Full Disclosure: The reporter is married to Paul Whitmarsh. All information gathered from public records.
On August 1, the North Yarmouth Select Board held a hearing to review two complaints filed against Planning Board Chair Paul Whitmarsh. The charges alleged bias and slander by Whitmarsh during Deacon Hayes remand proceedings. Following testimony from the complainant, the Select Board moved to deliberation and voted 4-0 to dismiss charges.
Following statements by complainants, special counsel, Attorney John Hamar, advised, “In this particular case, the matter was raised. It was discussed by the [Planning] Board and there was a finding that there was no, there was no conflict. So, I do not see that there's any violation that comes from that. So, I think that the information that's provided by the two complainants I don't see that as rising to an actionable level by the Board.”
Whitmarsh believes the hearing should never have even happened. He repeatedly asked the Town why it was scheduled. According to multiple emails, the Town could not state a specific Code of Conduct (CoC) policy charge that met the requirement for an accountability review.
In a May 17 letter, Kristin Collins, attorney for 527 LLC and Deacon Hayes developer Laurie Bachelder, alleged Whitmarsh was a member of “a group of North Yarmouth residents devoted to blocking development within town.” Attorney Collins asked Whitmarsh to be removed from the Planning Board stating, “Mr. Whitmarsh’s failure to recuse himself in the first instance, coupled with his clearly biased and unprofessional behavior” justified the request.
Attorney Collins petitioned the Planning Board to recuse Whitmarsh at the April 12 public hearing. The Planning Board discussed the evidence of his alleged bias and voted 3-1 to allow Whitmarsh to remain chair and a voting member for the public hearing.
A June 8 complaint letter from project geologist, Mark Cenci, alleges slander by Whitmarsh. “If you review the video record of his behavior, you will see he publicly accused me of falsifying data and findings.” Cenci urged the Town to file an ethics complaint himself with the Maine Board of Licensure of Geologists and Soil Scientists. This echoed statements from the April 26 Planning Board meeting in which Cenci surmised Whitmarsh would be filing an ethics complaint against him following questioning he considered slander. After leaving the podium, Cenci added, “I’ll help you fill that out. Just so I can beat you!”
On June 9, Whitmarsh wrote to Town Manager, Diane Barnes, asking the complaints to be dismissed. Whitmarsh said the letters from Attorney Collins and Cenci did not specify a charge as defined by the CoC policy and failed to meet the threshold for an accountability review.
Whitmarsh added, “As I described in my letter dated June 7, 2023, I followed the proper procedure for recusals during the Planning Board meetings for the Deacon Hayes project. The Facebook post (evidence) that was attached to Attny (sic) Collins complaint was provided to each of the Planning Board members. After discussion, a vote was held by the regular members on whether I should recuse or not. The vote by those members was for me to not recuse. The Standard of Conduct Policy does not address recusals. Nor does it give the Select Board the power to change or re-evaluate a vote by the Planning Board. Attny (sic) Collins is requesting the Select Board overrule a vote by the Planning Board. The proper procedure for that is an appeal through the Zoning Board of Appeals.”
Barnes disagreed. In a June 16 response, she stated there was no choice but to have the hearing “because two complaints were filed against you by members of the public, alleging improper conduct at Planning Board meetings.”
Barnes clarified specific charges would be decided during the hearing. She stated Whitmarsh had been given a copy of the complaints and following the hearing “the Select Board will determine whether the complainants set forth any violations of applicable standards of conduct (such as, but not limited to, the Standards of Conduct), and if so, determine the appropriate response considering the circumstances.”
Chairperson Amy Haile opened the August 1 hearing with instructions to the audience on what would and would not be permitted and detailed how the hearing would proceed, "Once both sides have had their say, the Select Board will deliberate." However, after the three parties for the complainant spoke, the Chair closed the hearing and the Board moved to deliberation.
Whitmarsh expected to be given an opportunity to address allegations. A June 6 email from former Select Board Chair Brian Sites explained, “The purpose of the hearing is to provide you with the opportunity to be heard regarding the complaint before any decisions are made regarding whether there were any violations, and if so, what should be done to address any violations found.”
Selectperson Paul Hodgetts was offered an opportunity to present evidence and respond to allegations at his June 6 CoC policy complaint hearing.
Haile did not explain why the hearing guidelines were changed after the proceeding began.
Whitmarsh’s attorney, David Lourie, protested it as a due process violation. “Mr. Whitmarsh has not been allowed to say anything.” Objections by Attorney Lourie and Whitmarsh about the procedural change were admonished by Haile. “I think being able to hold on to some angry feelings and calm down for a minute and make sure we go through this process as I outlined.”
Following a number of audible complaints by the audience about the hearing procedure, Haile scolded, “Excuse me, excuse me! There is, this is not a public meeting. I need, if folks are going to have a hard time following the rules, we're going to have to make new rules.”
Whether the Select Board is able to differentiate aspirational goals of the CoC policy and behavior that qualifies for action is not clear.
According to Attorney Hamar, “Planning boards have a large amount of discretion in the way they conduct their business. And it should be, the Board should be very reluctant to interfere with the affairs of the Planning Board. They have a way of doing things. And for the most part, they are independent from the town.”
Haile stated the Board reviewed the recordings of the April 12 and 26 Planning Board meetings, as well as the complaints. It was not shared whether any Board member had questioned if the evidence merited a hearing. The Select Board did not respond to NYFV request asking to clarify what additional evidence presented during the hearing enabled the Board to dismiss the charges, as Whitmarsh had previously requested.
Protocols for administering the CoC policy are still unclear. A May 22 email to Whitmarsh from Sites stated, “While a complaint may not [be] based on the Code of Conduct, the accountability measures established in that policy guide how a complaint is handled.” A similar statement was given during Hodgetts's CoC hearing.
Attorney Hamar, cautioned the Board, “I would recommend that the Board of Selectman not second guess the Planning Board's decision on that matter. If it turns out that there was some sort of bias and a permit has been denied, then there are appeal processes and that can be challenged in court. But I suggest that the appropriate forum for having that discussion is at the planning board level, and that was done.”
A May 8 CoC policy complaint against Hodgetts was dismissed following a hearing on June 6.
Bill Young received a CoC policy complaint letter on May 16, but charges were dismissed following his May 18 resignation from the Budget Committee.
A June 22 email from Sites explained the town would not be responsible for any legal fees associated with the CoC policy complaint. “This is not a law suit (sic) against the Town but rather a complaint involving the propriety of an appointee’s actions while serving on the Planning Board. You are welcome to appear with legal counsel--should you deem one necessary--at your own cost.”
A May 15 letter from the town attorney had similarly advised Hodgetts the town had no obligation to provide legal support, as the hearing was part of disciplinary action related to the complaint.
Hodgetts spent nearly $3200 for legal fees to defend against CoC policy allegations. Whitmarsh legal fees were closer to $5000. Young chose to resign rather than hire an attorney to fight charges.
To date, North Yarmouth has spent more than $14,000 to develop and administer its CoC policy.