BANGOR, Maine — A local ethics code that some city officials say bars city councilors from identifying their official positions when endorsing political candidates may be unenforceable and possibly unconstitutional, experts say.
But some city councilors maintain a recent controversy regarding the code and a political column written by Councilor Joe Baldacci should be discussed publicly in response to concerns raised by constituents.
At issue is whether Baldacci violated the city’s ethics code by identifying himself as a city councilor in a guest column supporting candidates Meg Shorette and Sarah Nichols in the Nov. 3 City Council election.
Published in the Bangor Daily News, the column expressed support for the two candidates on the basis that they favored Baldacci’s plan to raise the minimum wage in Bangor.
The city’s code of ethics states that no councilor may use “his or her official authority or position for the purpose of influencing or interfering with or affecting the results of any election.”
It also states that councilors are free to participate in the political process in their capacities as private citizens and as candidates.
The column led City Council Chairman Nelson Durgin to meet with City Solicitor Norman Heitmann the day before the election to determine if the council should consider referring the matter to the city’s board of ethics for investigation.
While Durgin took no action, Councilor Josh Plourde said this week that feedback from constituents was such that he anticipates the council will discuss the matter, possibly at a Government Operations Committee meeting.
The purpose, he said, would be primarily to determine whether the ethics code meets the city’s needs, but also to determine whether the council should refer the matter of Baldacci’s column to the ethics board.
“We’ll have those discussions in the near future,” Plourde said.
One of the two candidates Baldacci wrote about won election, and both performed well in the seven-way race.
Nichols took an easy victory with 21 percent of the vote, more than any other candidate, and Shorette came within 164 votes of unseating veteran Councilor David Nealley.
City code leaves it to the council to decide whether Baldacci’s column constitutes a violation of the political activities clause. Whether identifying oneself as councilor in a political endorsement constitutes use of official position to influence an election is a murky issue at best.
According to Robert Wechsler, director of research for the Florida-based nonprofit City Ethics, it is unlikely that the drafters of the ordinance intended it to prohibit political endorsements by public officials.
“Political endorsements are common and not considered problematic, and it is naive to think that officeholders will endorse candidates without making their offices clear,” he said. “Why else would anyone care?”
Wechsler also said that prohibiting councilors from identifying their offices in political endorsements may unintentionally favor public officials who have served the longest, because their positions are already well-known to the public.
Formed in 2000, City Ethics is an organization dedicated to providing information and resources to municipal governments for the purpose of improving their ethics programs.
Similarly, when questioned about the ordinance, an official with the American Civil Liberties Union of Maine raised concern that a strict interpretation of the clause may hinder councilors’ constitutionally protected right to free speech.
“In general, the First Amendment provides its strongest protection for political speech,” said Zachary Heiden, legal director for the ACLU of Maine. “Any restriction on political speech, including political endorsements, must survive the most stringent review.”
As city officials grapple with the meaning of the political activities clause, the origin of the language remains a mystery even at City Hall.
The language in its current form appears in city records as early as 1988, when the ordinance was amended to include board and commission members.
However, most of the language existed before that amendment, and the city does not have a searchable record of council actions before that year.
According to former City Manager Edward Barrett, the ordinance had been in place for years when he joined the city in 1988. Barrett and several other long-serving city officials said they did not know when or why the council adopted its current ethics code.
“Bangor has probably the most detailed code of ethics anywhere I’m aware of in the state,” said Barrett, who serves as city administrator for Lewiston.
Nearly identical language can be found in an undated model ordinance that was once available to members of the International Municipal Lawyers Association in Maryland.
But it is not clear whether that model, which no longer is used by the organization, was the origin of the language in Bangor’s code or whether the International Municipal Lawyers Association took the language from Bangor, which is mentioned four times in the organization’s notes on the model.
Chuck Thompson, general counsel and executive director for the International Municipal Lawyers Association, said he was not sure where the language came from, but he did not believe it was meant to restrict how individual elected officials endorse political candidates.
More likely, he said, it was meant to prevent city officials from using city property to promote one candidate over another and to protect city employees from being instructed to take actions that might influence election results.
For example, he said, it would protect municipal police officers and other city employees from being instructed to canvass neighborhoods on behalf of a particular candidate as part of their jobs.
Meanwhile, Wechsler criticized the International Municipal Lawyers Association model, saying he rarely mentions it when working with city officials “because it is highly overdone, goes too far and is not followed.”
In addition to the International Municipal Lawyers Association model, Bangor’s ethics code regarding political activities closely resembles the federal Hatch Act, which bars federal employees from using their “official authority or influence for the purpose of interfering with or affecting the results of an election.”
Passed in 1939, the law was not meant to restrict political endorsements. Instead, it was intended to protect federal employees from political coercion in the workplace and to ensure that federal services are provided in a nonpartisan fashion.
That said, examples of municipal ethics codes can be found that specifically bar elected officials from identifying their offices when making political endorsements.
Windham and New Gloucester have nearly identical provisions in their ethics codes barring town officials from using their positions to influence elections. Both go on to specifically state that town officials can endorse political candidates, but they cannot identify their municipal offices when doing so.
“Acceptable conduct would allow endorsements of a candidate without the use of an official title. ‘I John Doe support Jim Smith for Board of Selectmen,’ not ‘as John Doe, board member, I support Jim Smith for Board of Selectmen,” reads New Gloucester’s code.
Ethical codes barring the use of position to influence any election also can be found in Bar Harbor, Hampden, Standish, Ellsworth and Sandy Springs, Georgia, but none specify how political endorsements should be handled.
It is unclear why the language appears primarily in Maine municipalities. Wechsler said a search of his database turned up results almost exclusively in Maine towns and cities.
“So this is a Maine thing,” he said. “I don’t recall coming across such language elsewhere.”
Eric Conrad, a spokesman for the Maine Municipal Association, said that organization does not offer a model ethics ordinance for cities and towns, but only about 80 of the state’s roughly 500 municipalities even have charters in which to place an ethics code.
Whatever the case, at least one Bangor councilor maintains Baldacci’s column was a clear violation of the city’s ethics code.
Nealley, an outspoken opponent of Baldacci’s minimum wage proposal and a victorious candidate in the Nov. 3 election, said it doesn’t matter whether the ordinance is legally enforceable in court
“There’s a difference between unethical and illegal, and it’s clearly unethical,” he said, noting that the council is empowered to censure councilors for unethical behavior.
Under city code, violations of the ethics ordinance are punishable by civil fines of $100 to $2,500 and a possible censure after notice and a public hearing conducted by the council.
Baldacci has remained mostly silent on the issue, noting before the election that his column did not technically instruct residents to vote for Shorette or Nichols.
Reacting this week to statements from Wechsler and Heiden, Baldacci said only, “I am gratified to know that in America I am still allowed to write a letter to the editor.”
He declined additional comment on the issue.
Follow Evan Belanger on Twitter at @evanbelanger.