South Portland School Board member wins civil rights lawsuit against city

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SOUTH PORTLAND — The city violated its employees’ constitutional rights by preventing them from engaging in certain types of political activity, a Maine Superior Court judge ruled. 

Justice Thomas Warren, in a summary judgment ruling issued Monday, said the First Amendment rights of municipal employees trump the city’s prohibition on School Board-related political activity.

Warren said his opinion does not apply to city limits on employees who may run or seek to participate in City Council elections.

The ruling came in a lawsuit filed against the city last November by School Board member and city librarian Karen Callaghan and part-time city employee and former School Board member Burton Edwards.

They claimed the city’s personnel policy violates their civil rights because a 2010 amendment of prohibits them from running for the School Board or participating in School Board-related campaigns because they work for the city.

“I’m euphoric,” Callaghan said Wednesday. “I feel very happy that I’ve been vindicated by the courts and I hope everyone else who is a city worker feels the same.”

“City employees were being affected by this,” Edwards said. “Now, hopefully, we can move forward.”

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.

The city revised its personnel policy in November 2010, to explicitly apply its prohibition on political activity by city employees tp School Board elections. When Callaghan turned in the signatures to have her name placed on the ballot for the 2011 election, 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, City Manager Jim Gailey decided she could be “grandfathered” for one more term on the School Board. She was re-elected in November.

Edwards claimed 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.

Warren wrote that when government seeks to restrict the rights of its employees it must prove there is a compelling reason, generally that such restrictions are critical to the smooth operation of government or to prevent conflicts of interest. 

The city offered many justifications for its policy. It said it was trying to avoid untoward influence on city operations by School Board members, or inappropriate decisions made by city employees because of School Board politics. 

Warren said there just wasn’t enough of a relationship between city employees and the School board to to justify the city’s concerns. 

“School Board members do not have any supervisory authority over municipal employees,” the judge said.

He said there is no evidence to suggest that municipal employees not answerable to a School Board might be affected by board politics at work or that they might be rewarded or punished based on participation or lack thereof in board elections.

Warren dismissed a city argument that Gailey, who has no authority over School Board members, would be placed in an awkward position if he had to discipline a city employee who is also a School Board member.

“The short answer is that this perceived ‘awkwardness’ is not sufficient to justify restricting the First Amendment rights of municipal employees,” he wrote.

While Warren ordered the city to strike its policies preventing municipal employees from running for the School Board, circulating petitions or campaign literature for School Board elections, and soliciting on behalf of School Board candidates, he upheld the city’s rules prohibiting employees from using the authority of their job to influence elections; using city facilities, equipment, materials or supplies in elections, or participating in politicking during work hours.

Gailey said it is too soon to know whether the city will accept the decision or appeal it, and said he had no further comment.

“The City Council will be reviewing it,” Gailey said in an email Wednesday.

Sally Daggett, the city’s attorney, has not responded to questions about this case or any other work she undertakes on behalf of the city.

The city may be required to pay Callaghan and Edwards’ legal fees. The plaintiffs were represented by Cape Elizabeth attorney David Lourie, a former city attorney for Portland. He said he’d ask the court to award him about $25,000. 

“Either they’re getting very bad legal advice or they’re not taking it,” Lourie said of the city. “… The city should have known from day one that their personnel policy didn’t pass constitutional muster.”

The city has 21 days to decide whether to appeal to the Maine Supreme Judicial Court. 

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

Order of Partial Summary Judgement, Callaghan et al. v. City of South Portland

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