Will Bar Harbor council ever enforce cruise ship ordinance?

Town manager, attorney pushed legal, ethical boundaries to promote Chapter 50

BAR HARBOR, Nov. 14, 2024 - The Town Council and town manager are picking up where they left off on cruise ship matters - huddling in secret to consider their options. It will convene today at 5:30 in what is euphemistically referred to as an “executive session.”

No member of the public need to attend.

Such secret sessions have become commonplace under Town Manager James Smith.

With the rejection by voters on Nov. 5 of his proposed Chapter 50 to the town code to repeal the 1,000-passenger cap, Smith will have completed his first year without any discernible accomplishments, overseeing instead ballooning tax increases, a housing emergency, an infrastructure stretched to a breaking point, unchecked growth of the transient lodging industry which seems to have no boundaries and, of course, the 15-year-old battle over cruise ships, the single, most fracturing issue in the history of the town.

Smith’s brazen Chapter 50 proposal which so obviously favored the cruise ship industry only reinforced what many already suspected: that he and the council do not represent the interest of a majority of the voters, nor do they seem to care.

You may add the Warrant Committee and the Planning Board to that chorus line of ignominious characters. They all were on the losing end of of the public referendum Nov. 5.

Smith had put all his political capital into a single basket: To bring to heel Bar Harbor’s long and intractable cruise ship controversy.

To do that Smith needed a bold stroke and an enabling partner.

Attorney Stephen Wagner of Rudman Winchell would be his Sundance Kid.

The lawsuit from APPLL had already been filed and the trial in front of United States District Court Judge Lance Walker already completed by the time Smith started his municipal gig last November.

Smith and Wagner had plenty to do, especially if the town would actually win the lawsuit which meant they would have to face off with the recalcitrant local cruise ship businesses.

On Feb. 29, 2024, Judge Walker gave Bar Harbor a resounding victory, ruling it had the right to govern itself to limit cruise ship visitation.

In haste, the Town Council, unencumbered by the watchful eyes of citizens and journalists, issued a press release on March 6 stating it would continue to suspend full implementation of the citizens ordinance which just received approval from a federal judge. (The first delay came in January 2023, after APPLL sued.)

It then added this statement:

“Additionally, the Town Manager shall recommend any additional ordinance amendments or policies necessary to efficiently and effectively manage cruise ship reservations and disembarkations. Any substantive amendments to the Land Use Ordinance will require a Town Meeting vote.”

I read that statement to suggest that Smith, Wagner and some members of the council had already embarked on a costly journey which would eventually result in the failed Chapter 50 initiative. That kind of statement could not have been produced in just four business days after Judge Walker’s ruling.

Along the way, they held plenty of executive sessions and pushed the limits of ethics and “open government” laws.

I am a First Amendment strict constructionist. I do not believe the Town Council should be allowed to hide behind a declaration by its town attorney of “litigation” to abuse the use of executive sessions to discuss a broad range of public matters.

That’s how it got itself in the current mess.

But this is not a council, especially its chair, which learns lessons well.

So do we now face a third defiance of citizens? How many votes does this council need to be convinced a majority of voters do not believe its promises, its callous disregard for their concerns to cling to a semblance of a reasonable life in a small New England coastal village?

At the May 7 council meeting, chair Val Peacock, a stickler for parliamentary rules, broke with protocol and allowed lawyers for Ocean Properties and APPLL to hijack the meeting and read a bill of particulars on what they would do if the town ever attempted to implement the 1,000-passenger cap.

Andy Hamilton of Eaton Peabody said his clients would never adhere to any rule-making on the cruise ship ordinance no matter what the council did. “We're just not going to tolerate it. We're going to be a brick wall on this disembarkation ordinance.”

A video of that may be viewed starting at Hour 3:21. Watch council member Gary Friedmann’s increasing irritation at Hour 4.18. Friedmann was the only councilor to vote against Chapter 50.

Friedmann was not having any of Hamilton’s histrionics on purloined council’s time.

At the end of the meeting he said, “I thought that the lecture, courtroom style, that we got from Andy Hamilton tonight was over the top. And I don't think we need to be subjected to that. And I think both Tim (Woodcock) and Andy were making legal arguments that were settled in federal court … I did not appreciate being lectured in that way, by those two, and their presumption to get up to the microphone when they felt like it instead of when they were recognized by the chair.”

The banter came at the end of a four hour, 15-minute council meeting during which Friedmann said if the Association to Preserve and Protect Local Livelihoods wanted to have a serious dialog, it should be to negotiate a settlement which would “recognize that the voters have spoken loud and clear that they want a reduction in cruise ship visitation, that that significant reduction has to happen.”

But the deed was done. APPLL’s lawyers got a chance to state their case publicly.

Why did Peacock allow that lengthy intervention? Was it part of the council’s Chapter 50 rollout? Peacock did not reply to questions.

The eventual rollout of Chapter 50 was orchestrated by Smith with similar precision over exactly what information would be released and when.

I reported Aug. 3 that Smith failed to release the full Chapter 50 proposal by a certain date as promised, leaving the public only a few days to attempt to digest it before the first public hearing in front of the Planning Board.

At that hearing, Planning Chair Millard Dority made several erroneous statements and disallowed some residents from speaking.

There were misleading slides suggesting that the contracts proposed with cruise lines could be renegotiated in two years like this one:

One reader called me to say he supported Chapter 50 because of the two-year escape clause. He did not understand that the escape clause was for after the initial five-year term.

So it went. There were many examples of how Smith and Wagner either twisted the facts and failed to clarify points like the above example leaving voters to believe its errant messaging.

I reported on one of the most egregious examples when Rudman Winchell hired a professor from the College of the Atlantic, Jamie McKown, a known denier of the authenticity of the Nov. 8, 2022 vote.

In an article entitled, “How Bar Harbor’s raging cruise ship debate shaped local elections,” reporter Bill Trotter of the Bangor Daily News on June 13 quoted McKown as saying it is “probable” that many voters supported the 2022 citizens’ referendum in spirit without fully grasping the details of what it meant.

“He also said voters often are subjected to misleading or incomplete information posted on social media and, given the limitations of how thorough referendum questions can be when printed on ballots,” Trotter wrote.

McKown was selected as the moderator of a town-hosted “QandA” in mid August during which he disallowed any give-and-take between citizens and a panel consisting of Peacock, Wagner, Smith and Harbormaster Chris Wharff. The four of them droned on with their messaging unimpeded.

I filed a Freedom of Information Act request for the town’s legal bills and found that Rudman Winchell paid McKown $5,000 as a consultant. So the town-sponsored informational session wasn’t even a town event, as advertised, but a Rudman Winchell sales pitch. (Later FOAA docs revealed more payments for McKown.)

Another FOAA request I submitted led to this article which belied Peacock’s claim that record litigation costs was the basis for the strategy to submit to the industry’s demands.

In fact, while the legal tab for FY24 was indeed a record, most of it was racked up by Smith and his department heads calling Rudman Winchell for advice on everything from the failed Higgins Pit solar project to the flooding of Lower Atlantic Avenue. Litigation accounted for less than half of the record $386,000 legal bill in FY24.

Litigation became a convenient scapegoat for out-of-control legal cost under the current town manager.

My FOAA forays came to an abrupt end in October, when Town Clerk Liz Graves refused to process my routine request for copies of the legal bills exactly like what I requested the previous two months.

This time, the matter was referred to Wagner, the exact person whose fees I was investigating.

I wanted to add up the total cost of Rudman Winchell’s Chapter 50 gambit and I wanted to publish it before Nov. 5. My request was emailed on Oct.9, allowing for plenty of time to receive the information until Liz Graves, obviously under direction from James Smith, referred the matter to Wagner, who, by the way, isn’t doing pro bono work.

Three working days before the referendum, I heard back from Wagner with heavily redacted copies of the legal invoices so that I could not determine the cost of each activity. For instance, I wanted to find out what Rudman Winchell charged for its “ethics training” on Aug. 28, during which elected and town officials were advised that conflicts of interest were not in their purview.

I have since hired the best First Amendment lawyer in Maine to challenge Wagner’s withholding of public information.

Last year I hired First Amendment lawyers when Mount Desert Planning Board Chairman Bill Hanley attempted to prevent me from photographing citizens at a meeting airing the application for six affordable housing units in Northeast Harbor. Hanley withdrew his attempt.

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Bar Harbor is a challenging story to cover.

Many of its recent combatants can only remember its cruise ship fights going back five years.

In fact, 17 years ago, Bar Harbor began to actively recruit cruise ships during the “shoulder season,” according to former council chair Paul Paradis in a article by journalist Clara Molot three days before the Nov. 5 referendum on Chapter 50.

She reminded folks that Paradis admitted in federal court that he attended multiple cruise-ship conventions in Miami, San Francisco, “and maybe one or two others and many within the state,” paid for by the cruise-ship industry.

On Nov. 5, Paradis lost re-election as a Hancock County commissioner by 69 votes, nearly identical to the 63-voter margin which sank Chapter 50.

Most notably, Bar Harbor dealt its former council chair the biggest blow, 1,923 for winner Samuel D. DiBella of the Town of Hancock against 1,546 for Paradis, who first won the seat by 2,000 votes in 2000.

Voters have long memories.