YARMOUTH — The town was warned last fall that if a proposed charter amendment banning certain people from running for Town Council was approved it could be challenged in court.

Yarmouth Town Councilor Meghan Casey is one of six plaintiffs challenging a new charter restriction prohibiting town or school employees from running for Town Council. Courtesy / Town of Yarmouth

Tuesday the ACLU of Maine followed through on behalf of several residents, including a town councilor.

The organization filed a lawsuit in U.S. District Court in Portland arguing that the change, which voters approved last November, violates the First Amendment of the U.S. Constitution.

Zachary Heiden, legal director for the ACLU of Maine, said in an Aug. 26 interview that the amendment, which prohibits municipal or school employees from being elected to the Town Council, runs counter to established precedent that protects the right of individuals “to campaign for public office, to serve in public office, and to vote for one’s preferred candidate.”

The plaintiffs in the lawsuit include Town Councilor Meghan Casey, who teaches Latin at Yarmouth High School; former Town Councilor Thomas Reinsborough; former School Committee member David Ray; parent Kathryn Sharpless, and other members of the Reinsborough family.

Several months after Casey was elected to the Town Council in June 2018, a group calling itself Yarmouth Citizens for Responsible Government began circulating a petition calling for an amendment to the Town Charter that would prevent councilors from holding a paid town or School Department office or job at the same time.

James MacLeod, a former councilor, was one of the driving forces behind the petition. He could not be reached for comment Tuesday, but said in a prior interview that the charter change was solely a matter of “good governance.”

Throughout her campaign for the council, Casey faced questions about whether a School Department employee could legally serve on the town’s governing board, even though an opinion from town attorney Shana Cook Mueller in 2017 indicated there weren’t any prohibitive conflicts of interest.

Prior to the referendum vote on the change last fall, the ACLU of Maine sent a letter to Town Manager Nat Tupper stating that “prohibiting town and school employees from campaigning for and serving on the Yarmouth Town Council would violate (their) First Amendment rights.”

The letter went on to state that if Yarmouth adopted the proposed amendment, “it may face litigation on behalf of public employees who wish to serve their community through elected office” and that “this litigation could prove extremely costly to the town.”

Voters nonetheless approved the amendment, 3,088 to 2,147.

Afterwards, Heiden told The Forecaster the ACLU of Maine was considering suing either Yarmouth or Falmouth, which has a similar restriction against town or school employees serving on the Town Council.

At the time he said the ACLU was “fairly confident” it could win such a lawsuit, particularly because voters have a constitutional right to select their leaders and restrictions on that ability “cannot be “irrational or arbitrary (and) … this restriction seems like it is.”

In a press release issued Tuesday by the ACLU of Maine, Heiden said “courts have consistently held that restrictions like the one adopted by Yarmouth must serve a substantial public interest, and Maine law even specifically anticipates that school teachers can and will serve as municipal officers.”

Tupper, the town manager, said by email Tuesday that he had just received the complaint and had not had time to read it. “We will refer the matter to the town attorney to guide us on the appropriate ways to answer,” he said.

Former Yarmouth Town Councilor James MacLeod was a leader in the effort to keep town or school employees off the governing board. Courtesy / Portland Trust Co.

The full text of the complaint can be found online.

Plaintiff David Ray said in the ACLU press release that one reason he joined the lawsuit is “there (wasn’t) enough public dialogue … before it went to a vote. Voters didn’t have enough information about what this change would truly mean for the town in the long run.”

Thomas Reinsborough said he joined the lawsuit because “this change disqualifies far too many people from serving on the council – people whose experiences and insight would be truly useful to have.”

Both Heiden and Casey said this week that if Yarmouth Citizens for Responsible Government was concerned about conflicts of interest, there’s an existing law that all elected officials are obliged to follow, which requires them to recuse themselves from debate or voting when there is a conflict.

In addition, Casey said that prior to the charter amendment being enacted, “public employees often served on the council without incident” and others on the council have had to recuse themselves far more than she has as a teacher in the Yarmouth schools.

Casey said she agreed to be a plaintiff because “I care deeply about Yarmouth and I would like to be able to continue to serve,” and, she said, “I believe this charter amendment is unconstitutional and that’s not OK.”

“To have a healthy, robust government we need as diverse and representative a group to serve as possible,” Casey added. “If I wanted to seek re-election I couldn’t, and as it stands now I would like to run again.” Her  term expires in June 2021.

Casey said she understands it will cost the town money to defend the lawsuit, if it decides to do so. But, she said, “I don’t want to see the town going down the wrong path. (The amendment) bans a large group of people from serving.”

The lawsuit states that “this is a case about the most essential function of the First Amendment’s free speech clause: the protection of open and unencumbered political discourse.”

It adds “activities associated with campaigning for, and serving in, elected office are among the most highly protected forms of (free) expression.”

In describing the plaintiffs involved, the suit says Casey “has served her community on the Town Council with honor, but she will be prevented from campaigning for re-election under this restriction. Mark Reinsborough, a volunteer firefighter, and Elizabeth Reinsborough, an administrative assistant at the local middle school, have likewise served their community with honor, but they will be prevented from ever running for town office under this restriction.”

And, the lawsuit continues, “David Ray, Thomas Reinsborough and Kathryn Sharpless, residents of Yarmouth, are prevented from voting for the candidate that they view as the most qualified under this restriction.”

The suit asks the court to declare the charter amendment unconstitutional and to enjoin the town from enforcing the prohibition on employees from serving on the Yarmouth Town Council. It also seeks attorney fees.

Heiden said that the suit “could possibly be resolved without a trial, since there are not many facts in dispute.”

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