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Report on Boothbay Region Masterplan: Part One: Municipal Authority& Home Rule

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Jame's Brown's dancing is in the moment contrasting with the planned choreography of the backup dancers in their uniform suits. We all want to feel the joy of movement felt by the man who wears his own clothes. The video has an interesting political message. When Brown performs his signature dance move going down on his knees to the floor, three times, a suited man first treats him as a man fallen ill and then tries to adorn Brown with the robe of a king, which Brown throws off before joining the suits in a foursome and the freedom becomes contagious.
This blog is authored by a legal layperson and citizen of Maine: The opinions are that of a citizen of the State of Maine, not a legal professional. I have been conducting an independent study on the Maine economic development statutes, The Maine Constitution, and related documents since 2009 and recording my findings on this blog.

I spent some time reading the Maine municipal statutes in search of the rule of law governing public-private economic development councils funded by municipal taxpayers. Since neither Boothbay nor Boothbay Harbor has Town Charters each is assumed to be governed by the municipal law of the state found in §2305 Title 30-A: MUNICIPALITIES AND COUNTIES.

§2305 Title 30-A includes a section on Home Rule amendment and provides general municipal governing rules for municipalities which do not have their own charter. It is implausible that there would not have been a governing structure for Home Rule for almost twenty years since its inclusion in the Maine Constitution,  nonetheless the entire chapter is dated post-1987, after the transformation of the government of Maine from a government by consent of the governed to a government by public-private relationships, had been underway for a decade.

I requested the law governing municipalities from 1969-1987 from the Maine Legislative Library, and received a response I find quite odd, indicating that it is too long to send by email. I am assuming that means I should submit a request per section, which will take some thought. I find the omission of earlier versions of the law unusual in the context of the common practice which is to date the law back to its beginnings and record the dates of amendments to the original law. It appears as if the entire statute governing municipalities was replaced without a trace of the former version in 1987.  This is the response I received:

Thank you for contacting the Law and Legislative Reference Library, a non-partisan office of the Maine Legislature.
In response to your request for the law on municipalities from 1969-1987, former Title 30 was recodified into Title 30-A, effective March 1, 1989. When looking at Title 30 from 1988, you have to look at the 1978 main volume and the corresponding supplement from 1988. Title 30 covered two volumes. As such, it is too much for us to email. They can be viewed here in the library or, if there are particular sections from Title 30 (or the current Title 30-A) that you'd like to see from that timeframe, please let us know and we should be able to send those to you.
If you have further questions please feel free to contact us again.
The municipal law codified by the Maine Legislature in 2009 enables the transformation from the traditional municipal government to government by public-private boards by permitting a municipal government to merge its functions with those of the private sector when public-private relationships are formed. However, Home Rule still trumps statutory law and so, I submit, that through a town charter, the inhabitants of a municipality should be able to override the expansion of functions of municipal government into those usually considered to be the domain of the private sector as provided in the following statute: Note that the statute mentions limitations which may be imposed by federal law but makes no mention of Maine Constitutional law.


§2203. Joint exercise of powers
Any power or powers, privileges or authority exercised or capable of exercise by a party to an agreement under this chapter may be exercised and enjoyed jointly or cooperatively with any other party to the extent that federal laws, when applicable, permit the joint or cooperative exercise. When acting jointly or cooperatively with any party, any agency of State Government may exercise all of the powers, privileges and authority conferred by this chapter upon a public agency. [2009, c. 636, Pt. D, §3 (AMD).]
By entering into a public-private relationship, a municipal government can expand its government functions beyond those specifically related to property ownership. At the same time, as this series will document, the private part of the relationship can gain access to public funding, to which it would not otherwise be entitled. It is the nature of public-private relationships that they can be whatever they want to be whenever they want to be it. This convenient fact has been codified into other Maine Laws such as "The Improved and Extended Seed Capital Tax Credit" of 2013, in which the definition of a venture capital fund was amended with the addition of the words: An entity that otherwise qualifies as a private venture capital fund may elect not to be treated as a private venture capital fund for purposes of this section with respect to any proposed investment.

Be it enacted by the People of the State of Maine as follows:
Sec. 1. 10 MRSA §1100-T, sub-§1-A,  as enacted by PL 2011, c. 454, §2, is amended to read:
1-A. Private venture capital fund.  As used in this section, "private venture capital fund" means a professionally managed pool of capital organized for a limited life to make equity or equity-like investments in unrelated private companies using capital derived from multiple limited partners or members at least half of which, measured in dollar commitments, are unaffiliated and unrelated, and includes any venture capital fund licensed by the United States Small Business Administration. The authority may require such information as may be necessary or desirable for determining whether an entity qualifies as a private venture capital fund. An entity that otherwise qualifies as a private venture capital fund may elect not to be treated as a private venture capital fund for purposes of this section with respect to any proposed investment.
The ability to expand municipal government functions can be overridden by municipalities when they create their own municipal charters if the inhabitants of that municipality so choose.

           2003. Nonstatutory municipal functions
In addition to those offices and departments required by general law, a municipality may provide under its home rule authority for the performance of any other municipal function. [1987, c. 737, Pt. A, §2 (NEW); 1987, c. 737, Pt. C, §106 (NEW); 1989, c. 6, (AMD); 1989, c. 9, §2 (AMD); 1989, c. 104, Pt. C, §§8, 10 (AMD).]
SECTION HISTORY
1987, c. 737, §§A2,C106 (NEW). 1989, c. 6, (AMD). 1989, c. 9, §2 (AMD). 1989, c. 104, §§C8,10 (AMD).
The statute doesn't say that the municipal charter can limit municipal functions but nothing in the Home Rule Amendment prohibits a municipal charter from providing limits for municipal functions. An increase in the functions of municipal government is an increase in property taxes, which in turn drives out the lower end of property ownership. There is such hidden advice found in the Camoin Report when it is advised to require the municipalities to pay the JECD a fee even If the municipality cannot afford it, which would result in a rise in property taxes, driving out the lower end of property ownership. It is also reported in the Camoin Report that real estate values on the peninsula already exceed the average for the state while income comes in at below average. Only 25% of the working population both lives and works on the peninsula Camoin Report pg 58

Method 2: Per capita or per person – This method distributes the cost per person under the assumption that the more people a town has, the more the town should pay, regardless of a town’s ability to pay the fee.  Camoin Report, Action Plan Matrix, Pg 9

In observing the sections governing the town manager and the selectmen, the statute is limited to what is traditionally considered to be a municipal service funded by the property owners of the municipality, ie those services that directly relate to property ownership such as fire and police protection, and public infrastructure, consistent with the purpose of government expressed in the Maine Constitution- ie furthering the common welfare- or, in the case of municipal taxes, interests common to all property owners. It is not until the statute codifies joint relationships that economic development becomes an authorized municipal service. The rhetoric is that economic development is a public benefit but in practice, centralized economic development never serves the common welfare, the function of government defined in the Maine Constitution. The fact that the centralized economy serves special interests is found throughout its literature and statues wherein targeted sectors (special interests) are identified. This is also found in the Camoin Report.

The Home Rule Section tells us that the selectmen have the authority to initiate the process of creating a town charter and that a group of five residents can initiate a process to petition the selectmen to do so. Otherwise, to my reading, the municipal law is set up as a process to transform municipal government to government by boards of public-private relationships. Future posts in this series will unfold this argument.

 §2203. Joint exercise of powers
8. Limitation.  Notwithstanding any other provision of this chapter:
A. No powers, privileges or authority may be jointly or cooperatively exercised unless each type of power, privilege or authority exercised is capable of being exercised by at least one of the parties within the entire jurisdictional area of the agreement, or by each of the several parties within each of their several jurisdictions if all of the several jurisdictions make up the total jurisdictional area of the agreement; or [2009, c. 636, Pt. D, §3 (AMD).]
B. No essential legislative powers, taxing authority or eminent domain power may be delegated by agreement to a joint authority or administrative entity. [2009, c. 636, Pt. D, §3 (AMD).]
[ 2009, c. 636, Pt. D, §3 (AMD) .]

It is generally accepted that the town manager has the power of attorney to enter into contractual agreements with external entities. However, that power is not explicitly granted in §2305 Title 30-A:

There are provisions for joint relationships between municipalities which exclude the power of taxation and legislation to the council. There are other sections in which the town government is granted the ability to appropriate funds to public-private councils.  One section excludes those powers to the council, while another section appears to grant them through the fact that the council includes town officers. This will be expanded upon in later parts of the series.

Title 30-A: MUNICIPALITIES AND COUNTIES
Part 2: MUNICIPALITIES
Subpart 2: ORGANIZATION AND INTERLOCAL COOPERATION
Chapter 115: INTERLOCAL COOPERATION

§2206. Funds, personnel and services
Any party entering into an agreement under this chapter may appropriate funds and may sell, lease, give or otherwise supply the administrative joint board or other legal or administrative entity created to operate the joint or cooperative undertaking by providing any personnel or services for that purpose that it may legally furnish. [2009, c. 636, Pt. D, §4 (AMD).]
SECTION HISTORY
1987, c. 737, §§A2,C106 (NEW). 1989, c. 6, (AMD). 1989, c. 9, §2 (AMD). 1989, c. 104, §§C8,10 (AMD). 2009, c. 636, Pt. D, §4 (AMD).

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