hired. As Mr. Hada was still in his probationary status the Selectmen were not

required to have a reason for those conclusions but they did have reasons. Had

the majority indicated more precisely that termination was a possible outcome,

discussed those reasons in executive session and conducted more than a

perfunctory vote in the public session greater confidence in their decision might

have existed. The Selectman followed the requirements of state law and did not

decide in advance what the outcome was going to be. Each separate decision to

terminate Mr. Hada’s employment was based on an individual judgment that

such a result was in the best interest of the Town just as the contrary opinions of

the dissenting Selectmen were based on their best judgment.

The entry is:

Judgment for the defendant. The Superior Court determines that no

violations of the Freedom of Access statute, 1 M.R.S.A. §§401-et seq.

occurred.

Dated: May 13, 2005

Soa Lb bh Fd

Paul A. Fritzsche ”

Justice, Superior Court

PLAINTIFF:

Sigmund Schutz, Esq

PO Box 9546

Portland Me 04112-9546

DEFENDANT:

Durward Parkinson, Esq.

62 Portland Rd

Kennebunk Me. 04043

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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