Brunswick officials ask if closed Facebook group skirts open meeting law

Posted Sept. 11, 2015, at 6:43 a.m.
Last modified Sept. 11, 2015, at 10:31 a.m.

BRUNSWICK, Maine — A closed Facebook group focused on Brunswick schools has raised “red flags” for the state’s public access ombudsman and town leaders, who said Thursday they would look into the use of social media by elected officials.

The group’s 611 members — who must request admission and be approved by administrators — include four town councilors and four school board members. Their participation in the group’s discussions of matters over which town councilors and school board members have direct control — including budgeting, building maintenance and policy — have led some to question whether those discussions violate Maine’s Freedom of Access Act, specifically the section of the law that deals with giving adequate notice and ensuring equal access to meetings that involve matters directly under the elected officials’ control.

Sarah Singer, a founder of the Brunswick Community United Facebook page, serves on the school board. Singer said Thursday that the group has never sought to exclude anyone and that — to her knowledge — no Brunswick resident has ever been excluded. Obstructing the public meeting law was never the intent of those who started the group, Singer said. Still, she acknowledged, the group “may need to invent some other, more public way” to engage the community in meaningful discussions about its schools.

The Brunswick Community United Facebook group was created in about 2010 to support the schools in the face of proposed budget cuts, according to Singer.

“We were also trying to get more community members to come to school board meetings and show the school board there was support for the schools,” she said.

As of Thursday, the 611 members included Singer and fellow school board members Rich Ellis, Corey Perreault and Joy Prescott, as well as Brunswick Town Council Chairwoman Sarah Brayman and councilors Jane Millett, Kathy Wilson and John Richardson. It also included a number of school administrators, legislators and at least two journalists.

The fact that elected officials discussed public policy in the closed group caused some observers, including Brenda Kielty, Maine’s public access ombudsman, to question whether the discussions violate the spirit and the letter of state law.

Under state statute, meetings or conferences involving members of public bodies can’t be held without proper notice and the opportunity for public attendance. A meeting involving three members of a public body must be accessible to the public.

Members of public bodies, however, may communicate with each other outside of meetings as long as they aren’t using the communication to subvert the meeting statute.

Recent discussions on the page have focused on delaying school start times, moving the fifth-graders to the junior high school and rebutting an op-ed in a local newspaper comparing Brunswick to Topsham. Last fall, the group endorsed group member Christopher Watkinson as a candidate for the seat held by school board member Jim Grant.

At least one conversation, about whether the town should repair and renovate older schools or build new, was primarily driven by three school board members — which Kielty said “certainly could be problematic.”

Kielty would not comment on any potential violations of the public access law without reading the group discussions, but she did say any “substantive discussions about matters pending before the board” must take place in open session with the full board.

Last month, Singer, Ellis and Millett, among others, weighed in on a council decision not to take public comment on a proposal to bond $12.6 million, largely for school repairs.

“Once again, a ‘conversation’ like this cannot be fruitful on [Facebook],” Millett wrote, before outlining the merits of bonding “a larger job” versus smaller repairs.

“My vote now is for a series of public workshops to discuss options, collect feedback and move forward as quickly as possible with some short term funding for the most urgent repairs and a long term strategy for upgrading or replacing the two schools,” Singer wrote. “Would people please comment on when they think they would be most likely to attend a public workshop? Saturday afternoon, a weekday morning, weekday evening etc??”

Ellis shared extensive information from the town’s finance department on bond options and interest rates.

“It’s certainly concerning, particularly if they’re talking about substantive matters,” Kielty said of the conversation. “They can’t take action because it’s not a quorum of the board, but certainly if they’re having conversations that are going to be informing their decision-making on the board, and may be influencing each other’s positions, then it starts to sound like deliberations.”

“I have cautioned numerous times against having email or online meetings,” Brunswick town attorney Stephen Langsdorf said Thursday. “I’ve recommended it be done in public.”

Langsdorf said Thursday that he had not been asked for an opinion about the group, but that he believes the discussions do not necessarily violate the law.

“The fact that there might be three members of a body does not in and of itself make it a problem, but clearly if you have a quorum or a majority of the group commenting on an issue, it’s a problem,” he said. “I would prefer to see that happening at a meeting or some sort of open forum, but the fact that people are commenting and no decision is being made, it’s not a violation — it’s just the spirit of the law to have these things open and public.”

He also said he would “strongly recommend against” allowing a fifth member of either body to join the group. The town council and school board each has nine members.

While state statute establishes the threshold for public meeting notice at three, not a quorum, no specific penalty for violating that open meeting provision is included in the law. Willful violations of the law are subject to a civil penalty of up to $500.

“I have not been invited to participate, and I do not participate,” Brunswick Superintendent Paul Perzanoski said.

Of any potential violation of the public access law, he said, “It depends on how it was done. If it’s one person talking to another, that may not present a problem. If there’s a quorum — of board members and/or town councilors — talking about a particular issue, I think that could be a problem.”

Town Manager John Eldridge said councilors are repeatedly reminded not to engage in group email conversations and that they “have been pretty good about it” despite occasional lapses. But discussion of social media use has not come up.

“Clearly our intent is to follow the law and make sure that people’s communications are open and transparent,” he said. “I think it’s something we should be more sensitive to — the fact that it could be construed as [a violation] … it’s something we need to be mindful of and something we should and will review.”

According to Singer, the group is only closed to keep Internet “trolls” and people from other states and towns from disrupting conversations. She said school administrators and board members often “clarify” misconceptions from other venues, and their presence “actually makes people feel like there’s a conversation happening.”

“I understand maybe because it’s a Facebook group it’s not public, but just instinctively it feels public — it has hundreds of members, and even a reporter,” she said.

School board Chairman William Thompson is not a member of the group, but he is confident none of the board members in the group are intentionally attempting to skirt the law. He said board members haven’t raised questions about discussion in the group.

“It never hurts to be reminded that you are a member of an elected body and you have a responsibility to make sure that what you are doing is public in an open way,” he said.

Brunswick does not have a social media policy. While Eldridge said it may be time to have that discussion, Singer worries that any policy could dampen the discussion.

“I don’t want to break any laws, of course, but I also want to have some kind of freedom of speech that allows elected officials to participate in the community,” she said. “Maybe we need to invent some other, more public way to do that. I would love to see policy that can actually acknowledge that the way people communicate has changed. I would hate to see a social meeting policy that has such a chilling, deleterious effect to public conversation.”

For reporting purposes, Bangor Daily News staff writer Beth Brogan joined the Facebook group Brunswick Community United. Featured homepage photo by Maria Elena, used under a CC by 2.0 license.

 

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