Photo courtesy of Pine Tree Watchdog
By John Christie
Usually, lobbyists stay as far away as possible from investigative reporters. But this lobbyist was so fed up, he made an exception. His problem was also unexpected for a lobbyist: being denied access at the Maine Statehouse.
His job was to look out for the interests of Maine’s municipal governments, especially during budget season when the state legislature decides, among other things, how much aid to send to cities and towns.
“I think you ought to look into this,” he said. “Someone has to call them on this.”
It’s not a reporter’s job to help lobbyists do their jobs, but this lobbyist thought he had discovered a problem that went beyond his interests: no one – lobbyists, reporters and, especially, the public – was able to get into key meetings of the appropriations committee. That’s the committee whose name is usually preceded on first reference by the journalistic cliché, “all powerful.”
And if he was right, it would be the kind of story I like to do – exposing the subversion of the democratic process.
The lobbyist explained that the committee would post the time and place of its meetings, as required by the state’s open meeting law, but then quickly find a way to close the meeting. One way was to announce the committee was “going off mic,” meaning it would go into a private room where there was no microphone to pick up the discussion, which otherwise would be transmitted on the legislature’s public access channel. The second way was to break up into party caucuses, a scrum of Democrats or Republicans in the hallway, the corner of the meeting room or behind a closed door in a separate room.
My layman’s reading of the state’s Freedom of Access Act (FOAA), aka the open meeting law, suggested this might be illegal. The law states, “It is the intent of the Legislature … that their deliberations be conducted openly.” Although there are some exceptions – such as contract negotiations — allowing for closed meetings, the exceptions section of the law specially states that it “does not apply to discussion of a budget or budget proposals.”
The lobbyist seemed to have a point. I decided to find out for certain by heading to the next posted meeting of the appropriations committee to see for myself if this was happening, and, if it was, to challenge the committee members on their reasoning for closing the meeting to the public. But decades of experience covering local and state government taught me to never go unarmed to a potential secret meeting — my weapon of choice was the 29-page Subchapter 1 of Chapter 13, the Maine Freedom of Access Act, as amended in 2011.
On May 28, the printed calendar posted outside the chamber said the meeting of the Appropriations and Financial Affairs Committee would start at 1 p.m., but the more up-to-date electronic calendar in the lobby said the meeting would begin at 1:30.
At 1 and at 1:30 the chamber was empty except for a gaggle of middle school students who were getting a lecture on how their state government works. Just after 1:30, they filed out, but no committee members filed in.
The government the students had come to see in action wasn’t late for the meeting. Its key members were, in fact, meeting — just not where the civics class or any member of the public could see them.
Instead, appropriations committee members were bypassing the public chamber in which their meetings are traditionally held and going through a private door that leads to a suite of smaller rooms.
One member, state Sen. Roger Katz, emerged from the back rooms that day and explained that a select subgroup of the committee was meeting there: He called it a “chairs and leads” meeting. In statehouse-speak, that’s a bipartisan subcommittee made of the two chairpersons of a committee and other leading members.
I told him I’d like to cover the meeting, and I intended to go through the door where he had come out. He told me that door was locked, inaccessible except for legislators and staff. But I found another way in: In the back of the committee’s public meeting room there is a door marked “Legislators and Staff Only.” That door is not locked. I went through it to the hallway and heard voices coming from one of the rooms.
I knocked on the door and a voice said, “Come in.”
Gathered around a desk were five of the 13 members of the appropriations committee — “chairs and leads.”
I quoted portions of the Freedom of Access Act to the legislators, including one that states the public’s business, which includes deliberation by committees of more than three, is to “be conducted openly.”
I asked them how their private meeting was legal given the wording of the FOAA.
“You wouldn’t negotiate a labor contract in public, would you,” replied one of the committee “leads,” Rep. Tom Winsor.
I asked him if they were talking about a labor contract, not the state budget, which was the posted topic of the meeting.
“No, we’re not,” he said, “but this stuff is sensitive, too.”
The House chair of the committee, Rep. Peggy Rotundo, said the committee members were not talking about the substance of the budget, but the “process” the committee would follow to finish its work.
She said the reason the chairs and leads meet in private is because “sometimes it’s difficult to get people to talk about the process publicly.”
She invited me to stay at the meeting and said that sometimes reporters have sat in on these meetings when they are aware of them, but she said the meeting would remain in the private back room where the public could not attend.
I declined the offer because the point was not whether reporters were being denied access to the meeting. We do not have — nor should we have — any privilege to attend a private meeting the law says should be public. Unless the committee wanted to move back to the public meeting room, I was not going to accept that invitation.
So, I did what reporter’s are supposed to do — left the meeting, interviewed experts on FOAA and wrote a story using that example to expose a pattern of closed meetings in this year’s session that appeared to violate the spirit and perhaps the letter of the open meeting law.
From my earlier days as a newspaper reporter, I was trained in these laws, often by the newspaper’s lawyers, who would put on a once-a-year seminar on public access, records and libel. We would be given a card summarizing the open meeting law to put in our wallets and trained to stand up any time a city council, for example, began the process of going into executive session. We demanded that the council cite a specific —and legal — reason for a private session, that it take a roll call vote to go into the executive session and take any further votes only after it came back into a public session — all typical requirements of these laws.
That was in the early 1970s and a lot — nearly everything — has changed in our profession since then. But standing up for the public’s right to know, even making ourselves part of the story — something as a rule we shouldn’t do — may be our best course of action when they try to close to door in our face.
You may even have to do what I did — find another door. And then go through it.
John Christie is the co-founder and editor-in-chief of the Maine Center for Public Interest Reporting, pinetreewatchdog.org.