NEW GLOUCESTER — The term limit ordinance passed by voters at last May’s town meeting didn’t survive a full year, with the Selectboard voting 3-2 Monday night to find it legally invalid.
Selectboard Member Stephen Hathorne, who helped lead the initial term limit effort and registered one of the dissenting votes at the April 2 meeting, said he was “absolutely disgusted” by the move.
“To me, this is a cold slap in the face to the voters,” Hathorne said. “The people wanted it, and the people who didn’t want it just changed the vote of the people, and it stinks.”
Voters at the May 1, 2017 meeting voted 66-44 in favor of the ordinance that limited Selectboard service to three consecutive three-year terms, and required members to be off the board for three years before running for it again.
While the term limit issue was not slated to be on Monday night’s agenda, Town Manager Carrie Castonguay suggested adding it to the agenda at the onset of the meeting after receiving a legal opinion from the Maine Municipal Association.
“I do not think that this ordinance is effective. A town cannot establish a term limit for the Select Board through ordinance, that can only be done through charter,” said MMA Staff Attorney Rebecca McMahon in an April 2 email to Castonguay. “Title 30-A MRSA § 2526 states that ‘unless otherwise provided by charter’ a person is qualified to hold a municipal office if he/she is a resident of Maine, at least 18 years old, and a US citizen. A term limit would count as an additional qualification for municipal office, so would have to be adopted by charter.”
The Town of New Gloucester does not have a charter.
In an email sent to the Selectboard members about an hour and a half before Monday night’s meeting, Castonguay recommended that the board follow McMahon’s opinion provided earlier that day and invalidate the term limit ordinance.
Selectman Steven Libby made a two-part motion that night to invalidate the term limits ordinance based on MMA input while also directing Castonguay to consult town attorneys at Portland-based firm Bernstein Shur on the matter.
Libby said by phone Wednesday that if town lawyers at Bernstein Shur differed with MMA’s opinion, the issue could come back to the board for reconsideration.
Libby, who has served on the Selectboard for two decades and was slated to be termed out next year under the ordinance, raised concerns about the impact of term limits last year and brought up the charter issue at the 2017 town meeting.
He said that waiting for Bernstein Shur’s opinion before voting on the ordinance would have been complicated by the April 13 deadline for nomination papers. Libby said not acting on MMA’s opinion would have denied due process to Selectboard Chairwoman Linda Chase as a potential candidate.
“If we held off, we would have been withholding information from Linda Chase, who could be a candidate,” Libby said. “In my opinion, we had information that said that the ordinance should be invalidated by the board.”
Chase, who was set to be term-limited this year under the ordinance, also voted to find it invalid. Chase had already taken out nomination papers to run for the board again before the ordinance was voted invalid.
She said in an interview last week that “yes, allegedly I’m termed out” and indicated that she was waiting to see if a new citizen’s petition would materialize to overturn the term limit ordinance.
Castonguay said that she first reached out to McMahon about the ordinance after Chase came to her with a question from a citizen.
Chase said Monday night that she brought the issue to Castonguay to discuss how to strengthen the ordinance “so the town wouldn’t necessarily have to go to court, which the selectmen have the right to do.”
“I’m the one who’s termed out, I didn’t want people to think that it’s me saying, ‘hey, I didn’t want to be termed out,’ ” Chase added Monday night, saying the conversation with Castonguay was about “how to protect the town.”
Selectboard Member Lenora Conger was the third vote in favor of invaliding the term limits, and Selectboard Member Joseph Davis was the second no vote.
Hathorne said by phone Wednesday that there are “many concerned citizens” following Monday night’s vote, and that there is an effort to explore the possibility of getting an injunction from a judge to uphold the term limits ordinance.
“Recall is not off the table,” he added.
Hathorne, who is running for reelection this year, asked Monday night about a separate legal opinion on the term limit ordinance provided to the town last January by a lawyer at Bernstein Shur.
That opinion, which attorney Philip Saucier gave to then-Town-Manager Paul First, acknowledged some gray area surrounding the term limit issue.
“Although it is reasonable for the Board of Selectmen to place the petitioned article on the next warrant, I did want to note that it is not clear under Maine law whether a town without a charter may enact term limits for municipal officers,” Saucier said in his January 2017 email.
Saucier, who leads Bernstein Shur’s municipal and government services practice, cited the same statute as McMahon that references a charter. But unlike McMahon, he did not explicitly say that he believed the measure to be invalid.
“On the other hand, the Court has held that under home rule the Legislature has not implicitly denied any power granted to municipalities unless the municipal ordinance in question would frustrate the purpose of any state law. To my knowledge there is no case law directly on point; however, the Law Court will liberally construe grants of initiative and referendum so as to ‘facilitate, rather than to handicap, the people’s exercise of their sovereign power to legislate.’ ”
Hathorne had wondered aloud whether MMA or Bernstein Shur was “the ultimate justice in this” and said that the more than 400 signatures on the initial citizen’s petition supporting term limits “speaks volumes.”
“State law speaks volumes as well, Steve,” responded Libby.
New Gloucester residents voted 66-44 last May to enact term limits for the Selectboard.