A blog reader (yes, yet another one!) has warmed my heart by asking a Rule 80B/80C question: are the deliberations a part of the administrative record?
This question comes up sometimes when an agency will take the position that they are not.
The pertinent rules are:
5 M.R.S. § 11005 – the agency shall file the “complete record of the proceedings under review.”
M.R.Civ.P. 80C(f) - the same.
M.R.CivP. 80B(e) - “the record shall include the application or other documents that initiated the agency proceedings and the decision and findings of fact that are appealed from, and the record may include any other documents or evidence before the governmental agency and a transcript or other record of any hearings.”
The pertinent precedent (of which I’m aware) is:
Murphy v. Board of Environmental Protection, 615 A.2d 255 (Me. 1992) – the Law Court upheld the Superior Court’s denial of a motion to admit the transcription of a tape recording of the BEP’s deliberations.
FPL Energy Maine Hydro LLC v. Maine DEP, AP-04-50 (Me. Super. Ct. 2005) - Justice Marden ruled that the party seeking to admit the transcript should identify the portions that supported the arguments in the appeal, to determine whether it constituted relevant evidence.
Justice Jabar granted a motion to include a transcript over objection in the Superior Court decision in Rangeley Crossroads Coalition v. LURC, 2008 ME 115, 955 A.2d 223.
In Murphy, the Law Court in that case said the “Administrative Procedure Act leaves it to the discretion of the trial court to determine whether additional evidence is necessary to complete the record.” Id. at 260. The Superior Court had denied a motion to include the transcript for four reasons: (1) the transcript was incomplete; (2) the speakers were not identified; (3) the transcript included legal advice given to the BEP; and (4) the transcript included “merely the thoughts of Board members.” It’s that last point that the agency sometime tries to latch onto to keep the deliberations out – it says that it’s the final, written decision that matters, not the ramblings of individual members during deliberations.
On the other hand, the SJC has discussed deliberations as relevant in cases such as Martin v. City of Lewiston, 2008 ME 15, ¶ 14, 939 A.2d 110, 114 (“Granted, during their deliberations, members of the Board stated at times that there was no evidence of a clear intent to dedicate the disputed parcel for a public purpose. We do not, however, review individual board member comments without regard for the record as a whole, but instead analyze a board’s deliberations in context, taking into consideration both the comments of other board members and the board’s written findings. See O’Toole v. City of Portland, 2004 ME 130, ¶ 24, 865 A.2d 555, 561-62. The minutes of the deliberations reflect that, by the end of the hearing, a majority of the Board ultimately concluded that the Asselyns’ intent was clear.”) At the O’Toole cite, the SJC stated: “When the individual Board member’s comments are considered in their entirety, and in conjunction with the comments of the other Board members and the Board’s written findings, we are not persuaded that the Board acted arbitrarily or capriciously” (citations omitted). This line of cases seems to be saying that what agency or board members say in the deliberations is relevant; the fact that a written decision follows does not mean what they say has no relevance at all or is somehow not a part of the proceedings.
Indeed, if during deliberations agency members said something like, “I am going to vote to deny this application because the applicant is black,” I think it is fair to say that the transcript of these remarks would be relevant to the appeal no matter if the subsequent written decision rested on entirely different ground.