In the coming months, Maine lawmakers will discuss whether to require public employers to document employees’ misconduct in detail in public records, but legislators stopped short of saying they would sponsor a bill to do so.
Right now public employers, such as police departments and jails, are required to make discipline records public, but they often use vague language that obscures officer wrongdoing, the Bangor Daily News has found in multiple investigations.
In the early 1990s, Maine lawmakers on the judiciary committee sought to strike a balance between government accountability and personal privacy when they ensured that public employees’ discipline would remain public information, while complaints and internal affairs investigations would remain confidential.
But the law didn’t say much about the quality of discipline records or what they should include, and, decades later, records are often vague to the point of being incomprehensible.
Late last month, a Superior Court judge ruled the Maine State Police had unlawfully redacted portions of discipline records given to the BDN and Portland Press Herald, which jointly sued the agency while collaborating on an investigation into its disciplinary practices. But even when the state police lifted the redactions, it wasn’t always clear how an officer misbehaved.
Asked whether she wants the law to change to require public employers to disclose details of misconduct, Sen. Anne Carney, D-Cape Elizabeth, said she plans to put the matter on the agenda of the Right to Know Advisory Committee, which works to maintain the integrity of Maine’s Freedom of Access laws. The panel can recommend law changes to the judiciary committee, which creates legislation.
“I do think it’s important for a final written decision imposing disciplinary action to contain information about the reason for discipline,” she said. “I think requiring information about conduct that is the basis of discipline is an important issue for the Right to Know Advisory Committee and Legislature to address.”
Rep. Thom Harnett, D-Gardiner, is chair of the Right to Know Advisory Committee and agreed that discipline records would be a topic of conversation when it meets prior to the Maine Legislature convening in January.
“I think the law we have right now is good, but it’s been abused,” he said. “The final disciplinary document, which is not a confidential document, has to explain the conduct and the discipline. If they’re not, I think they’re being written in a way that deliberately contravenes the purpose of the Freedom of Access Act.”
Enshrining clearer guidelines in law would make sure public agencies understand their requirements, while preserving the public’s right to know, said Rep. Erin Sheehan, D-Biddeford.
“If a record isn’t descriptive and transparent, can it even be called a record? The public has a right to know the details of confirmed public employee misconduct, and if the records of such conduct aren’t substantive, the public is effectively shut out,” Sheehan said.
Not every member of the judiciary committee took issue with the current state of discipline records.
“My opinion is I trust the judgment of the superior officer if he does not want to disclose what the misconduct is and keeps it within the department,” said Rep. James Thorne, R-Carmel. “If they’re not violating the law, then they shouldn’t have to. I’m leaving it up to their judgment to say, ‘The fact that I disciplined them for misconduct is good enough.’”
However, Thorne said he would give the matter greater consideration if a bill to amend current law comes before the committee.
Rep. Jennifer Poirier, R-Skowhegan, is also open to considering any proposed legislation, she said, but she worried about officers effectively being punished twice for misconduct, first by their employer and then in the court of public opinion.
“I do not believe that decisions about personnel records should be based on the needs or desires of the media,” she said. “People must question the intent of such reporting and consider if doing so could be construed as double jeopardy.”
If he was running again for his seat, Rep. Jeff Evangelos, I-Friendship, said he would sponsor a bill to increase transparency.
“Quite frankly, it’s shameful that it took a judge to direct the police in Maine to abide by the rule of law. That’s a statement unto itself,” he said.
The state police blacked out a sentence in a discipline record that described how a corporal artificially inflated his cruiser speedometer and then submitted a false mileage claim, resulting in a 20-day unpaid suspension.
But the agency also blacked out more opaque descriptions of misconduct, including for a sergeant who served a 30-day suspension for providing “inappropriate directions to a subordinate resulting in misconduct,” according to the unredacted record.
“You also failed to provide proper direction related to photographic documentation of the misconduct,” it continued.
A BDN analysis of hundreds of discipline records from Maine’s 16 county sheriff’s offices found that they used increasingly vague language as the punishments got more severe, leaving the public in the dark about what really happened, whether discipline is equitable across offices and violations, and whether elected sheriffs are holding their staff accountable.
In one instance, discipline records showed that Kennebec County jail officials reprimanded three officers for failing to check on an inmate who had asked for medical attention or notify the medical department, among other policy violations.
But the records made no mention that the inmate, who had mental and physical disabilities, ultimately died of a ruptured spleen after begging for help for seven to eight hours, something the public would only come to know because of details disclosed in a lawsuit.
