‘Stupid’ clarification

On Nov. 4, 2008, voters in Hermon will vote on a proposed charter amendment that would allow people to circulate a petition to fire the town manager without a hearing, without just cause and without any other due process to which such a municipal employee is entitled. I was quoted in the Oct 10 BDN as calling the proposed amendment “one of the stupidest proposals I’ve ever heard.” I was misquoted.

I do, in fact, think that the proposed amendment is ill advised, poor public policy, unconstitutional and a violation Maine’s Freedom of Access Act. If adopted and implemented it would result in potentially hundreds of thousands of dollars of liability for Hermon and years of litigation. I did not, however, call the proposed amendment stupid.

What I did call stupid was the assertion by an attorney for the proponents of the amendment that the amendment would survive constitutional challenge “because due process protections attach only to action by a governmental entity [and] … the voter action under the proposed amendment is citizen action, not governmental action [and]) therefore, there is arguably no due process violation.” I stand by my assessment of that assertion.

The casebooks are full of cases holding that ordinances and charter provisions adopted by residents are unconstitutional (for example, ordinances mandating segregated housing). If resident action, in the form of a town meeting vote, did not constitute governmental action, no ordinance or charter provision adopted by the residents could ever be declared unconstitutional. Such an assertion is, in fact, stupid.

Richard D. Violette, Jr.

Hermon town attorney