Proposal to prohibit election of Yarmouth employees headed to ballot

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YARMOUTH — The Town Council last week scheduled a Sept. 17 public hearing on a petition for a charter provision that would prohibit town and school employees from being elected to the Town Council.

The hearing and a subsequent council vote on the petition are formalities, since the Town Charter requires the amendment to go before voters.

Councilors on Sept. 6 also scheduled a vote on whether to ask the Maine Center of Disease Control to declare browntail moths a public health nuisance, which would allow the town to explore mitigation options, such as aerial spraying. 

Former Councilor Jim MacLeod, whose term on the council expired earlier this year, said he and a group of residents calling themselves Yarmouth Citizens for Responsible Government gathered more than the 526 signatures required to send the charter amendment to a referendum.

The signatures were submitted Aug. 30.

The public hearing on Monday, Sept. 17, is expected to be followed by a council vote Sept. 20, in time to get the question on the Nov. 6 ballot. 

Last month, Councilor Meghan Casey, who teaches Latin at Yarmouth High School and was elected to the council in June, said she was “insulted” and “hurt” by the proposal. 

“Both Maine municipal law and common sense stand in opposition to (MacLeod’s) petition,” Casey said in an Aug. 23 email.

MacLeod said in a Sept. 10 interview that the intent of the proposal is “good governance” and it is not meant as a personal attack on Casey’s, or anyone’s, integrity. 

“The question is, can the residents of a municipality vote by referendum to amend their charter to provide what they believe are reasonable restrictions on the qualifications of the council (that) provide for a reasonable impartiality and removal of bias,” MacLeod said. 

Further, he said Yarmouth’s yardstick for potential conflicts of interest is low and most often “self-identified and assessed.” By leaving a judgment up to an individual councilor, MacLeod said residents aren’t being considered. 

“It’s not about Councilor Casey or her integrity or anything like that,” MacLeod said. “It’s really integrity in the process.”

Casey said she does not believe her employment poses any conflicts that should prohibit her from serving on the council.

“All citizens of Yarmouth have a right to run for town council, and if elected, serve. There needs to be a very compelling reason to take that right away from a citizen. Such compelling reasons do exist,” Casey said. “The fact that once a year the town council gives an up or down recommendation on the school budget is not such a reason.”

Yarmouth’s charter, which MacLeod called “outdated,” states that councilors may hold no office where they would gain financially from employment or position or from which they would profit.

“I think a lot of people thought that that … took care of a lot of employee-type situations in terms of serving on the council,” MacLeod said. “To me, there’s certainly some ambiguity.”

The realization the restriction wasn’t explicitly provided for, as age, residency and term limit restrictions are, MacLeod said, was the genesis of the petition. 

MacLeod said he feels it’s time for the town to take a comprehensive look at their charter, which was adopted in 1965, and update it to be more “contemporary,” as other nearby municipalities, such as Falmouth, have done. 

Falmouth’s charter includes a clause that states that no councilor “shall hold any paid office or position of employment with the town except for on-call, non-ranking employees of the Fire/EMS Department and members of the Fire Police.”

Before Casey’s election, town attorney Shana Cook Mueller in August 2017 provided the town with an opinion that there weren’t any conflicts of interest particular to Casey’s candidacy. She referenced a 2013 legal case, Callaghan v. City of South Portland, when the court held that South Portland’s personnel policy prohibiting municipal employees from serving on the City Council or School Board “impermissibly infringed on municipal employee’s First Amendment rights.”

MacLeod said he doesn’t think this is applicable to the proposal.

“That was a situation where the city of South Portland adopted an internal policy that prevented employees of the School Department from more than not being able to sit on the school committee or town council, but also had other restrictions on them … around other types of political activity,” he said.

Because the court has never found that there’s a “fundamental right” to run for office as an extension of an individual’s right to free speech, MacLeod said he thought the court looked at the rationale behind the South Portland School Department adopting such a policy.

“There wasn’t even a whisper of justification on the record as to why they did that,” he said. “They didn’t invalidate the policy, they only held that those two employees’ rights were being infringed upon … The analysis was factually specific to this scenario.”

The fact that this charter provision was brought about by citizen petition, rather than a policy made by an administrative body, separates it, MacLeod said. 

“The emphasis is going to be not on the individual’s rights (but) the citizens’ rights to feel that they are getting a fair and impartial decision-making body,” MacLeod said. “Do they have that right? I think yes.”

Still, Casey said she is “troubled” by the “suggestion that because a faculty member with intimate knowledge of the daily functions of our schools should not serve on TC” and thinks the council needs “varied, diverse” perspectives. 

Browntail moths 

In response to residents’ concern about the browntail moth problem in the region, Yarmouth and surrounding municipalities have been discussing what steps they could take to mitigate browntail moth effects, in addition to treatment and prevention measures they’re already taking.

One potential solution under discussion is aerial spraying of pesticides in early May. However, this can only be done if the Maine CDC declares the browntail moth problem a “public health nuisance” – a declaration which town officials and the Maine Forest Service need to petition for.

“You have to ask the state to declare a public health nuisance,” Tupper said, noting that it’s not guaranteed the CDC will grant the declaration or, if they do, that spraying will be done. It can be declined for a variety of reasons, including the “general citizen wariness about widespread spraying of pesticides.”

“We’re trying to do this in concert with other surrounding communities,” Tupper said. “If enough communities ask for it, we’re hoping that will cause the state to say, ‘Yes, if you want to proceed you can.'”

Many councilors had concerns around treatments such as aerial spraying, to which Tupper stressed that petitioning the CDC doesn’t mean treatments have to happen. 

“People will not be unanimous in this,” he added. “… All this does is enable you to start a conversation.”

Jocelyn Van Saun can be reached at 781-3661, ext. 183 or jvansaun@theforecaster.net. Follow her on Twitter @JocelynVanSaun.

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