The Maine Ethics Commission has delayed its vote on whether the Cape Elizabeth School Department and superintendent should have filed as a ballot question committee ahead of the November 2024 election.

Cape Elizabeth residents Mary Ann Lynch and Larry Benoit filed the ethics complaint alleging the district spent more than $5,000 in advertisements in the town’s local newspaper, the Cape Courier, leading up to the election where voters narrowly defeated a $95 million school project. Going beyond that $5,000 threshold should have required them to file as a ballot question committee, they claim.

The Cape Elizabeth school district spent $4,940 in newspaper advertisements between August and November 2024, but the filers argue that other costs for the creation of the ads, such as for design and labor, should be included. That, they claim, could add thousands of dollars to that total.

South Portland precedent

Much of the Commission’s initial discussion at its meeting Wednesday morning revolved around a 2009 decision involving the city of South Portland. That year, the city mailed flyers along with residents’ tax bills that opposed a state referendum. The commission ruled that the city should have filed as a ballot question committee if it spent $5,000 or more. In South Portland’s case, they spent less, meaning they didn’t have to meet the filing requirement.

Commissioners questioned whether that decision applies to the complaint in Cape Elizabeth.

“In the case of South Portland in ’09 … it was a matter of the city or town weighing in on an initiative developed elsewhere, i.e. a statewide referendum,” said Commissioner Dennis Marble. “The matter before us today, we’re talking about a municipality, through its school board, and its own initiative.”

Commissioner David Hastings agreed that there is “a distinction” between the two cases.

“It was pointed out that this committee had an obligation to educate the public regarding this proposal, generated by the school board,” Hastings said. “The school board had an obligation to do something, to educate. So, the line between education and advocacy gets pretty vague to me.”

Commissioners asked Jonathan Bolton, the commission’s legal counsel, to come back with a memo on a 2009 ruling on South Portland’s before they take a vote at a future meeting. Commissioners also questioned the potential impact of contradicting the 2009 decision.

“You are the commission now … it’s within your discretion to change that view,” Bolton said, but reverting to the 2009 decision would reinforce the law. “It gives everyone certainty about what the law is and what’s going to be expected of people.”

Cape Elizabeth Superintendent Chris Record said he wasn’t aware of any other school districts filing as ballot question committees ahead of a school project. Nor had Harriman Architects, the design firm for the project, he said.

Commissioner Sarah LeClaire asked for more details on Harriman’s experience with other school districts. Record cited his own town of Scarborough, whose district employed Harriman for its current effort as well as for a $160 million school project that failed in November 2023.

“I have seen similar advertising in the local newspaper in Scarborough,” Record said, noting other examples provided by Harriman were also in line with Cape Elizabeth’s advertising. “They never brought this topic up, which leads me to believe other school districts are not doing this.”

Record later added, “It never crossed my mind” to register as a ballot question committee.

Information vs. Advocacy

Filing as a ballot question committee is designated for entities advocating to “influence” an election, or advocating for a “yes” or “no” vote.

Lynch and Benoit argue that the advertisements were attempting to influence voters to approve the project, rather than being purely informational, as the district claims.

The two filers insist in their testimony at Wednesday’s meeting that the advertising was intended to gain voter approval. Advertisements included headlines like “Why the ‘middle ground’ school design matters to students, teachers, families … and hopefully you too,” “How does ‘the middle ground’ concept address the barrier to education?” and “The ‘middle ground’: 3 reasons why now is the time.”

“We believe that, after the Town Council in August of last year signed a warrant to put the bond issue on the ballot, every ad after that is, on the face of it, an ad in support of the bond issue,” Benoit said.

Record emphasized that the advertisements were intended to educate voters.

“It is the fundamental duty of the superintendent, on behalf of the school board, to inform and interact with the public and the duty of the school board to provide safe and educationally effective facilities,” Record said.

School board Vice Chair Cynthia Voltz said the advertisements contain materials used throughout the development of plans for the project, including slides from presentations and handouts at public forums.

“If the commission determines we should have registered, we will do so as quickly as we can,” Record said.

Commissioners said the advertisements toed the line between advocacy and information.

“I analyzed these ads very closely,” said William Schneider, chair of the commission. “Although some of them come perilously close, I cannot find that they consist of advocacy. I think the school board (and) superintendent have a duty that’s enshrined in law for them to present information on this.”

Hastings said he believes there is some inherent bias in the advertisements.

“There is an element of advocacy, which you would expect from an entity proposing a project,” he said.

If the advertisements are considered informational, registering as a ballot question committee wouldn’t be required. Citing that reasoning, Schneider motioned for the commission to drop the matter altogether. However, other commissioners said they would like for Bolton to issue a memo on the 2009 decision before taking a vote, as they requested earlier in the meeting.

The commission expects its next meeting to happen sometime in July.