May 30, 2020

Lincoln Council asked to pay legal fees

LINCOLN — Petitions asking the Town Council to reconsider paying legal fees for a council member and to take a road by eminent domain were presented Monday to the Town Council.

Town Manager James B. Somerville said Tuesday the petitions would be reviewed by Town Attorney Richard Broderick Sr. and the council would be given a legal opinion.

The petition signed by more than 200 people was presented by Diana Johnston. She said the purpose of the petition was to give the council an idea of how some taxpayers felt.

Johnston said, “I haven’t heard many say the town should pay those fees. People are very upset.” She said people could not understand how a council member talking at a local restaurant was acting as an employee. “Mr. Perry was not on duty, he was at a coffeehouse,” she said.

Jane Farrington said she wondered how many people signing the petition (asking the council to reconsider paying legal fees) were aware there was a state law saying “you have to back town employees.”

She said the petitions were circulated in only two stores and not all over town.

Mary Smart, a resident who serves on the Lincoln Sanitary District board of trustees, said, “No way would I expect the users of the Sanitary District to pay for any of my actions outside of my official duties.” Directing her statement to council member Rod Carr, Smart said, “You implied that because it was a thankless job, public service that is, it should carry special privileges. That sounds exactly like the perks that Congress thinks is owed to them.” Smart believes efforts should have been made to resolve the issue before legal action was taken.

In February, the Town Council voted 3-2 that the town would pay legal costs for Somerville and council member Lyndon Perry, named in a defamation suit brought against them and the town by former council member Douglas Pinkham. Council members Sterling Osgood and John Weatherbee opposed the vote.

In the suit filed in Bangor Superior Court, Pinkham contends the two men spread falsehoods about him. He contends that on Aug. 27, 1991, Somerville and Perry told others that Pinkham had tainted the bid process for purchase of a police cruiser by opening the bids before the deadline and revealing the amounts to a bidder. Pinkham, represented by Phillip D. Buckley, maintains the statements were false. Somerville’s remarks allegedly came during a meeting at the town office with Osgood and a third person. Perry purportedly made his comments at the Timberhouse Restaurant in the presence of at least six people, including Weatherbee.

Maintaining the town was not liable in the ligitation, Town Attorney Richard Broderick Sr. said it was his opinion there would be a conflict of interest having one attorney to represent the town, Somerville and Perry, therefore the section of the Maine Tort Claims Act mandated that the town pay the cost of attorneys fees for Somerville and Perry.

Smart and others maintain the law defines an “employee” as a person acting on behalf of the town or in an official capacity. They maintain another section of the law says the town would not be liable for attorneys fees and defense costs of an employee if it is determined that the employee is criminally liable.

In a Superior Court document filed in February, Broderick, representing the town, asked that the suit be dismissed.

In a court document filed March 23, attorney Bernard J. Kubetz of the firm of Eaton, Peabody, Bradford and Veague of Bangor asked that the suit be dismissed. Kubetz is representing Somerville and Perry.

The second petition signed by more than 30 people asked the town to take the Millett-Mallett Road by eminent domain. Norman Turner, who presented the petition, asked that the council set a meeting to discuss the matter.

In part, the petition stated, “We present this petition out of concern for our health, safety and general welfare and respectfully represent that public exigency, necessity and convenience require that a town way be laid out to ensure the safe passage of residents and emergency vehicles.”

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