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