AUGUSTA — On Wednesday, May 28, the legislature’s most powerful committee — the one that effectively controls the state’s $6 billion budget — was scheduled to meet in Room 228 in the statehouse.

The printed calendar posted outside the large chamber said the meeting of the Appropriations and Financial Affairs Committee would start at 1 p.m., but the more up-to-date electronic calendar in the lobby said the meeting would begin at 1:30.

But at 1 and at 1:30 the chamber was empty except for a gaggle of middle school students who were getting a lecture on how their state government works. Just after 1:30, they filed out, but no committee members filed in.

The government the students had come to see in action wasn’t late for the meeting. Its key members were, in fact, meeting — just not where the civics class or any member of the public could see them.

Instead, some appropriations committee members were bypassing the public chamber in which their meetings are traditionally held and going through a private door that leads to a suite of small rooms.

One member, state Sen. Roger Katz, R-Augusta, emerged from the back rooms that day and explained that a select subgroup of the committee was meeting there: He called it a “chairs and leads” meeting. In statehouse-speak, that’s a subcommittee made of the two chairpersons of a committee and leading members.

I told him I’d like to cover the meeting, and I intended to go through the door where he came out. He told that door was locked, except for legislators and staff.

But, there was another way in: In the back of the public meeting room there is a door marked “Legislators and Staff Only.” That door is not locked. I went through it to the suite behind and heard voices coming from one of the rooms.

I knocked on the door and a voice said, “Come in.”

Gathered around a desk were five of the 13 members of the appropriations committee — “chairs and leads.”

I had brought with me a copy of the state’s Freedom of Access Act because I had seen repeated reports in the media of closed-door meetings about the budget.

I quoted portions of the act to the legislators, including one that states the public’s business, which includes deliberation by committees of more than three, is to “be conducted openly.”

I asked them how their private meeting was legal given the wording of the Freedom of Access Act (FOAA).

“You wouldn’t negotiate a labor contract in public, would you,” replied one of the committee “leads,” Rep. Tom Winsor, R-Norway.

I asked him if they were talking about a labor contract, not the state budget, which was the posted topic of the meeting.

“No, we’re not,” he said, “but this stuff is sensitive, too.”

The Senate chair of the committee, Sen. James Hamper, R-Oxford, said, “I have no response” to why they were meeting in private. He said he would not elaborate because he gives only short answers to the media.

The House chair of the committee, Rep. Peggy Rotundo, D-Lewiston, said the committee members were not talking about the substance of the budget, but the “process” the committee would follow to finish its work.

She said the reason the chairs and leads meet in private is because “sometimes it’s difficult to get people talk about the process publically.”

She invited me to stay at the meeting and said that sometimes reporters have sat in on these meetings when they are aware of them, but she said the meeting would remain in the private back room where the public could not attend. I declined the offer.

The “chairs and leads” meeting — which other committees, not only appropriations, also hold on a regular basis — is one example of how the public’s business at the legislature is done away from the public’s eye, despite the strong language of the FOAA.

A 1975 “declaration” in that law states:

“The Legislature finds and declares that public proceedings exist to aid in the conduct of the people’s business. It is the intent of the Legislature that their actions be taken openly …”

It adds that the act “shall be liberally construed” — legalistic language meaning that when in doubt, meetings of elected officials should be open to the public, according to lawyer Sigmund Schutz, an expert on the FOAA and the co-author of “Open Government Guide: Access to Public Records and Meetings in Maine.”

Yet, Maine legislators meet behind closed doors in at least four different ways:

• “Chairs and leads” committee meetings.
• Closed-door meetings of a full legislative committee: It has been commonplace in news coverage of the legislature to see such meetings treated as a routine event, such in this June 1 news story by the Bangor Daily News: “After hours of behind-the-scenes negotiations, the Appropriations Committee convened after 11 p.m. Sunday and voted down a range of proposals” from Gov. Paul LePage. While the votes were public, the deliberations were not, despite the FOAA requiring that they be public. And the Portland Press Herald reported on June 2 that most of the appropriations budget negotiations the previous day had been conducted “behind closed doors.”
• Party caucuses: meetings of just the House or Senate Republicans or Democrats. These are sometimes open to reporters, but they are not publically announced, so citizens would not have a way to know about them. At these meetings, the members of the party discuss and determine their position on key issues, like the budget.
• “Corner caucus”: these happen in the midst of committee meetings when members of each party will literally go to the corner of the room or the hallway to discuss their position, out of the hearing of the public.

There is no official record of how many of these closed meetings are held. But emails from the appropriations committee clerk obtained by the Maine Center for Public Interest Reporting for May and early June — when the final budget negotiations were being conducted — reveal that the committee openly admits it is having private meetings, using the insider terminology “off mic.”

The term means the committee may be meeting, but not in a room with a microphone turned on. Meetings in which the public, lobbyists and press are allowed are “on mic” and can be listened to remotely through a statehouse audio link.

On May 28, when the committee was having its chairs and leads meeting, the committee clerk sent out an email to legislators, lobbyists and press on her email list stating the committee “will NOT be going on mike (sic) tonight.” And they were not “on mic” at the private meeting I came into uninvited.

The emails obtained by the Center show the committee notifying its email list six times in May and once in June that it would hold meetings that would not be “on mic.”

The emails and interviews with a legal expert and veteran statehouse hands together draw a picture of a growing and accepted practice that contradicts the sweeping opening statement of the Freedom of Access law approved by the legislature in 1975:

“The Legislature finds and declares that public proceedings exist to aid in the conduct of the people’s business.”

Mal Leary is both a reporter covering the statehouse, as the political correspondent at Maine Public Broadcasting Network (MPBN), and also a founding member of the state’s Right to Know Advisory Committee, which was created by the Legislature to serve as a resource and advisor about Maine’s Freedom of Access laws.

Leary, whose career dates back to 1975, disputed the claims by Reps. Winsor and Rotundo that they could hold a private meeting because they were discussing sensitive subjects.

“There’s nothing in the (FOAA) law about sensitivity,” Leary said.

Attorney Schutz, a partner at the Preti Flaherty law firm, said closed meetings of full committees, subcommittees and the “chairs and leads” are “pretty clearly against the spirit of the (FOAA) act and quite probably against the letter of the act.”

Like Leary, he said there is no exemption in FOAA for sensitive topics or because lawmakers “are too chicken to do their business in public.”

When it comes to performing their official duties, Schutz said, “Public officials have no privacy rights.”

Leary said he recalled the party caucuses have been allowed to be private based on an attorney general’s opinion the legislature received “way back” stating they are party functions, not official duties. However, he said the House Democrats almost always open their caucus to the press and the House Republicans do sometimes. But it was rare for either of the Senate party caucuses to be open.

Schutz said it is likely that legislators meeting in party caucus are not violating FOAA.

Judy Meyer, the managing editor of the Sun Journal in Lewiston and a longtime member of the Right to Know committee, said there is no attorney general opinion that allows caucuses to be closed.

“There is a single reference in a letter … about this, but Schneider and Mills have each said that it was not an ‘opinion,’” she said, referring to past AG William Schneider and current AG Janet Mills.

Mills’ office has not responded to an email and a phone call seeking comment. However, Meyer provided a copy of a Feb. 11, 2010 letter from Linda Pistner, the chief deputy attorney general, to the then-chairs of the legislature’s judiciary committee seeking the AG’s advice on caucus meetings.

The letter states the AG “has not issued any opinion on this issue and this letter should not be cited as one.” It goes on to state: “As I understand it, party caucuses are not generally committees or subcommittees of the Legislature. Accordingly, we have said that we could defend a decision to close a caucus …”

Longtime statehouse hand Geoff Herman, lobbyist for the Maine Municipal Association (MMA), said the problem with the caucuses is that each party “develops their respective positions on each line in the budget outside the public eye.” That leaves out the healthy debate between parties that, in his experience, created better legislation and better budgets.

Herman has been on the job since the early 1990s, a time, he recalled, when the appropriations committee, for example, would do all of its work in public.

“They’d meet for eight, nine hours, into the late night, in public” to iron out disputes over the budget, not in private as they do so often now, he said.

“What you had then was a very open legislature … very different people with very different ideas would each agree with each other. Someone from the far right could say to someone from the far left, ‘I can agree with you on that.’”

The open meetings “may not have been pretty, but it was as open as open can be,” Herman wrote in the MMA’s Legislative Bulletin in 2013.

He said the mayors, city councilors and selectmen he represents are often held to account on whether they have had a closed meeting, but the same standard isn’t applied to the legislature – even though FOAA applies to all levels of Maine government.

And when he brings those local officials to the legislature to testify on a bill, they are surprised at the way things are run.

“They come up here for a public hearing and in the middle of the hearing they see (legislators) leave the room” to meet in party caucus in a private room off the hallway. As they leave the public meeting, he said, one of the legislators will announce: “We’ll let you know when we come to a decision.”

Herman said “I feel very bad” asking local officials to come to a hearing because of that sort of treatment.

The Maine Center for Public Interest Reporting sent questions about the closed meetings to all four leaders of the legislature: Senate President Michael Thibodeau, a Republican; Senate Democratic leader Sen. Justin Alfond; Speaker of the House Rep. Mark Eves, a Democrat; and Republican House leader Rep. Ken Fredette.

Only Speaker Eves responded, who drew a distinction between meetings at which votes are taken and those where they are not, although FOAA makes no such distinction in its requirements that deliberations be public, according to attorney Schutz.

“All votes and discussions among the full Appropriations Committee have occurred in public and on mic,” Eves stated. Regarding the chairs and leads meeting, he said, “The conversations between the chairs and leads of the committee are typically administrative in nature, where workflow and scheduling for the committee is determined. To be clear, no votes or final actions are taken. These can be open to journalists or to the public.”

However, a review of the publically posted meetings of the appropriations committee for May, when the committee was deep into budget negotiations, shows no mention of a time or place for chairs and leads meetings.

Sen. Katz — a former mayor of Augusta — said “this is my second legislature serving on the appropriations committee. The culture and practice had been that many discussions trying to find middle ground take place in meetings out back between chairs and leads. That has going on for decades I believe.  I don't think we have seen any legal opinion on the subject one way or the other.”

Schutz, the expert on Maine’s open meetings and records law, said, “The legislature meets on public property while being paid by the public to discuss public business.”

“It’s not okay,” said Schutz, to go behind closed doors for those discussions.

The Maine Center for Public Interest Reporting is a nonpartisan, non-profit news service based in Augusta. Email: pinetreewatchdog@gmail.com. Web: www.pinetreewatchdog.org.