Janet Kuech on Monday waves to children after helping them board buses at Narragansett Elementary School in Gorham. Robert Lowell / American Journal

GORHAM — The lawyer for a Gorham educator filed Tuesday for a temporary restraining order prohibiting the town from denying her a seat on the Town Council pending the outcome of a lawsuit against the town.

The motion also calls for a halt to plans for a March 3 special election.

Janet Kuech is pictured Monday with her attorney, Jonathan Goodman. Robert Lowell / American Journal

Janet Kuech should be seated on the council until the lawsuit against the town filed last week in Cumberland County Superior Court is resolved, the request says. The lawsuit seeks to overturn the council’s denial.

“Basically, she has a right to be on the council,” Jonathan Goodman, a lawyer hired by the Maine Education Association to represent Kuech, said in a press conference Monday in Gorham.

Based on its interpretation of the Town Charter, the Town Council Nov. 12 disqualified Kuech, an education technician at Narragansett School who was elected Nov. 5, from claiming the seat because she is a town employee.

Goodman of the Troubh Heisler law firm Tuesday filed a motion for the restraining order to prohibit the town “from denying Plaintiff Kuech her right under the Maine Constitution to serve on the Gorham Town Council.”

The motion also seeks to halt a new Gorham election March 3 to fill the vacancy on the seven-member board.

“I am not surprised by the lawsuit,” Town Council Chairwoman Suzanne Phillips said Monday. “I have no other comments at this time.”

In a six-way race for three council seats in the Nov. 5 municipal election, Kuech defeated incumbent Paul Smith and challengers Tyler Gowen and Richard Davis. Incumbents James Hager and Benjamin Hartwell were re-elected.

“According to the Town Charter, they could have seated me,” Kuech said Monday at the press conference.

At issue is the interpretation of a clause in the town charter that says councilors “shall hold no office of emolument or profit under the Town Charter or Ordinances.”

The town’s attorney, Mark Bower, wrote in a Nov. 11 memorandum to Hartwell, then council chairman: “It is my opinion that the term ‘office of emolument or profit under the Town Charter or Ordinances’ should not be interpreted so broadly as to cover any position of employment within the Town of Gorham or School Department.’

Bower also wrote, in his opinion, that an ed tech is not one of the “offices” referred to in the charter. Bower did not return messages by the American Journal’s deadline Wednesday.

The Town Council voted 4-3 on Nov. 12 to deny Kuech a seat on the board and on Dec. 3 voted 6-0 to not reconsider the matter.

Meanwhile, Town Councilor Hartwell, based on a section in the Town Charter, is sponsoring an agenda item for the board’s meeting on Tuesday, Jan. 7, seeking to temporarily re-seat Smith to fill the vacancy. The charter section says each councilor is elected for three years “and until his successor is elected and qualified.”

Hartwell said he consulted with Maine Municipal Association that referred to it as a “holdover clause” that’s common to prevent a vacancy.

Hartwell said he’s aware of request for an injunction.

“But unless a judge forces us to seat her while the case moves forward, I will continue to push for upholding Sec. 201 of the charter,” Hartwell said. “As far as I’m concerned, doing otherwise would be violating the oath of office.”

Town Clerk Laurie Nordfors said Wednesday six candidates had taken out nomination papers for the vacant seat. They are Davis, Gowen, Smith, Shonn Moulton, Amy Valentine and Kuech. Gowen, Moulton and Smith had filed papers by early Wednesday. Kuech previously said she won’t file nomination papers.

The deadline for returning papers is 1 p.m. on Friday, Dec. 20.