Town of Durham Select Board Workshop ~ June 13, 2023

2023-06-13 · Select Board · 2:50:03 · watch on YouTube →

A Select Board workshop run by two staff from the Greater Portland Council of Governments, introduced in the meeting as Tony and Christina. The first half was a primer on how local government in Maine is structured: town meeting as the legislative body, the select board as the municipal officers, the difference between a town administrator and a town manager, and where the budget committee fits. The second half was a working discussion of how this particular board operates: setting priorities, honouring the line between board and staff, agenda setting, public comment, rules of procedure and social media. The recurring finding was that Durham has very little of its own practice written down, and the presenters ended by listing the questions the board still needs to answer among themselves. No votes were taken during the workshop; the board's regular-meeting business that night was finished before the recording begins.

What was discussed

1. 0:09
   GPCOG introduces itself

   The presenter described GPCOG's monthly Zoom meeting for southern Maine managers, which Jerry Douglass had attended that morning; the topic was artificial intelligence. He also described 'chairs in the circle', a January gathering for board chairs and vice-chairs from around the region, and GPCOG's role in carrying member towns' interests to Augusta and Washington.

2. 0:09
   What the board wanted out of the evening

   Each member said what they hoped to get, and the answers went on a flip chart: learning what GPCOG offers and what Durham is not using, a facilitated discussion to arrive at board priorities, how the board should interact with other town boards, roles and structure, and how members should communicate with each other.

3. 5:12
   Expectations between the board and the town manager

   Jerry Douglass said he wanted the evening to set expectations in both directions under the still-new town manager form of government: what the board expects of him day to day, and how much can realistically be done in a year with the staff the town has. The presenter added 'setting reasonable expectations' to the list.

4. 10:25
   Why towns exist at all

   Background on self-governance from pre-revolutionary town meetings through Maine's separation from Massachusetts in 1820, and on the legislature's power to incorporate towns and grant city charters. The presenter noted that roads, bridges and care of the poor are among the oldest municipal expenses.

5. 15:55
   Professional management and the council-manager plan

   The progressive reform era of the early 20th century produced non-partisan elections, civil service and professional management. The presenter said the first council-manager city in the United States was Staunton, Virginia in 1908, that Auburn was the first in Maine in 1917, and that the town manager plan was first enacted in 1939.

6. 15:55
   How government differs from business

   Three things set the public sector apart: every decision has to rest on a legitimate public benefit; local government has the police power to regulate for public health, safety or welfare; and it must protect constitutional rights.

7. 21:23
   Due process for employees, and the five forms of Maine local government

   An employee past probation is held to have a property interest in the job, so suspension, demotion or dismissal requires specific due-process steps. The presenter then ran through the main structures used in Maine, including town meeting-select board, town meeting-select board-manager, and town meeting-council-manager.

8. 26:50
   Who is who in statute

   In Durham the voters assembled as town meeting are the legislative body, the five board members are the 'municipal officers', and department heads such as the road commissioner or fire chief are municipal officials as well as employees. The presenter also explained that the difference between a town and a city is how it was incorporated and chartered, not population.

9. 32:32
   Administrator versus manager

   An administrator's authority is whatever the board delegates; a manager's comes from statute or charter. Durham was a town meeting-select board town, then hired a town administrator, and has had a town manager since 2021, with the manager also serving as treasurer, tax collector and town clerk.

10. 32:32
    What state law says about budget committees

    The presenter said budget committees are barely mentioned in Maine law: the only requirement is that where a town has one, the select board's budget articles must carry the committee's recommendation. Nothing in statute says how a budget committee is made up or how it works.

11. 37:57
    The board acts only as a body

    The presenter said what leaves the room is the decision, not the vote count; a 3-2 decision is the board's decision. He also noted Durham's budget committee is elected and has existed since roughly the 1930s.

12. 37:57
    Order of the budget review

    A member described Durham's practice: the town manager proposes a budget, the select board goes through it, it goes to the budget committee, then comes back to the select board. The presenter confirmed state law does not fix that order; the budget that goes to town meeting is the select board's, and the town and the committee can define the steps between.

13. 44:02
    The budget calendar

    Because the budget year ends in December and town meeting is at the start of April, the window is very tight. A member said the real answer might be moving the fiscal year to June or July, and asked whether the current process is what law requires or just what Durham does.

14. 44:02
    Public hearings on the budget

    The presenter drew a distinction between a legally required public hearing, where the public is there to be heard, and town meeting itself, where the voters are the decision makers rather than commenters. He was unsure what hearing is required in a town meeting town and said it should be checked.

15. 49:32
    Actuals, projections and the capital improvement process

    Members said the calendar is tight partly by choice, because the town wants actual figures rather than projections. Joe described the capital improvement committee, which starts in August, takes department heads' requests and ranks them against categories before recommending a priority list, and suggested bringing budget committee members into that process early. A member raised that residents have complained there is no chance to weigh in on the budget before town meeting, and asked that the requirement be checked.

16. 54:32
    Reference material

    The presenter pointed the board to two Maine Municipal Association publications: 'Local Government in Maine', a roughly 60-page book last updated in 2016, and the much longer Municipal Officers Manual, both available as PDFs. He noted Maine has 491 cities and towns, all under the same law but with different structures.

17. 54:32
    Prayer before town meeting

    A member said Durham opens town meeting with a prayer because it always has, that a few people have objected, and asked whether other towns are changing. The presenter said he is not an attorney and would not give an opinion, but suggested the moderator's manual and the town attorney, and noted such customs are generally treated as permissible.

18. 59:40
    Habits of effective boards

    Christina took over with four areas drawn from an MMA handout: honouring the boundaries between board, manager and individual members; setting priorities; running productive meetings; and healthy communication. She said Durham does not have much of this written down, based on what she could find on the town website.

19. 1:05:23
    Who does what on budget, ordinances and policy

    The board sets the level of service and the tax rate and recommends the budget to town meeting; the manager drafts it and then executes what town meeting adopts. The same pattern applies to ordinances and policies; the board can direct that a policy be developed and can set general parameters, but the manager implements it.

20. 1:10:46
    Personal agendas and the public interest

    Members discussed being careful not to appear to act on personal interest, and to frame requests as coming from residents rather than from themselves. The presenters said holding a personal view is fine, but a member still has to convince four colleagues, and that all five are elected at large and represent the whole town.

21. 1:16:19
    Capacity and choosing what not to do

    Every new task consumes staff time; a member noted affordable housing work would take most of the planner's year. Christina laid out the options (the manager does it, the town hires staff, the town hires consultants, or it is delegated to a committee or task force) and said the board has to choose, with the manager's assessment of what is possible.

22. 1:16:19
    Board contact with staff

    A member described asking the fire chief for information directly at a previous meeting and then retracting the request. The presenters said asking a department head who is present at a meeting is fine, but requests made outside a meeting should go through the town manager so that all five members get the same information at the same time.

23. 1:21:32
    Email and the Freedom of Access Act

    Members discussed whether the select board email address lets individuals reply separately, and whether a written communication policy would help. The presenter pointed to the Freedom of Access Act: a quorum cannot decide town business by email, on social media or at the coffee shop, and said written policy reduces the assumption that things are settled behind closed doors.

24. 1:27:18
    Whether the board has a priority-setting process

    Asked how the board sets priorities, members said they do not really have a process, and that direction tends to arrive from others rather than being set by the board. The capital improvement process was identified as the one place where Durham does prioritise systematically.

25. 1:32:51
    How other towns set annual goals

    Christina gave examples: Gray holds an annual retreat with committee chairs, councillors and department heads; Freeport has members email three to five goals to the chair, which are compiled and worked through at a workshop. She cited goals adopted in Gray, South Portland and Freeport around infrastructure, workforce retention, communications, affordable housing and natural resources.

26. 1:38:35
    Giving direction to the planning board

    Members asked how far the select board can direct other boards. The presenters said the planning board's quasi-judicial work on applications is off limits, but its advisory workload is something the select board, as the governing body, can set priorities for. A member also insisted on separating the planning board from the town planner, who reports to the town manager, because directing one has budget consequences for the other.

27. 1:44:05
    Growth, moratoria and rabbit holes

    A member said a building permit moratorium now has to be enacted by the select board and that she would have wanted one while ordinances were updated. Christina set growth and development aside as its own discussion and moved to 'rabbit holes': she described a Freeport board spending half an hour on whether the planner's travel budget should be five hundred or a thousand dollars, and suggested the chair or manager name it when it happens.

28. 1:49:49
    How the agenda gets set

    Jerry Douglass said he writes the agenda and that the chair and vice-chair have not asked for input since he arrived. Members disagreed about whether anyone could add an item by email in the past. Christina (?) said this needs clarifying before it becomes a dispute, and Tony (?) said good practice is that every member has a way to ask for a future agenda item and can see what others have asked for.

29. 1:55:32
    Notice, walk-on items and emergencies

    Members discussed that introducing new business from the floor gives residents no chance to comment. Tony (?) described Windham, where the agenda went out Friday for a Tuesday meeting and nothing could be added unless the council voted to suspend its rules. Members recalled only two emergencies in recent years: a house that might have needed condemning, and an October windstorm that cut power for days.

30. 2:01:12
    Agenda deadlines, staff recommendations and doing homework

    Christina (?) suggested agreeing a cut-off after which items cannot be added, a fixed day for posting the agenda, and whether the manager's staff reports should carry a recommendation. She also urged members to send substantive questions to the chair and manager before the meeting so the whole board has the answer and a decision is not deferred.

31. 2:06:13
    Publishing the board packet

    A member asked why the packet is not posted with the agenda as some towns do. Tony (?) said his practice was to publish exactly what the council received, with the exception of payroll and anything containing private information such as general assistance applications. Members said a published packet would let residents comment on an informed basis, since public comment comes at the start of the meeting.

32. 2:11:24
    The order of business around public comment

    Christina (?) described an alternative order: staff present the item, the board asks clarifying questions, public comment is taken and closed, and then the board discusses and decides. Members were interested but concerned about it turning into open debate; the presenters noted Freeport uses a three-minute timer and no back-and-forth between the board and the speaker.

33. 2:16:29
    Interrupting, and the chair's job

    A member said the board has a problem with interrupting and that members cannot finish sentences. Christina (?) said protecting each member's chance to be heard is the chair's responsibility, suggested hands be raised and speakers recognised by name, and told members to watch how much air time they take. Members also drew a line between clarifying questions and debate.

34. 2:16:29
    Which items warrant public comment

    Members disagreed. One argued not everything needs public comment and that the board was elected to decide some things without lengthy public discussion; another said that if a resident cares enough to come and sit at the table, they should be allowed three minutes. The writing-off of some EMT bills was offered as an item that would deserve comment.

35. 2:21:49
    Rules of procedure

    Members were unsure whether the board follows Robert's Rules. The presenters said the board has wide latitude to decide how it conducts business and encouraged it to adopt written rules of procedure covering agenda setting, public comment and conduct of meetings: rules that stay in force until the board changes them, so procedure does not reshuffle every time a new member is elected.

36. 2:27:07
    Continuity and what GPCOG can help with

    Members said the board has operated on inherited practice with nothing written for a new member to pick up, and compared it unfavourably with a booster club that documented its officer roles. Christina (?) said this workshop is covered by the town's dues, that drafting a full set of rules and procedures would need a fee, and that GPCOG could supply examples from comparable towns.

37. 2:32:27
    How the town communicates with residents

    Durham uses its website, a Facebook page and a news blast, which Christina called good practice. She recommended a social media policy to guide and protect the employees who post, covering how to handle personal attacks, disagreement, and material that has to be removed.

38. 2:37:56
    Board members' own social media use

    Christina (?) said members keep their First Amendment rights but should lead by example, share accurate information by linking back to the town website, and make clear when they are speaking personally rather than for the board. She read from the resignation letter of the town manager of Naples, who wrote that criticism from people hidden behind social media keyboards was destructive to the community and had taken a toll on his health.

39. 2:43:33
    Where the board did not agree

    Members set out different positions: one said a board member should be able to say publicly where they stand on an issue as long as the facts are separated from the opinion, another said his practice is to hold back, share only official information and link people to the ordinance rather than interpret it. Christina (?) observed that the board was not in harmony on this and left it as an open question.

40. 2:43:33
    The list of open questions

    Christina (?) read back what was left unresolved: how much work can be done with existing resources, policies on how members get and share information with staff and on email, what goes in the published packet, an annual priority-setting process, updating ordinances against fresh data and possibly the comprehensive plan, whether and how the board directs other boards, a facilitated session with the planning board, how the agenda is set and how time-sensitive items are handled, what authority the chair has, how public comment is taken, what rules of procedure apply, and guidance on social media.

41. 2:49:17
    Close

    The presenters said they would write the open questions up with more detail and context and discuss next steps with the town manager. A member asked to see how comparable boards elsewhere handle these things.

What was decided

• 1:38:35
  Jerry Douglass proposed that after town meeting he and the town planner facilitate a joint session between the planning board and the select board to settle direction and workload in one sitting. Members voiced agreement and said the board should hold more workshops, but no motion was made and no vote was taken.outcome unclear

An outcome reads "unclear" where the recording does not state it plainly. The recogniser drops short words, and "the motion does not carry" is one missing word from its opposite.

Motions the minutes record

The town's own written account of what was decided, taken from sb_meeting_minutes_06_13_23.txt. It owes nothing to the recording or to a model: the clerk typed it, with the vote. Where the summary above claims a decision this list does not carry, the summary is the part to doubt.

• accept the May 23rd SB Meeting Minutes and approve and sign the May 26th, June 2nd & June 9th Warrant(s) both Payables and Payrollcarried 5-0

  Moved by Joe Roy, seconded by Heather Roy

• adjourn the regular meeting and move to the Select Board Workshopcarried 5-0

  Moved by Josh Klein-Golden, seconded by Heather Roy

Worth knowing

• 1:38:35
  Heather Roy read two lines from the 2018 comprehensive plan back to the room: that the rate of new housing construction had dropped by about half, to about 12 units per year, and that regional projections indicated housing starts in Durham could decline by half over the next 20 years. She said the town is going in the opposite direction and that ordinances should not be updated against an outdated plan.
• 44:02
  Durham's budget year ends in December and town meeting is at the start of April, which members called a very tight window. One member said the answer may be to move the fiscal year to June or July; the presenter suggested starting from the question of how to make the window less tight and being open to more than one answer.
• 1:49:49
  The town manager writes the select board agenda and said the chair and vice-chair have not asked for input. Members did not agree on whether a member could previously add an item by email, and there is no written process, deadline or posting rule for anyone, board or public, to refer to.
• 2:43:33
  The board openly disagreed on whether members should post their personal positions on town issues to social media, and the facilitator said so out loud rather than resolving it. It was left on the list of questions the board has to answer for itself.

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