The Kittery Municipal Complex, which houses the town, school and police administrations. Credit: Hadley Barndollar | Portsmouth Herald

KITTERY, Maine — The Town Council on Monday shelved a proposed ethics ordinance following the concern of one councilor over an accompanying appendix that presented “a potential First Amendment problem.” The proposal, he claimed, may be a reaction to a lawsuit that cost the town thousands of dollars.

The council previously identified adoption of procedures and a code of ethics as a priority in its annual goals for the 2016-2017 year. The intent was to establish a standard of expectations and requirements for ethical behavior for all municipal officials, including Town Council, board members and employees.

The item on Monday’s agenda called for ordainment of Title 15 — Code of Ethics, but after confusion among councilors regarding an accompanying document, a consensus was reached to postpone any decisions until the second meeting in November; after the new Town Council is elected.

Councilor Gary Beers said he was the default sponsor for the proposal because he was chairman at the time it was introduced.

“It is somewhat evident that ethics, like common sense, aren’t what they used to be,” he said. He said the document had been drafted based on other towns’ and cities’ codes, and then handed over to Town Manager Kendra Amaral for legal examination.

Councilor Matt Brock was especially concerned with a section in the attached “Town Council Rules and Procedures Manual” that addressed the “decorum of the public.”

“Members of the audience and persons addressing the council during public comment may not engage in boisterous conduct, including the utterance of threatening, belligerent, obscene, slanderous, or abusive language or other acts of disorder which disrupt, impede or otherwise prevent the orderly conduct of the Town Council meeting from proceeding,” one section reads. “If this occurs, the chairperson should advice the speaker and/or disrupting individual(s) that such conduct must immediately cease and desist or the speaker and/or disrupter(s) will be ordered to be removed from the meeting if the disruptive behavior continues…”

The appendix also states complaints, discussion or charges against a person that could be reasonably expected to cause damage to an individual’s reputation or right to privacy may not be addressed at public comment.

Beers said Brock’s comments were “not germaine” because the council was only deciding on Title 15 Monday night, not the council rules document. Chairman Ken Lemont ruled Brock could continue because the council will ultimately revisit the document for potential approval.

“If it relates to the meaning or purpose of Title 15, I think it’s appropriate to discuss it, and I at least want it on the record I think there’s a real problem, potential First Amendment problem, with trying to limit what members of the public can say to this council under certain circumstances,” Brock said.

Brock said there was ambiguity between the two documents, which Amaral said are separate, though worked on hand-in-hand.

“I think the language is overly broad,” Brock said. “I think potentially it’s in violation with the First Amendment depending on how it’s applied, and I am concerned that concept is being brought to this council for consideration particularly in light of the past history of this council, which I’m not going to go into in detail. This looks like it’s providing some after-the-fact justification for removal of a member of the public, which the town was sued for and had to pay some thousands of dollars to settle. Let’s not go there again, there was a mistake committed. I think this is just aggravating that situation.”

In 2017, resident Vern Gardner sued Beers and the town in U.S. District Court for alleged violations of Gardner’s civil rights by denying his First Amendment right to free speech. In February 2017, Beers had Gardner removed from the council meeting by Police Chief James Soucy during public comment. At the time, Beers justified the decision by claiming he was casting aspersions toward Councilor Charles Denault for providing false information in his report detailing misconduct by Planning Board Chairwoman Ann Grinnell, which led to her public censure in March.

The town settled the case in pretrial negotiations with Gardner for an undisclosed consideration. The agreement was also contingent upon Beers making a public apology, according to the complaint, which he did in August 2017.

Councilors Jeff Thomson and Frank Dennett wanted clarification as to why a separate code of ethics was needed if related material is already included in the Town Charter. In addition, Thomson was concerned the other boards and committees that would have to adhere to Title 15 had not yet reviewed the document.

“I see the need for such a beast, but I’m a little unclear because we do have language in our charter, so is the best way to provide clarity (through) a code of ethics, to amend/revise our charter language, or do we do it by an ordinance?” he said. He also felt strongly that town boards needed to discuss the document before any approval. Thomson noted the School Committee is not included in Title 15 and should be contacted.

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