WATERVILLE — City officials are scrambling to make important decisions during the coronavirus pandemic while at the same time ensuring that the city is adhering to open meeting laws.

A COVID-19 subcommittee, which had been accused of meeting illegally last week by not giving public notice and not allowing public access, met again Monday on the virtual platform Zoom with Fire Chief Shawn Esler and police Chief Joseph Massey the only attendees who were in one room together. Others attended remotely.

Waterville City Manager Mike Roy

Though most of the meeting was taken up with Massey and Esler giving members an update on the work it is doing as part of emergency operations, according to City Manager Michael Roy, the subcommittee discussed the city’s lack of language in its city charter concerning who is authorized to make big decisions during such emergencies.

Last week, the subcommittee made an illegal decision, for instance, to close bars and restaurants, a decision only the council has the power to do. If the city manager were designated by charter to make decisions during an emergency, Roy would have had the power to do that.

Council Chairman Erik Thomas, D-Ward 7, who is co-spokesman for the subcommittee with Mayor Nick Isgro, said in a phone interview after Monday’s meeting that the committee discussed what it needs to do to follow the law and still be able to meet privately and act in an advisory-only capacity to the City Council. Thomas justified the need for holding private meetings, saying sensitive information may be discussed that should not be made public.

“In our discussions, there may be information that has to do with personnel things we can’t just live-stream,” Thomas said.

He and councilor Rick Foss, R-Ward 5, attended Monday’s virtual meeting from separate locations.

Roy said afterward that Tuesday’s scheduled City Council meeting has been postponed. Councilors were to have considered taking final votes on initial votes they took at an emergency meeting Friday to suspend the city’s plastic bag ordinance at Isgro’s recommendation. The council also voted to decrease the number of councilors on the subcommittee to allow the panel to continue to meet in private.

The vote was 5-1 on both items, with Councilor Claude Francke, D-Ward 6, the only dissenter. Francke, an attorney, said that prohibiting the public and press from subcommittee meetings was what got the previous subcommittee in hot water and the number of members should not be trimmed further. Francke has consistently argued for keeping meetings open in the spirit of the Freedom of Access Act. That law protects the public’s right to know what their elected officials are doing and requires that sufficient notice be given of such meetings so that the public may attend.

City Solicitor William A. Lee III, who is in Florida and advising city officials remotely, emailed the city after Friday’s meeting to say the council needed to take second votes on the plastic bag issue and the item about reducing the number of subcommittee members on the panel, as they required two votes instead of one because the votes on each were not unanimous.

Roy said Monday that the subcommittee wants to set up a remote meeting with Lee to discuss requirements of meeting the Freedom of Access Act. The fact that the city does not have language in its charter to designate a person to make decisions is a “serious missing piece in our ability to take quick actions during emergencies,” Roy said.

“My next question to Bill Lee is, can the City Council adopt that now, or does it have to be a charter provision first?” Roy said.

He said the cities of Bangor, Lewiston and Augusta do have language in their charters about emergencies, with Augusta’s charter designating the city manager to make significant decisions such as closing down restaurants and bars.

 

LEE TO PRESENT AN OPTION FOR COUNCIL

Contacted by phone Monday evening, Lee said he plans to send a memo to the city presenting an idea for consideration going forward because the city is facing a situation it has never had before, and another such issue could arise in the future.

Under the concept of home rule, municipalities have the power to legislate in all areas not “expressly or impliedly prohibited by the state constitution or state statutes,” Lee said.

“There is a fairly good argument to make that the City Council could adopt an ordinance granting certain temporary emergency powers to the city manager,” he said.

If the city were to present such a proposed ordinance to the City Council, it would need to be carefully worded and reviewed and include what the scope of the city manager’s powers would be, how long he would have them and how they can be changed, according to Lee. If the council were to approve such an ordinance, it should meet soon afterward to decide to what extent the city manager’s powers should continue, he said.

“That way, you’re not giving unbridled power — you’re giving short-term emergency authorization,” Lee said. “It would quickly come back into the public forum for consideration.”

Lee said he thinks it is a way to address the city’s needs in an unprecedented situation.

“We can accomplish our goals without violating the principles of democracy,” he said.

Thomas, meanwhile, said Monday that he understands the needs of the press to push for open meetings.

“I don’t have a problem with the newspaper,” he said. “I understand you guys have a job to do. I respect you’re doing your job. We also have a job to do. I want to be clear we’re trying to follow laws but effectively respond to the emergency.”

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