Injunction seeks to halt Thursday’s special town meeting on Pittston recall ordinance

AUGUSTA — A judge is expected to decide Thursday morning whether a special town meeting to toss out Pittston’s recall ordinance can take place only hours later.

Justice William Stokes heard arguments Wednesday on a lawsuit brought by resident Cheryl Peaslee, who claims selectmen made procedural errors when they scheduled a special town meeting earlier this month to consider rescinding a town ordinance that establishes a procedure by which residents can recall elected town officials.

Peaslee is seeking an injunction to stop the town from holding a special town meeting Thursday night to rescind its ordinance on the recall of municipal officials.

Benjamin Smith, the attorney representing Peaslee, argued in court Wednesday that holding the special town meeting could cause irreparable harm because town officials might not go forward with the March 18 vote to recall Selectman Joe Caputo. In December, Peaslee submitted a petition bearing more signatures than required seeking Caputo’s ouster.

“There is no assurance that they will move forward and the recall will occur,” Smith said. “The ordinance could be rescinded. They could decide to not have the recall vote. I don’t want to be before you (in court) again, your honor. What (an injunction) prevents is a potential manipulation of the process that could prevent the recall from ever happening.”

Stokes said town officials indicate in court filings that even if residents reject the current recall ordinance, they would still go forward with the recall vote on Caputo because the petition was submitted and accepted by the town under the terms of the existing ordinance.

Graham Louis, an attorney representing Pittston in court Wednesday, said town officials in fact have no choice but to honor the petition and continue with the recall vote, even if the recall ordinance is rescinded, as not doing so would be breaking the law.

“Much has been discussed about whether the town can be taken at its word, but there is no impact on the recall of Mr. Caputo, (the town) is prohibited by law from allowing that to impact the recall petition for Mr. Caputo,” Louis said. “Whatever happens tomorrow, (Peaslee) and the other petitioners are entitled to a recall. No irreparable harm will occur if the meeting tomorrow moves forward as planned.”

The lawsuit also asks the court to forbid town officials from destroying town documents, alleging town officials have previously violated town rules and the Maine Freedom of Access Act requirements, stating “The plaintiff also requires injunctive relief that prevents the Town and its officials from taking any action to further violate Maine’s (Freedom of Access Act), including, but not limited to, the potential destruction or mutilation of public records, in whatever form.”

Jane Hubert, chairwoman of the Board of Selectmen, has said she believes that if the ordinance is rescinded, the vote to recall Caputo would still take place because the petition was submitted under the rules in effect at the time.

The recall vote for Caputo is scheduled for March 18, the date of the town’s municipal election.

Stokes, an active retired judge, heard arguments from both sides Wednesday afternoon, but said he wanted to be able to consider his decision overnight. A written decision is expected around 9:30 a.m. Thursday, just nine hours before the scheduled special town meeting at 6 p.m. at the Town Office.

The lawsuit claims when town officials on Feb. 12 signed the warrant for the special town meeting, they did so without public notice as it was not included on the meeting agenda. The suit also states the warrant posted at three public locations in town had not been properly attested by a witness.

Stokes asked if the only remedy to those potential deficiencies of the document would be to ban the meeting from taking place. He said elected municipal officials generally have busy lives and other careers and could be prone to not following the letter of the law in each document of town business.

Smith countered that it would be a dangerous precedent to allow town officials to decide what legal requirements they will follow.

Louis said the idea of the warrant is to give notice to townspeople of a meeting so they can come and have their voices heard. He said the town’s efforts to provide the public notice of Thursday’s special town meeting vote fulfilled the spirit of the law.

When she filed the recall petition, Peaslee cited Caputo as the reason behind a hostile work environment within the town office and for a change of atmosphere in the town.

Peaslee spoke at the Feb. 7 selectmen’s meeting to urge the board to move the petition forward, but at the time, Hubert was still waiting for legal advice regarding the petition and the ordinance.

Hubert asked the town attorney and Maine Municipal Association for guidance regarding the state statute and the town ordinance, which have significant differences, including a clause in the state statute that a municipal officer can only face recall if the official committed a crime against the town. MMA suggested a hearing to alter or rescind the ordinance, which Caputo and Hubert voted in favor of. Ambrose voted against the hearing. The motion resulted in Thursday’s special town meeting.

Hubert received an answer last week from the town attorney to the recall petition and scheduled Caputo’s recall vote for March 18 after months of uncertainty.