By Amanda Estes
Staff Writer
    Last Monday, the South Portland city council granted Mayor Claude Morgan the authority to seek outside legal counsel regarding city attorney Mary Kahl. A week later, the council unanimously voted to commission a law firm to handle a standing Freedom of Access Act request for the City Manager Ted Jankowski’s incoming and outgoing emails from Feb. 1 to March 21. With noticeably frustrated tones, however, the council amended the order to divert as much of the associated legal costs away from taxpayers and on to the individual or group making the FOAA request.
    “FOAA is the price of doing business as a transparent society,” said Morgan. On March 26, a reporter from a local newspaper verbally requested the emails and then later made a request in writing. Citing the amount of time it will take to go over the emails and the concerns regarding the previous disclosure of emails, Kahl said she determined it was best to seek outside counsel. In a March 27 email notifying councilors and the press of the FOAA request,  however, Kahl said sorting through the emails would be a “time-consuming task” and she had “other matters” to attend to.
    Kahl said the head of the IT department estimates there are between 250 and 300 emails to be sorted through. The law firm of Norman, Hanson and DeTroy, with which the city has a standing order for outside counsel, will determine which emails can be released and which emails are confidential. When the firm accepted the job, however, they requested the council authorize it through a formal order. The costs of working with the firm will be approximately $165 per hour.
    “Norman, Hanson requesting this be a formal order shows their discomfort with what has been going on,” said Councilor Linda Boudreau. She said the firm wants protection and their position is “warranted because of (the council’s) actions.”
    At the time of the meeting, Kahl said Norman, Hanson and DeTroy had yet to take any action. Councilor Jim Hughes and Councilor Maxine Beecher questioned whether the city could charge for FOAA requests. Kahl said under the statute, the city “can recoup reasonable costs,” which would normally include the costs of photocopying, however, she called the standing request an “unusual cost” and said the firm does not currently have a price estimate.
        “I don’t understand why our corporation counsel did not give them some sort of reasonable estimate,” said Beecher referring to the reporter and his respective newspaper. According to Maine’s government Web site, under the FOAA provisions, “the agency or official shall provide to the requester an estimate of the time necessary to complete the request and of the total cost (and) if the estimate of the total cost is greater than $20, the agency or official shall inform the requester before proceeding.” 
    Beecher proposed an amendment to the order requiring that a fee be assessed and an estimate be presented to the requestor for the current request and all those in the future.
    Although she voted in favor of the amendment, Boudreau said she didn’t think the newspaper should be responsible for the fees because if it weren’t for the accusations of bias, Kahl would be the one reviewing the emails. 
    Councilor Kay Loring questioned whether Kahl has ever had to recuse herself from a similar situation, to which Kahl said she has never had to step back on an FOAA request. Loring also asked who would be responsible for the costs associated with Morgan’s decision to seek outside counsel. Morgan’s response was the two items were entirely separate. Morgan confirmed that he had sought legal counsel, but declined to say anything further. His decision to look for outside legal advice is widely assumed to be a result of Kahl’s decision to  disclose a series of emails between himself and Jankowski in which they discussed Jankowski’s six-month evaluation prior to the special meeting. 
    “When I look up and down the council, I see only one lawyer,” said Councilor Ralph Baxter. He said he favored evaluating Kahl along with Jankowski and City Clerk Susan Mooney, but didn’t see the reason for doing it at the March 12 executive session because the new evaluation forms were not yet ready.
    Members of the public encouraged councilors to conduct evaluations of all three city employees. Gary Crosby said the council was “shirking (its) duties” and added that his encounters with Jankowski had been “very positive.”
    Michael Eastman, a school board member, stressed he was speaking as a member of the public when he said there have been few problems between municipal officials in the past 16 years and the public needs to know the source of the new conflicts. Carol Thorne, a member of the planning board, said she has worked with Kahl for more than 12 years.
    Referring to last Monday’s special meeting, Thorne said she was “dismayed and disappointed by the Mayor’s evasiveness” over Kahl’s request to know if the personnel matter was about her. Ludek Strnad questioned why the council needed to hire someone to “judge” Kahl.
    Before stepping away from the podium, Strnad requested to see a complete list of Jankowski’s expense accounts.