2016-11-25 / Community

Rights of city employee may finally get settled

By Wm. Duke Harrington
Staff Writer

SOUTH PORTLAND — Nearly three years after a court-ordered settlement in a case that took three years to play through the legal system, South Portland school board member Karen Callaghan is still waiting for the city council to do as ordered by Maine’s Law Court and restore the free speech rights of city employees – a fact she pointed out at the Nov. 21 council meeting.

“It’s been two-and-a-half years since I heard there was going to be a workshop on this,” she told the board Monday, during the citizen comments portion of its regular meeting. “My lawyer will be contacting you if this isn’t done soon. It’s gone on too long. There’s no need for it.”

Callaghan was a city librarian in September 2011 when she was told 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. Callaghan had been appointed by the council to fill an unexpired term on the school board in 2007, 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.

Callaghan filed suit in Cumberland County Superior Court 13 days after getting her either/or notice. She was joined in the legal action by part-time parks employee Burt Edwards, who said he ran afoul of the policy in December 2010 when he refused appointment to a vacant seat on the school board. At the time, a temporary restraining order allowed Callaghan to collect nomination signatures despite the policy’s prohibition on political activity. She won re-election that year, and again in 2014, and has now served nearly a decade on the school board.

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. Then-city manger Jim Gailey said at the time 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, 2012.

On Monday, Callaghan said it had been “too difficult” to continue in her job. She now works at the Scarborough Public Library.

The city tried to get the case dismissed once Callaghan quit her job. It also noted that Edwards was no longer employed after he failed to obtain required software training or provide a preferred work scheduled. Although Edwards no longer worked for the city, the best the court was able to determine was that he “has neither voluntarily resigned or been terminated.” Still, the court ultimately decided that, regardless of Edwards’ employment status, “it would see no reason to vacate” the 2012 decision “based on mootness,” adding in its final say on the matter in Nov. 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 Mayor Tom Blake, who also held the mayor’s gavel at that 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 Edwards, 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 Burton, who, moot or not, no longer work for the city.

In its September 2013 ruling, the Law Court remanded the personnel policy back to the city, with instructions to redraft it to be consistent with the legal decision.

But that never happened, as Callaghan pointed out. More to the point, her attorney, David Lourie of Cape Elizabeth, contacted the council about its lapse in a Nov. 19 email. He followed that up with a second communication Nov. 21, writing:

“Since (this) matter is not on the council agenda . . . please (provide) the date that it will be taken up, so that I may avoid the necessity of seeking further orders from the court to restore your employees’ rights in fact.

“Please do not take comfort in the fact that neither of my clients is presently a city employee,” Lourie write. “They have prudential standing to compel enforcement of the city's legal obligation to act in the Maine Superior Court. My clients have authorized me to proceed with a new court filing when I return from Thanksgiving, if the council neither acts tonight, nor provides a date certain and explanation for further delay before then.”

When addressing the council at its Nov. 21 meeting, Callaghan noted that Lourie’s work does not come cheap. Although in 2014 arbitration the court cut Lourie’s hourly fee from $325 to $270, and trimmed the number of hours he claimed to have worked on the case, his bill still came to $54,771. On top of that, the city incurred $42,531 in costs to the Portland law firm Jenson Baird Gardner & Henry, which employs City Attorney Sally Daggett, for her time on the case, including the multiple appeals.

At Monday’s city council meeting, interim City Manager Don Gerrish said the council punted in 2014 because it wanted to include a host of other personnel policy amendments in the package of court-ordered edits, which would allow city employees to run for seats on the school board.

“Since that time it has not been brought back because (city staff) have been working on a newer revision to the personal ordinance. They had planned to bring the whole amendment at a January meeting.”

Although Gerrish did not credit Lourie with instigating a new hurry-up mode, he said the amendments related to Callaghan’s case will now be taken up at a Nov. 28 council workshop. Depending on what happens at that session, a first reading of the new ordinance wording could be taken up as soon as a Dec. 7 council meeting, Gerrish said.

“So, we will expedite that matter,” he said.

That left it to Mayor Tom Blake, as one of his final acts before exiting office – unlike the school board, city council members are subject to term limits – to apologize for the long walk toward putting the issue to bed.

“On behalf of the city I want to apologize for our lateness in dealing with this matter,” he told Callaghan. “We did have good intentions. It just got behind us.”

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