Bangor solicitor briefs opioid advisory committee on Freedom of Access Act and ethics rules

David Subchak, city solicitor for Bangor City, told the Opioid Settlement Funds Advisory Committee on Wednesday that committee communications and many records are presumptively public under the Maine Freedom of Access Act (FOA). "Any record that is in the possession of the city of Bangor or any public official involving the business of the city is considered public unless a statutory exception applies," Subchak said.

Subchak told the committee that the FOA has two purposes: to ensure that actions of public bodies are taken openly and that records of those actions are available for public inspection. He advised committee members to assume that documents and communications related to committee businessincluding texts, emails, social media posts and messages on personal devicesshould be treated as public records. He recommended creating a new email address for committee business and avoiding deletion of committee-related materials because they could be subject to a FOA request.

The solicitor also reviewed the committee's obligations under the city's code of ethics. He said confidential informationmaterial available to committee members only by virtue of position and not a matter of public recordmust not be disclosed or used to advance private financial interests. On social media, Subchak cited the city code and recommended adding a disclaimer such as "The views I express on this site are my own and do not reflect any official view or position of the city of Bangor" when personal posts could be construed as official.

On conflicts of interest, Subchak said: "No committee member shall participate in the deliberation or vote on any agenda item ... in which they or a member of their immediate family has a financial or special interest other than an interest held by the public generally." He described the practical steps he expects committees to follow: a member who may have a conflict should disclose it before discussion; the committee should ask clarifying questions; the committee should vote on whether a conflict exists; and a member found to have a conflict should not vote and should leave the room for that agenda item.

Subchak warned that pooled email conversations or "reply all" exchanges that involve a quorum can constitute a meeting under FOA and require public notice. He also noted that the FOA permits executive sessions only for narrowly listed reasons, and that the committee should consult legal counsel when an item might involve confidential material.

Committee members asked whether sharing pre-meeting packets or drafting application forms would constitute a public meeting; Subchak said distributing materials in advance is permissible but members should avoid substantive discussions outside a noticed meeting. He encouraged members to direct any questions about gray areas to the city solicitor's office and to the national counsel that assists the city on settlement-related matters.

The committee did not take formal action on the legal guidance; Subchak offered to answer follow-up questions and left the meeting after the presentation.