South Portland asks judge to reject School Board member's lawsuit

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SOUTH PORTLAND — The city on Monday filed court documents defending its personnel policy against charges that the rules violate the First Amendment rights of its employees.

South Portland School Board member Karen Callaghan, who is a city librarian, and former School Board member Burton Edwards, who is a part-time Parks and Recreation Department employee, sued the city in Cumberland County Superior Court in September.

Callaghan and Edwards contend the policy violates their right to freedom of political speech and is too broadly written in limiting other kinds of political activity for city employees.

At issue is whether running for office is a fundamental political right protected by the First Amendment, as the plaintiffs claim, and whether the city has a right to restrict the political activity of its employees inside and outside the workplace.

The plaintiffs and their attorney, David Lourie, previously filed papers with Justice Thomas Warren seeking summary judgment – a finding that no material dispute of fact exists and that they are entitled to judgment as a matter of law, without a trial.

In South Portland’s response and its own request for summary judgment, attorney Sally Daggett said the city has an “important government interest” in limiting its employees’ political activities, and that the personnel policy purpose is to ensure employees don’t use their employment status with the city, or spend city time, to influence local elections.

“The Supreme Court, the Maine Law Court, and other federal and state courts have unanimously held that seeking political office is not a fundamental right, and that certain restrictions upon such political activity for government employees are constitutionally permissible,” Daggett wrote.

Callaghan and Edwards stressed the independence of the School Department from the city, arguing that Callaghan’s position on the School Board and her job with the city don’t have sufficient overlap to fall under the policy.

Daggett responded that the city – specifically through the city manager, Jim Gailey – has regular dealings with the School Board, and that overlap between the two is likely only to increase.

She pointed out that the board is required to issue financial statements whenever the city manager requests them and noted the manager’s role in crafting the city budget, which includes the school budget.

“There are municipal and school services that are being consolidated into single operations to serve both the municipal and the school side of the city’s overall operations,” Daggett wrote. “It would be inappropriate for a City employee to serve the municipal side of City operations by day and the School Board/School Department side of operations by night.”

She said information technology services have already been consolidated, and the city’s filing included affidavits from the city’s finance and human resources directors, who wrote about their dual roles with the city and School Department.

The city revised its personnel policy a year ago to specify that elected offices include the school board. When Callaghan turned in the necessary signatures to have her name placed on the ballot this year, City Clerk Susan Mooney told her she couldn’t run unless she resigned from the library, according to court documents and interviews with parties in the dispute.

After Callaghan threatened to sue, Gailey decided she could be “grandfathered” for one more term on the School Board. Policy language approved by the City Council in November included that provision.

Edwards claims he was deterred from seeking an appointment to the School Board in December 2010 after being told he would have to give up his Parks and Recreation Department job.

Now that both sides in the lawsuit have asked for summary judgment, Warren will either issue a ruling or send the case to trial. 

Mario Moretto can be reached at 781-3661 ext. 106 or mmoretto@theforecaster.net. Follow him on Twitter: @riocarmine.

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