Portland councilor April Fournier said this week that she will not retreat from discussions of an active lawsuit that clean election lawyers have filed against the city, despite being named as a plaintiff in the case.
Instead, Fournier said she asked attorneys to make a formal motion to the court to remove her as a plaintiff in all future filings in the case. Other parties in the lawsuit would have to agree before anyone can be removed, according to a city attorney.
The issue emerged this week as the council pondered how to respond to the court’s request for formal “findings of fact” to explain why it refused to attempt to petition a public campaign fund proposal To be put to the vote in 2019. The council decided that such an amendment to the city charter would require a lengthy review process before it could go to the electorate. Fournier, who was not a councilor at the time, was one of 13 residents who registered with Fair Elections Portland as plaintiffs in a lawsuit against that decision.
“I intend to review this charter amendment tabled by the Portland electorate with my fellow councilors, and we will make findings based on evidence presented to the council, just as the Maine Supreme Court has now asked us to do.” said Fournier in a statement on Thursday.
Mayor Kate Snyder declined to comment on Friday on whether she supported Fournier’s participation, saying she wanted time to ponder Fournier’s decision to ignore advice from the city’s legal counsel that she is pulling out of future discussions. She said the council will likely discuss the case again in October.
“I’d rather stay away from whether she’s doing the right thing or not,” Sndyer said. “I am not being asked to make this decision about them now.”
At least one city council, however, disagrees with Fournier’s decision, saying they’d like to see her retire herself, even if she officially pulls out of the lawsuit.
“You cannot be the plaintiff and not the defendant in this case,” Councilor Nicholas Mavodones said on Friday. “For me there would still be a conflict or the appearance of a conflict. I would be concerned if she attends board meetings or decisions on a case that she has signed. “
In her statement, Fournier noted that she had collected signatures for a citizens’ referendum to create a clean local election program and joined the subsequent lawsuit before being elected to the council in 2020. She stated that while campaigning for such a program, she would use city funds to fund the campaigns of candidates who agreed to limit the amount of private donations they receive.
“My presence in this lawsuit was in no way about my personal gain,” wrote Fournier. “I never had any money at stake. This was about my community trying to change our city constitution and I will not apologize for my role in standing up for the voters who signed this petition.
“But now I’m on the city council,” she continued. “I took an oath when I took this job and I intend to keep that oath. I also promised to represent each and every one of you and do my best to remember why you brought me here. “
While Fournier’s testimony seems to draw a line between her involvement in the lawsuit as a citizen and her role as a councilor, she pleaded in July for the city to reverse its position and bring the issue to voters this fall. In that July 12 email, received by the Press Herald and sent from her city email account, Fournier copied the attorneys and the chairman of Fair Elections Portland, but not the city attorney.
“I wanted to review the next steps in terms of clean local elections as I was contacted by the Fair Elections Portland Group to determine the next steps for talks about introducing the constitutional amendment to the November ballot paper,” Fournier wrote . “I know we’re short on time and just wanted to see how we get the ball rolling and maybe we can meet to talk about where we’re going next? I’m not sure if Danielle (West, the town’s management consultant) should attend the meetings as well. I’m really interested in moving this forward. “
The city clerk said this week that the ballots for the November election had already been ordered.
The clean election manifesto group, Fair Elections Portland, sued the city in 2019 for its decision not to put the referendum on the ballot as a simple amendment to the statutes. At the time, the council determined that the proposal represented a major revision, as it contained a funding mandate and had to be examined first by a charter commission that has now been set up, which actively deals with the topic.
The city successfully defended the lawsuit in the Superior Court, but Fair Elections Portland appealed to the Maine Supreme Court. In June, while skeptical of the city’s position, the Supreme Court found that it did not have enough information to issue a judgment and referred the case back to the city for formal investigation – a statement that supports its Justified decision.
The formulation and approval of a formal justification for the Council’s decision of 2019 is currently before the Council.
The council met for an executive session Monday to discuss the case, but Fournier did not attend due to a personal conflict.
Snyder expects the council to revisit the issue during a public session in October. The council would have to vote in public to approve the findings of fact before referring them to the court.
Fournier said West, the city’s corporate advisor, told her on Wednesday that Fournier had no formal conflict of interest as she would not benefit financially or personally from the lawsuit.
However, in an interview, Fournier said that West asked her to withdraw anyway. Fournier said she decided against following West’s advice after reading the state’s conflict of interest law and consulting with the Maine Ethics Committee, the National League of Cities, and others.
“The general opinion I got back is that this is a pretty extreme conflict of interest application where no conflict of interest arises,” she said.
Jonathan Wayne, executive director of the Maine Ethics Committee, declined to provide details of his discussion with Fournier other than saying that the issue was outside of his remit and was “an unusual situation.”
“In the case of April, I briefly told her that we don’t regulate the ethics of community officials and that whether or not she has a conflict is outside of our expertise,” Wayne said. “It relates to how she should do her job as a councilor and the unusual situation of being part of the legislature of a city that has sued her as a private person. We are not experts in these areas. “
West was unavailable for questions this week. But Jennifer Thompson, associate counselor for the city, said in an email on Friday that the city’s legal department cannot comment on confidential legal advice for city councilors. She said the office reminds council members of their obligations under state law to “avoid conflicts of interest and personal bias and act impartially, especially when the council is acting in a quasi-judicial capacity”.
“Council members are reminded that failure to undermine their own credibility, that of the council as a whole and, more broadly, undermines public confidence in the government,” Thompson said. “This office provides guidance on how an individual councilor could assess whether there is a conflict of interest or personal bias that would prevent them from acting impartially. When advising the council on questions of conflicts of interest and bias, it is also clear to this point that ultimately the decision of each individual council member and of the council as a whole has to be made. “
Thompson said the investigation, deliberation and voting will be conducted in public. She said the current council was entitled to vote on a previous council decision, even though five of the current members were not part of the original decision. She said these councilors need to review the records and follow the relevant meetings before voting to approve their results.
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