Agenda - Planning Commission - 04/07/2016

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March 10, 2016 I Volume 10 ( Issue 5 Zoning Bulletin void, and of no legal effect because the Town violated the open meet- ing requirements imposed by the FOAA during the January 29, 2014 executive session. The court entered judgment in favor of the Town. Hughes appealed. Hughes again argued that the joint executive ses- sion of the Board and Selectmen violated the open meeting require- ments of the FOAA and, therefore, that the moratorium ordinance ultimately approved in the open Town vote was void, Specifically, Hughes contended that: (1) the described purpose of the executive ses- sion was inadequate, and the session itself was not limited to the stated purpose; and (2) the FOAA did not allow for a joint executive session of two municipal boards. The Court's Decision: Judgment of superior court affirmed. The Supreme Judicial Court of Maine held that the boards had not violated the open meeting requirements of FOAA and, therefore the moratorium ordinance ultimately approved in the open Town vote was not null and void. In so holding, the court explained that under FOAA, in order to ensure that government entities' "actions be taken openly," except as otherwise provided "all public proceedings must be open to the public and any person must be permitted to attend a public proceeding." (1 M.R.S. 403(1).) An exception to that requirement is made for execu- tive sessions that comply with specified conditions, further explained the court. (See 1 M.R.S. § 405.) An executive session may only be held for a purpose that is enumerated in § 405 of the FOAA, such as for "[c]onsultations between a body or agency and its attorney concerning the legal rights and duties of the body or agency." (1 M.R.S. § 405(6)(E).) Moreover, "[a] motion to go into executive session must indicate the precise nature of the business of the executive session," (1 M.R.S. § 405(4)), and "[m]atters other than those identified in the mo- tion to go into executive session may not be considered in that particu- lar executive session." (1 M.R.S. § 405(5)) Further, "[a]n ordinance, order, rule, resolution, regulation, contract, appointment or other of- ficial action may not be finally approved at an executive session." (1 M.R.A. § 405(2).) Here, looking at the facts and evidence, the court found that the Board and the Selectmen each went into executive session for the stated purpose of "Consultation with Legal Counsel." The Board had further described the executive session as being sought for the purpose of hav- ing counsel "meet with the [Board] in Executive Session to expand on the basis for his wording in the proposed Moratorium Ordinance." The appellate court agreed with the superior court's conclusion that the consultation with counsel in executive session fulfilled one of the FOAA's enumerated executive session purposes in that it "concern[ed] 10 © 2016 Thomson Reuters