Smoking gun video shows why Kevin Sutherland had to resign as town manager

BAR HARBOR, Jan. 28, 2022 - You need only to watch this video to comprehend the massive town government dysfunction which led to Kevin Sutherland’s departure as town manager this week.

https://drive.google.com/file/d/12EEyIvWHohnA5DYJG9p8GZr-hAcFxcRd/view?usp=sharing

It was the monthly meeting of the rogue body otherwise known as the cruise ship committee. Over the past two years, as citizens’ complaints about cruise ships hit a fevered pitch, this committee shed any pretense of objectivity and became a forceful mouthpiece for the industry working from within the Town Council’s own scaffolding of committees.

Citizens petitioner Charles Sidman, who successfully led the ballot initiative to establish the cruise ship visitation cap, has called for the cruise ship committee to be disbanded.

Even by Bar Harbor’s own loose standards for protocol, Sutherland’s performance in front of this body Jan. 5 was bizarre, coming one week after a lawsuit against the town was filed by local businesses which included Eben Salvatore, the major player on the cruise ship committee.

The QSJ did not attend the Zoom session and could not first corroborate the claims of several citizens who were stunned at Sutherland’s participation, in effect handing the other side a playbook on how to sue the town.

The cruise ship committee prefers meetings in person without Zoom or any recordings. Its minutes are sketchy at best. The committee meetings were described by one official as the quintessential “smoke-filled room.”

Luckily the Jan. 5 meeting was conducted on Zoom because several members thought it was a remote session.

One observer recorded the entire session, including the first 20 minutes when Sutherland disclosed the strategy recommended by attorneys defending the town and then provided a road map on other ways the town could be sued, all in front of Salvatore, a named plaintiff in the lawsuit who signed an affidavit accusing the town of all sorts of misbehavior.

Memo to the Town Council and the next town manager: legal strategy between you and your counsel is privileged information. In a lawsuit, less is more (which I preached endlessly as a corporate executive).

But Sutherland was having none of that.

This was a friendly hearth.

After all, Sutherland owed his job to the law firm which represents the plaintiffs suing the town, according to Sidman and other petitioners, who wrote two articles in the Islander tying Eaton Peabody, the Bangor law firm suing the town, and its executive search practice which found Sutherland. He was the only candidate interviewed.

The Jan. 5 meeting went on, and at one point, Sutherland even answered Salvatore’s questions about the number of cruise ships allowed for future years.

It got worse. Sutherland proceeded to weave a narrative of Bar Harbor as the jewel of all the New England cruises and how it was liable to lawsuits from other municipalities - Boston, Portland, Eastport, Canadian provinces - if it choked off visits.

The cruise ship industry couldn’t have wished for a better advocate. Days after Sutherland’s appearance, the Penobscot Bay Pilots Association joined the lawsuit against the town. Cruise ship committee member Skip Strong, a pilot, became the second committee member to be part of the lawsuit.

The Jan. 5 episode unleashed a torrent of reaction from citizens who already were highly critical of the council’s laisse-faire response to the lawsuit.

By Jan. 17 at its regular meeting, the town council was on its heels. Member Erin Cough said the daily emails to council members “bordered on harassment.” She said she had been called a coward and “immoral.”

The QSJ asked her to forward examples of such emails. She did not respond.

One citizen wrote the QSJ stating, “I think Erin Cough enjoys playing the victim.  In fact, I believe her comment about being call ‘immoral’ may be her reacting to an email I sent to Council.  If so, she is extremely thin skinned.  

For your information, here is the TOTAL context of my email to Council.

The voters have spoken.  You MUST oppose the litigation brought against the Citizens Initiative.  You do not have the voters’ authority to do otherwise.  You have a moral obligation to stand by the vote.”

Council member Matt Hochman said he supported Cough’s comments. Hochman attended the Nov. 5 cruise ship committee meeting as the council’s liaison but made no attempt to stop Sutherland from discussing the town’s legal strategies.

Sutherland also managed to twist some facts to align with his narrative.

He talked about the potential for 40 ships to sue the town which were given permits after March 17, 2022, when the citizens initiative was officially filed, locking in all the ships permitted by that date and none afterward.

But it was the town manager who gave the harbor master authority to permit more ships.

The citizens initiative was well under way by the time Sutherland started his job Jan. 3, 2022. At no time did he nor the council make any attempt to meet with the citizens group or its lawyer to understand the basis for their use of the land use ordinance to restrict passenger visits.

Instead, Sutherland and council hired Camden lawyer Sandy Welte, who chilled the process with a warning about lawsuits. From that point on, the council pursued a lawsuit-avoidance strategy instead of sound tourism management policies.

The council threw out its own well designed passenger limitation plan of 2,500 a day, formed under the leadership of then member Val Peacock.

It then gave Sutherland carte blanche to create his own solution - a 4,000-a-day limit which was publicly presented in September and widely criticized from Day 1.

It should surprise no one that when the citizens initiative passed Nov. 6 with 1,800 votes - almost 60 percent - that Sutherland and the council would be unenthusiastic about having to enact the new ordinance.

That’s when Sutherland announced he was going to need six months to come up with a plan to execute the new ordinance.

All that is now in the rear view mirror. Sutherland’s unexplained absence at Tuesday night’s important joint budget workshop between the council and the warrant committee turned out to be meaningful.

By week’s end he was out in his second straight unsuccessful stint as a town administrator. He left Bar Harbor far worse than when he started.

The town is in the midst of its biggest challenge since 1947, when the great fire that October forever changed the town from its rusticator heritage to a tourism-based economy.

In addition to the lawsuit from cruise ship reliant businesses, the town faces a massive housing crisis with more than 600 additional units needed for a normal workforce, according to its recent consulting report, a judge’s decision overturning the town’s charter changes two years ago, collapsing infrastructure from neglect and deferred maintenance in everything from water and sewer to its school, and the continued disappearance of its middle class.

Val Peacock had the hubris a year ago to believe she possessed the leadership skills to lead the town out of the darkness as council chair. Instead she and the town manager doubled down on every wrong move.

Job 1 now is to fix the dysfunction around the town’s defense of the lawsuit. Time to bring in the citizens from the cold. They are not the enemy. Bring the lawyers from Rudman Winchell and Sidman’s group together. They should be on the same page.

But a statement from the council released the day after Sutherland announced his resignation was not encouraging, suggesting the council was still pursuing its strategy to mediate a watered-down version of the citizens ordinance:

“The council remains committed to executing the will of the voters and maintaining the Town’s home rule ability to regulate and manage cruise visitation to our town. The parties have made strong progress towards an efficient and expeditious framework for litigating this case. The parties anticipate continuing these discussions as quickly as possible. We are confident the framework we are close to reaching with all parties is the most effective strategy towards advancing the Town’s cause.”

Sidman said his group will challenge the town’s attempt to mediate any solution less than what the citizens petitioned for on Nov. 8.

There was irony in Peacock’s public posture of seeking compromise and comity and yet allowing Sutherland to polarize the town. If she cannot work with the citizens, she should go the way of Sutherland.

It all may be too late. The plaintiffs have deep pockets, a playbook given to them from the erstwhile town manager, and the clock is in their favor.

Ten years from now, when cruise ships are moored in every harbor and cove on MDI, when all housing units cater solely to seasonal workers, when there is only one K-8 school left on the island, local historians may point to the Peacock-Sutherland year as when the town - and the island - imploded.

Town Manager has a history of discrimination, volatile interactions

The following is a re-print of an article published on Sept. 3, 2022

BAR HARBOR - A citizens activist in Saco, where Town Manager Kevin Sutherland was the city administrator for more than four years, said she was threatened by Sutherland who called the police to have her removed from the Saco City Hall in 2016.

Sutherland did not respond to the QSJ’s request for comment.

Barbara Colman, who worked for the ACLU for 13 years, was a frequent critic of Sutherland. In December 2016, while questioning Sutherland in City Hall, she said he told her to “get the hell out” and summoned the police chief.

She said she is not surprised that Sutherland has threatened police action against a 73-year-old Bar Harbor resident who has been using graffiti on downtown streets to protest Leonard Leo’s presence on MDI. Leo is the chief architect of political paths for right-wing judges.

This week Sutherland played down his role in hounding Annlinn Kruger in an interview with Dick Broom of the Islander, even though he confronted Kruger shortly after she got off a bus at the village green last Tuesday. Kruger took the following photo of Sutherland as proof of the confrontation.

On Friday, Kruger said the town’s highway employees were stalking her every move.

“Have just spent 3 hours playing graffiti cat and mouse with the Highway Division,” Kruger stated in an email. “They appeared shortly after I arrived in Town (although not as shortly as Sutherland did on Tuesday;)  They followed me down Main Street, from Cottage to West, erasing my graffiti as I moved from one spot to another.

“Passersby alerted me to what they were doing, but when my community activist escort approached them, they returned to their truck and just sort of followed us around a bit. At least they've demonstrated how easily the graffiti is removed. Unfortunately no one had photographed them in the act. But you can see the blank wet pavement.”

Is this the best use of town resources during the busiest time of the year?

Kruger has been escorted by other protesters after an incident last week when someone tried to grab her phone near the harbor, she said.

Sutherland told the Islander that he never threatened to have the police arrest Kruger. 

Kruger has in her possession an Aug. 26 email from Sutherland which stated, “After I took a walk to see the graffiti and talk to staff, what you put down is far from temporary … your effort of intentionally ‘tampering with the property of others’ is clearly defined as Criminal mischief, a class D crime.  (Title 17-A Section 806 of the Maine Criminal Code).

“Please cease from using these semi-permanent / permanent concoctions to deface the town’s right of way or I will be forced to file a complaint with the police department.

“I have asked staff to track time and the cost of material to remove the graffiti and will be sending you the bill.”

I’ll leave to you, dear reader, to decide whether this was a threat.

In Saco, Sutherland was engaged in multiple fracases. He fired the parks and recreation director who then sued the town. He placed the police chief and deputy on paid leave without ever saying why, according to news reports. They were reinstated two months later.

The most serious of those was a finding by the Maine Human Rights Commission that he discriminated against an older worker who then successfully made a claim against the town.

Former Economic Development Director William Mann was discharged from his job by Sutherland in 2018. Mann is now the economic developer director in South Portland.

The Maine Human Rights Commission voted unanimously in February 2021 that there were reasonable grounds to believe that the City of Saco discriminated against Mann on the basis of age and/or sex.

Mann was employed by the city starting in December 2014 until February 2018, when he was discharged by Sutherland, who began his tenure with the city in September, 2015, about 10 months after Mann arrived, according to the Portland Press Herald.

According to a report by MHRC investigator Alice A. Neal, Mann claimed that co-workers and others told him that Sutherland didn’t want the city’s next Comprehensive Plan to be “written by a bunch of old white guys.” Mann further claimed that Sutherland made additional age-based statements, stating a preference for employing younger individuals, and that the city mainly hired only younger women during his tenure. Mann said every permanent non-probationary employee discharged between 2017 and 2018 was male, and most were over 50. He told investigators that he believes he was discharged based on his age and sex, according to the report.

According to the investigator’s report, Sutherland talked about wanting to make Saco a more diverse community, to make the city appealing to millennials and “hipsters,” and disagreed with a prior Comprehensive Plan, which included a senior living housing project. Sutherland stated the prior city administrator wanted to focus on Saco as a retirement community but he believed if that were to happen, Saco would “die on the vine.”

Neal wrote that Sutherland’s statements about “old white guys,” millennials and “hipsters” all stated a preference based on age and/or sex. The city did not refute that.

The report noted that nine persons were discharged between 2017 and 2018; three during their probation, including one woman. The remaining six were men with an average age of 51 1/2 years old.

Legal minds, including state Rep. Lynne Williams, a lawyer who has defended many protesters, have pointed out that Bar Harbor does not have a written prohibition against graffiti on its roads.

The Islander published an editorial Thursday which stated in part:

“Over the last many weeks, area residents have gathered outside the home of prominent lawyer and legal activist Leonard Leo to express their views on issues in which they believe him to be involved. Leo most notably has worked to shape the nation’s court system with a pro-Federalist Society bent. And, politics aside, he has been quite successful. So successful, in fact, that the courts have changed, and a recent Supreme Court decision reversing a near 50-year precedent on abortion rights was made possible shortly after the appointment of three conservative judges that were widely believed to have been on a short list provided by Leo.  

“Mr. Leo probably wishes he lived farther off the road because what the protesters are doing is protected under the First Amendment and there is no telling how long they will camp out there.  

“According to the American Civil Liberties Union, the right to protest is strongest on streets and sidewalks and in front of government buildings, providing protesters don’t obstruct car or pedestrian traffic.”

This morning, Kruger was back on the green with her graffiti-as-protest campaign, along with an escort - her ‘babysitter” she said.

When educators fail to tell the whole story

BAR HARBOR - It was a simple, straight-forward question at the end of the long budget workshop Tuesday between the Town Council and Warrant Committee.

“What's the enrollment projection of the trends for Bar Harbor?” council member Gary Friedmann asked the school superintendent.

The answer from MDI superintendent Mike Zboray?

“If there's increase in housing in the study that was done in 2019, then you're looking at 363 or so students in the three- or five-year projections.”

“Currently over the last couple of years, we've kind of fluctuated in that 330-40 and it kind of just sort of bounces around there.”

Here are the facts, and I’ll let readers decide whether Zboray was honest in his reply.

Over the last 10 years, Bar Harbor school enrollment has declined by 20 percent, compared with a state average decline of 3 percent over the same period. Since 2008, it has declined by 32 percent.

If the trend continues the next 10 years, Bar Harbor will have only 272 students.

Zboray was selective in using just the last few years. Again, I’ll let readers and taxpayers decide whether thy expect enrollment to jump to 363 in three to five years.

Here is the data from Zboray’s office: