Portland City Councilor April Fournier said this week that she will not recuse herself from discussions about a lawsuit that clean-elections advocates filed against the city, even though she is named as a plaintiff in the case.

Instead, Fournier said she has asked attorneys to file a formal request for the court to remove her as a plaintiff in any future filings in the case. Other parties in the lawsuit would have to consent before someone can be removed, according to a city attorney.

The issue emerged this week as the council considered how to respond to the court’s request for formal “findings of fact” to explain why it rejected a petition to place a public campaign financing proposal on the ballot in 2019. The council decided that such a change to the city’s charter would require a lengthy review process before it could go to voters. Fournier, who was not a councilor at the time, was one of 13 residents to sign on with Fair Elections Portland as plaintiffs in a lawsuit challenging that decision.

“I intend to review this charter amendment submitted by Portland voters with my council colleagues, and we will make findings based on evidence brought to the council, just as the Maine Supreme Court has now asked us to do,” Fournier said in a statement Thursday.

Mayor Kate Snyder would not say Friday whether she supports Fournier’s participation, but said she wants time to think about Fournier’s decision to ignore the advice of the city’s legal counsel that she recuse herself from future discussions. She said the council will likely discuss the case again in October.

“I’d rather stay away from whether or not she’s doing the right thing,” Sndyer said. “I’m not being asked to make that decision about her right now.”

However, at least one city councilor disagrees with Fournier’s decision, saying he’d like to see her recuse herself, even if she formally removes herself from the lawsuit.

“You can’t be the plaintiff and you can’t be the defendant in the case,” City Councilor Nicholas Mavodones said Friday. “To me, there would still remain a conflict or an appearance of a conflict. I would be troubled with her participating in any executive sessions or decisions around a case that she’s a signatory to.”

In her statement, Fournier noted that she collected signatures for a citizen referendum to create a municipal clean elections program and signed on to the subsequent lawsuit before she was elected to the council in 2020. She noted that during her campaign, she advocated in favor of creating such a program, which would provide city funds to pay for the campaigns of candidates who agree to limit the amount of private donations they receive.

“My presence on that lawsuit was never about my personal gain in any way,” Fournier wrote. “I never had any money at stake. This was about my community trying to make a change in our city constitution, and I will not apologize for my role in standing up for the voters who signed that petition.

“But now I’m on the City Council,” she continued. “I swore an oath when I took this job, and I intend to uphold that oath. I also promised to represent each and every one of you and to do my best to remember why you put me here.”

While Fournier’s statement seems to draw a line between her involvement in the suit as a citizen and her role as councilor, she was advocating as recently as July for the city to reverse its position and put the issue out to a voters this fall. In that July 12 email, obtained by the Press Herald and sent from her city email account, Fournier copied Fair Elections Portland’s lawyers and chairperson, but not the city attorney.

“I wanted to check in on the next steps regarding municipal clean elections as I have had outreach from the Fair Elections Portland group about getting the next steps identified for conversations about getting the charter amendment on the ballot for voters for November,” Fournier wrote. “I know we have a minimal amount of time and just wanted to see about how to get the ball rolling and if we might be able to meet to chat about where we go next? I’m not sure if Danielle (West, the city’s corporation counsel) should be in the meetings as well. I’m really interested in moving this forward.”

The city clerk this week said the ballots for the November election already had been ordered.

The group advocating for a clean elections program, Fair Elections Portland, sued the city in 2019 over its decision to not put the referendum on the ballot as a simple charter amendment. At the time, the council determined that the proposal was a significant revision, because it includes a funding mandate, and first would need to be reviewed by a charter commission, which has since been established and is actively looking at the issue.

The city successfully defended against the suit in Superior Court, but Fair Elections Portland appealed to the Maine Supreme Judicial Court. In June, the high court, while seemingly skeptical about the city’s position, determined that it did not have enough information to issue a ruling and remanded the case back to the city for formal fact finding – a statement justifying its decision.

Formulating and approving a formal justification for the council’s 2019 decision is what’s currently before the council.

The council met in executive session Monday to discuss the case, but Fournier did not attend because of a personal conflict.

Snyder expects the council to take up the issue again during a public session in October. The council would need to vote in open session to approve the findings of fact before sending it to the court.

Fournier said West, the city’s corporation counsel, advised her on Wednesday that Fournier did not have a formal conflict of interest because she did not stand to gain financially or personally from the court case.

However, in an interview, Fournier said that West urged her to recuse herself anyway. Fournier said that she decided against following West’s advice after reading the state’s conflict of interest law and consulting with the Maine Ethics Commission, the National League of Cities and others.

“The general opinion I have gotten back is it seems to be a rather extreme application of conflict of interest where there is no appearance of conflict of interest,” she said.

Jonathan Wayne, executive director of the Maine Ethics Commission, declined to provide details of his discussion with Fournier, other than to say the issue was outside of his purview and was “an unusual situation.”

“In April’s case, in short, I told her that we do not regulate the ethics of municipal officers and the question of whether she has a conflict is outside our area of expertise,” Wayne said. “It relates to how she should do her job as a city councilor and the unusual situation of being part of the legislative body of a city that she sued when she was a private citizen. We are not experts in these areas.”

West was not available to answer questions this week. But Jennifer Thompson, an associate corporation counsel for the city, said in an email Friday that the city’s legal department cannot comment on confidential legal advice given to councilors. She said the office reminds councilors of their obligations under state law “to avoid conflicts of interest and personal bias and to act impartially, particularly when the council is acting in a quasi-judicial capacity.”

“Councilors are reminded that a failure to do so can undermine their own credibility, that of the council as a whole, and, more broadly, undermine the public’s trust in government,” Thompson said. “This office provides guidance on how an individual councilor might evaluate whether they have a conflict of interest or personal bias that would prevent them from acting impartially. However, when advising the council on questions relating to conflicts of interest and bias, this office is also clear that, ultimately, the decision is for each individual councilor and the council as a whole to decide.”

Thompson said the fact-finding, deliberation and vote will be conducted in public. She said the current council has standing to vote on a previous council decision, even though five of the current members were not part of the original decision. She said those councilors will need to review the record and watch the relevant meetings before voting to approve their findings.

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