Following the November 5 election, the Town Council held a special meeting to decide whether or not Janet Howe Kuech, a 21-year Gorham School Department employee and town resident, should be seated. Kuech came in third behind two incumbents. Paul Smith, an incumbent who lost his bid for re-election, attended this meeting and was allowed to vote on the issue. The vote was 3-4 not to seat Kuech. Phillips, Hartwell, Pratt voted to seat Kuech while Hager, Shepard, Smith and Wilder Cross voted against.
“Our charter does not restrict an individual from running for office. The issue at hand is whether or not an individual is qualified for office if they remain an employee of the Town and serve on the Council. The charter grants authority to the Town Council to determine qualifications for office if elected. Town staff and the Council do not have the ability to restrict individuals from running for office if they follow the proper nomination procedures,” said Town Manager Ephrem Paraschak.
Ben Hartwell, who was the Town Council Chairperson until November 12, said, “When candidates turn in their nomination papers, they sign certifying ‘If nominated to the office for which this nomination paper has been circulated, I agree to accept the nomination, not to withdraw, and, if elected at the Municipal Election, to qualify as such Municipal Officer.’ The Municipal Employee Policy is quite clear that employees can’t serve on the Town Council or School Committee, but that policy may not apply to school employees. The School Department policy does not allow employees, or spouses of employees, to serve on the School Committee but is silent about the Town Council. The Charter was always interpreted to mean that you couldn’t work for the town and serve as a Councilor or School Committee member.
However, the ‘offices of emolument and profits under the charter or by ordinance’ clause is not as clear as people thought. While I personally don’t think there is a highly persuasive argument that it applies to all employees, there is an argument that it does, and that’s what the majority of the council voted to uphold.”
Hartwell went on to say, “Paul Smith participated in the vote because he was still a councilor as the new council had not been sworn in yet. The Town Charter; Article II Town Council; Sec. 201 Number, Election, Term says ‘Each member shall be elected for a term of three years and until his successor is elected and qualified.’ Seeing that Paul Smith’s successor was deemed to not be qualified, that clause could be read to mean that he is still on the Town Council.”
Kuech had talked with both the Town Manager and the Town Clerk before running for office and was advised she was eligible to be on the ballot but was told “if elected, must make a choice between your Council seat or your Ed Tech position.” Kuech, who is on the Board of Directors of the Maine Education Association, believes that this decision violates her first amendment rights to free speech as well as restricts her right to political speech.
She added, “Councilors are not involved on any level in the negotiation of the school employee compensation process. The final budget decision is ultimately made by voters.” She further noted that “the Town has a policy that people who work for the Town cannot serve on the Town Council but the School Department does not have such a policy.” Maine Law (30-A M.R.S. 2605(4) (A) “contemplates that public school teachers can and will serve as municipal officers.”
Kuech’s attorneys are taking the position that her first amendment rights have been violated as well as the voters’ rights to choose. They also state that this decision violates her right to free expression as a restriction on political speech and are seeking declaratory and injunctive relief, stating that the Town of Gorham has no adequate justification for this restriction. “Restrictions such as the one adopted by Gorham must substantially serve an important government interest and Gorham cannot justify this restriction under this standard,” they said.
While this issue is being resolved, only six councilors will serve until another election is held, potentially in March, or until Kuech’s attorneys prevail in court. With over 800 votes cast for Kuech, some residents are frustrated by the way the situation was handled as essentially their votes did not count.