YARMOUTH — The American Civil Liberties Union of Maine is considering suing to block a recently approved Town Charter amendment that would prevent school and town employees from serving on the Town Council.

It’s a fight the Portland-based ACLU is “fairly confident” it can win, an official said, based on a similar case where the organization prevailed against South Portland.

The amendment to the Town Charter passed in a referendum Nov. 6 by a vote of 3,088 to 2,147. According to Town Manager Nat Tupper, charter amendments go into effect 90 days after an election. In this case, “sometime in early February.”

Zachary Heiden, legal director of the ACLU of Maine, said Nov. 9 he sent a letter to Tupper before the election telling him if the amendment passed, the town “might face litigation” on behalf of employees who wish to hold office.

“We think laws like this violate the First Amendment rights of potential candidates, as well as the rights of voters to choose the leaders they want,” Heiden said.

Heiden’s letter to Tupper cited a 2011 lawsuit brought on behalf of two South Portland residents challenging a restriction on public employees serving on the city School Board.

According to Heiden, the Maine Superior Court ruled in the residents’ favor, and the Maine Supreme Judicial Court affirmed that decision, allowing the residents to continue serving and awarding them $50,000 in legal fees and court costs.

Falmouth’s charter also prohibits town and school employees from serving on its council, and Heiden said he expects the ACLU’s “next lawsuit” on the issue – whether it’s against Falmouth or Yarmouth – will also be successful.

His letter to Tupper said the ACLU is “fairly confident” courts would reach a “similar result” to the South Portland case in a challenge to the Yarmouth restriction.

As of Nov. 13, Heiden said he had not received a response from Tupper. His letter to Tupper is available in its entirety on the ACLU website. 

“We are hopeful that voters in Yarmouth will ultimately decide not to support this restriction, or that there is some way for you or the town council to prevent the restriction from being implemented,” the letter states. “But if not, the ACLU of Maine may find it necessary to bring suit to block this restriction from going into effect.”

When asked Nov. 9 about the potential litigation, Tupper said via email he could not “be of help.”

Last summer, a group of residents calling themselves Yarmouth Citizens for Responsible Government gathered more than the 526 signatures required to send the charter amendment to referendum.

Councilor Meghan Casey, who teaches at Yarmouth High School and was elected to the council in June, said Nov. 7 that she didn’t know how she felt about a possible legal challenge to the amendment.

She said she believes, however, the concept of banning town and school employees from the council needs to be tested statewide “at some point.”

“I don’t know if Yarmouth will be that test case or not,” she said. “We have to get a definitive answer on whether this can happen or not.”

Casey also said last week legal experts are “in agreement” that such prohibitions on school employees “don’t jive” with the state law or U.S. Constitution.

Heiden echoed that sentiment.

He said voters have a constitutional right to select their leaders, and restrictions on that ability “cannot be irrational or arbitrary.”

“This restriction seems like it is,” Heiden said.

He also said candidates campaigning for office and asking people for their vote after explaining their positions on policy are “protected activities” under the First Amendment. Preventing people from doing that “simply because they are public employees,” Heiden said, “seems arbitrary and not constitutional.”

In Falmouth, Town Attorney Phillip Saucier wrote in an opinion dated May 25 that the Town Charter states “no councilor shall hold any paid office or position of employment with the town.”

The question arose after John Lane, a former candidate for council who was defeated in June, inquired about whether his position as a science teacher at Falmouth High School would prevent him from serving on the council.

Saucier said his reading of the Town Charter indicates the rule applies to employees in any town department, including schools.

Heiden, meanwhile, said the ACLU has talked with Yarmouth residents who believe the Yarmouth amendment warrants action.

“We’ve talked to a number of people in the town who are concerned about it and who want to do something about it,” he said. “People in Yarmouth understand that your fundamental rights, including your First Amendment rights, can be taken away at the ballot box.”

Elizabeth Clemente can be reached at 780-9123 or eclemente@theforecaster.net. Follow Elizabeth on Twitter @epclemente. 

Zachary Heiden, ACLU of Maine legal director: “We think laws like this violate the First Amendment rights of potential candidates, as well as the rights of voters to choose the leaders they want.”

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