School board member sues over policy

SOUTH PORTLAND — Whether or not South Portland prevails in a court fight over its personnel policy – which bars city employees from running for elected office – at least on legal scholar is saying the city will get what it deserves.

Orlando Delogu has taught classes on state and local government, land use and administrative law at the University of Maine Law School for 45 years, and did not hold back last week when asked about the suit, in which librarian Karen Callaghan is fighting for her right to serve on the Board of Education.

“I also sat on the Portland City Council,” he said. “We usually managed to avoid dropping bricks like this on our own toes.”

Callaghan filed suit Sept. 26 in Cumberland County Superior Court after being told Sept. 13 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 city’s public library.

A longstanding personnel policy bars city employees from holding any municipal elective office in South Portland. On Nov. 15, 2010, that policy was updated to clarify that the elective offices at stake include school board seats, not just positions on the City Council – this after councilors overlooked the policy when appointing Callaghan to fill an unexpired school board term in 2007, or when she won election outright in 2008.

On Sept. 19 – after Callaghan reportedly threatened to sue – City Manager James Gailey wrote Callaghan to say he “would not enforce” the policy, “for this election.” The “grandfathering” gesture was one of goodwill, Gailey said, given that Callaghan was “informed of the policy back in January.”

Despite the offer, Callaghan pressed on, joined in her suit by part-time Parks & Recreation employee Burton Edwards, who said 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 unopposed with 5,223 votes.

Callaghan’s attorney, David Lourie, of Cape Elizabeth, said the complaint includes two counts. One asks the court to rule on South Portland’s policy of stopping any employee run for office, while the other asks for a ruling on a ban of all political activity, including circulating petitions or posting campaign signs.

“Both counts cover constitutionally-protected political speech, and the second count, at least, is a slam dunk,” said Lourie, noting that if the city loses the case, it will be on the hook for his attorney fees, which he expects to run “at least $50,000.”

At its Nov. 21 meeting, the City Council voted unanimously to relax part of the policy, which had also barred employees from signing or circulating nomination papers or other campaign literature. Under the new rules, a city employee can now sign a petition for someone else to run for office.

Following a Nov. 28 council workshop, Gailey said that change was made hoping the court might look more favorably on the policy.

On Monday, South Portland met a deadline to answer Lourie’s motion for summary judgment – an action that asks Justice Thomas Warren to reach a ruling, rather than incur the expense of a jury trial. The city did not oppose the measure. However, Lourie said its answer amounted to “a book,” much of it characterized by him as “garbage.”

On Tuesday, Lourie said he was busy reviewing information submitted to the court by South Portland city attorney Sally Daggett. He has 14 days to answer, after which Warren will determine if materials provided by the two attorneys contain and “genuine dispute of material fact.” If not, a decision could come soon. Warren “usually works pretty fast,” said Lourie.

According to Delogu, the question is not even one of First Amendment free-speech rights under the U.S. Constitution, as Lourie claims.

“I’m not sure that it raises to the level of a constitutionally-protected right,” he said. “Still, it’s axiomatic under the Constitution as a whole that any citizen may seek any office. We put a very high store on the right of any citizen to seek any office, from the national level to the local. One cannot be arbitrarily barred from even running. I think the city, at this early stage, is being far more heavy-handed than would be sustained by a court.”

Delogu said South Portland might have stronger case if it had waited until after Callaghan had been elected and then asked her to choose between her job and the office.

“I think the city could probably sustain the argument that, if elected, one would have to choose,” he said. “But to prevent one from even seeking the office, I think they on weaker ground.”

The city’s position is weakened further, Delogu said, by the fact that the ban on school board membership is a city policy – and a selectively enforced one at that – rather than an ordinance, or, better yet, a provision of the city charter.

“The fact that the city manager said he would not enforce the policy this time just underscores how arbitrary these sorts of policy rules can be, as opposed to an explicit line in the charter,” explained Delogu. “After all, they jury-rigged the policy initially [by allowing Callaghan to run for office in 2008] and then jury-rigged it a second time [when she ran again in 2011]. That’s sort of legislative hi-jinks.”

Even so, Delogu said he doubts a judge will find a conflict of interest inherent between Callaghan’s school board duties and her librarian job. Although the seven-member school board rules on line items in a budget that equals 56 percent of all city spending, it is councilors who control the purse strings and vote up or down on the final dollar figure.

Although he admits conflict of interest questions “are a slippery slope,” Delogu said it seems unlikely the school board would ever rule on anything to do with Callaghan’s day job, while she has no control over the bottom line, regardless.

“The school board is not the central governing body,” said Delogu. “I think the city has a right to guard itself against untenable conflicts of interest, but the likelihood of any meaningful conflict-of-interest in this case is tenuous at best, and may be close to non-existent.”

In the rare event that a conflict did arise, Callaghan could simply recuse herself, said Delogu.

The ban is necessary, said Gailey, because, while he was not implying it would be necessary with Callaghan, it would place him in a tough spot to have to discipline “or have that tough talk” with an employee, who also happened to be an elected official.

“Elected positions tend to hold a higher regard within the fabric of he community,” said Gailey.

Lourie countered that any limitation on an employee’s presumed right of political speech must show that it meets “a compelling city interest” and that any limitation is “as narrowly tailored as possible.”

“They have not succeeded in articulating that yet,” said Lourie. “What they have is pretty much an indefensible policy, especially given that city government and the schools are two different organizational structures altogether.”

That was the argument made by Delogu, but Gailey disputes it.

“That’s what they’re contending, but in today’s world the lines between the city and the schools are getting more and more blurred,” he explained, pointing to a merger of technology services in South Portland four months ago. “We’re sharing more and more resources, we’re working hand-in-hand on things because the dollars are shrinking and we need to provide the same services.”

Gailey said because of the grandfather clause added to the policy, Callaghan will not be forced to quit her job, if the city prevails.