BAR HARBOR — The stated reasons for using private executive sessions this spring to discuss former town manager Dana Reed’s contract were not sufficiently spelled out by town councilors, according to the Maine Attorney General’s Office (AG).
AG Public Access Ombudsman Brenda Kielty said there is no indication that the executive sessions were held illegally, only that the language used to enter into those sessions was not specific enough to provide proper justification.
Resident and recent town council candidate Tom Burton contacted Kielty this past April after town councilors met in six consecutive executive sessions to discuss extending Reed’s contract. Burton expressed concern that the council was violating Maine public access laws. His phone call and subsequent emails to Kielty followed requests to the council from some residents that the talks should be held in public.
In a May 29 email to Burton and interim town manager Jim Ashe, Kielty found that when the council met during the month of April to discuss Reed’s contract, they used the same repeated justification, provided to them by Reed, to enter into executive session. This justification read, “In order to protect the employee’s right to privacy, the town’s legal counsel has recommended that council go into executive session anytime a personnel matter is discussed unless the employee explicitly requests that the discussion be open to the public.”
However, Kielty found, while potential violations of rights of privacy are good reason for entering into executive session, the privacy protection is not meant to exempt an entire process from public meeting requirements.
“Although personnel discussions may often include information that could be considered within the scope of an employee’s reputation or privacy interests, this executive session exemption was not intended to swallow an entire category of proceedings,” Kielty wrote. “The invocation of executive session must be closely tailored to the protection of specific information that, if discussed in public, could be reasonably expected to cause damage to or violate those interests.”
Kielty found that previous to April 1, the Manager’s Memo instructions regarding the use of executive session for personnel matters were different than those used on April 1 and beyond. Previous to April 1, the employee’s right to privacy was not specifically mentioned, only “the sensitivity of personnel matters.”
It is unclear why the change in language occurred, Kielty wrote. She told the Mount Desert Islander that in reviewing the Manager’s Memos, she found that there is a need for some clarity.
“In looking at those, it seemed as if there might be some confusion there,” Kielty said.
The need for eliminating such confusion has been discussed in follow up discussions with Reed, the town council and Ashe, Kielty said, and all sides agreed that councilors should be provided with clarification regarding the use of executive session. Kielty plans to follow the matter and check to see if the actions agreed upon are completed, she said.
Kielty said that her letter explains the need for clarification regarding executive session. It does not make judgement on the legality of the council’s actions, she said.
“I’m not here looking at any specific examples of the content of any specific executive sessions or whether any specific executive session was in violation of the law,” she said.