A bill that would expand public access to disciplinary records of public employees, including law enforcement officials, faced pushback in Augusta on Monday from union leaders who argued the measure could subject workers to embarrassment and harassment.
“We feel this bill’s approach is too broad and in our view susceptible to manipulation by other bad actors,” Maine Education Association General Counsel Ben Grant said at Monday afternoon’s public hearing. “This bill forces into the public domain all levels of discipline in an employee’s record, no matter how minor.”
Maine’s handling of disciplinary records has drawn significant attention since a team of Press Herald and Bangor Daily News reporters jointly published a three-part series on the topic in April 2021. The investigation found it was often impossible for the public to track the disciplinary histories of state police troopers, either because records had been removed from personnel files or because they were written too vaguely for readers to decipher the actual act that resulted in discipline.
Since the papers successfully sued the Maine State Police for the release of more information, lawmakers have been working on legislation to ensure the public has access to disciplinary information, to which it is entitled under state law. In a January report, the Legislature’s Right to Know advisory committee overwhelmingly supported several reforms found in L.D. 1397.
“Baseline, these are by statute public records, and the public has a right to see them,” Sen. Anne Carney told fellow members of the Legislature’s Judiciary Committee on Monday. “But you can see why in the future there are important public policy reasons for making them accessible.”
Besides requiring that disciplinary records include information on the conduct that resulted in discipline, L.D. 1397 would also require that departments retain for at least 20 years any “final written decisions relating to law enforcement employee disciplinary actions that could be used to impeach the credibility of the law enforcement officer if the law enforcement officer is a witness in a criminal case.”
The bill would also close a loophole that allows collective bargaining agreements to supersede state record retention schedules. Maine’s current labor contract with the Maine State Troopers Association requires that reprimands be removed from an officer’s personnel file after three years without further discipline, while suspensions can be removed after just five years. While L.D. 1397 would allow minor disciplinary records to be expunged from personnel files, those records would have to be maintained in a separate file for a minimum of five years and be made available through public records requests.
Judith Meyer, editor of the Sun Journal in Lewiston, the Kennebec Journal and the Morning Sentinel, testified in support of the bill on behalf of the Maine Freedom of Information Coalition and the New England First Amendment Coalition.
“A police officer who is disciplined should not have any greater privilege of confidentiality than a school teacher, a county administrator, or any other public employee,” Meyer said. “Given the inherent power of law enforcement and the greater consequences of its abuse, even more transparency is needed relative to other public servants.”
Yet while Meyer and members of the Maine Press Association praised the legislation for improving transparency, representatives of three labor groups fear the bill goes too far.
“The unintended consequences of open records and extended retention periods can and often do provide an opportunity for … those who may have had a negative interaction with public sector workers (to) treat those public sector workers in a manner that is embarrassing or harassing about past discipline,” said Jeff McCabe of the Maine Service Employees Association Local 1989. McCabe, whose group represents members of several government agencies, warned the bill could exacerbate widespread staffing shortages across the public sector.
Grant agreed the bill failed to adequately balance the public’s right for information with a worker’s right to privacy. In particular, he opposed limits the bill would place on employees’ rights to negotiate their way to a clean slate after facing discipline.
“We need to continue to allow parties to bargain away the existence of at least lower-level discipline, both in contract bargaining and in dispute resolution,” he said. He noted enduring disciplinary records could unfairly hinder employees looking to move jobs.
Yet he avoided directly answering a question from Sen. Eric Brakey about whether the practice of wiping away the records of departing employees could allow offenders to move from job to job without consequence.
While opponents of L.D. 1397 argued that it was unfair for employees to be saddled for years with a record of minor infractions like serial tardiness, Saco-based defense attorney Marcus Wraight told the Press Herald the bill did not go far enough to ensure the public had access to information that could potentially make a difference during a criminal trial.
“It all should be available,” said Wraight, who opposed the bill’s differentiation between misconduct that could potentially be used to impeach a police officer at trial and lesser offenses. “Who’s making that determination? Having somebody decide what is and isn’t serious – heavens to Betsy. I don’t want anybody making that decision.”
The Judiciary Committee will hold a work session to discuss and vote on L.D. 1397. If the committee endorses the bill, it will head to the full Legislature for a full vote.
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