The Quoddy Tides

2006 June 23

Authority for Perry selectmen to hire attorney stirs debate

by Edward French

The debate over whether the selectmen in Perry have the authority to hire an attorney to review an agreement with Quoddy Bay LNG has heated up in the town, but there does not appear to be a clear answer to the question.

Towns in Maine operate under the "home rule" authority granted by the state's constitution and may govern themselves in any way that is not denied them by state or federal law. Under the town meeting/selectmen form of government, the selectmen function "as the executive arm administering, enforcing and carrying out the decisions made by the town meeting," according to the Maine Municipal Association. Towns, though, do not have municipal charters, and although Maine statutes, under Title 30-A, do include some requirements concerning the governing of towns, state law does not appear to address this issue. Some court cases, though, have shed some light on the debate.

At their May 15 meeting, the selectmen, by a 2-1 vote, hired the law firm of Eaton Peabody of Bangor to review the draft agreement between the town and Quoddy Bay LNG. Quoddy Bay has paid $10,000 to the town to offset the expense in the retaining of legal counsel.

In a May 19 letter to Eaton Peabody attorney Erik Stumpfel, Perry resident Ron Rosenfeld points out that the town as a whole has not voted to authorize the selectmen to hire an attorney to review previous negotiations between the Perry Improvement Association and Quoddy Bay LNG. He also notes that the agreement that Eaton Peabody will be reviewing was not negotiated by any group or individual approved by the town meeting.

In a May 28 letter he states that selectmen "do not have unfettered authority to enter into contracts absent town meeting approval." He refers to a case decided by the Maine Supreme Judicial Court in 1985, State of Maine v. Town of Franklin, which found that the selectmen of that town did not have the authority to sign a consent agreement with the state concerning the closing and relocating of its dump because there had not been a clear vote at the town meeting to authorize that action. Instead, there had been a vote to raise funds for a reserve fund for the dump "for such time as selectmen study and make arrangements for the best interest of the town."

Rosenfeld believes selectmen, without town meeting approval, can hire an attorney for a small expenditure to review a matter discussed at the town meeting, but he does not believe they have the authority, with no guidance from the town, to hire an attorney to legalize an agreement between a private organization and a developer.

In a June 1 letter, Stumpfel wrote to Rosenfeld that court decisions are limited to the facts of the case and should not be used concerning the issue involving Perry. He cites the case State v. Town of Appleton, in which, according to Stumpfel, the court assumed, without deciding, that the selectmen had general authority to hire legal counsel without prior town meeting approval. Rosenfeld and members of Perry Citizens for Responsible Growth have not been able to locate the case Stumpfel writes that he is citing.

In a June 12 letter, David Turner, chairman of the board of selectmen, argues that the selectmen can hire an attorney and that an article approved at the March 2006 town meeting authorized that expenditure. The article did approve funds for administrative expenses but did not specifically mention the hiring of an attorney or the agreement with Quoddy Bay LNG.

Turner also notes that the $10,000 legal fee prepayment from Quoddy Bay LNG will require a vote before the selectmen can expend that money. Also, any contractual agreements negotiated by the selectmen will come back to the town for approval. He writes, "Efforts to prevent the town from hiring legal counsel ultimately are not in the town's best interests."