MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 2017 ME	163

Docket: Han-16-539

Submitted

		on	Briefs: May 25,	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.	 We	conclude	that	the	Council	acted	properly	pursuant to	the	Bar	

Harbor	Town	Charter	and	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	

concerning	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	 estate	

business.	 	 According	 to	 Greif,	 the	 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	

Charter,	which	prohibits the	Town	Council	or	its	councilors	from	giving orders	

to	 Town	 employees.	 	 See Bar	 Harbor,	 Me.,	 Charter	 §	 C-11	 (July	 1,	 2010).		

Accordingly,	 Greif	 urged	 the	 Town	 Council	 to	 convene	 an	 investigatory

hearing	 to	 determine	 whether	 the	 councilors’	 conduct	 violated	 the	 Town	

Charter	 and	 consequently	 warranted	 forfeiture	 of their	 positions	 on	 the	

Council.		

[¶5]	 	 On	 January	 5,	 2016,	 one	 day	 after	 the	 date	 of	 Greif’s	 letter,	 the	

Town	 Council	 held	 a	meeting.	 While	in	 a	 regular	 session,	 the	Council	 voted	

7-0	 to	 enter	 an	 executive	 session	 “for	 the	 purpose	 of	 consulting	 with	 the	
3

Town’s	attorney	concerning	the	legal	rights	and	duties	of	the	Town	in	regard	

to”	the	 Council’s	 receipt	 of	 Greif’s	letter.	 	After	 approximately	 one	 hour,	 the	

Council—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	 contained	 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	an appeal	

in	 which	 he	 sought	 review	 of	 the	 Council’s	 actions	 in	 disposing	 of	 the	

allegations	 contained	 in	 his	 letter.	 See	 4	 M.R.S.	 §	 105(3);	 M.R.	 Civ.	 P.	 80B.

Additionally,	Greif alleged	in	his	complaint that	the	Town	Council	violated the

provisions	 of	 Maine’s	 Freedom	 of	 Access	 Act	 (FOAA),	 1	 M.R.S.	 §§	 400-521	

(2016), when,	 he	 claimed,	 the	 Council	 discussed	 the	 substance	 of	 his	

allegations	 in	 an	 executive	 session	 closed	 to	 the	 public.	 	 The	 court	 rejected	

Greif’s FOAA	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	Council,	having	not	sought	reelection	after	the expiration

of	 his	 term.	 The	 parties	 agree	 that	 this	 appeal,	 to	 the extent	 it	 involves	 the	 councilor	 no	 longer	

serving	 on	 the	 Council,	 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	limited	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	review	 the	Town	Council’s	decision “directly	 for	error	of	law,	

abuse	 of	 discretion	 or	 findings	 not	 supported	 by	 substantial	 evidence	in	 the	

record.”		Osprey	Family	Tr.,	2016	ME	89,	¶	9,	141	A.3d	1114 (quotation	marks	

omitted).		In	so	doing,	we	review	the	relevant	provisions	of	the	Town	Charter	

de	novo.	 Id.	

A. Town	Charter

[¶8]		Greif	contends	that	the	Town	Charter requires the	Town	Council	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	Charter	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	Charter	provides	that a	councilor	“shall	

forfeit	 his/her	 office”	if	 the	 councilor	 “[v]iolates	 any	 express	 prohibition”	 of	

the	 Town	 Charter.	 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	forfeiture	of	their	office	and	for	that	purpose	
5

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.	

[¶10]		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	Charter	that	 reserves to the	Council	itself	

the	power	to	determine	what	conduct	warrants	 forfeiture	under	the	Charter.		

Id.		

[¶11]	 On	the	contrary,	a plain	language	reading	of	the	Charter	comports	

with	the	Town	Council’s	actions	here.		After	receiving	Greif’s	letter,	the	Town	

Council,	in	an	executive	session	where	 the	councilors named	in	Greif’s	letter	

were not	present,	conferred	with	its	attorney	about	 the	Council’s	duties	and	

obligations	 regarding	 the	 letter	 and,	 in	 public	 session, as	 the	 “judge	 of	 the	

grounds	 of	 forfeiture,”	 decided	 to	 pursue	 no	 further	 action.	 	 See	 id.	 	 If	 the	

Town	Council	 had	 determined	 that	 the councilors’ conduct	 as	 alleged	in	 the	

letter	 constituted	grounds	 for	 forfeiture,	it	 could	 have	 then	 charged	them in	
6

writing,	at	which	point	the	charged	councilors 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	Council,	upon	receiving	Greif’s	letter,	

was	not	required to	hold	an	investigatory	hearing	on	Greif’s	allegations.		

B. Freedom	of	Access	Act	

[¶12]	 Greif	 also	 contends	 that	 the	 court	 erred	 in	 concluding	 that	 the	

procedure	the	Town	Council	utilized	in declining to pursue	 further	action	on	

his allegations was	permissible	pursuant	to FOAA.

2 Specifically,	he	argues	that	

the Town	 Council	 violated	 the	 Act by	 making	 a	 decision	 “as	 to	 whether	 to	

believe	 or	 disbelieve”	 the	 allegations	 in	 Greif’s	 letter in	 a	 closed executive	

session.		

[¶13]	 	 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	review	under	M.R.	Civ.	P.	80B	or	if he	is	asserting	a	separate	cause	of	action	

based	on	a	violation	of	the	Act. See	M.R.	Civ.	P.	80B(i).		Nonetheless,	as	explained	in	detail	below,	

the	Town	Council’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.	

[¶14]	 	 The	 Town	 Council’s	 actions	 comported	 with	 FOAA	 mandates.		

The	 official	 minutes	 of	 the	 January	 5,	 2016,	 Town Council	 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	 the	 executive	 session,	 the	 Town	 Council	 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	consideration	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	 legal	 rights	 and	 duties”	 of	 the	 Council as	 they

pertained to	the	allegations	contained	in	Greif’s	letter.		Therefore,	because	the	

Town	 Council	 neither	 violated	 the	 Town	 Charter	 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

FOR	CLERK	REFERENCE	ONLY