Falmouth council urges support for charter amendment despite 'oversight'

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FALMOUTH — Town leaders said this week that residents should support a series of charter amendments on the Nov. 6 municipal ballot, even though one section of the proposed new language raises concerns about its constitutionality.

In addition to a blanket question that deals with assorted administrative changes to certain aspects of town operations, the local ballot also asks voters whether they wish to raise the threshold for requiring a capital spending referendum from $1 million to $2 million.

At their meeting Monday, town councilors said the section in question could easily be corrected and there’s no reason why residents shouldn’t vote in favor of the charter changes if they were already inclined to do so.

Town Manager Nathan Poore said it’s too late to take the two charter amendment questions off the ballot, especially since absentee voting is underway and a number of people in Falmouth have already voted.

The constitutionality issue arose because in its attempt to provide reciprocal or mirroring provisions that applied to candidates for both Town Council and School Board, the Charter Commission said employees of the town and library should not be allowed to run for the School Board.

However, in the month since she first certified the proposed charter changes as complying with both the U.S. and Maine constitutions, as well as federal and state laws, Town Attorney Amy Tchao has now revised her opinion.

In a letter sent to Poore on Oct. 18, Tchao said, “I have discovered an issue with one of the recommended changes to the charter.”

“The commission’s effort to make reciprocal a number of parallel provisions in the charter pertaining to the Town Council and the School Board may have led to an unintended consequence that may be contrary to law in one specific instance,” the letter added.

Tchao said the problem is that in 2013, the Maine Supreme Judicial Court declared that a South Portland personnel policy provision that barred city employees from running for School Board was an unconstitutional violation of the employees’ First Amendment rights.

While in the South Portland case the court acknowledged “that the city likely could lawfully prohibit some employees from running for and serving on the School Board,” Tchao said there can’t be a blanket provision against it and a balancing test would have to be applied to each individual situation.

Tchao said the town could still prohibit School Department and library employees from running for Town Council, but not the other way around, particularly if the municipal or library employee interested in running has no particular conflict of interest in terms of budgeting or awarding contracts.

Because the proposed charter amendments can’t be removed from the November ballot, Tchao said the best solution would be for the council to commit to correcting the error following this fall’s vote and then sending that one sentence back to voters for approval in June 2019.

The council agreed and Monday passed a resolution that would hold it to putting “the correction on the ballot at the next regular municipal election.”

Councilor Aaron Svedlow called the issue an “unfortunate oversight,” but one that could be easily fixed, while Councilor Amy Kuhn said, “this is a good solution to the problem. The correction can be made, no harm, no foul.”

Karen Farber, chairwoman of the Charter Commission, said Monday that commission members also believe the “proposed solution makes a lot of sense and it shouldn’t be hugely problematic.”

In a prior interview, Farber told The Forecaster the overall goal of the proposed charter amendments is to “be more consistent … provide (better) clarity … and (to) bring (the charter) into alignment with current and best practice.”

Under state law, municipalities are required to review their charter every 10 years, which gives communities a chance to “make adjustments (and) fine-tune the charter,” Farber said. “What is (being) proposed are improvements (and) clarifications. This is not a wholesale rewrite.”

Council Chairman Caleb Hemphill encouraged everyone to vote for the proposed charter changes, despite the need for a second follow up referendum. He said the issue is with “one small section of only one” of the various changes being proposed.

The resolution passed by the council states that “the concerning language … will not have any adverse effect on any other amendment to other sections of the charter, therefore … the Town Council supports the passage of Question 2 on the Nov. 6 ballot.”

Kate Irish Collins can be reached at 710-2336 or kcollins@theforecaster.net. Follow Kate on Twitter: @KIrishCollins.

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