By Charles Sidman
The orchestrated theatrical (aka “public hearing”) put on at and by Bar Harbor’s Town Council this past Tuesday warrants the following comments that were not permitted to be made at the hearing itself.
First, a self-selected subset of businesses blatantly trumpeting their narrow financial self-interests from maximum cruise ship traffic, and thus opposing the current initiative, clearly sees the writing on the wall, sharing the community’s broad expectation that Bar Harbor’s voters will support the initiative when it appears on the ballot. As a result, these businesses and their supporters in the town administration are attempting the Trumpian approach of trying to deny voters their democratic voice by keeping the initiative off the ballot preemptively through speciously premature arguments and irrelevant distractions. Will such a violation of our small town democracy be permitted?
In this instance, the law (Bar Harbor Code Section C-48 on Citizen Initiatives) is clear and simple, stating that council must hold a mandatory public hearing (within 30 days of declaration of sufficiency) and then “shall submit the proposed or referred ordinance to the voters” (within 60 days of declaration of sufficiency). The council has absolutely no authority to approve, accept or reject the initiative, and is obliged to perform its mandated (magisterial) duty. Opponents’ hopes that the Town Council has or will take any latitude here are clearly incompatible with the law. The council is also markedly in violation of its mandated timetable since sufficiency was declared by the town clerk on May 16.
As additional commentary, it must be remembered that citizen initiatives exist as means for remedying unacceptable action or inaction on the part of the governing authority (the council.) Thus, allowing the council to accept or reject, on any grounds whatsoever, an initiative brought to correct the council’s own behavior is both illegal and nonsensical. Even in a setting such as routine legislation where legal issues may be germane, opinions abound and can be purchased in bulk, and legislation is routinely passed and then judicially reviewed afterward when a party with adequate standing sues for a specific concrete injury. In no case is legal review or consensus required before laws are passed, as doing so would be impractical in the extreme and preclude almost any legislation. Even the Supreme Court cannot and does not dictate a priori to Congress which laws can be enacted; its role is to later rule on their validity.
Competent and experienced legal professionals were deeply involved in the design and crafting of the current initiative. Therefore, the statute, if enacted by Bar Harbor voters, stands every chance of surviving subsequent court challenges. But legal arguments are premature at this stage and certainly not required or for the Town Council to decide.
Concurrent with voter debate after posting to the ballot but before actual voting, two other activities are likely. First, a vigorous national and international campaign is gathering steam against the corrosive and destructive effects, on local as well as global economies and environments, of the cruise ship industry. For every 1 percent of decreased traffic that can be denied to this dirty and exploitative business, several hundred million dollars of lower revenues per year and market valuation will follow. Bar Harbor as one community, in conjunction with others, can thus hope to make a significant impact on returning both our small corner and the larger world to a healthier and more sustainable path by, as a moral imperative, educating as well as fighting the customers, spear carriers and shareholders of this industry. The self-interests being openly touted by our initiative’s opponents are no more compelling than those of tobacco farmers and processors, or coal miners and oil workers, against similar regulation of the socially and environmentally destructive cigarette and fossil fuel industries.
Politically, the time has come in this writer’s opinion to take back our town government from its current dominance by self-serving large businesses such as cruise ships and their allies. A revision of our town charter to include a recall and disbarment provision for elected, as well as appointed or hired, town officials is clearly in order. Adherence to the Ethics Code and FOAA transparency have also recently been clearly lacking and must be reinstituted. And if the town’s voters enact the present initiative to limit cruise ship traffic, the eponymous Committee itself should be abolished as an institutionalized voice for a single and problematic business sector. The Chamber of Commerce, as a clear partisan and lobbyist for only some business interests (which is allowed) should lose its tax-exempt status as non-inclusive and socially destructive.
Finally, in an analogy from medicine, when a tumor appears in a patient, it is not given legal recognition and protection as an independent organ system, but is rather excised by a surgeon. And if that tumor has metastasized to infiltrate and harm many other tissues and the body as a whole, systemic treatments such as chemo or immuno therapy are called for. It is past time to address the invasive malignancy of the cruise ship industry in and on our town.
Charles Sidman is a resident of Bar Harbor and helped to bring a citizen petition aimed at reducing cruise ship passenger disembarkation to voters.