LEWISTON — A meeting being organized in part by Ward 1 City Councilor Tom Peters to discuss the performance and actions of the Lewiston City Council would not be a breach of state law or the city’s charter, according to a ruling issued by the Maine Municipal Association on Friday.

The meeting is set 5:30 p.m. Wednesday, Aug. 5 at the Ramada Inn in Lewiston.

Acting City Administrator Phil Nadeau sought the opinion after Ward 7 Councilor Robert Reed challenged whether the meeting would constitute a violation of the state’s open meeting laws or the charter. Reed was demanding an opinion of the city’s attorney, but Nadeau suggested it would be less expensive to get the opinion from MMA’s legal staff, because the city is a member of the association and some legal advice is one of the services the association provides.

“It may seem unconventional to do so, but I will begin with my conclusion: A meeting about the City Council is not necessarily a meeting of the City Council,” Richard P. Flewelling, MMA’s assistant director of the Legal Services Department, wrote in a memo to City Clerk Kathy Montejo. “As planned, this will be essentially a political event, and irrespective of the politics, it is well within a councilor’s (or any public official’s) First Amendment right to organize and conduct.”

The memo was distributed to the council Friday.

On Friday, Peters, the council president and a lawyer, said he was not surprised by the ruling and that he knew all along he was exercising his Constitutional rights of free assembly and free speech. He said what was more troubling to him was that Reed was attempting to use city resources — Reed had initially asked for an opinion from the city’s attorney on the matter — to restrict another citizen’s Constitutional rights.

“My first response to it was here we go again spending more of the city’s and taxpayers’ money on legal opinions that are not necessary,” Peters said. He said Reed may not trust his opinion simply because he’s an attorney and in disagreement with him. “Perhaps he had what he thought was a valid request, but the answer is clear, the legal opinion is what I knew it would be and I hope they understand we still have the right to free assembly and freedom of speech and to change things that we feel are not appropriate and that’s what’s going to be happening.”

Peters said the purpose of the meeting is to talk about the failings of the current council, especially the firing of Jim Bennett, the city administrator, and to begin to find candidates to oppose incumbent councilors who voted for that action. “I’m getting lots of people calling me, telling me they are not happy with what they are seeing,” Peters said.

Reed said he wasn’t too surprised by the legal opinion either, but that he still felt Peters was taking an action that appeared to be aimed at undoing the firing of Bennett.

“The thing I’m more concerned about is that this is to talk about Mr. Bennett and how do we fix what happened to Mr. Bennett,” Reed said, “and you could get into some very dangerous issues with personnel that were discussed in executive session, and if it’s a personnel issue you really shouldn’t go there.”

sthistle@sunjournal.com

The full text of the message from MMA to Lewiston’s City Clerk:

Dear Kathy,

This is in reply to your e-mail yesterday regarding a meeting called by Councilor Peters for August 5th at the Ramada Inn.

It may seem unconventional to do so, but I will begin with my conclusion: A meeting about the City Council is not necessarily a meeting of the City Council.

As I understand it, this meeting has been called by Councilor Peters in his individual capacity and not on behalf of the Council. His e-mail invitation (“I have set up a meeting…”), and Councilor Reed’s response (“… not all members of the council were invited or advised…”), make this clear. Councilor Peters apparently intends an open public forum for discussion of the Council’s performance. As planned, this will be essentially a political event, and irrespective of the politics, it is well within a councilor’s (or any public official’s) First Amendment right to organize and conduct. It is, in my opinion, neither a violation of Maine’s “Right to Know” law nor a breach of any provision in the Lewiston City Charter.

I should add that a meeting that is not initially subject to the Right to Know law could unintentionally but arguably become a “public proceeding” under the law if a quorum of a body were to attend and participate as officials rather than merely private citizens. (The law defines public proceeding as the transaction of any function by a governmental board or body, see Title 1 M.R.S.A. Section 402(2).) Thus, if a quorum of the Council were to attend this event, they should either decline to actively participate or endeavor to speak only as individual citizens and not as councilors. This, admittedly, may be difficult, but it is nonetheless important that the event not morph inadvertently into a meeting of the Council itself.

I hope this advice is helpful. Please let me know if you have any further questions.

Best regards,

Richard P. Flewelling, Assistant Director
Legal Services Department

Maine Municipal Association
60 Community Drive, Augusta, ME 04330
1-800-452-8786 (in-state)
207-623-8428
FAX 207-624-0187
legal@memun.org

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