MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 2017 ME 163 Docket: Han

- 16

- 539 Submitted

on	Briefs : May 2 5 ,	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. W e	conclude	that	the	C ouncil	acted	properly	pursuant to	the	Bar Harbor	Town	Charter	a nd	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

concern ing	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	 est ate business. According	 to	 Greif,	 t he	 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
C harter,	which	prohibits the	Town	C ouncil	or	its	councilors from	giving orders to	 Town	 employees. See Bar	 Harbor,	 Me .,	 Charter	 §	 C

- 11	 (July	 1,	 2010 )

. Accordingly, Greif	 urged	 the	 T own	 C ouncil	 to	 convene	 a n	 investigatory hearing	 to	 determine	 whether	 the	 councilors’	 conduct violated	 the	 Tow n C harter	 and	 consequently warranted	 forfeiture	 of their	 positions	 on	 the
C ouncil

. [¶ 5 ]	 	 On	 January	 5,	 2016,	 one	 day	 after	 the	 date	 o f	 Greif’s	 letter,	 the
Town	 C ouncil	 held	 a	meeting. While	in	 a	 regular	 session,	 the C ouncil	 voted
7

- 0	 to	 enter	 an	 executi ve	 session “for	 the	 purpose	 of	 consulting	 with	 the3 Town’s	attorney	concerning	the	legal	rights	and	duties	of	the	Town	in	regard to” the	 Council’s	 receipt	 of	 Greif’s	letter

. Aft er	 approximately	 one	 hour,	 the
C ouncil

— 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	 c ontained	 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	a n appeal in	 which he	 sought	 review	 of	 the	 C ouncil’s	 actions	 in	 disposing	 of	 the allegations	 contained	 in	 h is	 letter. See 4	 M.R.S.	 §	 105(3);	 M.R.	 Civ.	 P.	 80B. Additionally, Greif alleged in	his c omplaint that	the	Town	C ouncil	violated the provisions	 of	 Maine’s	 Freedom	 of	 Access	 Act	 (F O AA),	 1	 M.R.S.	 §§	 400

- 521 (2016) , when ,	 he	 claimed,	 the	 C ouncil	 discussed the	 substance	 of his allegations	 in	 an	 executive session	 closed	 to	 the	 public. The	 court rejected Greif’s F O AA	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	C ouncil,	having	not	sought	reelection after	the expiration of	 his	 term. The	 parties	 agree	 that	 this	 appeal,	 to	 the extent	 it	 involves	 the	 coun cilor	 no	 longer serving	 on	 the	 C ouncil,	 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	limi ted	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 re v iew	 the	Town	C ouncil’s	decision “directly	 for	error	of	law, abuse	 of	 discretion	 or	 findings	 not	 supported	 by	 substantial	 evidence	in	 the

reco rd.” Osprey	Family	Tr. ,	2016	ME	89,	¶	9,	141	A.3d	1114 (quotation	marks omitted)

. In	so	doing, we	review	the	relevan t	provisions	of	the	Town	C harter de	novo. I d.
A. Town	Charter [¶ 8 ]		Greif	contends	that the	Town C harter requires the	Town	C ouncil	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	C harter	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	C harter	provides	that a	councilor	“shall forfeit	 his/ her	 office” if	 the	 councilor	 “[v]iolates	 any	 express prohibition ”	 of the	 Town	 C harter. 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	forfe iture	of	their	office	and for	that	purpose5 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. [¶1 0 ] 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	C harter that	 reserves to the	C ouncil	itself the	power	to	determine	what	condu ct	warrant s	 forfeiture	under	the	Charter. Id. [¶1 1 ] On	the	contrary,	a plain	language	reading	of the Charter	comports with	the	Town	C ouncil’s	actions	here.		After	receivi ng	Greif’s letter ,	the	Town
C ouncil,	in	an	executive	session	where	 the	councilor s named	in	Greif’s	letter

were not	present,	c onferred	with	its	attorney about	 the	C ouncil’s	duties	and obligations	 regarding	 the	 letter	 and ,	 in	 public	 session, as	 the	 “jud ge	 of	 the grounds	 of	 forfeiture , ”	 decided	 to	 pursue no further	 action. S ee	 i d. If	 the
Town Council	 had	 determined	 that	 the councilor s ’ conduct	 as	 alleged	in	 the letter constituted	grounds	 for	 forfeiture,	it	 could	 have	 then	 charged them in6 writing,	at	which	point	the	charged	councilor s 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	C ouncil,	upon	receiving	Greif’s	letter,

was not	required to	hold	an	investigatory	hearing	on	Greif’s	allegations.
B. Freedom	of	Access	Act [¶1 2 ] Greif	 also	 contends	 that	 the	 court	 erred	 in	 concluding	 that	 the procedure the	Town	C ouncil utilized in declining to pursue	 further	action	on his allegations was	permissible	pursuant	to FOAA

. 2 Specifically,	he	argues	that the Town	 C ouncil	 violated the	 Act by	 making	 a	 decision	 “as	 to	 whether	 to believe	 or	 disbelieve”	 the	 allegations	 i n	 Greif’s letter in	 a	 closed executive
session. [¶1 3 ] 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	rev iew	under	M.R.	Civ.	P.	80B	or	if he	is	asserting	a	separate	cause	of	action based	on	a	violation	of	the Act. S ee M.R.	Civ.	P.	80B(i). Nonetheless,	as	expla ined	in	detail	below, the	Town C ouncil’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. [¶1 4 ] The	 Town	 C ouncil ’s	 actions	 comported	 with FOAA mandates

. The	 official	 minute s	 of	 the	 January	 5,	 2016,	 Town C ouncil	 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	 t he	 executive	 session,	 the	 Town	 C ouncil	 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	c onsideratio n	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	 l egal	 rights	 and	 duties”	 of	 the	 C ouncil as they pertained to	the	allegations	contained	in	Greif’s	letter

. Therefore, because	the
Town	 C ou ncil	 neither	 violated	 the	 Town	 C harter	 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 F OR C LERK R EFERENCE O NLY