The parties involved in the Peaks Island secession process disagree on several major issues, raising questions about the effectiveness of the state’s secession law.
But it’s a seldom-used law that is subject to differing interpretations. Two lawyers who are not involved in this dispute, who have worked on past secession efforts, reached differing conclusions about the points that led to disagreement in the Peaks case.
When asked if the secession law was too vague, since the parties on Peaks disagree about the law, Kenneth Cole, an attorney with Jensen Baird Gardner & Henry of Portland, who represented the Town of Cumberland in negotiations with Chebeague Island, said, “Ultimately, all the statute does is request, on the part of the Legislature, that the parties make a good faith effort to negotiate to resolve their differences, before it gets to the Legislature.” Cole noted that he works as a special counsel for Portland, although he is not working on the secession case.
Peter Lowe, a partner with the Lewiston law firm Brann & Isaacson, who represented the community group supporting secession on Chebeague and the island’s official secession representatives said, “This is a law that could be improved and clarified. I suspect the Legislature would not make fundamental changes because it wants to make secession a hard process and something that is difficult to achieve.”
The Peaks Island secession effort began after a Portland property revaluation led to the doubling and tripling of some property taxes on the island. A secession effort began in April 2005 and on Jan. 6, 2006, the Island Independence Committee submitted 600 signatures asking for a secession hearing. On June 13, Peaks Island residents voted in favor secession by 393 to 290 votes, or about 58 to 42 percent, according to the Portland City Clerk’s office.
Since the vote, the parties in the Peaks dispute have disagreed about almost every subsequent step. Those in favor of secession on Peaks claimed negotiations should be private; the City of Portland’s negotiating team said state law required they be public.
The Peaks Island group seeking secession, the Island Independence Committee (IIC), said talks should be between the city and their group. But island residents opposed to secession, organized as Solutions, Not Secession, said they deserved to be at the negotiating table to represent island residents who are against secession. City negotiators agreed with the latter group on this point.
Finally, the parties disagreed about what they are talking about. The IIC, in an Aug. 25 press release, said that the Portland negotiating team refused to discuss secession. The press release was in response to an Aug. 17 letter from Mayor James Cohen, in which he wrote, “…the City’s position is that negotiations must center on issues related to Peaks and Portland staying together, and only if these negotiations fail may the IIC pursue legislation on secession.”
Ultimately the parties resolved some of these differences and held an amicable session on Sept. 13. Negotiation will be public, except for personnel issues and real estate negotiations. And the city will meet with the two groups separately.
But two lawyers who were involved in previous secession disputes had their own interpretations on the disputed points, based on their knowledge of secession law.
When it comes to negotiations, Cole said, “under the Maine Right To Know law, the language is not black-and-white.” If the City negotiating team has less than three members of the City Council the negotiations “can be as private as you want to be.” The Portland negotiating team has just two councilors.
As far as who sits at the table, Cole said the statute talks about the secession committee “but certainly, if the city wanted to invite other people to the negotiations, it’s within their prerogative.” In order to reach an agreement, you want a deal that as many parties as possible will agree to. “From the city’s perspective, I’d want the two factions at the table when they are as nearly divided as they are on Peaks.”
Lowe said he had not looked into the issue of who sits at the table. His first impression is that the city and the secession group should be negotiating. “Other interested members of the public, other organizations or entities, have a right to be present, but unless the two committees agree they have a right to participate, I would not give them a seat at the table.”
Finally, each lawyer had different views of the subject of whether negotiations should be about secession or reconciliation.
Since the Legislature wants both parties to make a good-faith effort to reconcile, the city’s interpretation of the statute is defensible, Cole said. “If there is a way to keep the proposed secession territory, I don’t think there is anything inappropriate about negotiations focusing on just that issue,” said Cole.
But Lowe had a different interpretation. “I would completely disagree that these negotiations must focus on reconciliation rather than the terms of secession,” he said.