BRUNSWICK — Concern about tax implications and liability may sink the town’s proposed shellfish fee changes.

The fee increase was proposed to shield the town from possible legal action by the U.S. Department of Labor, which has found that some of the uncompensated conservation work towns and cities require from shellfish harvesters violates federal labor laws.

The proposed changes would have increased the cost of an annual license from $300 to $500. Harvesters could reduce the cost by accruing 20 credit hours of conservation work, for which they would be paid $10 per hour. 

But compensating harvesters for their time raised unintended issues, Marine Resources Officer Dan Devereaux said.

“There’s concerns about the tax implications and the process, and what it might cost to administer a program like that,” Devereaux said.

Even though the harvesters’ hourly pay would be applied directly to their conservation requirement, the program would still technically make them town employees, opening a host of other problems, town attorney Stephen Langsdorf said. 

“If you establish an employment relationship with someone, you get into all sorts of issues,” including minimum wage, workers compensation insurance and tax withholding, Langsdorf said.

A buy-out clause in the proposed ordinance that would have allowed a harvester to simply pay the extra fee and avoid conservation work altogether was also questioned by town officials, according to Devereaux.

“The town didn’t think that it was fair to have that as an option,” he said, noting that it created a division between people who have the financial means to opt out of the program and those who did not. 

Instead, Langsdorf tried to broaden the scope of propagation work, which is exempt from the labor regulations.

“The town absolutely doesn’t see these harvesters as being employees, so we wanted to make sure that none of the activities they were required to do could be somehow construed as being done by a town employee,” Langsdorf said.

While the Labor Department only considers propagation to be directly planting shellfish seed, there are actually a lot more factors to consider, Devereaux noted. 

Propagation activities start at the committee level, in discussions about where, when and what to plant, and continue all the way through to actually putting the seed on the flats, he said. 

It could also include activities like shoreline clean-ups, which are necessary to remove large obstacles like barrels and even wharves from growing areas, but aren’t considered exempt by the DOL. 

“We feel that if we can operate under that broadened definition of propagation, than we might not have to change anything,” Devereaux said. 

Neighboring Harpswell is also considering changes to its fee structure to avoid DOL enforcement and encourage conservation work, but its proposed ordinance changes are simpler than Brunswick’s and don’t include an hourly wage, Marine Resource Coordinator Darcie Couture said. 

Harpswell’s attorney has reviewed and approved the plan to raise the license fee from $200 to $600, which can be offset with credits worth $400 from completing four conservation days, Couture said.

“We’re not going to run into any of those tax issues,” Couture added.

“Because of the way that we’re phrasing it and because we’re keeping it pretty straightforward in general, we’re circumvented any problems like that, at least from the attorney’s opinion,” she said.

Harpswell voters are expected to decide on the fee changes at the March 14 Town Meeting.  

Brunswick’s Marine Resource Committee intends to go back to the drawing board with the proposed fee changes. While he feels that putting a value on the harvester’s work is the right way to proceed, Devereaux suggested the proposal might not be feasible.

“I still think it’s a great idea, but sometimes great ideas don’t work in a government structure,” he said.

Peter L. McGuire can be reached at 781-3661 ext. 100 or [email protected]. Follow him on Twitter @PeteL_McGuire.

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