MAINE SUPREME JUDICIAL COURT Reporter of Decisions Decision: 2017 ME 163 Docket: Han-16-539 Submitted on Briefs: May 25, 2017 Decided: July 20, 2017
Panel: SAUFLEY, C.J., and ALEXANDER, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
ARTHUR J. GREIF
v.
TOWN OF BAR HARBOR
JABAR, J.
[¶1] Arthur J. Greif appeals from a judgment of the Superior Court
(Hancock County, Anderson, J.) affirming the decision of the Bar Harbor Town
Council declining to conduct an investigatory hearing after receiving a letter
from Greif in which he detailed allegations of misconduct by two of the Town’s
councilors. We conclude that the Council acted properly pursuant to the Bar
Harbor Town Charter and Maine’s Freedom of Access Act, and we affirm the
judgment.
I. BACKGROUND
[¶2] The following facts are set out in the administrative record. See
M.R. Civ. P. 80B(f); Osprey Family Tr. v. Town of Owls Head, 2016 ME 89, ¶ 2,
141 A.3d 1114. 2
[¶3] Greif is a Bar Harbor resident. On January 4, 2016, he sent a letter
to five of the Town’s seven councilors detailing allegations of misconduct
concerning the other two councilors. In the letter, Greif alleged that, in 2013,
the two councilors secretly met with the Town’s Code Enforcement Officer
(CEO) to encourage the CEO to clandestinely monitor another Town
employee’s use of the Town photocopier in hopes of uncovering evidence that
the Town employee used the photocopier to conduct his private real estate
business. According to Greif, the two councilors planned to report any
wrongdoing the CEO observed to the Town manager.
[¶4] Greif’s letter alleged that the councilors’ actions violated the Town
Charter, which prohibits the Town Council or its councilors from giving orders
to Town employees. See Bar Harbor, Me., Charter § C-11 (July 1, 2010).
Accordingly, Greif urged the Town Council to convene an investigatory
hearing to determine whether the councilors’ conduct violated the Town
Charter and consequently warranted forfeiture of their positions on the
Council.
[¶5] On January 5, 2016, one day after the date of Greif’s letter, the
Town Council held a meeting. While in a regular session, the Council voted
7-0 to enter an executive session “for the purpose of consulting with the 3
Town’s attorney concerning the legal rights and duties of the Town in regard
to” the Council’s receipt of Greif’s letter. After approximately one hour, the
Council—excluding the councilors who were named in the complaint—
reentered regular session and voted unanimously to pursue no further action,
concluding “that the alleged facts and circumstances contained in the
January 4, 2016 letter do not warrant further review or consideration by the
Council.”
[¶6] On January 29, 2016, Greif filed with the Superior Court an appeal
in which he sought review of the Council’s actions in disposing of the
allegations contained in his letter. See 4 M.R.S. § 105(3); M.R. Civ. P. 80B.
Additionally, Greif alleged in his complaint that the Town Council violated the
provisions of Maine’s Freedom of Access Act (FOAA), 1 M.R.S. §§ 400-521
(2016), when, he claimed, the Council discussed the substance of his
allegations in an executive session closed to the public. The court rejected
Greif’s FOAA claims and affirmed the actions of the Town. Greif appeals.1
1 The parties have represented that, at the time of this appeal, one of the councilors involved in
the alleged misconduct is no longer on the Council, having not sought reelection after the expiration of his term. The parties agree that this appeal, to the extent it involves the councilor no longer serving on the Council, is moot. Because, however, with regard to the active councilor, “there remain sufficient practical effects flowing from the resolution of the litigation to justify the application of limited judicial resources,” Greif’s claims pertaining to that councilor are not moot. Monroe v. Town of Gray, 1999 ME 190, ¶ 4, 743 A.2d 1257 (alteration omitted) (quotation marks omitted). 4
II. DISCUSSION
[¶7] We review the Town Council’s decision “directly for error of law,
abuse of discretion or findings not supported by substantial evidence in the
record.” Osprey Family Tr., 2016 ME 89, ¶ 9, 141 A.3d 1114 (quotation marks
omitted). In so doing, we review the relevant provisions of the Town Charter
de novo. Id.
A. Town Charter
[¶8] 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. A plain
language reading of the Town Charter does not support Greif’s interpretation.
See Lane Constr. Corp. v. Town of Washington, 2007 ME 31, ¶ 7, 916 A.2d 973
(“We look first to the plain meaning of the terms of the ordinance to give effect
to the legislative intent.”).
[¶9] Section C-12 of the Town Charter provides that a councilor “shall
forfeit his/her office” if the councilor “[v]iolates any express prohibition” of
the Town Charter. Bar Harbor, Me., Charter § C-12 (July 1, 2010). Section
C-13, entitled “Judge of qualifications,” establishes that “[t]he Council shall be
the judge of . . . the grounds for forfeiture of their office and for that purpose 5
shall have the power to provide for compulsory attendance of witnesses, the
administering of oaths, and the compulsory production of evidence.” Id.
§ C-13. That same section sets forth that “[a]n officer charged in writing with
conduct constituting grounds for forfeiture of his/her office shall be entitled
to a public hearing on demand, made within 10 days of receipt of notice of
forfeiture.” Id.
[¶10] It is therefore 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 under the Charter.
Id.
[¶11] On the contrary, a plain language reading of the Charter comports
with the Town Council’s actions here. After receiving Greif’s letter, the Town
Council, in an executive session where the councilors named in Greif’s letter
were not present, conferred with its attorney about the Council’s duties and
obligations regarding the letter and, in public session, as the “judge of the
grounds of forfeiture,” decided to pursue no further action. See id. If the
Town Council had determined that the councilors’ conduct as alleged in the
letter constituted grounds for forfeiture, it could have then charged them in 6
writing, at which point the charged councilors could request a public hearing
on the charges. See Bar Harbor, Me., Charter §§ C-12, C-13. Therefore, the
court did not err in concluding that the Council, upon receiving Greif’s letter,
was not required to hold an investigatory hearing on Greif’s allegations.
B. Freedom of Access Act
[¶12] Greif also contends that the court erred in concluding that the
procedure the Town Council utilized in declining to pursue further action on
his allegations was permissible pursuant to FOAA.2 Specifically, he argues that
the Town Council violated the Act by making a decision “as to whether to
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MAINE SUPREME JUDICIAL COURT Reporter of Decisions Decision: 2017 ME 163 Docket: Han-16-539 Submitted on Briefs: May 25, 2017 Decided: July 20, 2017
Panel: SAUFLEY, C.J., and ALEXANDER, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
ARTHUR J. GREIF
v.
TOWN OF BAR HARBOR
JABAR, J.
[¶1] Arthur J. Greif appeals from a judgment of the Superior Court
(Hancock County, Anderson, J.) affirming the decision of the Bar Harbor Town
Council declining to conduct an investigatory hearing after receiving a letter
from Greif in which he detailed allegations of misconduct by two of the Town’s
councilors. We conclude that the Council acted properly pursuant to the Bar
Harbor Town Charter and Maine’s Freedom of Access Act, and we affirm the
judgment.
I. BACKGROUND
[¶2] The following facts are set out in the administrative record. See
M.R. Civ. P. 80B(f); Osprey Family Tr. v. Town of Owls Head, 2016 ME 89, ¶ 2,
141 A.3d 1114. 2
[¶3] Greif is a Bar Harbor resident. On January 4, 2016, he sent a letter
to five of the Town’s seven councilors detailing allegations of misconduct
concerning the other two councilors. In the letter, Greif alleged that, in 2013,
the two councilors secretly met with the Town’s Code Enforcement Officer
(CEO) to encourage the CEO to clandestinely monitor another Town
employee’s use of the Town photocopier in hopes of uncovering evidence that
the Town employee used the photocopier to conduct his private real estate
business. According to Greif, the two councilors planned to report any
wrongdoing the CEO observed to the Town manager.
[¶4] Greif’s letter alleged that the councilors’ actions violated the Town
Charter, which prohibits the Town Council or its councilors from giving orders
to Town employees. See Bar Harbor, Me., Charter § C-11 (July 1, 2010).
Accordingly, Greif urged the Town Council to convene an investigatory
hearing to determine whether the councilors’ conduct violated the Town
Charter and consequently warranted forfeiture of their positions on the
Council.
[¶5] On January 5, 2016, one day after the date of Greif’s letter, the
Town Council held a meeting. While in a regular session, the Council voted
7-0 to enter an executive session “for the purpose of consulting with the 3
Town’s attorney concerning the legal rights and duties of the Town in regard
to” the Council’s receipt of Greif’s letter. After approximately one hour, the
Council—excluding the councilors who were named in the complaint—
reentered regular session and voted unanimously to pursue no further action,
concluding “that the alleged facts and circumstances contained in the
January 4, 2016 letter do not warrant further review or consideration by the
Council.”
[¶6] On January 29, 2016, Greif filed with the Superior Court an appeal
in which he sought review of the Council’s actions in disposing of the
allegations contained in his letter. See 4 M.R.S. § 105(3); M.R. Civ. P. 80B.
Additionally, Greif alleged in his complaint that the Town Council violated the
provisions of Maine’s Freedom of Access Act (FOAA), 1 M.R.S. §§ 400-521
(2016), when, he claimed, the Council discussed the substance of his
allegations in an executive session closed to the public. The court rejected
Greif’s FOAA claims and affirmed the actions of the Town. Greif appeals.1
1 The parties have represented that, at the time of this appeal, one of the councilors involved in
the alleged misconduct is no longer on the Council, having not sought reelection after the expiration of his term. The parties agree that this appeal, to the extent it involves the councilor no longer serving on the Council, is moot. Because, however, with regard to the active councilor, “there remain sufficient practical effects flowing from the resolution of the litigation to justify the application of limited judicial resources,” Greif’s claims pertaining to that councilor are not moot. Monroe v. Town of Gray, 1999 ME 190, ¶ 4, 743 A.2d 1257 (alteration omitted) (quotation marks omitted). 4
II. DISCUSSION
[¶7] We review the Town Council’s decision “directly for error of law,
abuse of discretion or findings not supported by substantial evidence in the
record.” Osprey Family Tr., 2016 ME 89, ¶ 9, 141 A.3d 1114 (quotation marks
omitted). In so doing, we review the relevant provisions of the Town Charter
de novo. Id.
A. Town Charter
[¶8] 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. A plain
language reading of the Town Charter does not support Greif’s interpretation.
See Lane Constr. Corp. v. Town of Washington, 2007 ME 31, ¶ 7, 916 A.2d 973
(“We look first to the plain meaning of the terms of the ordinance to give effect
to the legislative intent.”).
[¶9] Section C-12 of the Town Charter provides that a councilor “shall
forfeit his/her office” if the councilor “[v]iolates any express prohibition” of
the Town Charter. Bar Harbor, Me., Charter § C-12 (July 1, 2010). Section
C-13, entitled “Judge of qualifications,” establishes that “[t]he Council shall be
the judge of . . . the grounds for forfeiture of their office and for that purpose 5
shall have the power to provide for compulsory attendance of witnesses, the
administering of oaths, and the compulsory production of evidence.” Id.
§ C-13. That same section sets forth that “[a]n officer charged in writing with
conduct constituting grounds for forfeiture of his/her office shall be entitled
to a public hearing on demand, made within 10 days of receipt of notice of
forfeiture.” Id.
[¶10] It is therefore 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 under the Charter.
Id.
[¶11] On the contrary, a plain language reading of the Charter comports
with the Town Council’s actions here. After receiving Greif’s letter, the Town
Council, in an executive session where the councilors named in Greif’s letter
were not present, conferred with its attorney about the Council’s duties and
obligations regarding the letter and, in public session, as the “judge of the
grounds of forfeiture,” decided to pursue no further action. See id. If the
Town Council had determined that the councilors’ conduct as alleged in the
letter constituted grounds for forfeiture, it could have then charged them in 6
writing, at which point the charged councilors could request a public hearing
on the charges. See Bar Harbor, Me., Charter §§ C-12, C-13. Therefore, the
court did not err in concluding that the Council, upon receiving Greif’s letter,
was not required to hold an investigatory hearing on Greif’s allegations.
B. Freedom of Access Act
[¶12] Greif also contends that the court erred in concluding that the
procedure the Town Council utilized in declining to pursue further action on
his allegations was permissible pursuant to FOAA.2 Specifically, he argues that
the Town Council violated the Act by making a decision “as to whether to
believe or disbelieve” the allegations in Greif’s letter in a closed executive
session.
[¶13] Title 1 M.R.S. § 405 (2016) sets forth the circumstances under
which a town council may conduct a nonpublic executive session as well as
the topics on which the council may permissibly deliberate during those
sessions. Section 405(6)(E) permits, during an executive session,
“[c]onsultations between a body or agency and its attorney concerning the
legal rights and duties of the body or agency.” Alternatively, the statute 2 It is not clear from the face of his Rule 80B complaint whether Greif relies on FOAA as a
statutory avenue for review under M.R. Civ. P. 80B or if he is asserting a separate cause of action based on a violation of the Act. See M.R. Civ. P. 80B(i). Nonetheless, as explained in detail below, the Town Council’s actions did not violate the Act, and therefore the court did not err in affirming the Town’s actions in that regard. 7
prohibits a town council from approving “any ordinances, orders, rules,
resolutions, regulations, contracts, appointments or other official action in an
executive session.” 1 M.R.S. § 409(2) (2016). If a town council violates this
section, “[u]pon learning of any such action, any person may appeal to any
Superior Court in the State.” Id.
[¶14] The Town Council’s actions comported with FOAA mandates.
The official minutes of the January 5, 2016, Town Council meeting indicate
that the council voted 7-0 to enter into an executive session “for the purpose
of consulting with the Town’s attorney concerning the legal rights and duties
of the Town in regard to a complaint received against two Council members.”
At the conclusion of the executive session, the Town Council returned to
regular session and unanimously passed a resolution providing that “the
alleged facts and circumstances contained in [Greif’s] letter do not warrant
further review or consideration by the Council.” Section 405(6)(E) explicitly
permitted the Town Council to enter into an executive session to consult with
“its attorney concerning the legal rights and duties” of the Council as they
pertained to the allegations contained in Greif’s letter. Therefore, because the
Town Council neither violated the Town Charter nor FOAA, we affirm the
judgment. 8
The entry is:
Judgment affirmed.
Arthur J. Greif, appellant pro se
Edmond J. Bearor, Esq., and Jonathan P. Hunter, Esq., Rudman Winchell, Bangor, for appellee Town of Bar Harbor
Hancock County Superior Court docket number AP-2016-01 FOR CLERK REFERENCE ONLY