WINSLOW — Winslow town councilors may have acted in violation of Maine’s open-meeting laws when they sought information about a colleague’s ability to serve, just months after a local election was decided in part on the basis of questions about municipal transparency.

Starting in May, Councilors Mike Joseph and Fran Hudson, both serving their first term in office, sent a flurry of emails questioning the cognitive function of their colleague Lee Trahan and seeking information about the process of removing a councilor from their seat. At the time, Trahan was hospitalized while he recovered from a coma he briefly entered in April.

An expert on municipal law says Hudson’s and Joseph’s emails could be viewed as discussing town business in private, a violation of state law, as the emails questioning Trahan’s fitness to serve were sent to six of Winslow’s seven councilors outside the public eye.

Councilors and town administrators say the emails did not break the law, noting that government could not function without elected officials talking among themselves.

Although a majority of councilors were copied on each of the emails, the discussions were only between individual councilors and legal counsel, which town officials say makes the private questions about Trahan’s health legal.

State law allows elected officials to use email to privately communicate about inconsequential subjects. But it also specifies that elected officials “should refrain from the use of email as a substitute for deliberating or deciding substantive matters.”

The questions about transparency come just months after an independent investigation found that a handful of Winslow councilors walked a “fine line” by regularly meeting outside of the public eye at a former chairman’s property to talk about town issues. Hudson and Joseph were both elected last November in large part due to their criticism of former councilors for the meetings and their campaign promises of transparency in Winslow’s government.

‘SUBSTANTIVE MATTERS’

Maine law prohibits officials from “deliberating or deciding substantive matters” via email even if the deliberations are not among a quorum of councilors, though it does not specify what exactly counts as a substantive matter.

Substantive matters are anything that the council would need to vote on in order to approve or deny, which would include some personnel discussions and decisions, according to Maine Municipal Association Advocacy and Communications Director Kate Dufour.

“(Substantive business) is something that would require a vote of the board or the council. The minute you hit a quorum you’re conducting the people’s business,” Dufour said. “When you have a quorum and you’re talking about substantive business, you’re really having conversations that should be taking place in the public eye.”

Joseph and Town Manager Ella Bowman contend that the discussions about Trahan’s medical history did not constitute substantive matters. Hudson redirected a question on the topic to Winslow Town Attorney William A. Lee.

Lee said it was unclear if the questions raised by Hudson and Joseph counted as “substantive matters,” but noted that elected officials can’t do business without discussing some things in private.

It may not even matter if the discussions are deemed substantive, Lee said, because a quorum of councilors were not engaged in the conversation.

“Email communication for a council to be able to do its business is absolutely essential. It’s just about how you go about that communication,” Lee said. “They’ve got to be careful that they don’t then start emailing each other back and forth and discussing the subject.”

Joseph said he was not looking to remove Trahan from his seat outright. Instead, he contends he was just asking questions about Trahan’s medical history and the legal process of vacating a council seat, which he does not consider substantial business.

“It was just a question,” Joseph said. “Were we trying to set (Trahan) up to remove him from council? Absolutely not.”

Though she said the emails did not violate state law, Bowman said discussions about Trahan’s recovery and medical history should have happened during an executive session after a council meeting, which is generally standard procedure for personnel discussions.

An executive session is a private meeting, usually held before or after a public meeting, where council members discuss confidential matters such as legal issues or personnel matters without the public or press present.

“We couldn’t have discussed it in an open meeting because you’re talking about somebody’s medical condition,” Bowman said. “If you’re going to talk about an employee, you wouldn’t be having that in front of an open session. You would have it in an executive session and the employee would be encouraged to sit on that so they can hear what’s being said about them.”

Councilors must vote in an open meeting to enter an executive session, and they must state the nature of the business to be conducted outside of public view.

Joseph previously put a motion to discuss an absent council member on the agenda for a May 13 council meeting, but withdrew it at the meeting without any comment. He declined to explain Tuesday why he dropped it before privately raising concerns via email about Trahan weeks later, on May 29.

‘NONE OF THEIR FRIGGIN’ BUSINESS’

By requesting a list of Trahan’s medications and a statement from his physician, Joseph and Hudson may have violated federal medical privacy laws, according to Bowman.

The Health Insurance Portability and Accountability Act, also known as HIPAA, ensures that a person’s health information remains private by making it illegal for medical providers to share a patient’s medical information to anyone other than the patient without their knowledge and consent.

“It’s a HIPAA violation. We can’t ask for that,” Bowman said Tuesday. “If they called him up and asked him what he was on and he chose to tell them, that’s fine. But frankly, it’s none of their friggin’ business.”

Requesting information about Trahan’s medication did not violate any laws, according to Joseph, because he first heard concerns about Trahan’s health from one of his constituents.

At a June 10 council meeting, Joseph read an email from an unnamed Winslow physician asking about Trahan’s “serious and possible ongoing illness” before adding that “the residents of this town deserve a fully functioning and unimpaired voice.”

Asking about how to fill a potentially vacant seat as Trahan recovered in an intensive care unit was not improper, Joseph said Tuesday, as the council could have a tie vote without Trahan present.

“If there’s only six councilmen and we need a tiebreaker, we need to make sure that that person is there and can make a solid judgement, whether it’s (Trahan) or anybody else,” Joseph said. “If he’s in good faith and not on any kind of drugs that could inhibit his judgment, I have no problem at all with it.”

Lee said Wednesday he was not familiar enough with HIPAA to say definitively whether or not the requests violated it, though he did say he recommended Hudson and Joseph reach out to Trahan directly for his confidential medical records.

“My response was to suggest that the individual councilors just call (Trahan) up and talk to him,” Lee said. “It wasn’t like confidential medical information was being released, it was a request to get medical information, and I declined to make that request.”

ONE-WAY CONVERSATION

Some residents first raised concerns because the emails were sent to a majority of councilors without the public’s knowledge, though in only a few emails did councilors directly converse with one another.

Towns must announce council quorums and municipal meetings in advance and make such meetings available to the public, per state law. A quorum is the minimum number of people required to be present for a group to conduct official business or make decisions. Because Winslow has seven councilors, four constitutes a quorum.

The emails in question, sent from Joseph and Hudson to at least six of Winslow’s seven councilors, along with Bowman, the town manager, and Lee, the town attorney, were obtained by a resident through an open-records request and posted to social media.

In a pair of emails to Lee, Joseph questioned Trahan’s “ability to vote on anything” during his recovery while Hudson asked whether Trahan could “vote legally possibly due to medication.”

Both would request Trahan’s medical information a week later, asking Trahan’s treating physician for a statement saying he was not taking any medications that would interfere with his cognition. In one email, Hudson sent a response to fellow councilor Joseph and Town Manager Bowman saying she asked Lee to investigate Trahan’s cognitive ability “just to have an answer to pass along to those asking.”

Though a majority of councilors were copied on the emails, Joseph and Hudson both said they did not violate open-meeting laws because the conversations were among one or two councilors rather than a quorum.

“If it’s a one-way conversation, it’s not a quorum,” Hudson said. “Any council member can send out an email and include all council members as long as they are not responding back.”

Bowman agreed, saying that she believes such communications would only be illegal if councilors conversed with each other rather than sending one-way emails. Because Hudson and Joseph were only directly responding to the town attorney, the emails do not violate state law, Bowman said.

“I don’t think any laws have been violated in any of this. When you’re in a conversation with somebody or you’re emailing to entice a conversation, that becomes a violation,” Bowman said. “I went through those emails and I don’t think they generated any discussion from other council members.”

Still, elected officials should avoid convening a quorum outside of the public eye even if no business is being discussed, according to Dufour.

Gathering a majority of councilors in private undermines public trust in government even if open-meeting law is not being explicitly broken, she said.

“I guess the question is, ‘It is a quorum, but is the city’s business being conducted?'” she said. “When you have a quorum and business is being conducted, that’s when you start wanting to provide public notice and making those deliberations and decisions in public.”

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