Wednesday, March 31, 2010

Rule of Law: CMP attorney, state regulators under review

Published in the Portland Phoenix

Three prominent Maine attorneys — two who are state employees and the third who works for one of the state’s largest regulated utility companies — will appear together this week before the grievance committee of the Maine Board of Overseers of the Bar, the professional organization monitoring attorney conduct.

The lead attorney for Central Maine Power, Ken Farber, and two lawyers for state agencies, Joanne Steneck of the Maine Public Utilities Commission and Eric Bryant of the Maine Office of the Public Advocate (which represents consumer interests before the PUC), face allegations that they violated the rules of good attorney practice when handling a complaint before the PUC.

Bar Overseers staff say it’s “rather unusual” to have more than one attorney being considered for discipline during a single hearing, and only “rarely” in the committee’s roughly 200-case annual workload does a lawyer for a state agency appear, much less two.

The origins of this case stretch back several years — to a 2005 complaint from Levant resident Bob Bemis about CMP’s practices handling connecting electricity service to newly built homes. Steneck ran the hearing process for the PUC, in which Farber represented CMP and Bryant the OPA.

At issue before the grievance committee is whether the three attorneys communicated with some parties while excluding others, a practice called “ex parte communication” that is specifically banned in both PUC rules and separate bar rules governing attorney conduct statewide.

Bemis has alleged they did so, specifically by not sending him copies of e-mailed discussions they had, which he claims led to prearranged decisions he disagreed with as the inquiry moved along. (PUC processes are typically very slow; this one remains unresolved.)

All three attorneys have denied that they did anything wrong, and Farber’s written response to the allegations specifically notes that Bemis consented to being left out of at least one communication, on May 16, 2007.

Peter DeTroy, Bryant’s attorney, explained his client’s response — which is very similar to the others’ — by saying that it is in four parts: 1) the communications were not prohibited; 2) they had no substantive content (DeTroy suggested they might have been asking for a reminder about a meeting time, as an example); 3) anything that was substantive was only communicated after receiving permission from the parties left out; and 4) if there was anything substantive communicated without permission, it was ultimately immaterial because everyone was brought up to speed before any decisions were made.

The grievance commission will hear the case on Wednesday, Thursday, and Friday, and will ultimately issue a ruling on whether any or all of the attorneys did anything wrong or face further sanction. There is no deadline by which they must make a decision.

Wednesday, March 17, 2010

More Government Fees: Barring the way to public records

Published in the Portland Phoenix

The Maine Legislature is considering a move that will make it more difficult for concerned citizens to find out what their government is up to. Many branches of state, county, and local government already violate the spirit of public access by charging large fees for photocopies — or even electronic versions — of documents public officials have already been paid to create and archive for posterity. It could be about to get a lot worse.

Sure, officials allow you to look at public documents for free during business hours, but if you want to share something with a friend (or attorney) or read a long document overnight, you'll need a copy. State law specifies that copying charges have to be related to the actual cost of making the copy, but some offices — legally — charge as much as $2 per page, which is 2000 percent more than the dime Portland-based XPress Copy charges walk-in customers for the same service at its for-profit business.

The new proposal comes from the counties' registries of deeds, which store property-ownership documents. Those offices rake in millions more than their annual expenses from other sources, and funnel profits to other county programs. Now they are asking lawmakers to change the state's open-government laws to let them charge even more, by adding non-copy-related costs to their already top-scale photocopying fees.

The move, in LD 1554, a bill being debated in the Legislature this week, has a Falmouth business owner objecting in court, freedom-of-information advocates concerned, and registers of deeds statewide playing political defense.

The businessman, John Simpson, of MacImage of Maine, is the reason for much of this kerfuffle, though he says he's just trying to meet the needs of a very small niche market — title researchers and others who property-records examinations and are frustrated with the patchwork systems Maine's registries of deeds use. He wants to get all of the records from all of the registries and offer online access to them in one place, rather than requiring researchers to visit as many as 18 different places to see property records from around the state.

"Most of the counties have Web sites that are difficult to use," he says, and each county's records are separate (with some counties having two different registries with separate online systems). He has asked for the records, in bulk, to be provided electronically at little or no cost. Refusals from several counties have led to lawsuits, only one of which has been settled — against Hancock County, in Simpson's favor.

His insistence has the counties fearing competition for their budgets. For example, Cumberland County's Registry of Deeds spends a total of $800,000 a year in operations and capital investments. The office takes in $1.5 million in recording fees from people and companies involved in property transactions, and a further $600,000 annually in photocopying fees, according to county budget documents.

Bob Howe, a professional lobbyist who serves as executive director of the Maine County Commissioners Association, says any losses in photocopying revenue would have to be made up by raising property taxes on homeowners.

"The counties are concerned revenue is at risk," Simpson says, but "the real issue is a control issue." It's hard to fault his perception, when you hear objections like those raised by Pamela Lovley, the Cumberland County register of deeds, and her counterpart in Hancock County, Julie Curtis.

They don't dispute that the records should be available to the public — for inspection — but say they are worried about what might happen when someone like Simpson gets copies, expressing concern, for example, about whether Simpson's database will be complete and accurate.

Simpson says that's his problem, not the counties', and observes that nobody is forced to pay for his service if they find it of no use. The issue is not what he is going to do with the information, he says, but why the counties won't allow people to get inexpensive copies of public documents. "For whatever reason, they like to think of these as their own property," he says.

He has the backing of Maine's open-government advocates, including Mal Leary, president of Maine Freedom of Information Coalition, who notes that the registers' request would carve out "a back door exemption" to the state's freedom of access law. Specifically, he says, it would raise costs to the public for acquiring public records. While every other state, county, and local agency must charge "reasonable" copying fees related to the actual cost of copying, this proposal would allow the registries of deeds to include other expensive factors, like data-storage costs and the price of keeping the documents secure — which the registries must pay for whether anyone wants copies or not.

Worse, Leary says, is that when a fee is set, "there is no way to appeal it. . . . There ought to be some check and balance to what's reasonable . . . so you don't end up with counties balancing their budgets" on photocopying fees.

The Lewiston Sun Journal has editorialized on the matter, asking rhetorically which agency will next be allowed to exempt itself from statewide open-records laws, if this effort succeeds.

Oddly, Lovley claims the registries' proposal will not raise fees. She even goes so far as to say that if lawmakers allow her office to factor in hundreds of thousands of dollars of capital investment — and the millions of taxpayer dollars spent in the past — the result will be the opposite: "I think at some point you'll probably see some of our copy fees will go down."

But that argument doesn't impress Simpson: "They're already making a huge profit before making copies," he says. "It's not fair and it restricts access."

Wednesday, March 10, 2010

Press Releases: Haiti troubles

Published in the Portland Phoenix

What can we learn from the Portland Press Herald's month-long-and-counting series following the beleaguered Sea Hunter ship carrying relief supplies from Portland to Haiti? Quite a bit, but more about the Press Herald's commitment to skeptical observing and detached reporting than anything else.

It certainly seemed a decent enough idea: A Maine-based ship owner volunteered to carry donated relief aid from Mainers (and some others along the East Coast) to Haiti in his ship, the Sea Hunter. Among the key items was a 37-foot truck equipped as a mobile medical-treatment facility, with exam rooms and other supplies, donated by the Augusta-based Maine Migrant Health Program to Konbit Sante, a Portland-based group providing community medical care in northern Haiti. Sending columnist Bill Nemitz along for the ride would generate good and interesting copy, tell a nice happy warm story about local do-gooders, and — crucially — give PPH readers something they couldn't get anywhere else.

As it turned out, though, the ship was found to have violated a few pesky US Coast Guard shipping rules about how much it could carry and how qualified its captain was, languished for ages under a detention order in Miami, and was only able to sail for Haiti with the intervention of Maine's congressional delegation and the donated time of a retired mariner (the second; he signed on after the first retired-mariner volunteer deemed the ship too unsafe for him to captain).

When it finally got to Haiti, it sat offshore for days, waiting for clearance to unload. Any semblance of speedy or effective relief had long since disappeared, but Nemitz gamely remained on the ever-extending story — in for a dime, in for a dollar. His journalistic ability was stretched beyond its limit; it was difficult to bring interest, much less drama, to the mind-bendingly mundane bureaucratic issues the ship owner had failed to anticipate. 

What he has to show for it is, more or less, a chronicle of repeated stymieing of one man's ill-informed though good-hearted idea.

But Nemitz and his newspaper never actually published the very basic observation they were showing: No matter how well-meaning a DIY relief effort is, professional aid organizations exist for a reason — including their ability to anticipate and work through (or around) the kinds of obstacles the Sea Hunter faced.

The fact that such an unremarkable insight has never seen ink in the thousands of words the PPH has printed on the subject makes it, in the end, hard to avoid the conclusion that this series was more about making Mainers feel good about themselves than about shedding light on the situation in Haiti.

Unfortunately, nobody at PPH HQ noticed the story had changed. The ship owner was repeatedly portrayed as a hapless victim of overweening bureaucracy, rather than as the guy who created the entire snafu in the first place: A water desalinator, food, and medicine arrived weeks after the direst need abated, though admittedly they would be welcome at any time in such an impoverished place.

What about that big-ticket piece of cargo, from Mainers to a Maine-led group in Haiti? In a dispatch filed nearly five weeks after leaving Portland, when unloading finally began, Nemitz revealed that that 37-foot medical-treatment truck would actually have to return to Maine for lack of anywhere to offload it.