Town weighs what to do next
BAR HARBOR—A Hancock County Superior Court judge ruled on October 24 that 2020 changes to the town’s charter were “not appropriate” and “should be set aside,” according to a brief by Justice William Anderson.
Though the court initially said it would have oral arguments, Anderson decided not to “after conducting a thorough review of the issues raised and upon further reflection.” Instead, the court decided without hearing discussion or argument.
The court found that “as a matter of law, the Town of Bar Harbor did not follow the proper procedures when enacting the changes, that the use of improper procedures materially and substantially affected the changes, and the changes should be invalidated.”
Those changes impact multiple aspects of the town’s charter including the composition and election of the Warrant Committee.
Bar Harbor’s Communications Coordinator Maya Caines told the Bar Harbor Story via email, “We will be evaluating the decision and weighing next steps with our attorneys. We will work with the Town Council to determine the best way to move forward.”
The plaintiffs had argued that the 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 by 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.
The judge 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 and the others.
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 changes, Justice Anderson says, “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 town could potentially appeal the decision to Maine Supreme Court.
2020 Charter Commission Report
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