Threat Of Police Misconduct Being Hidden Discussed By Legislators In New Year

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Legislators in Maine will soon consider whether or not thousands of police disciplinary records will be hidden from the public. 

Police unions have been seeking to narrowly define what discipline means when a document about upheld misconduct is requested under the state’s Freedom of Access Act (FOAA). They want to limit it to punishment that has a financial consequence on a police officer - such as suspension without pay, rather than some form of admonition that does not.

Senator Anne Carnie, chairwoman of the legislature’s joint judiciary committee, told this practice that the issue of what is defined as discipline will be examined in the coming months of 2026 when lawmakers return. She has also been examining this issue as a leading member of the Right to Know Advisory Committee for the last few months.

Earlier this year, state representative Steven Bishop introduced a bill, LD 1484, that would amend current statutes about police disciplinary records. The bill would narrow what is disclosable under FOAA so that discipline was defined as “of a nature that imposes or results in a financial disadvantage, including, but not limited to, termination, demotion or suspension without pay.” This bill did not pass and was punted for further examination by the 132nd legislature. It may still be introduced again but its implications have been debated since.

Representative Bishop is a former police officer with Bucksport police department.  His legislation would mean his own discipline, including a known reprimand in 2014, would also remain secret.

Shortly after it was introduced in April, the Maine Fraternal Order of Police’s executive director Michael Edes spoke to the legislature’s joint judiciary committee on behalf of Maine State Trooper's Association, Maine State Law Enforcement Association, Maine Association of Police and his own organization in support of the proposed law.

What constitutes discipline is not defined in current law. Therefore, because of this gap, much of this discipline is defined instead by union contracts, known as collective bargaining agreements, or police agencies themselves if they do not have a union agreement. Case law on this issue is thin. 

Current law and regulation also allows documents to be retained based on only what is contained in those agreements. The end result is private contracts or agencies defining what is discipline and when a record is shredded - which can be within months or even weeks.

These issues are of particular interest to this law practice which has a database of three and a half thousand records related to disciplinary and other actions, such as waivers of basic training for those from out of state, related to Maine police officers, sheriff’s deputies, and state troopers.

At the moment, statutes for municipal, county, and state employees cover “final records of discipline” as public (or rather not confidential) that should be disclosed when a FOAA request is made. What is traditionally regarded as discipline is termination, suspension (with or without pay), oral and written warnings, and oral or written reprimands as well as counseling or mandatory training, when misconduct is found.

However, nowhere in any of the relevant statutes is “discipline” actually defined and agencies have begun to get creative in withholding records on that basis. In a submission to a committee on FOAA (the Right to Know Advisory Committee), Troy Morton, Penobscot county sheriff, said “I don’t believe our profession needs a law to define these terms.”  Todd Bracket, Lincoln county sheriff, said he saw “no immediate benefit” to defining it in statute.

Scott Nicholls, Franklin county sheriff, also wants minor violations kept secret. He said: “I am concerned about unintended consequences regarding minor violations of policy, which should be considered training issues, not discipline.” That relies on someone deciding what a ‘minor’ violation actually is - in this case, the agency imposing the consequence of the violation with a vested interest in non-disclosure to the public because of embarrassment.

The comments by sheriffs were given after questions were put to various entities invited to comment on the issue to the Right To Know Advisory Committee which has been examining the issue. It should also be noted that those invited to comment were employers involved in law enforcement and education, and tangentially the press, but no one from the criminal defense bar was asked to contribute an opinion. Such discipline should be disclosed to defendants, but often is not.

The view that a broad legal definition of discipline in statute would not be helpful also belies the wildly different ways this is being applied in practice. For instance in a recent request by this practice to Kennebunkport police department, the response from Jackie Shaw, administrative assistant, was that “counseling memos, oral and written reprimands, along with oral and written warnings are not public record...” However, while some departments like Kennebunkport are starting to withhold documents, others are scrupulous in following the FOAA law’s presumption of openness.

In the responses to the Right to Know Advisory Committee, not all law enforcement wanted legislators to leave it for police agencies and union contracts to decide what constitutes “discipline” to disclose. Dale Lancaster, Somerset county sheriff, said a statutory definition would be helpful, as did Cumberland sheriff Kevin Joyce, and Hancock sheriff Scott Kane. 

Knowing of this misconduct is important to check that constitutionally-required disclosure is being made to criminal defendants in discovery.

As it is, the current regime relies on discipline even being imposed for it to be disclosed in the first place. Such disclosures to criminal defendants then rely on police departments telling prosecutors, the prosecutors asking for it (as case law says they must do), and then prosecutors making the disclosure in discovery.

Allowing openness means defense attorneys can check that disclosures have occurred and if not, this points to the potential non disclosure of other helpful discovery, which prosecutors and police have a vested interest in keeping to themselves. Closing those records to public access means misconduct being kept completely closed to everyone but the police department, officer, and state prosecutor and never being found out about their failure to disclose because public records law allows another check.

Yet, if the narrow definition that police departments are conveniently using is allowed to stand, or even enshrined into law, a slew of bad behavior will never be known by the public.

All police misconduct involves some form of policy violation - whether a criminal conviction at worse to a uniform violation, failing to show up in court, or tardiness at the other end of the scale. Even in those supposedly ‘minor’ violations, an officer could have created a more serious problem (such as being untruthful) and this has been seen in some records that could become confidential and not disclosed. 

In just the latest batch of public records given to this practice, one officer was disciplined twice with a written warning for sexual harassment (indicative of bias) but only his later suspension would be revealed if the term “discipline” is narrowly applied. That suspension involved arranging, after he clocked off, to have sex with a female motorist he had stopped earlier in his shift. There are other acts that would remain secret - such as an officer who looked up a license plate that was not for law enforcement purposes that had a rebuke (reprimand) rather than a suspension. Such abuse of authority is a violation of federal regulations and could threaten the agency’s access to a crucial federal law enforcement database. An officer spoke to a witness and deliberately did not turn on his body camera, in direct violation of policy, to talk to her ‘privately.’ He was given a reprimand which would not be disclosable under the proposed law. So were two officers in the same northern Maine town found to have engaged in misconduct - one was for inappropriate communications to female staff, for a reprimand, and a second for sexist and inappropriate comments, where the officer was given mandatory training. Those would also remain secret. So would another officer in a different department showing videos to staff that they found offensive. Details on these instances are scarce but knowledge of their existence allows further questions to be asked.

Another midcoast officer was found to have violated policies about false reporting of time and the accuracy or falsification of records - which resulting in a “counseling.” This would be secret if the proposed law passes. A different officer left an overtime shift early and failed to reflect that in time claimed, resulting in a reprimand. All instances of inaccuracy and even potential falsity would potentially affect their credibility - aside from anything they may need be challenged about based on testimony under oath about their own disciplinary history.

Another northern Maine officer bragged about the “adrenaline rush” of getting into fights after being accused of using excessive force arresting a hitchhiker. Excessive force is a constitutional violation under the Fourth Amendment. That also resulted in a reprimand that would be secret if a narrow definition of discipline stood. Various officers got reprimands for divulging confidential information to the public, being rude or abusive to the public, as well as late or careless report writing, and ignoring orders - all potentially could be used to impeach an officer’s ability to do their job thoroughly and diligently. 

This is just in the most recent records disclosed to this practice. If some form of the proposed statutory amendments were enacted, all would be confidential and hidden from public record disclosure because there was not a financial penalty.

It should be noted that in recent years, Massachusetts set up a Peace Officer Standards and Training entity similar to the Maine Criminal Justice Academy that could decertify police officers.  The new entity’s website has retroactively released thousands of disciplinary records spanning decades of a type exactly like those the proposed law would seek to hide and would be a backward step for police accountability - putting Maine in the opposite direction to the commonwealth’s recent push for openness.

Unless the Maine legislature broadly defines discipline as it is currently understood, either some police departments will continue to hide what should be public, or any new statutory definition will enshrine that practice of hiding misconduct into law.