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LePage Staff Broke Texting Policy While Working to Keep Public Meeting Private

Officials in the governor’s office violated Gov. Paul LePage’s policy that prohibits state employees from using texts and other electronic messaging to conduct government business as they discussed denying public access to a special education commission meeting at the Blaine House.

LePage officials say they adhered to the policy because they saved the messages and even turned them over to the attorney general’s office upon request. The administration has now updated its policy to lift the ban on texts, as long as they can be archived as public records.

The administration’s efforts to keep the education meeting closed are captured in an exchange of texts between officials in the governor’s office as well as legislators. The texts show how LePage staff ignored protests from reporters, legislators and the state’s transparency law ombudsman, all of whom questioned the legality of the closed-door meeting that took place April 25.

The governor wanted to bar public access to the meeting for reasons that are unclear.

The texts violate the policy LePage himself implemented two years ago to ensure that state employees conduct taxpayer business on state email, and that such records are archived and accessible to the public, as required under state law.

His directive followed a document shredding controversy at the state Center for Disease Control, where officials ordered the destruction of public documents used to justify $4.7 million in public health grants.

During an investigation, Sharon Leahy-Lind, a former CDC director and a plaintiff in a now-settled whistleblower lawsuit against three CDC officials, told the Government Oversight Committee that her supervisors instructed her to use texts because the messages couldn’t be obtained through a public records request.

"All official state business conducted electronically must be sent through the state's email system, to allow for retention under state archival statutes. Official state business may not be conducted through any other electronic means, including but not limited to unofficial email, text messaging and instant messaging."

The state policy on texting dating from 2014.
  “The governor was absolutely right two years ago to say no more text messaging, because it’s so difficult, if not impossible sometimes, to retrieve those text messages,” said Republican state Sen. Roger Katz of Augusta, co-chairman of the Government Oversight Committee, which investigated the CDC case.

“Certainly his own staff ought to be following those same rules,” he said. “If they’re not they should be, and I would think that the governor would agree with that.”

Texts used to conduct state business are considered public records, according to a 2014 statement from Brenda Kielty, the state’s public access ombudsman within the Office of the Maine Attorney General. However, the messages are not easily archived or obtained through the Freedom of Access Act, despite being subject to the same law that governs the retention, access and inspection of other public documents, such as emails.

Kielty was included in one of the April 25 texts, which were obtained through a public records request by Maine Public Radio. The texts are among the documents collected by the attorney general’s office, which has filed a complaint in District Court alleging that the LePage administration broke the state’s open meetings law by barring the public from the education commission meeting.

The violation, if proven, would result in a $500 fine against the administration.

“Brenda at AG’s Office is completely unspun by this,” reads a text from Avery Day, the governor’s legal counsel, to Aaron Chadbourne, a senior staffer to the governor. “You in fact going to wrap up by 11:30?”

“I’m sure she is,” Chadbourne replied. “Yes, I’ll make sure we’re done by 11:30.”

LePage’s staff was in hurry to finish the meeting. That’s because Kielty, who had warned that it should be public, had asked Day to allow reporters and other interested parties to attend. But other texts suggest that LePage forbid doing so. The governor’s directive put his staff between following their boss’ orders and Kielty’s advice to open the meeting.

At one point Chadbourne texted Day to tell Kielty that the governor’s security detail was being consulted for “public safety concerns.” He then texted Day, telling him to enter the meeting through a back door.

The texts also show that some on the governor’s staff were worried that closing the meeting would doom the efforts of the education commission. Some tried to convince LePage to allow in selected reporters. He refused. A staffer later texted that the governor floated the idea of hiring “our own person to sit in and write up an account of what happened and the share with the media.”

The governor’s policy against using text and personal email accounts to conduct state business states that “all official state business conducted electronically must be sent through the state’s email system, to allow for retention under state archival statutes.”

It also says, “official state business may not be conducted through any other electronic means, including but not limited to unofficial email, text messaging and instant messaging.”

In a statement, the governor’s office said that it updated its policy. It now says state business, “to the maximum extent practical,” be conducted through the state’s email system.

It continues, “Given the ubiquity of alternative forms of electronic communications and the inability to prevent unsolicited communications made via other electronic means, communications by other electronic means are permitted, provided the sender/recipient familiarizes themselves with archiving and Freedom of Access Act requirements and complies with these requirements.”

Government transparency advocates have struggled to ensure that public records laws keep pace with technologies that make it easier for government and elected officials to operate outside of public view. The use of secret Blackberry messages made headlines in 2012 after Democratic New York Gov. Andrew Cuomo and his staff were found to be using the messages to skirt the public records law.

New Jersey Gov. Chris Christie, a Republican, has been under fire for deleting text messages related to the so-called Bridgegate controversy, in addition to his use of a personal email account.

The skirting of public records law is also front and center in the presidential campaign due to former Secretary of State Hillary Clinton’s use of a private email server. Clinton was chastised by FBI director James Comey and Republicans have used the controversy to assail the presumptive Democratic nominee’s trustworthiness.

LePage has previously faced criticism for his selective stance on government transparency. He promised the most transparent government in state history after first being elected in 2010, vowing to strengthen the public records law and posting state spending online.

His administration did create a state spending portal and funded the ombudsman position at the AG's office, but his only proposed change to the public records law was an attempt to obtain an exemption similar to one currently enjoyed by legislators.

Texts from state lawmakers to LePage officials were also included the documents. The 2014 no-text policy did not apply to the lawmakers, but their use of texts and other messaging systems raises questions about whether those systems are used to evade the public records law.

It is unclear how often state officials are using methods other than official email to communicate or transmit documents. A reporter for Maine Public Radio has made dozens of requests for text messages through the public records law, but state officials have yet to produce such messages.

Journalist Steve Mistler is Maine Public’s chief politics and government correspondent. He is based at the State House.