Attorneys parse new residency requirement

BAR HARBOR — Following the passage in June of a citizen initiative restricting voting on town committees to registered voters of the town, the Town Council asked for legal advice.

“[If] a current member [of a committee] is not a registered voter,” Town Attorney Ed Bearor asked, “the question is, is that member immediately disqualified from voting?”

The answer, he advised, is no. “We interpret the ordinance to apply to new appointments only,” he and colleague Stephen Wagner wrote in a memo.

At its July 16 meeting, the council took no action, but discussed the implications of the passage of the initiative, which was Article 4 on the June Town Meeting ballot.

“When someone is appointed to a public position, that becomes a property interest,” Bearor told councilors. “They have a right to that position. And given that voting is the way that one really exercises their position, to deny someone a right to vote because we’ve changed the rules in the middle of their term, would be, I think, subject to challenge in terms of it being a violation of their constitutional right to property.”

A committee member abruptly stripped of an existing right to vote, Bearor and Wagner wrote in the memo, could claim a “violation of his or her constitutional due process rights.”

Earlier in the meeting, the council had made several new committee appointments.

“Any member of any committee that is currently serving can still vote,” Council Chair Jeff Dobbs said, “[but] anyone appointed tonight cannot.”

Other councilors agreed with Dobbs’ summary, pointing out that the voting rights of non-resident committee members would expire as their current terms expire, even if they’re re-appointed.

Bearor and Wagner wrote that committees governed by the Land Use Ordinance or the town charter are not affected by the change. These include the Design Review Board, the Superintending School Committee, the Warrant Committee, the Charter Commission and the Mount Desert Island High School School Trustees.

To avoid confusion and correct a drafting error, Bearor and Wagner recommended that the council “repeal and revise Chapter 31” of the municipal code to align with the newly passed ordinance.

A new article would create “a general rule that unless specifically provided otherwise, a voting member must be a registered voter in Bar Harbor.”

At the meeting, Bearor said the council has the authority to amend the ordinance or to “repeal it and vote in your new ordinance.”

In the memo, the attorneys compared that authority to the Maine Legislature’s ability to repeal or modify a state referendum measure.

He qualified, “I’m not encouraging that; I just want to make sure the council knows … that opportunity is still there should you choose to exercise it.”

“What Attorney Bearor is suggesting is that … if council feels that there needs to be some adjustments to the citizen initiative, we could make those through the usual process for having a public hearing before an ordinance is adopted,” Councilor Gary Friedmann said.

Becky Pritchard
Former Islander reporter Becky Pritchard covered the town of Bar Harbor and was a park ranger in Acadia for six seasons.
Becky Pritchard

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