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Open meetings violations may lack legal remedy

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  1. Freedom of Information

    NMU         MAINE         Freedom of Information         Oct 27, 1999    

Open meetings violations may lack legal remedy

  • The state’s highest court ruled that once action agreed upon in violation of open meetings laws is completed, no penalty will accompany the violation.

Legal remedies may not be available to correct violations of the state open meetings law, the Maine Supreme Judicial Court in Portland ruled in mid-October. A case will become moot and must be dismissed, the court ruled, if the action decided upon during a clandestine meeting already has been completed.

The majority of the court distinguished the situation from an open records complaint, saying that a records suit does not become moot after the public records are released because a legal remedy still exists: a suit for recovery of attorney’s fees. No such option exists in a meetings action where the action taken at the meeting has already concluded, the court found.

The dissent, however, said such an outcome defeated the intent of the open meetings law. The law intended for people to be able to seek nullification even after board action had been completed, the dissent wrote.

The case involves a long-running dispute for access to government proceedings between a local school district and the Lewiston Sun-Journal newspaper. The controversy came to a head in the spring of 1998, when the school board began meeting in executive session to consider complaints alleged against the school superintendent.

During an April 14, 1998, meeting in executive session, the school’s attorney suggested that the district seek outside counsel to conduct an independent investigation. The board agreed but apparently did so without taking official action on the matter. An attorney was hired the following day to conduct the investigation.

The newspaper challenged the action on May 13, 1998, in state court in Auburn, alleging that the board’s decision to hire the outside attorney violated the open meetings act because the final action was taken in executive session instead of in a public session. It sought an expedited review and a recission of the vote. The outside attorney’s final report was completed and accepted by the board at a May 26 meeting. A court hearing was heard the next day.

The court ruled that the school board had not violated the meetings law because its decision to enlist outside counsel as an independent investigator fell short of “official action” taken during executive session. The newspaper appealed.

In its Oct. 18, 1999, ruling, a split Supreme Court declined to address whether the action taken by the board violated the meetings law. Instead, it focused on the legal remedy available to the newspaper: nullification of the board’s action.

Because the outside attorney already had conducted an investigation and issued a report on it, there was nothing to nullify, the court found. And because no remedy was available, the case was moot, it ruled.

(Lewiston Daily Sun v. School Admin. Dist. No. 43; Media counsel: Bryan Dench, Auburn)

© 1999 The Reporters Committee for Freedom of the Press

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