2014-04-18 / Front Page

South Portland pays legal piper to the tune of $100,000

By Duke Harrington
Contributing Writer

SOUTH PORTLAND – After three years of legal wrangling, South Portland’s attempt to overturn a court ruling which found it improperly blocked two city employees from serving on the school board has cost taxpayers nearly $100,000.

Because the legal battle was waged on constitutional grounds — the ability to run for political office deemed a protected right to free speech under the First Amendment — the plaintiffs, former city librarian Karen Callaghan and part-time parks employee Burt Edwards, were allowed under the federal Civil Rights Act to seek recovery of their legal costs.

On March 31, the court ordered South Portland to pay $54,771 to David Lourie of Cape Elizabeth, the attorney for Callaghan and Edwards.

The final outlay also includes $42,531 paid to Portland law firm Jenson Baird Gardner & Henry, which employs City Attorney Sally Daggett. She defended the city policy in superior court and, losing, appealed twice to the Maine Supreme Court.

According to City Finance Director Greg L’Heureux, the city side of the bill only includes Jenson Baird charges through Jan. 14.

“There may be some small billing yet to come in from whatever work was done since then,” he said.

At a special meeting on Monday, April 14, the city council voted 6-1 to appropriate money from a legal reserve fund to meet the court-ordered mandate that it cover Lourie’s fees. That reserve account, said City Manager Jim Gailey, has “about $90,000” in it, largely left over from money set aside to defend against multiple property tax appeals filed by Maine Mall owner General Growth Properties. GGP dropped all of its appeals in July, just after the start of the current fiscal year.

The court did agree to reduce Lourie’s bill, termed “quite exorbitant” by Mayor Jerry Jalbert, by about 40 percent, from something just north of $90,000. In arbitration, it cut Lourie’s hourly fee from $325 to $270 and trimmed the number of hours he worked on the case.

Even so, two council critics — including Rosemarie DeAngelis, who was a councilor at the time the suit was filed and first appealed — issued stern rebukes to the council Monday, saying it never should have allowed the city to go so deep down the rabbit hole in the first place.

“I’m concerned that legal council guided us to two appeals on this matter,” DeAngelis said. “I’m concerned with what we are choosing for our fights and with how we are expending taxpayer monies.”

“I’m also concerned, as I was when I was on the council, that votes occurred in executive session,” De Angelis added.

Gailey has acknowledged “a consensus was reached” during executive sessions on whether Daggett should file appeals on behalf of the city, but has denied any actual votes took place. DeAngelis, however, has maintained that hands were counted and those votes, which she said were not unanimous, should have been conducted in open session.

In a pair of 2012 interviews, two of Maine’s leading experts on Maine’s Freedom of Access Act sided with De Angelis.

“They can go into executive session with their legal council to discuss taking legal action, but they can’t vote to take a legal action in a secret session. Eventually, they have to do it in public,” said Mal Leary, president of the Maine Freedom of Information Coalition.

“Those are official actions of the board, and as such are decisions that have to be made in public,” agreed Sigmund Schutz, attorney for the Maine Press Association.

Meanwhile on Monday, Colchester Drive resident Al DiMillo railed against the lawsuit payout in the bombastic fashion for which he has become famous.

“The taxpayers of South Portland should not have to pay for the incompetence of the city manger and or the unethical actions of Sally Daggett,” he said.

“No competent manager with even the basic understanding of the concept of conflict of interest would have wasted taxpayer money on this lawsuit,” DiMillo said. “Second, any ethical lawyer would have known that Sally Daggett’s hiring of herself to represent the city in this lawsuit was a conflict of interest much worse than the claim of a conflict of interest against Karen Callaghan.”

DiMillo called on the city council to demand that Daggett’s firm pay Lourie’s bill out of its own pocket.

City councilors did not respond to that request, or to DeAngelis’ comments. However, a majority did object to the scheduling of a special meeting to pay the legal bill, instead of deal with it either last week or next, at a regularly scheduled session.

“I feel like we are all pretty good with our calendars. We could have done this at a regular meeting,” said Councilor Patti Smith, who cast a token vote against the appropriation on those grounds.

Other councilors also found fault with the special meeting, but voted for the measure nonetheless because, in the words of Mayor Jerry Jalbert, “It’s a court order. We don’t have any choice in the matter.”

Callaghan filed suit Sept. 26, 2011, in Cumberland County Superior Court after being told 13 days earlier that her name could not appear on the November ballot for re-election to an at-large seat on the school board unless she first resigned her job at the circulation desk of the South Portland Public Library. Callaghan, now the school board’s vice-chairman, was appointed by the council to fill an unexpired term on the board in 2007. She then won election outright in 2008. However, on Nov. 15, 2010, the city’s personnel policy was updated to clarify that a ban on city employees holding local elective office applied to the board of education, as well as to the city council.

Edwards soon joined Callaghan’s suit, saying he ran afoul of the policy in December 2010 when he was refused appointment to a vacant seat on the school board. In the meantime, a temporary restraining order allowed Callaghan to collect signatures despite the policy’s prohibition on political activity. She won re-election in November 2011, running unopposed, with 5,223 votes.

In November 2011, the city council voted unanimously to relax some of the newer restrictions in the personnel policy, excising portions that barred employees from signing or circulating nomination papers or other campaign literature. Gailey said at the time that the change was made in hopes the court would “look more favorably” on the balance of the policy.

That hope did not come to pass, however. In an April 17, 2012, decision, Superior Court Justice Thomas Warren upheld the free speech rights of Callaghan and Edwards to engage in non-partisan political activity as a city employee.

The city filed an appeal to that decision on May 8, 2012. Although she said it was unrelated, Callaghan then submitted her resignation to South Portland Human Resource Director Don Brewer on May 11. She now works at Scarborough Public Library.

The city tried to get the case dismissed once Callaghan quit. It also noted that Burton was no longer employed after he failed to obtain required software training or provide a preferred work schedule. Although Edwards is no longer working for the city, the best the court has been able to determine is that he “has neither voluntarily resigned or been terminated.” Still, the court ultimately decided that, regardless of currently employment status, “it would see no reason to vacate” the 2012 decision “based on mootness,” adding in its final say on the matter in November 2013 that, “the situation is no different than if Callaghan and/or Edwards had left city employment 10 years after the decision.”

Oral arguments in the appeal were made in December 2012. However, Maine’s Law Court did not issue a decision until September 2013, when it upheld Warren’s ruling 5-1.

Writing for the majority, Justice Andrew Mead sided with Warren, saying, “The city has not demonstrated that its interest, as an employer, in providing efficient public services outweighs the employee’s interest, as a citizen, in commenting on a matter of public concern.”

Justice Donald Alexander, the lone dissenter, took the city’s side, saying “serious conflicts of interest” could be created if municipal employees are allowed to sit on the school board.

The city council quickly filed a second appeal. According to Councilor Tom Blake, who held the mayor’s gavel at the time, the second appeal was filed only to seek clarification of the Maine Supreme Judicial Court ruling.

“It’s kind of fuzzy and didn’t really give us a lot of direction,” he said at the time. “It was like, what are they saying? What do they want us to do?

Part of the problem was that, while the court found in favor of Callaghan and Burton, it never actually invalidated South Portland’s personnel policy, in either the original decision or the appeal.

“We’d like to just write them a letter and say, ‘Could you please explain this further?’ but we can’t,” Blake said. “In order for us to ask any questions of the court, we have to apply for reconsideration. There’s no other option.”

The court ruling on the motion to consider, rendered by Warren on Nov. 26, 2013, echoed the law court ruling, declaring that sections of the South Portland Personnel Policy related to running for a seat on the school board “are invalid and unenforceable,” but only “to the extent those subsections may be applied” to Callaghan and Edwards, who, moot or not, no longer work for the city.

“It was very fine-line, technical attorney stuff,” said Mayor Jerry Jalbert on Tuesday. “But, to me, the bottom line is that five Maine State Supreme Court justices can’t be wrong, even though they fine tuned it to apply to Karen and Burt only and did not actually strike down our policy in any shape way or form.”

Jalbert said he hopes to re-adopt the personnel policy as it stood before revision in 2010, rather than “run the risk” of guessing how the court might rule in the future, should South Portland ever attempt to enforce the policy against anyone else.

“We are working on a number of amendments to the personal policy,” said Gailey on Tuesday. “One of the amendments will be to address the court decision.”

Meanwhile, Jalbert predicted South Portland’s experience could influence action on towns and cities across the state.

“Apparently, from what we’ve been told by attorney Daggett, this kind of policy is pretty common throughout the state of Maine,” he said. “Many other communities will probably be looking at that in the not-too-distant future due to this court decision.”

Return to top