In the business of public transparency

Gov. Paul LePage has created, by executive order, the Governor’s Business Advisory Council to advise him on all things business.

The members of this nonpartisan advisory council have not yet been appointed, but they will include at least four public officials and a cross-section of Maine business leaders.

In establishing the council, the governor’s order specifically shields the group from public scrutiny by exempting all records, activities and meetings of the board from the state’s Freedom of Access Act.

Can he do this? Yes.

The real question is whether he should do this.

FOAA allows advisory organizations established by executive order to be exempt, a section of the law the governor has already relied on to block access to all information about the work of his pre-inaugural transition team.

It’s the same section the law court, in 2008, relied on to deny author James Moore access to records compiled during then-Attorney General Steve Rowe’s review of the police investigation in the 1988 Dennis Dechaine murder case.

The public access exemption is 15 years old, and not often used.

In 2001, in the town of Burlington vs. Hospital Administrative District 1, Maine’s law court established what is essentially a functional equivalency test to decide whether entities are subject to FOAA.

For an entity to fall under the state’s public access laws, all four prongs of the test must be considered: 1) whether the entity is performing a governmental function; 2) whether the funding of the entity is governmental; 3) the extent of governmental involvement or control; and 4) whether the entity was created by legislative action.

An entity that exists outside these parameters is not subject to FOAA, which means the public has no access to meetings, records, discussions or recommendations. No matter how important the topic.

So, the governor can and has created such an inaccessible entity to discuss Maine’s economy.

In his executive order, LePage specifically outlined the need for closed-door meetings so that members of the Business Advisory Council could carry on candid conversations “necessary to present a complete picture of Maine’s economic climate.”

It’s not like Maine’s economic climate is exactly a state secret. For months, LePage and others campaigned quite candidly on the need to improve that climate, and the public was very much a part of that conversation. So, we know what the problems are, we know what some of the suggested solutions are and the public may very well have good ideas to add to the mix.

The idea of creating an advisory council on business is not new. Gov. LePage's council is the successor to Gov. John Baldacci’s Council on Competitiveness and the Economy, established in 2007, which was itself a successor to Baldacci’s Council on Jobs, Innovation and the Economy, established in 2006.

The former administration’s councils were created to explore and implement recommendations of the Brookings Report, and neither were specifically exempted from FOAA.

Meeting behind closed doors — even though it’s lawful for this latest generation of business council — blocks the public’s contribution to a discussion that we should most definitely be part of since our very futures may well rely on its outcome.

LePage won his bid for the Blaine House on a campaign to improve Maine’s economy, and he pledged to be chief of the most transparent government in the state's history.

His decision to cloak this latest business council variation in secrecy is lawful, but it is not transparent.

And this move to draft an advisory committee by executive order to avoid public scrutiny cannot be standard procedure.

jmeyer@sunjournal.com

The opinions expressed in this column reflect the views of the ownership and editorial board.

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Comments

 's picture

Thank you for the respect and kindness,

I do appreciate that. To clarify and I did not intend to insult. It was more of a warning, not of the person but again of the process that goes on no matter the party, that to have faith in the transparency - real open and honesty of what is really going on behind the scenes- to put faith in that- THAT well
what was it Reagan said? "Trust, but Verify?" yeah, I used that with my teenagers all the time - very wise
We must stay alert and ask questions, it is our duty as citizens. Too many people do not even know what they are voting about or who they are voting for and that is even more scary.

My point about the transparency is simply that while in office I learned alot. Some of that was disheartening. Especially when we have our people serving our country in wars and all over the world, dying and being injured in service to our country, only to see so much lack of true appreciation or respect for Veterans and their families, the lack of civic engagement, and to be told as a congressional candidate that 75% of my time would be spent fundraising, 75%, well that is not at all why I do what I do or did what I did, I just wanted to make the world a little bit better place.
Anyhow, thanks for the good discussion, have a great weekend, on a partisan note, I do hope your faith in your leader is born out in good and wise actions for all the people of Maine. There are so many who are hurting so terribly right now. They need our immediate assistance.

Mark Elliott's picture

and they will get the

and they will get the true"assistance" they need by making the private job market better. To do that we must make Maine more inviting to good business. Even most conservatives are concerned about the environment but the pendulum in Maine is too far in that direction and it is actually threatening our way of life, not preserving it. There is a middle ground but to get there we need to make some unwelcome cuts. I have to do it at home. My children no longer attend parochial school, not by choice, but because we had to pull our wings in just like our state and federal governments need to do. I am making sacrifices at home as I am sure many of the readers participating in this string are as well. It hurts, but I know it must be done.

 's picture

I have no idea who responded to me, but

it was like you were responding to someone else. I never used the word democrat or republican. I was only talking about the reality of politics and governing. I stated that the reality is that things get settled and decided behind the scenes all the time. Period.
I stated that it was naive to believe it was any other way.
I did not claim my title in any way. So, referring to me as Ms. Mayor? I am not sure if it was respectful or meant as sarcasm??? I think the latter.

It just amazes me how a person can say one thing, clearly, and in responding a person has their own conversation about something else....like party politics and policies and budgets. I never said anything about that. I was not even talking about that.

We WERE talking about transparency. That is being completely honest and open about everything that goes on in government. Governor Lepage made a promise to the people of Maine when he became elected that he would make the government TRANSPARENT to us. The editorial was about transparency and his promise and his executive order to establish this business committee that would meet in secret.

Why are you coming at me about party politics? Do you not have anything to say about your Governor and this action that is in fact not at all transparent?

Mark Elliott's picture

Actually, Ms Tara (<--better?

Actually, Ms Tara (<--better? Do you not have good memories of your time in office? You find the term "Ms Mayor" an insult?? I assure you I was using it out of respect for a former elected official), That said, my response was clearly about faith, not just politics. It was your very first line where you insulted me for even having faith. You said: -> "Oh how Naive you are, and if you believe in that or have "faith" in it, it is dangerous...." <- do you remember saying that?

Ms. Tara, I know you've worked hard, we all know you've seen your ups and downs like many of us have. My question for you: Where would you be right now if it weren't for YOUR faith? Is it really dangerous to have faith? Really?? I supported Paul LePage with my vote because I share his goals. I will continue to support him because I have faith in him.

 's picture

But for the Banksters...

None of us would be in this fix if the Banksters hadn't crashed the economy in '08, and then ripped off $TRILLIONS$ from the rest of us... WITH our government as accomplice.

 's picture

Dear Mark

Oh how Naive you are, and if you believe in that or have "faith" in it, it is dangerous....
I have been behind many governmental doors and in many meetings and committees and even the best intentions can end up in a place we don't expect.
Believe me, decisions are made every single day that you DO NOT find about or that we find out about after the fact.
They will be fed to us politically in a manner that serves the administration.
Journalists do not sit at every committee meeting and tweet everything said. Budgets have been severely cut and this is simply not possible.
This committee could have open discussion and we all know that they can say and discuss everything before and after meetings...There is not reason to do this unless there is something to hide and that they know that they are planning on doing things that they will need to keep secret. Think about it. Otherwise, you move forward expecting to be honest. You need to keep it secret only if you expect to have to be dishonest.
Before- after meetings, on the phone...email... texting.. that is when true decisions are made so very often- even more often on the golf course... trust me that one is true.
And I don't play golf.
We have got to get real as a public about really goes on in Augusta and Washington. To be honest about all of it would be a good start. Having blind faith is really scary and dangerous.

Mark Elliott's picture

With all due respect Ms.

With all due respect Ms. Mayor, if we had everything in life written in black and white right in front of us, we would have no need for faith at all! We placed a lot of faith in the last few administrations and look where it got us. I have faith in our Governor. I believe he will do everything he can to improve our state and I do believe we will ALL feel it in one way ore the other. Let me ask you this Ms. Mayor, what happens when your expenses are greater than your revenue (for whatever reason)? I think you know firsthand and I don't want our state going down that road. Take a little pain now, or a lot later! Which is it? If you believe we can keep running this state the way we have been under decades of Democrat control, then you Ms Mayor are the naive one. It is that mentality that got us where we are!

the business of public transparency

Judy,
Iagree with you 100%, candid conversations do not need to be secret secrycy does not inspire public trust and or confidence

!
Bob Mennealy, a1967LHS clasmateof GovernorPauL epage, though well to his left!

CLAIRE GAMACHE's picture

No good ideas

Gov. Lepage talks a good game but I have not seen one good idea come out of his administration yet. His economic proposals amount to stealing from the poor to give to the rich. He surrounds himself with yes men choosing loyalty over expertise every time. He wants to dismantle popular environmental laws. He wants to put big box stores in communities that don't want them and have economic developement in the unorganized territories where they don't want it and now he wants a secret government committee. Republicans did not enjoy having to answer for the missteps of Pres. George W. when the economy crashed , with 2 unpopular wars and massive bank bailouts. They may not enjoy having to answer for the missteps of Gov. Lepage either.

 's picture

Time to wak up!

Freedom of information, Maine is one of the worst states in allowing access to government records. These secret panels being constructed by LePage should be a wake up call to the media in our state to start challenging the constant refusals of government to release what is rightfully ours and to allow access to any and all meetings that could impact public policy.

 's picture

???

Sorta agree, but you lost it Dan when you wrote "...republican party is morphing into the communit party..." No its not. The Republican Party was and is American's fascist or corporate party in that it promotes nationalism, racism, and corporate control of the people. Communist Parties oppose nationalism, racism, and corporate control of the people so they are the exact opposite. You mean that the republican party is become an authoritarian, dictatorial, and oppressive anti-democratic party which rejects every fiber of American law and tradition. Then you'd be right.
Look to Michigan. They are currently in the process of passing a law which will allow the Governor by executive fiat to replace an elected municipal government with a corporation (like Dow, GE, or GM) giving it unlimited powers to change the laws or dissolve the municipality altogether. Corporate dictatorship. Look to Wisconsin. They jsut illegal passed legislation which will allow the Governor to dictate working conditions for public employees under the pretense of a fiscal crisis when the crisis was created by the Governor..

Mark Elliott's picture

At what time is any elected

At what time is any elected official allowed even a smidge of privacy? Nobody in the group will want to be truly transparent with the governor if they know the whole public is listening in on the discussion and he's not going to be able to act on any suggestions of this group without approval. When the time comes to act, we'll know what was discussed in the group.

If you think about it, maybe LePage is learning from our transparent leader in Washington? You know the guy, what's his name? Made tons of promises of transparency and is yet to deliver on a single one. Maybe, just maybe, politicians simply shouldn't make ANY promises until their second term when they know what the job entails?

There are times when I want my government to be able to discuss things without fear of being listened in on. It isn't what they discuss that hurts or helps us, it's what they DO!

 's picture

After they leave office

"At what time is any elected official allowed even a smidge of privacy?"

After they leave office.

Mark Elliott's picture

If I went to Augusta myself

If I went to Augusta myself to meet with the Governor, as a citizen and constituent, I'd be entitled to a private discussion but, in an effort to be efficient, if I brought 20 fellow citizens and constituents with me, we'd have to be supervised because we might be considered a "committee"? Is that what you're telling me Jackson?

 's picture

No, that's apples and oranges

No, that's apples and oranges. You and your friends are not a commission established by Executive Order of the Governor; you're citizens exercising your Constitutional rights to petition the government to redress grievances.

Mark Elliott's picture

So if this same group of

So if this same group of people were not "commissioned" and simply went up to Augusta together, you'd have no problem with them speaking to the Governor behind closed doors??????

 's picture

Public business is public,

Public business is public, and private is private. The governor works for us, and the conduct of OUR business is NOT private.

If you want to go talk to the gov, that's your business, but if the gov wants to talk to you in the conduct of state business, we have the right to know about it.

I'd refer you to the Constitution of the United States and over 200 years of history and law.

I'm done with you.

Mark Elliott's picture

You have to have faith in the

You have to have faith in the people you elect. I understand you have no faith in our current Governor but we both know that if your preferred choice for Governor had been elected and did the same thing, there wouldn't be a peep out of you........... Let me refer you to the same 200 years of American history to back that up........

 's picture

"You have to have faith in

"You have to have faith in the people you elect."

No, you have to WATCH THEM -- they're politicians. It's accountability -- I want to know that they're doing a good job at the work we've assigned to them, according to the rules. And if they're not, we call them on it. (It's like responsible dog ownership.) That's what democracy is about. It's not just a once every 2 or 4 years event, like the Olympics. Democracy is EVERY DAY.

You're wrong about me -- If my choice for governor pulled the same thing, I'd call 'em out on it. Just like I do my dog.

Mark Elliott's picture

If to "watch" you mean

If to "watch" you mean utilize the checks and balances we have available, then I agree. If to "watch" you mean "micro manage" then I do not agree. If I had the ability to micro manage him, then I might just as well put my name on the next ballot along with the thousands of others that feel they could do the job. Yes, the governor works for us and needs to be manageable, but we must also allow HIM to manage.
I am curious Jackson, why didn't I see your name on the ballot?

 's picture

No, I was right before....

No, I was right before.... I'm done with you. Be well and go in peace.

 's picture

scratch your head.

Its not what they discuss, it's what they do that hurts us???????? They do what they have discussed. Don't you want to know that LePage's 64 regulation repeal proposals came from the Heritage Foundation in Maine which got them from the Heritage Foundation in Washington DC which got them from David and Charles Koch. Don't you want to know that we will be allowing corporations to put poisons into babies bottles so that they can make 10 cents a bottle more in profit.

Mark Elliott's picture

It is what they actually DO

It is what they actually DO that matters and they DON'T always do what they discuss. Our politicians, whether they be republican or democrat deserve the opportunity to sit with advisers and throw ideas around without the media tweeting and twittering all the details before those details are final......that's what this is about! This is NOT a government committee that will do things behind our back. It is a committee of business people and educators that will have the governors undivided attention in an open discussion and they don't need the interruptions of the media circus! If and when any good ideas come out of it, we will know before anything is final.

RONALD RIML's picture

If it's not a 'Government Committee?"

Why are they meeting with Government?

Mark Elliott's picture

come to think of it, I met

come to think of it, I met with a judge once or twice, does that make me part of a "judicial committee"?

Mark Elliott's picture

I meet with my children's

I meet with my children's teachers, but I'm not on any "education committee"....

DEAN OUELLETTE's picture

Faith

"This is NOT a government committee that will do things behind our back."

Oh, how I wish I had your faith!

Mark Elliott's picture

Faith comes from within! If

Faith comes from within! If you really wanted it, you would have it!

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