The opinion
MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2016 ME 13
Docket: BCD-15-94
Argued: September 17, 2015
Decided: January 14, 2016
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and
HUMPHREY, JJ.
HUGHES BROS., INC.
v.
TOWN OF EDDINGTON
SAUFLEY, C.J.
[¶1] In this appeal involving Maine’s open government laws, we consider
the sometimes competing statutory goals that (1) provide for government meetings
to be open to the public, see 1 M.R.S. § 401 (2015), and (2) guard the authority of
government officials to receive legal advice in executive session to enable them to
perform their duties in accordance with the law, see 1 M.R.S. § 405(6)(E) (2015).
Hughes Bros., Inc., appeals from a judgment entered in the Business and
Consumer Docket (Murphy, J.) on its complaint seeking declaratory and injunctive
relief.1 Hughes argues, among other contentions, that the court erred in
1
Although the Town of Eddington filed a cross-appeal, it did not do so until thirty days after the court
entered its final judgment disposing of a post-judgment motion, and sixteen days after Hughes filed its
notice of appeal. Because the Town did not file its cross-appeal within twenty-one days after the entry of
judgment or within fourteen days after Hughes filed its notice of appeal, as required by M.R.
App. P. 2(b)(3), we dismiss the cross-appeal and do not discuss it further. See Bisbing v. Me. Med. Ctr.,
2003 ME 49, ¶ 8, 820 A.2d 582.
2
determining that the Town of Eddington Planning Board and Board of Selectmen
conducted a valid executive session, invoked for the purpose of consulting with
counsel. We affirm the court’s judgment in all respects, and we write primarily to
address the legality of the executive session.
I. BACKGROUND
[¶2] The parties stipulated to a timeline of the events in the municipal
proceedings, with attached documentation, and the court adopted those stipulations
as having been found by a preponderance of the evidence. We draw the historical
facts from those stipulations and documents, and we derive the procedural history
from the trial court record.
A. Application to the Planning Board and Discussion of a Moratorium
[¶3] In August 2013, the Town of Eddington’s Planning Board approved a
landowner’s application for a permit to create a one- to five-acre quarry, to be
accessed by a private way, on property in Eddington that Hughes was under
contract to purchase. Shortly thereafter, in September 2013, Hughes filed a new
application seeking permission to use the property as a larger, twenty-acre quarry.
A public hearing was held on the application for the twenty-acre quarry in October
2013, and the Planning Board voted to deny the application because the private
way did not provide an appropriate access way for the proposed larger quarry. At
3
the same meeting, the Planning Board voted to recommend a moratorium on
quarries to the Town’s Board of Selectmen.
[¶4] On November 14, 2013, Hughes submitted a new application that
proposed a separate access road directly from Route 9. Five days later, members
of the Planning Board attended a public meeting of the Board of Selectmen and
presented the recommendation for a moratorium on quarries. The Board of
Selectmen voted to deny the request for a moratorium.
[¶5] In December 2013, the Board of Selectmen held a public meeting at
which a member of the public urged the Selectmen to reconsider placing a
moratorium on quarries as proposed by the Planning Board. Also in late 2013,
Hughes submitted its first information request to the Town, seeking
correspondence along with meeting agendas and minutes pursuant to the Freedom
of Access Act (FOAA), 1 M.R.S. §§ 400-414 (2015).2
B. Executive Session of Planning Board and Board of Selectmen
[¶6] On January 29, 2014, the Planning Board and the Board of Selectmen
met together in a publicly announced meeting and went into executive session.
The Planning Board minutes from that day indicate that the Planning Board
meeting was called to order and that the Planning Board, with six members
2
Although the Freedom of Access Act has been amended recently, see e.g., P.L. 2015, ch. 335, § 1
(effective July 12, 2015) (codified at 1 M.R.S. § 402(3)(Q) (2015)), none of the recent amendments
affects the issues raised in this appeal, and we cite to the current codification.
4
present, unanimously voted to go into executive session for “Consultation with
Legal Counsel,” citing to the FOAA. See 1 M.R.S. § 405(6)(E). The two members
of the Board of Selectmen then present were authorized to observe the executive
session.
[¶7] The minutes of the Board of Selectmen indicate that their meeting was
called to order a few minutes after the Planning Board had begun its meeting and
that the Board of Selectmen voted three to zero to go into executive session. The
Board of Selectmen also stated that the executive session was being held for
“Consultation with Legal Counsel” and cited to the FOAA. A fourth member of
the Board of Selectmen joined the meeting in executive session.
[¶8] The jointly held executive session lasted for approximately an hour and
twenty minutes. At around the time of the executive session, drafts of a proposed
ordinance that would establish a moratorium on quarries were prepared.
C. Town and Court Proceedings After the Executive Session
[¶9] About a month after the executive session, in late February 2014, the
Planning Board, at a public meeting, deliberated and voted to send a moratorium
ordinance to the Board of Selectmen for its review. At the following public
meeting of the Board of Selectmen, held on March 4, 2014, the Board of
Selectmen scheduled an April 1, 2014, public hearing on the moratorium proposal
5
and voted to place an article on a town warrant announcing that the moratorium
would be considered at a special town meeting to be held on April 8, 2014.
[¶10] Hughes submitted a second FOAA document request in early March.
In a letter to Hughes’s attorney, the Town objected to the new request and asserted
FOAA exceptions. Meanwhile, the Planning Board continued to review the
Hughes application, and Hughes agreed to extend the application review period
until April 3, 2014.
[¶11] On April 1, 2014, Hughes filed a three-count complaint in the
Superior Court seeking declaratory and injunctive relief. Count I sought an
injunction directing the Town to cease and desist from holding a public vote on the
moratorium, and a declaration that any moratorium that might be approved was
null, void, and of no legal effect because the Town violated the open meeting
requirements imposed by the FOAA during the January 2014 executive session.
Count II sought the same relief based on the Town’s violation of town meeting,
election, and moratorium statutes set forth in title 30-A of the Maine Revised
Statutes. Count III sought the disclosure of certain Town documents and public
records pursuant to the FOAA.
[¶12] Also on April 1, 2014, the Board of Selectmen held its scheduled
public hearing on the proposed moratorium ordinance. The Board of Selectmen
then held the special town meeting, as scheduled, on April 8, 2014. By a vote of
6
220 to 84, the Town adopted an ordinance that imposed a moratorium on mineral
extraction activities, including quarrying activities. The Planning Board thereafter
voted to take no further action on the Hughes application until the moratorium
expired, the application was withdrawn, or a court ordered otherwise.
[¶13] In the Superior Court, Hughes moved to expedite judicial review and
successfully applied for transfer of the case to the Business and Consumer Docket.
The court appropriately gave priority to count III and ultimately entered orders
requiring the Town to disclose specified documents. The parties thereafter
produced the jointly stipulated timeline with accompanying exhibits for the court’s
consideration of counts I and II of the complaint.
[¶14] On January 7, 2015, the court, after considering the parties’ written
arguments, entered a judgment for the Town on counts I and II of the complaint.
Relevant here, the court determined that the executive session had complied with
the FOAA because the motion for executive session was legally sufficient, the vote
to go into executive session was not flawed,3 nothing in the law prevents a joint
executive session, the open meeting requirement was not violated by holding an
3
Although Hughes argues that the Board of Selectmen’s vote to go into executive session was not
“called . . . by a public, recorded vote of 3/5 of the members, present and voting,” 1 M.R.S. § 405(3)
(2015), the record shows that three present and voting members voted unanimously to go into executive
session a few minutes after the Planning Board entered into executive session.
7
executive session to consult with counsel, and the moratorium was not approved in
executive session.
[¶15] Hughes moved for additional findings and to alter or amend the
judgment pursuant to M.R. Civ. P. 524 and 59. On February 9, 2015, the court
denied the motion. Hughes appealed to us. See 14 M.R.S. § 1851 (2015); M.R.
App. P. 2.5
[¶16] Hughes’s requests for injunctive relief to prevent the vote on the
moratorium are now moot. See Carroll F. Look Constr. Co. v. Town of Beals,
2002 ME 128, ¶ 6, 802 A.2d 994 (stating that an issue is moot if “the passage of
time and the occurrence of events deprive the litigant of an ongoing stake in the
controversy although the case raised a justiciable controversy at the time the
complaint was filed” (quotation marks omitted)). Count III was resolved by the
trial court and is not at issue on appeal. Hughes appeals from portions of the
court’s judgment on counts I and II, arguing that the moratorium and resulting
mineral extraction ordinance should be declared null and void.6
4
Rule 52 was recently amended but not in any way that affects this appeal. See 2015 Me. Rules 15
(amending M.R. Civ. P. 52 effective Sept. 1, 2015).
5
After Hughes filed its notice of appeal, the Town amended its Zoning Ordinance with respect to
mineral extraction operations. See Eddington, Me., Zoning Ordinance ch. 20 (Apr. 2, 2015).
6
Although Hughes raises other issues regarding the application of the moratorium statutes and the
Town’s Zoning Ordinance, see 30-A M.R.S. §§ 4301(11), 4356 (2015); Eddington, Me., Zoning
Ordinance §§ 402, 801-09 (Mar. 20, 2012), and its pursuit of vested rights, we do not find those
arguments persuasive and do not discuss them further.
8
II. DISCUSSION
[¶17] Hughes argues that the joint executive session of the Planning Board
and Board of Selectmen violated the open meeting requirements of the FOAA and,
therefore, that the moratorium ultimately approved in the open Town vote was
void. Specifically, Hughes contends that (1) the described purpose of the
executive session was inadequate, and the session itself was not limited to the
stated purpose; and (2) the FOAA does not allow for a joint executive session of
two municipal boards. We begin by summarizing the requirements of the FOAA,
after which we consider Hughes’s arguments concerning the legality of the
executive session.
A. Executive Sessions and the FOAA
[¶18] “Except as otherwise provided by statute or by section 405, all public
proceedings must be open to the public and any person must be permitted to attend
a public proceeding.” 1 M.R.S. § 403(1). The Legislature has stated that the broad
purpose of the FOAA is to ensure that government entities’ “actions be taken
openly.” Id. § 401; see Dow v. Caribou Chamber of Commerce & Indus., 2005
ME 113, ¶ 9, 884 A.2d 667 (“The purpose of FOAA is to open public proceedings
and require that public actions and records be available to the public.” (quotation
marks omitted)). Because the FOAA “shall be liberally construed and applied to
promote its underlying purposes and policies as contained in the declaration of
9
legislative intent,” 1 M.R.S. § 401, we strictly interpret any statutory exceptions to
the FOAA. Med. Mut. Ins. Co. of Me. v. Bureau of Ins., 2005 ME 12, ¶ 5, 866
A.2d 117.
[¶19] Pertinent here, an exception to the requirement of open public
meetings is made for executive sessions that comply with specified conditions. See
1 M.R.S. § 405. An executive session may only be held for a purpose that is
enumerated in section 405 of the FOAA, id. § 405(6), such as for “[c]onsultations
between a body or agency and its attorney concerning the legal rights and duties of
the body or agency.” Id. § 405(6)(E). “A motion to go into executive session must
indicate the precise nature of the business of the executive session,” id. § 405(4),
and “[m]atters other than those identified in the motion to go into executive session
may not be considered in that particular executive session,” id. § 405(5). “An
ordinance, order, rule, resolution, regulation, contract, appointment or other official
action may not be finally approved at an executive session.” Id. § 405(2).
[¶20] “[A] public body charged with violating the terms of the [FOAA]
during an executive session has the burden of proving that its actions during the
executive session complied with an exception to” the open meeting requirement of
the FOAA. Underwood v. City of Presque Isle, 1998 ME 166, ¶ 19, 715 A.2d 148.
If the administrative record demonstrates that the body or agency used the
executive session for the stated, authorized purpose, the use of the executive
10
session will be upheld. Cf. Blethen Me. Newspapers, Inc. v. Portland Sch. Comm.,
2008 ME 69, ¶¶ 15-18, 947 A.2d 479 (vacating a judgment of the Superior Court
that ordered the disclosure of documents prepared for and created during an
executive session when the administrative record demonstrated that the executive
session was held for a permitted purpose and adhered to that purpose).
[¶21] In reviewing whether a government entity complied with the FOAA,
we review factual findings for clear error, Town of Burlington v. Hosp. Admin.
Dist. No. 1, 2001 ME 59, ¶ 22, 769 A.2d 857, but review the trial court’s
interpretation of the FOAA de novo, Cyr v. Madawaska Sch. Dep’t, 2007 ME 28,
¶ 9, 916 A.2d 967. “When interpreting a statute, we accord its words their plain
meaning.” Cyr, 2007 ME 28, ¶ 9, 916 A.2d 967. If the meaning is clear, we will
not look beyond the words of the statute, unless the result would be illogical or
absurd. Id.
B. Legality of the Executive Session
1. Purpose and Scope of the Executive Session
[¶22] Each of the municipal entities—the Planning Board and the Board of
Selectmen—went into executive session for the stated purpose of “Consultation
with Legal Counsel.” The session was additionally described by the Planning
Board as being sought for the purpose of having counsel “meet with the Planning
Board in Executive Session to expand on the basis for his wording in the proposed
11
Moratorium Ordinance.” The Planning Board’s chair also stated after the
executive session that the Town’s attorney had given them advice in executive
session “to help them decide on how to proceed with wording of such moratorium
ordinance.” The question for us is whether the court properly found and concluded
that the consultation with counsel in executive session “concern[ed] the legal rights
and duties” of the Planning Board and the Board of Selectmen. 1 M.R.S.
§ 405(6)(E).
[¶23] The evidence presented regarding the purpose of the executive session
supports the court’s determination that the Town met its burden to show that the
executive session was held for—and limited to—the authorized purpose of
consulting with counsel to draft a legally sound ordinance amendment for proposal
at a later public meeting. See id. § 405(4), (5), (6)(E); see also Blethen Me.
Newspapers, Inc., 2008 ME 69, ¶¶ 15-18, 947 A.2d 479; cf. Town of Burlington,
2001 ME 59, ¶ 22, 769 A.2d 857. The Town did not “finally approve[]” any
ordinance or rule in executive session. 1 M.R.S. § 405(2). Rather, after consulting
with counsel during the executive session, the Planning Board publicly deliberated
and voted to present a proposed moratorium to the Board of Selectmen. The Board
of Selectmen then held a public hearing before submitting the proposed
moratorium to the vote of the Town’s residents at a special town meeting. It was
not until the majority vote of the residents at the town meeting that the moratorium
12
was actually adopted. See Vella v. Town of Camden, 677 A.2d 1051, 1055 (Me.
1996).
[¶24] Although Hughes argues that any meeting related to legislative
drafting should be open to the public, the FOAA was not designed to prevent a
government body or agency from consulting privately with legal counsel about
how to comply with the laws and regulations that govern the body’s or agency’s
work. See 1 M.R.S. § 405(6)(E). Indeed, it may be wise for a citizen board to
consult with knowledgeable counsel regarding the board’s legal obligations—and
the potential legal consequences of its actions—when preparing to conduct
important municipal business.
[¶25] To ensure that an executive session is strictly limited to purposes
allowed by the FOAA, an executive session must be publicly announced; its
purpose must be described clearly; it must be confined to statutorily authorized
matters and must not expand into matters requiring public deliberation; it may not
include any final approval of any official action; and records must be kept that are
adequate for purposes of meaningful judicial review if statutory compliance is
challenged. See 1 M.R.S. §§ 403, 405(2)-(6), 406. All of these elements were
present here. The trial court did not err in determining that each Board’s
consultation with legal counsel in executive session complied with the conditions
specified in the FOAA. See id. § 405(2)-(5), (6)(E).
13
2. Joint Executive Session
. [¶26] The FOAA contains no prohibition against municipal boards
simultaneously entering into executive session to jointly consult with counsel
about how to comply with the law in carrying out their respective duties. See id.
§ 405(6)(E). The court did not err in determining that each board took the steps
necessary to enter into executive session. See id. § 405(3), (4), (5), (6)(E); Blethen
Me. Newspapers, Inc., 2008 ME 69, ¶¶ 15-18, 947 A.2d 479. Although
government actors must take care to prevent an executive session from illegally
expanding into public matters that may be addressed only in an open public
meeting, see 1 M.R.S. § 405(2), (4)-(6), the bare fact that boards share in the
advice of counsel during a combined executive session does not offend the FOAA
and demonstrates prudent fiscal management.
[¶27] Accordingly, we affirm the judgment.
The entry is:
Town’s cross-appeal dismissed. Judgment
affirmed.
14
On the briefs:
William B. Devoe, Esq., and Jonathan A. Pottle, Esq., Eaton
Peabody, Bangor, for appellant Hughes Bros., Inc.
Charles E. Gilbert, III, Esq., Gilbert & Greif, P.A., Bangor, for
appellee Town of Eddington
At oral argument:
William B. Devoe, Esq., for appellant Hughes Bros., Inc.
Charles E. Gilbert, III, Esq., for appellee Town of Eddington
Business and Consumer Docket docket number CV-2014-35
FOR CLERK REFERENCE ONLY