PORTLAND — The state’s highest court has denied an appeal by Bar Harbor resident Arthur Grief challenging a 2016 Town Council decision not to investigate claims of alleged misconduct by two councilors. Justices affirmed the judgment of Hancock County Superior Court justice William Anderson that the Town Council had not violated the town charter nor Maine Freedom of Access Act (FOAA).
The allegations stemmed from a meeting Code Enforcement Officer Angela Chamberlain said she attended at council Chair Paul Paradis’ home in 2013 with Paradis and former Councilor David Bowden. At issue is whether the councilors “gave orders” to Chamberlain to monitor another town employee’s use of a town photocopier to conduct a private real estate business.
Under the town charter, the council and its members only have authority over town employees through the town manager.
Greif and his wife, Donna Karlson, sent a letter in January 2016 to the five other councilors asking them to hold a hearing about the allegations. The council met in executive session at their next meeting to discuss their rights and duties in regards to the letter, then decided in open session “that the alleged facts and circumstances contained in the letter” did not “warrant further review.”
Greif claimed that the conversation in executive session necessarily constituted a “preliminary review” of the allegations and thus violated the FOAA. He had argued that the charter required the council to hold a hearing with him present, open to the public if either councilor requested it, to determine whether the alleged conduct was grounds for forfeiture of office.
In his November 2016 decision, Anderson said that such a hearing would only be required if the council itself had taken formal action charging a councilor in writing with conduct constituting grounds for forfeiture of office.
Greif had argued that if only the council has the authority to charge one of their number with improper conduct, then the “likely collegiality” of the group makes it unlikely that such a charge will ever be brought.
“Greif contends that the town charter requires the Town Council to convene an investigatory hearing into allegations of councilor misconduct upon receiving a written complaint from any aggrieved citizen,” the Supreme Court decision reads. “A plain language reading of the town charter does not support Greif’s interpretation … it is incongruous that a private citizen could ‘charge’ a councilor with ‘conduct constituting grounds for forfeiture of his/her office’ by invoking a section of the town charter that reserves to the council itself the power to determine what conduct warrants forfeiture.”
“I read the charter differently than the court,” Greif said in a letter to the Islander responding to the decision.
This was one of four pro-bono cases he has taken against the town. The first three were all related to the location of the new electrical substation and 2015 ballot questions on public utility installations. Greif lost a suit in which he represented residents Donal and Patricia Murphy and Paula Moody appealing a building permit issued for the substation. The plaintiffs in that case dropped an appeal of the Superior Court decision in favor of the town when Emera Maine agreed to surrender the building permit for the Woodbury Road location. The substation was built in a different location.
The court sided with Greif against the town in separate actions dealing with when to place the questions on the ballot and whether a two-thirds majority vote is needed to pass citizen initiative zoning changes over the objection of the planning board.
“Despite those successes, I am ever mindful that I will inevitably lose some cases,” he wrote. “I understood that this would be the toughest of the claims I have brought against the town for reasons a law school professor shared with me over 40 years ago: ‘Judges, as public officials, are solicitous of other public officials.’”
Town attorney Ed Bearor had argued that the complaint was moot for both councilors, because Bowden’s term ended in the summer of 2016 and Paradis was reelected then. Even if Paradis had been removed from office, Bearor said, there are no rules that would have prevented him from seeking re-election.
The justices sided with Greif on that point, saying sufficient “practical effects” flowed from Paradis continuing in office that the claim is not moot.
CORRECTION: An earlier version of this story misstated the number of suits against the town Greif has won.