Shielded Maine wind energy commission receives pushback 

AUGUSTA – Gov. Paul LePage’s imposition of a moratorium on new wind power permits last week was only half of the reason renewable energy advocates and other groups were so upset.

LePage also created a Wind Energy Advisory Commission that will meet behind closed doors – out of view of the public or the press – as it examines the industry’s impact on tourism and potential regulatory changes when siting the massive wind turbines.

In shielding the commission from public scrutiny, LePage tapped a clause – or, to some, a gaping loophole – in Maine’s public meetings law that’s been on the books for more than 20 years but was rarely utilized until he took office.

“It is allowed by law and standard practice so that commission members can feel empowered to speak freely,” LePage spokeswoman Julie Rabinowitz wrote when asked the reason for exempting the commission from public meetings requirements under the Maine Freedom of Access Act. “We want the final report to be able to stand on its own.”

While not exactly “standard practice,” LePage exempted from public participation at least five of 18 commissions or task forces he created via executive order since January 2011, according to a review by the Maine Sunday Telegram. In addition to the wind energy commission, LePage exempted a panel that studied the operations of the Maine Human Rights Commission – an agency he occasionally accused of being anti-business – as well as a Civil Service Review Panel, a Veterans’ Licensing Review Panel and the Business Advisory Council he established upon taking office.

By contrast, his predecessor Gov. John Baldacci appears to have only explicitly exempted two organizations: a Homeland Security Advisory Council created in 2004 to advise him on terrorist threats and multi-agency coordination after the 2001 attacks, and a Select Committee on Judicial Appointments. In the latter case, Baldacci clarified that the committee’s documents were not public records.

Baldacci also created two task forces that examined wind power issues – one each for land-based wind and the other for ocean-based energy installations – but both of those met in public.

And now-U.S. Sen. Angus King, who was governor at the time that the Legislature changed the law, did not appear to exempt any commissions or advisory boards in his final six-plus years in office, according to the Sunday Telegram review.

Jim Campbell, a Searsport resident who serves on the Maine Freedom of Information Coalition, said just because LePage can legally exempt the Wind Energy Advisory Commission from FOAA doesn’t mean he should.

If the public doesn’t know who spoke with the commission or the accuracy and breadth of the data used to compile its final report, that report “isn’t going to be worth the paper it is written on,” said Campbell, who stressed that he was speaking on his own behalf and not that of the Freedom of Information Coalition, which had not yet discussed the issue.

“I think the intent of the law was to make working papers and preliminary kinds of (information) more or less confidential as opposed to secret,” Campbell said. “But the way it is being used in this case is not for the public good in my opinion. This is a very big issue and it affects things that already exist as well as (projects) that are in progress. It’s a huge issue for the state, however they decide it. And to do it in secret is really problematic.”

HISTORY OF THE CLAUSE

Renewable energy and environmental groups are already hinting at legal challenges to LePage’s order halting new permits for wind power projects in western and coastal Maine as well as along major flight paths for migratory birds. The moratorium merely heightens the longstanding animosity between LePage – a businessman elected on a platform of lowering energy prices – and organizations that say the governor is killing much-needed jobs while harming Maine’s transition to cleaner energy sources.

LePage’s exemption of the Wind Energy Advisory Commission from Maine’s public meetings law further infuriated critics of his moratorium decision.

“If the governor’s decision to sidestep elected representatives in crafting sweeping energy policy for our state wasn’t bad enough, his decision to make the commission’s meetings exempt from public meeting laws adds insult to injury for every Mainer who believes in government of, by and for the people,” Rep. Seth Berry, a Bowdoinham Democrat who co-chairs the Legislature’s Energy, Utilities and Technology Committee, said in a statement. “It’s an outrageous stipulation that does little more than invite secrecy, corruption and potential conflict of interest surrounding public policy in Maine’s environmental future.”

Yet there appears little immediate recourse available to those who object to the LePage administration’s plans to hold its Wind Energy Advisory Commission meetings in secret. That’s because the Legislature explicitly gave governors as well as lawmakers the ability to exempt such commissions from Maine’s public meetings and disclosure laws – for any reason.

It’s unclear if lawmakers anticipated the size of the loophole they were creating, however.

In 1996, the Legislature sought to end a decades-old dispute over whether commissions, advisory boards, task forces and other special groups created by the governor were required to meet in public and share documents or paperwork. The Attorney General’s Office had consistently ruled that meetings of such groups were not “public proceedings” subject to the Freedom of Access Act and that the groups’ paperwork only became public when it was sent to the governor, Legislature or other public body.

At the time, lawmakers heard complaints that members of a loosely organized health care commission as well as a sustainable forestry task force had met privately or declined to release documents to the public or press. Then-Senate President Jeffrey Butland, R-Cumberland, introduced a bill stating that “any policy-influencing or fact-finding advisory board or commission established by the Legislature, the Governor or any state agency or authority” would be subject to public meetings laws.

“State government and the public which elects us have not been served well when a small group of people have made decisions behind closed doors,” Butland said in testimony presented to the Legislature’s Judiciary Committee on March 20, 1996.

Gov. Angus King said at the time that he supported more public involvement and had even directed some boards to open their meetings to the public. But King and his staff raised concerns about the broad language of the bill. And by the time it emerged from the Judiciary Committee, it contained a sweeping exemption stating that such organizations were subject to public meetings requirements “unless the law, resolve or Executive Order establishing, authorizing or organizing the advisory organization specifically exempts the organization.”

The amended bill received a unanimous vote in committee and passed both the House and Senate “under the hammer,” or unanimously without roll call votes.

Former Sen. Peter Mills, a Skowhegan Republican who was co-chairman of the committee at the time, couldn’t recall the exact debate from nearly 22 years ago when contacted last week. But Mills said his notes from the time described a “free-ranging discussion with press and governor’s representatives” over the issue and the committee finally reading consensus on a “modest change” after a second, long work session.

Mills said he wouldn’t want to revisit the issue today without hearing the evidently persuasive arguments from King’s staff – Kay Rand and Libby Butler – at the time. But he said it appears to have been “a modest change with immodest consequences.”

Former Rep. Sharon Treat, a Hallowell Democrat and the House co-chairman at the time, also wasn’t sure about the discussion in March 1996 but said she strongly believes commissions and groups should meet in public. In fact, Treat was arguing for more accessible and transparent re-negotiations of the North American Free Trade Agreement, or NAFTA, in Montreal on Friday as part of her role with the Intergovernmental Policy Advisory Committee.

“So many times, public officials may not want to debate in public, but the end result is a better result if they do,” said Treat.

LACK OF TRANSPARENCY

The LePage administration has proved to be inaccessible to the press and less than forthcoming when it comes to document requests, despite pledges early on to run a transparent government. The governor’s staff rarely publicizes his whereabouts beforehand, does not release public schedules and often takes months – or longer – to respond to public document requests through the Freedom of Access Act. Some Portland Press Herald requests for documents that are clearly subject to public disclosure, for instance, have been pending for nearly a year.

During a panel discussion held last week, LePage’s chief energy adviser, Steven McGrath, was asked “why the commission would be meeting in secret.”

“The commission is going to go wherever it goes … and there is going to be a lot of jumping up and down and emotions throughout the process,” McGrath told the audience at the Environmental and Energy Technology Council of Maine meeting. “We just want the final report to speak for itself. It’s just that simple.”

But his answer to a follow-up question on whether the commission expected to take public comments was also telling.

“We hadn’t thought that through,” said McGrath, who recently took over as director of the Governor’s Energy Office. “If we thought that it would benefit, we probably would. If we thought we were going along just fine, we probably wouldn’t.”