In what could become a precedent-setting case for freedom of the press in Maine, the Bangor City Council is considering passing an ordinance that would ban any unwanted written material from City buildings. The supposed need for this ordinance results from an alleged complaint about the newspaper "Common Sense Independent" being available to read in the City of Bangor Public Dental Clinic waiting room. The newspaper, published by Maine journalist Terrilyn Simpson, winner of the 1998 PEN/Newman's Own First Amendment Award, offers reporting that is critical of the Maine Department of Health & Human Services (the first issue of the paper ran the story "Logan's Truth", questioning the tactics and methods used by the DHS that resulted in the death of five-year old Logan Marr who had been taken into their custody.)

"Common Sense" was being distributed in Bangor by city resident Jim LaBrecque, who had dropped a stack of the newspapers at the clinic with the permission of clinic dentist John Frachella. When LaBrecque returned several days later to check on stock of the papers, he found them missing. In talking with the receptionist he found that she had removed the papers at the request of Bangor Health and Welfare Director, Shawn Yardley. Yardley, a former supervisor at the Maine Department of Human Services, where he worked for 17 years, claimed that an unnamed foster mother had allegedly found the newspaper to have content objectionable for a city dental clinic. In response, Yardley banned "Common Sense" from the clinic.

Speaking on 103.9 WVOM-FM show "Maine In The Morning" with Ric Tyler and George Hale, Yardley explained that a dental clinic lobby should offer reading material about "the importance dental care or [...] domestic violence things, rather than, " as he described the problematic "Common Sense", "frankly, a critique of the state welfare system."

LaBrecque responded to this action by lodging a complaint against the City, arguing that this action violated First Amendment rights pertaining to Freedom of the Press and Freedom of Speech. The City of Bangor responded by hustling to form a city policy pertaining to written materials in city buildings. The issue was sent to the Bangor Government Operations Committee for review and recommendation. In that Committee (which is composed of City Councilors), an ordinance was drafted by city manager Ed Barrett, health & welfare director Shawn Yardley, and the Assistant City Solicitor John Hamer. If enacted in its current form, the ordinance would ban the distribution or dissemination of any written materials (including, but not limited to, magazines, brochures, newspapers, flyers, pamphlets, posters) by the public.
According to the drafted ordinance, "The City Department responsible for the operation of a building may, but is not required to, distribute or otherwise make available materials that are reasonably related to the Department�s purpose. Departments shall be viewpoint neutral in deciding which such materials to provide. This policy would apply to any City facility, including Parks and Recreation facilities, Bass Park, and Bangor International Airport (with the exception of situations where they are leasing space to a third party.) Bangor Public Schools & City Hall would be excepted from this policy due to pre-existing policies. The only materials allowed in City facilities would be publications and posters informing the public of upcoming activities, performances, or events sponsored in whole or in part by the City, the State of Maine, or the US government, materials �reasonably related� to the function or purpose of a city department or facility. Also, according to Simpson who attended the August hearing on this policy, written materials to which the city subscribes would be allowed. She points out that "subscribe" is not legally defined in the ordinance, and thus could reasonably be interpreted to give city government workers the authority to decide on a case by case basis what written materials they want to allow or ban.

City Manager Edward Barrett defended the proposed policy, citing a 1997 policy
requiring materials and public meetings at City Hall to be �educational in nature and [to�] avoid advocacy of a particular position in areas of public policy dispute or controversy.� A August 10th Bangor Daily News article reports that �Assistant City Solicitor John Hamer said excluding publications because they are controversial is a �valid basis� for not allowing them to be disseminated in city facilities.�

Others don't feel so comfortable with the Bangor implementing what they equate to censorship. Zach Heyden of the Maine Civil Liberties Union has become involved in the case, looking into what civil liberties its implementation could impact. In an August 23 hearing before the Committee, Republican Senator Deb Plowman of Hampden spoke in defense of Terrilyn Simpson, publisher and editor of Common Sense Independent. Plowman, like Simpson, argued that the actions taken against the newspaper amounted to censorship. No ordinance like this has been passed on a state or local level in Maine, and Plowman is quoted in an August 24 Bangor Daily News article, saying �The Maine Press Association is interested in this matter. They have never heard of this. They are wondering where you draw the line.�

According to Simpson, discussion at the hearing included speculation by council members that was simply unrelated to the issue at hand by raising concerns that, if they proceeded without a Policy, and allowed �Common Sense Independent� in city buildings, would they not also have to allow a certain Portland weekly publication with an explicit Adult Personals Section in the lobbies, would they have to allow preachers to preach in the waiting rooms, or, seeing as it could be argued that food is a right, would they perhaps not be required to provide food in their waiting rooms? In light of these concerns, it should be remembered that Federal and State governments already possesses the right to restrict materials considered pornographic, and those containing language inciting violence, thus normally preventing the need for such new local policies.

The Bangor ordinance has currently received an �ought to pass� from the Government Operations Committee, and Simpson, LaBrecque, and others are waiting upon a date for the city council meeting where voting on the ordinance will take place.Until the vote, the Government Operations Committee has voted to ban �Common Sense� from all city buildings.

-h.lister
sterren (at) mainecommons.org

Please add any updates, comments, questions, or corrections in the comments and/or newswire section.

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Read an excerpt from the banned "Common Sense Independent".....


The DHS Fix
by Terrilyn Simpson

The building was a flat, morose, joyless block of bricks, vaguely like a minimum security prison. This was a place where the keepers made the rules, where individuals were stripped of their rights.

The parking lot for visitors was across the street, a street which
ironically leads eventually to the capitol building. The symbolism of the route seemed lost on those working inside where clients waited with tired expressions, no looks of hopeful anticipation. This was a place that specialized in employing bureaucrats, not a place where staffers worried about treating citizens well. This office of the Maine Department of Human Services was one of many in the state.

Access to the building was not through the obvious, pillared double-doored entrance conveniently located opposite the parking lot. That was the front door and the public was not allowed to use it. Citizens were required to enter through a side door after making their way across a busy street and through a smaller parking lot, presumably used by staff members, which curved around the front and side of the center. The public entry, one of two doors side-by-side, was not clearly marked -- the guesswork added to the intimidation factor, something which seemed a constant component of the DHS game.

On the first day of the DHS public hearing against Bob Nutting, a winter rain had turned the snow into an icy slush, making the walk from the visitor parking lot a slip-sliding and sloshy trek. Nutting was the Maine pharmacist and state legislator who DHS had accused of sloppy record keeping and whose business the state would eventually shut down. A member of the legislative Health and Human Services Committee who had called for a public investigation into the DHS role in the death of foster child Logan Marr, Nutting would later admit he�d had no idea what it was like to be targeted by DHS until he�d joined the ranks of the targeted. And even then, he�d conceded, he�d only lost his business and his money. Children had been taken from the families to whom Nutting had previously paid little attention when they�d complained before his committee.

Once inside the building, no sign or notice directed lawyers, legislators, witnesses or journalists to the scheduled hearing. An older woman behind a reception window of an enclosed cubicle interrogated visitors one at a time.

With no alternative, I queued up and waited. When my turn finally came, I asked for the room number of the public hearing regarding the Nutting case.

Who was I, the woman demanded. I was just there to attend the hearing, I explained. And who was I, the woman insisted on knowing. I countered that since it was a public hearing I wasn�t clear why that was relevant. She made it clear it was relevant if I wanted to attend. Frustrated, I gave my name. Beyond my name, who was I -- why was I there, she demanded.

I looked at the woman, officious with her piece of DHS power. She still had not told me the room number. I was a journalist, I answered, there to attend a hearing which was supposed to be open to the public. She told me to step to one side and wait. For what, I asked. Someone would accompany me, she emphasized. Why, I asked. Just wait, she ordered.

The escort was even less cordial than the receptionist. She directed me curtly to come with her. I commented conversationally, as we walked, that as a journalist of many years, I�d covered numerous public hearings and had never experienced the attitude exhibited at DHS. I said that being a public hearing meant that as a member of the public, I had the right to attend and was puzzled by the scrutiny. I could attend, she told me pointedly, if they decided there was enough room for me. It was a public hearing, I repeated for the umpteenth time and as a journalist, I had the right to cover it. She
didn�t miss a beat. �You can cover it,� she concluded in an icy tone, �if we say you can cover it.�

These were the people taxpayers paid to oversee the fate of Maine�s
children, to safeguard the well-being of Maine�s citizens. The reality of their heavy-handedness was chilling.

The hearings lasted for a week, all day, with only brief breaks. The price of admission exacted by DHS was serious discomfort. Laughing up their bureaucratic sleeves, they�d squashed us into a room too small to adequately accommodate those in attendance. With the door closed, as it was for the duration, the room was stifling, the air stale. The assistant attorney general and his cronies sat at a table in the center of the room with Nutting�s attorneys opposite; a chair at the table was designated as a witness seat. The presiding hearing officer sat at a desk at the head of the crowded room. The rest of us were crammed into chairs along the wall so close to the backs of those seated at the small conference table it was difficult to move one�s feet or stretch a leg. One had to be careful not to inadvertently press against the person in the next chair. Coats and briefcases were either held in one�s lap or bundled and stuffed under one�s chair.

During one brief break, I stood in the hallway just outside the hearing room and stared through the open doorway of a spacious conference room opposite. I�d been asking Nutting questions when I�d noticed the space and pointed it out. Why don�t they move the proceedings into that room, I suggested, pointing toward the open door. The room we were using was so confining it was difficult to breathe. A wry smile played across Nutting�s face. Someone had asked, he said, but they were told the conference room was booked. We stared into the darkened room. It remained empty for the rest of the week, the entire duration of the hearing.

Apparently, no lie was beneath those at DHS.

During another pause in the proceedings, I was asking the hearing officer procedural questions when DHS spokesperson Newell Augur entered the room.

He appeared non-plussed that the official was responding to my queries, thoroughly and courteously. Augur interrupted and asked if I worked for such-and-such a newspaper, naming a specific daily. No, I told him. But you are a journalist? Yes. He seemed too unsettled to simply ask for which paper I worked. Well, said Augur, you can�t talk to him......... and he can�t talk to you. You have to get all your information from me......... I looked at Augur and shrugged. Clearly, he was wrong, I pointed out, since I had been talking to the hearing officer and he�d quite willingly been answering my questions. Augur stared at me contemptuously, then turned away.

Augur�s attitude seemed to symbolize a special brand of insolence, of
arrogance, at and around DHS. The laws DHS officials followed were of
their own making, crafted for the convenience of the moment. The department and the people who worked within its protective confines were apparently accountable to no one. That has been little altered by the merger.

Nutting�s guilt was preordained when someone at DHS -- quite possibly
Commissioner Kevin Concannon, who�d needed a public distraction from his own sizable misdeeds -- had decided not only to go after Nutting, but to make an example of him. Though Nutting had been no stalwart ally of those who registered complaints against the department, he�d had the audacity to call for an investigation into the department�s handling of the Logan Marr case and the departmental lack of response to documented events preceding her death. One observer noted that a fellow legislator had expressed concern at the time that Nutting had picked an enemy unwisely. DHS did not, and does not, suffer its critics lightly. In addition, there was another component to the Nutting case which made it easier to go after him. He had a pharmacy. DHS was rumored to have proclaimed open season on pharmacies and on the pharmaceutical industry in the state.

If Nutting was fair game, so was anyone who even inadvertently revealed DHS misdoings. Concannon besmirched the character of Logan Marr, the murdered five-year-old killed by one of his own employees, when DHS officials came under scrutiny regarding her death. Newell Augur made fun of the unsophisticated appearance of a family member of Logan Marr who simply showed up at a DHS hearing. Karen Westburg mocked the mother of the murdered five-year-old when the mother emotionally fled a legislative hearing at which Westburg was testifying.

With the attitude publicly exhibited at DHS, it�s hardly surprising that rank and file staffers frequently flout the rules while lording it over clients they�re being paid, by taxpayers, to serve. The accounts seem more rule of thumb than exceptions. One grandmother was taken to task for crying while caseworkers removed her grandchildren from her home and later told her inappropriate emotional reaction contributed to her not being allowed to visit with her grandchildren. The grandmother had called DHS asking for help after the children�s mother was hospitalized.

A parttime police officer said he resigned from the police department to avoid complying with an order to accompany a caseworker into the apartment of a young woman in the community and assist in taking her baby away from her. The police officer, a lifelong member of the community, expressed surprise and said he knew the young mother, that he had often seen her with her child. When he asked why the baby was being taken, he was told it was because the mother fed the child oatmeal directly from the pan instead of serving it from a cereal bowl. If this sounds farfetched, an attorney who did contractual work with DHS reportedly resigned after being told by a young caseworker to prepare paperwork to remove a young child from his mother because the caseworker thought there were too many dirty dishes in the sink. One couple said they were told by their caseworker if they did not stop asking for explanations for the many demands DHS was making on them, demands which often seemed superfluous, that their son would be taken away from them permanently.

A foster mother of a special needs child who the woman was in the process of adopting lost custody and was stripped of all visitation rights after complaining about DHS practices at a number of hearings preceding the merger. The foster child had been with the woman for several years. After removal from the home, the child was institutionalized for lack of another placement option.

Parents have complained numerous times of DHS retaliation after
registering complaints regarding DHS violations with the governor�s office, the ombudsman�s office of the Maine Children�s Alliance, and with a number of legislators. When one couple asked State Senator Ethan Strimling (D-Portland) for help, Strimling turned the information over to DHS, which threatened retaliation. Contacted for an explanation, Strimling was cavalierly dismissive. The couple, after becoming convinced the caseworker intended to make good on her threats, fled the state and ultimately lost custody of their son as a result of their leaving.

State Senator Susan Longley, chairing the legislative Health and Human Services Committee, was so rude and dismissive toward constituents who spoke before her committee, it was difficult to even follow their testimonies through Longley�s constant interruptions.

The stories go on and on and on and on and on..................

But of all the insults inflicted on those victimized by DHS, the merger remains the ultimate joke.

Orchestrated by a plethora of providers in line to benefit from the giant social service shuffle, the merger provided a feigned responsiveness to the public outcry for DHS accountability while further insulating the department from scrutiny. It offered a legitimacy that DHS�s lies and avoidance and bullying and posturing had never been able to supply. That the reorganization banner was held high by the new governor and by the state�s self-proclaimed safeguarder of children made the ruse complete.

Completion of the merger also insured that DHS would be protected for
years to come from any reorganization which might actually shed light on the problems, hold officials accountable or force people who worked there to follow the law. Pretending to fix problems while denying problems existed insured that offenders can continue to operate as they please. And politicians and bureaucrats can now simply sluff off criticisms by pointing to the massive reorganization, at huge taxpayer expense, and say they fixed DHS already.

The shortfall in serious effort was highlighted by the confirmation
process of DHHS Commissioner Jack Nicholas. An apparently affable man with little experience in the social service arena, Nicholas reportedly turns to lower level staff members for guidance in defining his right to second guess their questionable actions. At the legislative hearing to confirm Nicholas, Representative William Walcott (D-Lewiston), when it came time to cast his vote, announced happily he�d come to the hearing completely undecided but that seeing how well Mrs. Nicholas seemed to regard her husband prompted him to vote to confirm. �After all, who knows him better than his own wife,�
Walcott dreamily opined.

Senator Carol Weston (R-Montville), who�d also worked on the merger
process, just wanted everyone to get along. Though she articulated little of substance at the confirmation hearing, she solicitously sang praises of everyone for being so nice, so courteous, so helpful -- Weston made everything seem so fun, she reminded one of a smiling bobble-headed doll, except that she could clap. What she never mentioned were any of the problems which constituents had asked legislators to address. Weston has reportedly been so lightweight in her legislative presentations that a fellow party member threatened to challenge her if Weston, as assistant Republican leader, didn�t begin to exhibit some capacity to lead.

At a prior hearing, Representative Julie O�Brien (R-Augusta), testifying about her work with the merger council, leaned laughingly toward male committee members and, with vaudevillian winks, apologized for not having time to bake them any chocolate chip cookies. Some legislators grinned while family members, there to plead for help in their dealings with DHS, looked on tight-lipped.

What has not been addressed in the merger process is the laundry list of problems and complaints involving the DHS removal of thousands of Maine children from their homes and families. As Ellie Goldberg, head of the Maine Children�s Alliance, recommended, there has been no formal review of cases where families have complained that serious mistakes were made. While some officials have left the department, their actions came under no scrutiny and all were allowed to resign at their own leisure, their reputations and benefits intact. That included former Commissioner Kevin Concannon, former Child and Family Services Director Karen Westburg, former Acting DHS Commissioner Peter Walsh and even Logan Marr�s caseworker, Allison Peters.

The ombudsman�s office continues to operate, at taxpayer expense, under the thumb of the Maine Children�s Alliance, leaving little, if any, recourse to families who feel their rights have been violated by DHS.

There has been some minimal effort for judges to do less rubber stamping of DHS claims against parents, although Maine Supreme Court Chief Justice Leigh Saufley has concerned herself much more with calling for courtroom safety measures to protect judges than any insurance of measures to safeguard the legal rights of parents and their children. (The US Office of the Inspector General, in an audit of moneys paid to Maine DHS, determined that the department failed to follow federal law and rules in 403 out of 1,369 cases audited from July 2000 to June 2003 and has demanded $2.5 million in repayment. The OIG report also noted major concern in a lack of judicial determination on the need to remove the child from the family in 134
cases.)

Qualifications, training and actions of DHHS caseworkers have still not come under review. There has still been no public disclosure of any investigation into the actions of DHS officials which may have contributed to the death of Logan Marr. Additionally, there has been no review of the case of a two-year-old boy who was removed by Maine caseworkers from a Maine foster home and handed over to a man who murdered the child in Florida two weeks later. The Maine legislative Health and Human Service Committee, co-chaired by Representative Hannah Pingree (D-North Haven) and Senator Arthur Mayo (D-Bath), has continued to fail to provide any meaningful oversight of DHHS.

And DHHS has continued to operate behind a heavy veil of secrecy --
euphemistically referred to as confidentiality to protect the children -- continuing to leave DHHS personnel accountable to no outside scrutiny.


- Terrilyn Simpson, Editor and Publisher
Common Sense Independent
PO Box 408
Augusta, Maine 04332

(This is an excerpt from the article, �The DHS Fix.� This issue of the newspaper has been banned by the Bangor City Council from all public areas of all city-owned buildings in Bangor. The matter is scheduled for a permanent vote at a Bangor City Council meeting. The proposed ban includes all newspapers, magazines and printed materials not pre-approved by city officials. The matter seriously challenges Freedom of the Press Rights guaranteed by the First Amendment and potentially sets a dangerous precedent for Maine. Common Sense Editor Terrilyn Simpson is objecting to the ban.
The Maine Civil Liberties Union has taken an interest in the case.)