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Daily Sun v. S.A.D. 43 dissenting opinion

CALKINS, J., with whom DANA and SAUFLEY, JJ., join, dissenting.

	[¶22]  I respectfully dissent.
	[¶23]  The appeal is not moot.{5}  "'The test for mootness is whether
there remain sufficient practical effects flowing from the resolution of the
litigation to justify the application of limited judicial resources.'"  Maine Civil
Liberties Union v. City of South Portland, 1999 ME 121, ¶ 8, 734 A.2d 191,
194 (quoting Nugent v. Town of Camden, 1998 ME 92, ¶ 6, 710 A.2d 245,
	[¶24]  There remains a live case or controversy between the Lewiston
Daily Sun and the Board of Directors of SAD 43 as to whether an official
action was taken at the executive session of the Board on April 14, 1998. 
Even when an executive session is permitted under the Freedom of Access
Act, 1 M.R.S.A. §§ 401-410 (1989 and Supp. 1998), "official actions" may
not be taken during executive sessions.  See 1 M.R.S.A. § 405(2) (1989). 
"Official action" is not defined in the statute.  Official actions taken during
executive sessions are illegal and are subject to an order that they are null
and void.  See 1 M.R.S.A. § 409(2) (1989).  
	[¶25]  The action of the Board in this case, as found by the trial court,
was the reaching of a consensus or agreement by the Board members during
the executive session to investigate further the complaint regarding the
superintendent.{6}  The Board's agreement resulted in the hiring of a second
attorney to do the investigation.  The second attorney made a report to the
Board and billed SAD 43 approximately $10,000 for her services.  There is a
case or controversy as to whether this action taken by the consensus of the
Board was the type of "official action" that is prohibited during executive
session.  If it is an official action, it can be declared null and void pursuant to
section 409(2).  The practical effect of an order declaring the action null
and void is to undo it, which in this case would be to invalidate the hiring of
the second attorney and void the authorization to pay her for her services. 
This would require the Board to revisit the issue in a manner that conforms
to the letter and spirit of the Freedom of Access Act.  This is a sufficient
practical effect to avoid a mootness dismissal.
	[¶26]  The Court concludes that because the second attorney was in
fact hired and completed her report, which the Board acted upon, there is
now no practical relief that can be granted.  This conclusion is contrary to
our holdings in Cook v. Lisbon School Committee, 682 A.2d 672 (Me. 1996)
and Campbell v. Town of Machias, 661 A.2d 1133, 1135 (Me. 1995).  In
those cases we refused to find that the governmental entities' actions in
providing the requested records to the plaintiffs after the court action was
filed made the lawsuits moot.  This appeal is not rendered moot simply
because the official action was completed by the time the trial was held. 
	[¶27]  By holding that this appeal is moot, we are telling governmental
entities that as long as the work authorized by their actions in executive
session is completed, they cannot be sanctioned for taking such actions
unless the Attorney General seeks the statutory penalties in a civil violation
complaint. This result substantially debilitates the Freedom of Access Act.
Because I conclude that the statutory remedy of declaring illegal actions null
and void is sufficient to raise a justiciable controversy, I would reach the
merits of this appeal.
Attorneys for plaintiff: Bryan M. Dench, Esq., (orally) James E. Belleau, Esq. Skelton, Taintor & Abbott, P.A. P O Box 3200 Auburn, ME 04212 Attorney for defendant: Melissa A. Hewey, Esq., (orally) Drummond Woodsum & MacMahon P O Box 9781 Portland, ME 04104-5081
FOOTNOTES******************************** {1} . § 6101. Record of directory information 2. Access. The following provisions apply to access of employee records. . . . . B. Except as provided in paragraph A, information in any form relating to an employee or applicant for employment, or to the employee's immediate family, shall be kept confidential if it relates to the following: . . . . (6) Complaints, charges of misconduct, replies thereto and memoranda and other materials pertaining to disciplinary action; . . . . 20-A M.R.S.A. § 6101. {2} . § 405. Executive sessions Those bodies or agencies falling within this subchapter may hold executive sessions subject to the following conditions. . . . . 6. Permitted deliberation. Deliberations may be conducted in executive sessions on the following matters and no others: A. Discussion or consideration of the employment, appointment, assignment, duties, promotion, demotion, compensation, evaluation, disciplining, resignation or dismissal of an individual or group of public officials, appointees or employees of the body or agency or the investigation or hearing of charges or complaints against a person or persons subject to the following conditions: (1) An executive session may be held only if public discussion could be reasonably expected to cause damage to the reputation or the individual's right to privacy would be violated; (2) Any person charged or investigated shall be permitted to be present at an executive session if that person desires; (3) Any person charged or investigated may request in writing that the investigation or hearing of charges or complaints against him be conducted in open session. A request, if made to the agency, must be honored; and (4) Any person bringing charges, complaints or allegations of misconduct against the individual under discussion shall be permitted to be present. . . . . E. Consultations between a body or agency and its attorney concerning the legal rights and duties of the body or agency, pending or contemplated litigation, settlement offers and matters where the duties of the public body's counsel to his client pursuant to the code of professional responsibility clearly conflict with this subchapter or where premature general public knowledge would clearly place the State, municipality or other public agency or person at a substantial disadvantage. F. Discussions of information contained in records made, maintained or received by a body or agency when access by the general public to those records is prohibited by statute. 1 M.R.S.A. § 405. {3} . The first three counts of the complaint were not considered further by the Superior Court, and are not at issue on this appeal, because they were out of time as filed more than 30 days after the events complained of. M.R. Civ. P. 80(b) requires that such actions "shall be filed within 30 days after notice of any action or refusal to act of which review is sought . . . ." {4} . § 6101. Record of directory information . . . . 2. Access. The following provisions apply to access of employee records. . . . . C. Any written record of a decision involving disciplinary action taken with respect to an employee by the governing body of the school administrative unit shall not be included within any category of confidential information set forth in paragraph B. 20-A M.R.S.A. § 6101(2)(C). {5} . Neither party raised or briefed the issue of mootness in either the Superior Court or this Court. The Superior Court did not discuss mootness although the posture of the case is no different in this Court than it was at the time the record was closed in the Superior Court. {6} . The trial court made a legal conclusion that an "official action" was not taken at the executive session. The court, however, expressly found: "The consensus [of the Board], without any formal vote, was to follow the advice of their attorney and have further investigation conducted."

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