In what many consider to be a slam dunk case for The Cat, the Maine Supreme Judicial Court announced yesterday that the Board of Harbor Commissioners was wrong when it hiked rates excessively without bothering to advise ferry service officials of the pending change. It reaffirmed the decision made by Judge Lance Walker originally in a lawsuit filed by The Cat’s attorney Harold Pachios, of PretiFlaherty. A city attorney, Jenn Thompson, represented the Board of Harbor Commissioners and Twain Braden represented the Portland Pilots.
Back in May of 2017, the unsupervised Board of Harbor Commissioners voted to approve the Portland Pilots’ application to increase the Pilots fee, in and out of Portland Harbor, by 70 %. The decision took less than four minutes duration to decide. Furthermore, the Board chaired by Tom Dobbins, did not notify The Cat, d/b/a Bay Ferries LLC, that an increase was on the upcoming agenda. Other procedural requirements were not followed and sufficient evidence to justify any increase, particularly such an excessive one, was not provided by the Pirates.
Even though the Board has subpoena power, it never asked this monopoly in Portland Harbor, required by state law, to provide information to support a rate increase. Under these circumstances, it was incumbent upon both the Board of Harbor Commissioners and the Portland Pirates to prove the necessity of such actions by opening up their financial records and demonstrating a financial need for their actions. The PIlots attorney, Twain Braden, maintained all the while it was “irrelevant” for his clients to do that. So,the Portland Pirates did not open-up their financial records to be evaluated – to their eventual detriment.
This morning long-time Chair of the Board of Harbor Commissioners Tom Dobbins, told mhn.com: “I’m disappointed in the decision.” Dan Haley, a resident of the Eastern Promand on Munjoy HIll, is a member of the Board and a retired insurance executive. Haley was an outspoken ally of the Portland Pirates during the public hearings that mhn.com attended. Even former Governor Paul LePage got involved. He wrote each of the Commissioners and asked them to resign because of their “anti-business view.” None did.
Other ships in Portland Harbor have been subject to the excessive rate hikes similar to The Cat through the same classification. That includes the EIMSKIP cargo ships. What will it do? Tell its stockholders that it has asked for a refund of the overpaid fees?
It’s exceedingly disconcerting that the Board of Harbor Commissioners is permitted to function in such an independent and unsupervised manner given the circumstances surrounding this slam dunk case. Do board members receive any training or is it just “make it up as you go along”? Several years ago, a current board member told this blogger that the Board was being sued. He said: “But it’s not a big deal. It’s only about process.” There is no oversight for the Board of Harbor Commissioners. Shouldn’t there be?
Recently, members of the Portland City Council have decried approving any ordinance changes that might invite a court challenge. The “responsible contracting” amendment of Mayor Ethan Strimling recently reported herein, is the latest example. Conservative Justin Costa is a primary advocate of that position. Perhaps someone should start with the Board of Harbor Commissioners and tying their hands before it happens again.
Mhn.com has queried the city for its costs incurred in representing the Board of Harbor Commissioners in this lawsuit. No response has been received.
Please see posts herein dated January 16, 2018 and January 5, 2018 for more background information.
note: This blogger is battling a bug. So far the bug is winning! Not certain when she will finish this post and the previous one.