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Scola v. Town of Sanford
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1997 ME 119
Docket:	Yor-96-529
Argued:	April 8, 1997
Decided:	May 29, 1997

Panel:WATHEN, C.J., and ROBERTS, GLASSMAN, RUDMAN, DANA, and LIPEZ, JJ.


JERE SCOLA et al. v. TOWN OF SANFORD

ROBERTS, J.

	[¶1] This appeal involves two cases that were consolidated for trial.  In
the first case, Jere Scola and five others contend that the approval by the
Sanford town meeting{1} of a tax increment financing (TIF) proposal violated
the Freedom of Access Act, codified at 1 M.R.S.A. §§ 401-410 (1989 &
Supp. 1996).  In the second case, Daniel Prime and five others contend that
the Sanford board of selectmen's appointment of an interim town treasurer
also violated the Act.  Following a nonjury trial, the Superior Court (York
County, Brennan, J.) entered judgments in favor of the Town in both cases. 
We affirm the judgments.  
I. The TIF Proposal
	[¶2] In October 1995 the Town was presented with a proposal to grant
TIF status to Rainbow Rugs, Inc., a Sanford business, in order to assist the
company in expanding its operations.  Pursuant to Sanford's form of
government, the proposal had to be submitted to a town meeting that was
scheduled for late November 1995.  The proposal was first considered by
the board of selectmen, which then referred it, in the form of a warrant
article, to the warrant committee of the town meeting.  The article was then
assigned for study to the research and investigation subcommittee of the
warrant committee.  
	[¶3] Jere Scola, a former employee of Rainbow Rugs, was an outspoken
critic of the TIF article.  He spoke against it at warrant committee meetings
on October 12 and 19, 1995.  At a meeting on October 26, the research and
investigation subcommittee moved for approval of the TIF article.  After
debate, the full committee voted to recommend the article favorably to the
town meeting.  
	[¶4]  The town meeting took place on November 21, 1995.  Immediately
before the meeting, a hearing was held at which Scola spoke against the TIF
article.  Sometime before November 21, each of the 147 town meeting
members received from Rainbow Rugs a copy of the TIF proposal and from
Scola a package of information in opposition to the proposal.  Following
lengthy debate on the TIF article, it was approved by the town meeting by a
vote of 55 to 54.  
	[¶5] In his complaint, Scola alleges that the research and investigation
subcommittee conducted meetings on the TIF article in violation of sections
403 and 406 of the Freedom of Access Act.  Section 403 provides that "all
public proceedings shall be open to the public, [and] any person shall be
permitted to attend any public proceeding."  1 M.R.S.A. § 403 (1989). 
Section 406 requires that public notice be given of all public proceedings.{2} 
Scola seeks two remedies.  First, he asks for the invalidation, pursuant to
section 409(2),{3} of the warrant committee's favorable recommendation of
the TIF article and the town meeting's approval of the article.  Both actions,
he contends, are products of the allegedly tainted meetings of the research
and investigation subcommittee.  Second, Scola seeks the imposition on the
Town of a monetary civil penalty pursuant to section 410.{4}  
	[¶6] The court correctly found that Scola's allegations do not warrant the
nullification of the town meeting vote.  The record does not demonstrate
that the research and investigation subcommittee conducted meetings in
violation of the Freedom of Access Act.  In addition, the TIF article was
publicly debated prior to its open approval by both the warrant committee
and the town meeting, which Scola concedes was conducted in compliance
with the Act.  
	[¶7] Moreover, Scola is not entitled to seek a monetary civil penalty
pursuant to section 410.  As we recently concluded in Cook v. Lisbon School
Comm., 682 A.2d 672 (Me. 1996), which was decided after the trial court's
entry of the judgments in the  instant case, only the Attorney General or his
representative may enforce the Freedom of Access Act by seeking the
imposition of a fine pursuant to section 410.  Id. at 680.  See 17-A M.R.S.A.
§ 4-B (Supp. 1996) ("All civil violations are ... enforceable by the Attorney
General ... in a civil action to recover ... a fine, penalty or other sanction ....").  
II. The Appointment of an Interim Treasurer
	[¶8] In December 1995 the newly elected Sanford town treasurer, whose
term of office was to begin on January 1, 1996, resigned unexpectedly.  On
January 2, 1996, the board of selectmen publicly solicited applications for
the position of interim treasurer.  A special meeting of the board was
scheduled for January 9, 1996, for the announced purpose of going into
executive session to review applicant resumes.  The meeting was convened
as scheduled.  After retiring to executive session and considering the
applications, the board returned to public session and voted to appoint
Elizabeth Thayer for the two-year duration of the unexpired treasurer's
term.  
	[¶9] In his complaint, Daniel Prime alleges that Thayer's appointment
was made in a nonpublic proceeding, in violation of the requirement in
section 403 that "all public proceedings shall be open to the public."  Prime
also contends that the announcement of the January 9, 1996, special
meeting violated the requirements of notice in section 406 because it
implied the board would only review applications and not vote on an
appointment.  Although Prime says he has "no complaint" about the board's
decision to appoint Thayer over the other candidates, he takes issue with
the board's decision as to the duration of her appointment.  By way of relief,
Prime does not seek to have Thayer's appointment declared void pursuant
to section 409(2).  Instead, he seeks only the imposition on the Town of a
nominal monetary penalty pursuant to section 410.  
	[¶10] We agree with the trial court that Prime is not entitled to the relief
he seeks.  As discussed above, only the Attorney General or his
representative may enforce the Freedom of Access Act by pursuing the
imposition of a fine pursuant to section 410.  Cook v. Lisbon School Comm.,
682 A.2d at 680.  
	The entry is:  
				Judgments affirmed. 
                 
Attorney for plaintiffs: Joseph M. Wrobleski, Jr., Esq. (orally) P O Box 350 Saco, ME 04072 Attorneys for defendants: William H. Dale, Esq. (orally) Sally J. Daggett. Esq. Jensen Baird Gardner & Henry P O Box 4510 Portland, ME 04112 (for Town of Sanford) Catherine R. Connors, Esq. (orally) Christopher E. Howard, Esq. Marcia A. Metcalf, Esq. Pierce Atwood One Monument Square Portland, ME 04101-1110 (for Rainbow Rugs)
FOOTNOTES******************************** {1}. Sanford has a representative town meeting composed of 147 elected members. {2}. 1 M.R.S.A. § 406 (1989) provides in relevant part: Public notice shall be given for all public proceedings as defined in section 402, if these proceedings are a meeting of a body or agency consisting of 3 or more persons. This notice shall be given in ample time to allow public attendance and shall be disseminated in a manner reasonably calculated to notify the general public in the jurisdiction served by the body or agency concerned. {3}. 1 M.R.S.A. § 409(2) (1989) provides in relevant part: 2. Actions. If any body ... approves any ordinances ... or other official action in an executive session, this action shall be illegal and the officials responsible shall be subject to the penalties hereinafter provided. Upon learning of any such action, any person may appeal to any Superior Court in the State. If a court, after a trial de novo, determines this action was taken illegally in an executive session, it shall enter an order providing for the action to be null and void. {4}. 1 M.R.S.A. § 410 (1989) provides: "For every willful violation of this subchapter, the state government agency or local government entity whose officer or employee committed the violation shall be liable for a civil violation for which a forfeiture of not more than $500 may be adjudged."