1. Roles & Responsibilities of Trustees Maine Rural Water Association Annual Conference December 11, 2013 James N. Katsiaficas, Esq. ATTORNEYS & COUNSELORS AT LAW One Canal Plaza ▪ PO Box 426 Portland, Maine 04112-0426 (207) 774-2635 www.perkinsthompson.com

2. I. Common Issues for Elected and Appointed Public Officials. A. Conflict of Interest. 1. Statute (30-A MRS § 2605). Applies to municipal and quasi-municipal officials. a. Vote voidable if official votes on question in which official has direct or indirect pecuniary interest. b. Avoid the appearance of a conflict of interest by disclosure or abstention. 2. Common Law. Void voidable if official votes on question in which official has direct or indirect pecuniary interest – no percentage of interest stated.

3. Common Issues B. Freedom of Access Act (“FOAA”; 1 M.R.S.A. §§ 401-412). 1. Purpose of the Act. Maine's "Freedom of Access Act" -- a “government-in-the-sunshine" law that guarantees access by the public to two categories of public business: public proceedings (meetings) and public records of governmental entities such as the State, counties, municipalities, school districts and quasi-municipal entities such as water, sewer and sanitary districts. FOAA “liberally construed” to promote its underlying purposes and policies (1 M.R.S.A. § 401).

4. Common Issues 2. Public Proceedings. a. Definition. “The transaction of any functions affecting any or all citizens of the State by” an extensive list of public bodies and agencies, including “Any board … of any regional or other political or administrative subdivision” (1 M.R.S.A. § 402(2)), which includes water districts. b. “Public Proceeding” – what constitutes? c. What Notice is Required? 1) Regular and Special Meetings. 2) Emergency Meetings.

5. Common Issues d. Proceedings Open to the Public. The FOAA requires that all public proceedings be open to the public, except where otherwise provided by statute (1 M.R.S.A. § 403). This means anyone – not just a resident of the district’s service area – may attend a public meeting. 1) Public Right to Attend. 2) Right to Record or Film Public Proceedings, Meetings and Workshops. 3) No “Meeting” by Email, Telephone or Otherwise. 4) Meeting Agenda and Record.

6. e. Executive Sessions. Generally, a public body meets in public, but there are limited exceptions to this rule which permit a board to meet in “executive session” without the public being present. 1 M.R.S.A. § 405. 1) Requirements for Holding Executive Session. a) Executive Session Motion. b) Motion Requirements. c) Scope of Session Limited to Motion. d) No Final Action. 2) Relevant FOAA Exceptions to Permit Executive Session Deliberation. a) Personnel. b) Acquisition, Sale or Use of Property. c) Labor Negotiations. d) Consultations with Board’s Attorney. e) Discussion of Information in Confidential Records.

7. 3. Public Records. a. Definition. The FOAA defines "public record" to mean "any written, printed or graphic matter or any mechanical or electronic data compilation from which information can be obtained … that is in the possession or custody of an agency or public official of this State or any of its political subdivision, … and has been received or prepared for use in connection with the transaction of public or governmental business or contains information relating to the transaction of public or governmental business.” 1 M.R.S.A. § 402(3). b. Confidential Records.

8. c. Right to Inspect and Copy Public Records. Under the FOAA, “Every person” “has the right to inspect and copy any public record during reasonable office hours of the agency or official having custody of the public record.” If the body or agency has no regular office hours, the name and telephone number of a contact person must be posted in a conspicuous public place, and at the agency’s office, if any. 1 M.R.S.A. § 408(1). Payment for copying. a) Estimate. b) Waiver. d. Must designate “public access officer.” e. FOAA Ombudsman. f. Denial. g. Appeals.

9. 4. Decisions. The FOAA requires the board to issue a written record of decision with reasons for the decision and findings of fact; to keep a copy of the decision; and to allow any member of the public to view the decision in the following instances: a. Conditional Approval or Denial. b. Dismissal of Nonrenewal of Contract. c. Other Statutes. 5. Violations. 6. Required Training for Elected Officials. 7. Retaining Copies of Public Records.

10. C.Liability 1. Overview. 2. Maine Tort Claims Act. This law limits the liability of a district and its board members and employees for torts committed by them. a. District generally is immune, but Act sets out exceptions. b. Liability limited to $400,000 for all claims arising out of a single occurrence. Some examples of liability are: 1) Negligent acts or omissions in its ownership, maintenance or use of any motor vehicles, machinery and equipment (snow plows, graders and dump trucks), trailers, aircraft, watercraft and snowmobiles. 2) Negligent acts or omissions in the construction, operation or maintenance of any public building or its appurtenances (including sidewalks leading to public buildings). 3) Sudden and accidental. c. District trustees and employees generally are liable for their negligent acts or omissions, but exceptions and liability capped at $10,000.

11. 3. Supervisory Liability. District supervisors owe duties both to the public and to district workers. The previous discussion focused upon the duties owed to the public. The following address the duties owed to public employees: a. Workers’ Compensation Act b. Occupational Disease Law c. Federal Occupational Safety and Health Act of 1970 d. Maine Labor Laws and Standards. e. Workplace Manslaughter Act (17-A MRSA §203(1)(C)).

12. 4. Liability to Both Public and Employees. a. Federal Civil Rights Act (42 USC §§1980 et seq.). A person whose federal civil rights are violated by district official or employee acting “under color of State Law” can sue district for damages and if prevails, also is entitled to reasonable attorneys’ fees and costs. Applies to districts and their employees. No limit on damages. b. Maine Civil Rights Act (5 MRSA §4681, et seq.). Whether or not a person acts under color of State law, if that person deprives another person of his or her civil rights under Maine Constitution, that person is liable for damages, attorneys’ fees and costs, without limitation, resulting from that violation. Applies to districts and their employees.

13. A. Source of District Authority. “Charters” adopted as Private and Special Laws by the Maine Legislature, and general statutes that amend Private and Special Laws or that serve as the district’s “charter.” 1. Private and Special Law. 2. Standard Water District Statute. B.Term, Number, Officers. II.Issues Specific to Water District Trustees.

14. C. Rates. Trustee duties include the establishment of assessments for water main extensions and of rates and charges for use of the water system. The primary standard is that public utility rates must be “just and reasonable.” 35-A M.R.S. § 301(2). 1. Assessments for water extensions. 2. Service/User Rates. 3. System development charge, Infrastructure improvements. D. Budget. The conduct of workshops and public hearings for preparation and adoption of an annual budget.

15. E. Borrowing, Grants, Debt Limit. F. Investments G.Contracts. Property. H.Eminent Domain. I.Organizational. J.Personnel. K.Policies.