Updated: Good Decision Appealed. Again. Sort of.
Decisions leads to questions about legality of current Warrant Committee
BAR HARBOR—After leaving one of three executive session during its Tuesday night meeting, the Bar Harbor Town Council voted to appeal again the October 24, 2022 decision against the town in Michael Good v. Town of Bar Harbor, a Superior Court case with Justice William Anderson presiding.
According to Town Clerk Liz Graves, “The motion was to file an appeal to the Law Court of the Good v. Town of Bar Harbor decision, and it passed unanimously (6-0).”
Councilor Joe Minutolo was not at the meeting.
The action was initially reported by Lincoln Millstein of the Quietside Journal.
EXECUTIVE SESSIONS
A municipal committee, council, or board is legally allowed to go into executive session by a vote of 3/5 of present voting members. While in session, only discussion on matters “contained in the motion” are allowed, according to state statute.
Only two of those three Tuesday night Town Council executive sessions were labelled to indicate what the session would be expressly about. On the agenda and in the motion, the item was only described as “consultation with town attorney.” A second item that was also a “consultation with town attorney” showed that the consultation was about “cruise ship matters.” The first session, which occurred before the regular meeting, was about the town manager search.
According to Interim Town Manager Cornell Knight, the wording should have included “pending litigation,” and the the town will be sure to fix that next time.
The state statute reads:
”A motion to go into executive session must indicate the precise nature of the business of the executive session and include a citation of one or more sources of statutory or other authority that permits an executive session for that business. Failure to state all authorities justifying the executive session does not constitute a violation of this subchapter if one or more of the authorities are accurately cited in the motion. An inaccurate citation of authority for an executive session does not violate this subchapter if valid authority that permits the executive session exists and the failure to cite the valid authority was inadvertent. “
Executive sessions with attorneys are allowed. They are also allowed for a multitude of reasons that are detailed in the state statute linked below and excerpted above.
The statute reads:
“Consultations between a body or agency and its attorney concerning the legal rights and duties of the body or agency, pending or contemplated litigation, settlement offers and matters where the duties of the public body's or agency's counsel to the attorney's client pursuant to the code of professional responsibility clearly conflict with this subchapter or where premature general public knowledge would clearly place the State, municipality or other public agency or person at a substantial disadvantage.”
Sometimes, if the motion includes only the statutory citation, it may be because disclosure of the topic in more detail would risk breaching confidentiality. This is often the case for a personnel issue.
THE CASE
The case, Good vs. Town of Bar Harbor, involves multiple warrant articles that have guided how the town proceeds with its business.
In the case, plaintiffs had argued that town’s voted-in changes were “improperly presented to the voters” violating Maine’s Home Rule Act. This, they said, “materially and substantially affected what changes were ultimately made” to the town’s charter. The court agreed and said that those eight changes “should indeed be invalidated.”
Several Bar Harbor voters brought the case to court, led by Michael Good, former Warrant Committee member.
Initially, in November 2018, the town created a commission to change the town’s charter. That commission came up with nine changes, and according to the brief, “which it indicated created ‘changes to 19 areas within the current structure of the Charter’ and constituted a ‘vision for the future of (the town’s) governance.’”
The Town Council approved the recommendations and placed them on the next November ballot as separate warrant articles.
At that 2020 election, voters passed eight of the articles.
Article Two, specifically about warrants and ballots, did not pass.
That article was meant to “clarify the recording of recommendations on Town Warrants and Ballots, change the Warrant Committee’s responsibilities to consideration of the Municipal Budget and Land Use Ordinance amendments and remove review and recommendations of Citizen Initiative and Referendum from the Town Council, Warrant Committee, School Committee and Planning Board, as presented in the Town Meeting Warrant.”
After the election, the plaintiffs said there were four procedural errors that occurred.
According to the brief,
“The central issue before the court is whether the town followed the proper procedures established by the Home Rule Act in enacting the changes to the Bar Harbor town charter under 30-A M.R.S 21108 (2022) of the Home Rule Act.”
The Home Rule Act defines the procedure that must be followed for a slew of different types of municipal rule changes.
According to the Home Rule Act, towns can amend their charters, but they must follow specific procedures for each type of change. Those changes could be for adoptions, revisions, or amendments. Within the revisions subcategory, there is a minor modification category.
Judge Anderson ruled that the changes to Bar Harbor’s charter were revisions, which both the plaintiff and town believed as well.
However, the town believed the revisions fell under the minor modification subcategory. Good and the others did not. The judge agreed with Good.
A minor modification, the judge said, means that “each change may be raised as an individual question.” But, because several of the “questions address multiple subjects” such as the town manager’s duties, creation of a town planner position, school committee organization, and language readjustment about the town attorney, it becomes “more substantial” than a minor modification.
The “grand language” of the commission also led the court to believe that the commission didn’t believe those changes to be minor either.
The plaintiffs said that because each of the nine questions were presented individually, it “materially and substantially affected the revision because it created internal inconsistencies when some of the questions were enacted by town voters and others were not.” This is because only eight of the nine questions to the voters passed.
The Court ruled that presenting the questions individually rather than as a group (en masse) “materially affected the revision.” The judge wrote that if they were presented together, then all would have passed or all would have failed. That means since the “proper procedure” didn’t occur, the results are absolutely different than what occurred (one fails, eight passes).
THE RECONSIDERATION AND DECISION
In November 2022, then Town Manager Kevin Sutherland had requested Judge Anderson reconsider the case.
He said that there is nothing in Anderson’s decision that provides guidance for the town, and he said the decision also needs to tell the town if everything that has occurred since the vote is legal, needs to be reversed, or something similar.
Sutherland wrote in his Manager’s Update:
“Unfortunately, this judgement would set a precedent for other towns in Maine who have followed the same or similar attempts to address changes within their Charters. Because of this, we would ask for a reconsideration of the judgement. Additionally, we’ve implemented parts of the Charter changes including the budget process and the composition / election process for Warrant Committee members. The judgement provided no guidance on how we should consider previous actions and are therefore requesting the judge amend the judgement to provide guidance.
“On Monday, November 14, 2022 the Town of Bar Harbor filed pleadings for a Motion for Reconsideration or to Alter or Amend Judgment.
“Justice W. Anderson who provided the judgement has since retired and the case has been transferred to Justice A. Murray. We probably won’t have a decision on our motions until mid-January at the earliest.”
The reconsideration and amendment Sutherland submitted on November 14 asked about the implications of the precedent and/or asked for an amendment to the judgement and how the town should move forward.
The town put out a news flash late Friday afternoon, September 22, which explained that move.
”As an alternative to reversing its decision, in the interest of minimizing unnecessary litigation costs, the Town asked the Court to amend its judgment to provide necessary guidance on resubmission of the articles to the voters, as anticipated by the applicable state law. After approximately nine months, the Court denied the Town’s request and did not provide any clarification on its ruling.”
While the Town’s motion for reconsideration was pending, the timeline to appeal the original decision was on hold. The Council believes an appeal is warranted and the costs of said appeal are outweighed by the costs of allowing the trial court’s order to stand as drafted. It generally takes approximately one year to get a decision from the Law Court.
The reconsideration and amendment Sutherland submitted on November 14 asked about the implications of the precedent and/or asked for an amendment to the judgement and how the town should move forward.
At the time, it was thought that the town may have to put something on the June ballot to fix the issue. That fix could potentially be putting those articles that passed together as one for a vote and seeing if they are approved or not, Sutherland said. The deadline to put things to the voters at the June election was in March.
The reconsideration request put a pause on the judgement. In the meantime, new Warrant Committee members were elected (as individuals rather than a slate, which had been done prior to the changes), town managers lived outside of Bar Harbor, and so on.
The reconsideration was denied earlier in September.
The Council, Tuesday night, decided to appeal that decision. That discussion occurred in executive session.
WHAT ARE THE IMPLICATIONS?
The changes that the town voted in, Justice Anderson said in his original decision, “must be invalidated.”
Those changes include
allowing the town manager to reside outside of Bar Harbor,
the importance of the town’s planning function,
the responsibilities of human resources,
town council and school committee compensation changes,
a new budget timeline for Town Council and Warrant Committee (simultaneous receipt),
and the individual nomination of Warrant Committee members (rather than as a slate),
and reducing the number of members of the Warrant Committee from 22 to 15.
The implications of that decision are what Sutherland worried about in his statement, questioning if all actions related to those changes are valid or invalid, and how the town should proceed.
NEXT STEPS
The Town Council voted Tuesday night to appeal the latest decision to a higher level of court. This latest early September decision, by another judge, supported Judge Anderson’s initial decision. Judge Anderson has retired.
My husband, Shaun Farrar, who also reports here, was elected to the Warrant Committee this June.
MORE RESOURCES
The original judgement brief (uploaded by Lincoln Millstein of the Quietside Journal)
2020 Charter Commission Report
Maine Executive Session Statue
November 2022 Bar Harbor Story article
March 2023 Bar Harbor Story article
Judge Rules 2020 Changes to Bar Harbor’s Town Charter Should Be Set Aside
This story has been updated to include information from the town’s news flash released Friday afternoon.