South Portland School Board member sues city over personnel policy, 1st Amendment rights

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PORTLAND — Two employees are suing the city of South Portland over the constitutionality of a personnel policy that bars city workers from many forms of political activity, including the right to run for the School Board.

The plaintiffs are South Portland School Board member and city employee Karen Callaghan and city employee and former School Board member Burton Edwards.

Callaghan and Edwards contend that the policy violates their right to freedom of political speech, according to the lawsuit filed in Cumberland County Superior Court.

They argue they should be allowed to participate in any school-related political activity independent of their employment by the city.

South Portland argues that it has good reason to limit the rights of its employees.

“The city wants to ensure that employees are not using their employment status with the city, or city work time, to influence local elections,” City Manager James Gailey wrote in a court affidavit. “… Likewise, the city has a significant interest in making sure members of the public do not perceive that they may be subject to ‘politicking’ at City offices.”

Callaghan has worked for the South Portland Public Library since 2001. In December 2007 she was appointed to the School Board, and she ran for her first elected term in 2008. The personnel policy was not consulted or questioned in those instances, Gailey said.

The city revised its personnel policy a year ago. 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 on Monday night included a provision to grandfather Callaghan.

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 part-time job with the Parks and Recreation Department.

Generally, governmental bodies have to prove they have compelling reasons to limit constitutionally protected speech. If they do have such reasons, the limits on speech must be the least restrictive they can be to meet that goal.

“Candidacy for office is a First Amendment right,” Callaghan’s lawyer, David Lourie of Cape Elizabeth, said in an interview. He said it was reasonable to limit some city employees from running for certain offices – instances in which they might hold authority over themselves, for example.

But he argues that employment with the city and a position on the School Board don’t overlap in a way that merits the policy limit.

The City Council must approve the sum of the School Department’s budget, but has no authority over line items. Aside from that, the School Board is legally independent of the city, Lourie said.

“It’s a nexus issue, about whether there’s any reasonable relationship between (Callaghan) running for the School Board and her position with the city,” the attorney said. “There isn’t any relationship between the two. And if there were a relationship, this thing is not narrowly tailored to address that issue.”

As far as the city is concerned, its personnel policy doesn’t reinvent the wheel. Gailey said other municipalities in the area have similar policies.

He cited the Hatch Act, a federal law that prohibits executive branch employees from certain kinds of political activity, and said there are many situations in which Callaghan or other city employees may blur the line between the work of the city and the work of their office.

“(Callaghan) has interactions almost every moment at the library with the public,” Gailey said. “They know she’s a School Board member. So where is the line drawn between her School Board work and her daily work for the city?”

Zachary Heiden, legal director of the American Civil Liberties Union in Maine, said that it may not be enough to show that other cities have similar policies.

“The fact that a policy is widespread does not insulate it from constitutional scrutiny,” he said. “Speech and political participation are at the core of the First Amendment’s protections. … The presumption is that restrictions on core First Amendment activities are unlawful unless the government entity can justify them.”

Lourie has a motion for summary judgment pending before Justice Thomas Warren.

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