Posted by: Patricia Salkin | February 7, 2016

ME Supreme Judicial Court Holds Boards Conducted a Valid Executive Session in Accordance with the Open Meeting Requirements of Freedom of Access Act

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. In September 2013, Hughes filed a new application seeking permission to use the property as a larger, twenty-acre quarry. At public hearing, the Planning Board voted to deny the application because the private way did not provide an appropriate access way for the proposed larger quarry. Hughes then submitted a new application that proposed a separate access road directly from Route 9. Soon after, the 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.

In December, 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). In January 2104, the Planning Board, with six members present, unanimously voted to go into executive session for “Consultation with Legal Counsel,” citing to the FOAA. Around the time of the executive session, drafts of a proposed ordinance that would establish a moratorium on quarries were prepared. In April 2014, Hughes filed a three-count complaint in the Superior Court seeking declaratory and injunctive relief, which was transferred to the Business and Consumer Docket. The court found for the town, and on appeal, Hughes argued that the court erred in determining that the Town of Eddington Planning Board and Board of Selectmen conducted a valid joint executive session, invoked for the purpose of consulting with counsel.

The court first noted that an executive session may only be held for a purpose that is enumerated in section 405 of the FOAA, such as for “consultations between a body or agency and its attorney concerning the legal rights and duties of the body or agency.” Here, the session was 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 Moratorium Ordinance.” The Town did not “finally approve” any ordinance or rule in executive session, but consulted with counsel during the executive session, and 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. Only after a majority vote of the residents at the town meeting that the moratorium was actually adopted. Moreover, the FOAA contained 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. Accordingly, the court affirmed the trial court’s holding that each Board’s consultation with legal counsel in executive session complied with the conditions specified in the FOAA.

Hughes Bros., Inc. v Town of Eddington, 2016 WL 159296 (ME 1/14/2016)

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