Maine high court rules against South Portland in 1st Amendment lawsuit

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SOUTH PORTLAND — The Maine Supreme Judicial Court ruled Tuesday the city cannot prevent two of its employees from running for the School Board.

“I am thrilled it is over, that I fought for my rights and I won,” School Board member Karen Callahan said Wednesday.

Callahan and former School Board member Burton Edwards filed a 2011 lawsuit in Cumberland County Superior Court in Portland arguing a revision to city personnel policies banning municipal employees from running for School Board violated their First Amendment rights.

By a 5-1 vote, with Justice Donald Alexander dissenting, Maine’s highest court upheld Superior Court Justice Thomas Warren’s decision that the city ban violated the First Amendment.

But after hearing the city’s appeal of the lower-court ruling, the high court also limited the scope of its decision to just the cases of Callahan and Edwards. The justices vacated a 2012 permanent injunction issued by Warren against the city personnel policy as it pertains to other municipal employees.

“Because we conclude that these provisions of the City’s personnel policy violate these employees’ First Amendment rights, we affirm the judgment as it applies to them,” Justice Andrew Mead wrote in the majority opinion.

A ban on municipal employees running for City Council remains intact.

South Portland City Manager Jim Gailey noted Tuesday that the decision affirmed the wider city policy, which has been in place since 2011. But he said it overlooked the key issue at its core.

“The City is disappointed with the decision, as (it) believes the decision does not adequately balance the City’s interest as an employer to promote fair, efficient and effective operations against any First Amendment interests of … employees in running for, or serving on, the School Board,” Gailey said in a news release.

Callahan, a School Board member since 2007, was advised in 2011 by City Clerk Susan Mooney that she could not seek re-election because she works at the South Portland Public Library.

“I didn’t want to have to sue, I just didn’t think it should have been a problem,” she said. “I don’t know why they changed the policy out of nowhere.”

Because of her prior board service, Callahan was considered “grandfathered” and allowed to run for office. Her exception was made official with a policy amendment in November 2011. She was elected without opposition.

She said the city appeal of Warren’s ruling surprised and disappointed her.

“I begged them not to do it and spend more money,” Callahan said.

Edwards, a part-time, as-needed employee with the city Parks and Recreation Department, was also a board member while working for the city. In 2010, he expressed interest in a board vacancy, but decided against seeking the seat when it was questioned if he could serve, according to the court decision.

In his opinion, Mead noted the need to balance municipal interests against individual rights, but rejected arguments the ban was legal under the federal Hatch Act and companion state law applying to partisan political activity.

Because Board of Education elections are held without party designations, Mead considered them nonpartisan.

Mead also said Supreme Court precedents used to balance municipal interests against personal free speech did not apply because the city failed “to demonstrate (Callahan’s and Edwards’) Board-related political activities would have an actual impact on municipal government operations, as opposed to a speculative or theoretical impact.”

Because Gailey, in court affidavits, failed to show how he or School Board members have direct authority or influence over each other, Mead said he also failed to show instances where Callahan’s and Edwards’s “membership on the Board and simultaneous employment in another City department created any actual difficulty or interference with the goals for municipal government that Gailey identifies.”

Gailey praised Alexander’s dissent because it “correctly recognized the conflict of interest between someone serving as a city employee in one department and also serving an executive/legislator in another city department – the School Department – which is the most expensive department in City government.”

Mead said it was not the court’s role to determine which municipal employees could run for School Board while upholding the general policy, while Gailey said the City Council will soon meet with Corporation Counsel Sally Daggett to discuss the possibility of a federal court challenge.

David Harry can be reached at 781-3661 ext. 110 or Follow him on Twitter: @DavidHarry8.

Portland City Hall reporter for The Forecaster. Baltimore native, lived in Maine since 1989. A journalist since 2005, covering much of Cumberland and York counties. I joined The Forecaster in 2012.