MAINE SUPREME JUDICIAL COURT                                                            Reporter of Decisions
Decision: 2013 ME 78
Docket:   Cum-12-229
Argued:   December 12, 2012
Decided:  September 10, 2013

Panel:          ALEXANDER, LEVY, SILVER, MEAD, GORMAN, and JABAR, JJ.*
Majority:       LEVY, SILVER, MEAD, GORMAN, AND JABAR, JJ.
Dissent:        ALEXANDER, J.


                                    KAREN CALLAGHAN et al.

                                                      v.

                                  CITY OF SOUTH PORTLAND

MEAD, J.

         [¶1] Karen Callaghan and Burton Edwards (the employees) are part-time

employees of the City of South Portland. They filed a complaint in the Superior

Court (Cumberland County) pursuant to 42 U.S.C.A. § 1983 (West, Westlaw

through P.L. 113-22) seeking a declaration that certain provisions of the City’s

personnel policy violated their First Amendment rights, and further seeking

permanent injunctive relief from the enforcement of those provisions. They then

moved for summary judgment.

         [¶2] The City appeals from the entry by the court (Warren, J.) of a partial

summary judgment for the employees and a corresponding permanent injunction

barring the City from enforcing a prohibition on any City employee (1) seeking


   *
       Saufley, C.J., sat at oral argument but did not participate in the development of the opinion.
                                                                                   2

election to or serving on the South Portland School Board; and (2) engaging in

certain political activities on their own time, specifically circulating petitions or

campaign literature in connection with School Board elections, and soliciting or

receiving contributions or political service for or against candidates in School

Board elections.     Because we conclude that these provisions of the City’s

personnel policy violate these employees’ First Amendment rights, we affirm the

judgment as it applies to them. We vacate the judgment, however, to the extent

that it invalidates the personnel policy as to City employees who are not parties to

this action.

                                 I. BACKGROUND

       [¶3]    The facts are not disputed; accordingly, our task is to determine

whether either party is entitled to a judgment as a matter of law.             M.R.

Civ. P. 56(c); see Hayden-Tidd v. Cliff House & Motels, Inc., 2012 ME 111, ¶ 12,

52 A.3d 925 (“Summary judgment provides a procedural mechanism to test the

application of law to facts that are not in dispute.”).

       [¶4] Since 2001, Karen Callaghan has been employed by the City as a

part-time circulation librarian in the Library Department. Burton Edwards works

for the City’s Parks and Recreation Department about four hours per week on an

as-needed basis. Both are subject to the City’s personnel policy, which, following

amendments in 2010 and November 2011, provides that City employees may not
                                                                                     3

      (1) seek or accept nomination or election to any South Portland
      elective office (i.e., City Council or School Board) . . . ;

      (2) use the influence of his or her employment capacity for or against
      any candidate for any City elective office;

      (3) circulate petitions or campaign literature for any City elective
      office;

      (4) solicit or receive subscriptions, contributions or political service
      from any person for or against any candidate for any City elective
      office; or

      (5) use City facilities, equipment, materials or supplies to . . . assist or
      advocate for or against any candidate for any county, state, federal, or
      City elective office regardless of whether he or she is on or off duty.

      [¶5] In addition to her City employment, Callaghan has served on the

South Portland School Board (Board) since 2007. Before the City’s personnel

policy was amended in 2010, it permitted Callaghan’s service on the Board,

although City employees were barred from serving on the City Council. When

Callaghan sought reelection to the Board in 2011, she was advised by the City

Clerk that because she had not resigned her City employment, the personnel policy

amendments prevented the Clerk from placing her name on the ballot. Following

discussions with Callaghan’s attorney, the City Manager advised Callaghan that he
                                                                                                        4

would treat her candidacy as “grandfathered,” “[f]or now.”1 She subsequently ran

unopposed, was reelected, and currently serves on the Board.

         [¶6] At some time before 2010, Edwards had served on the Board for

eighteen years; some of that service coincided with his City employment. In

December 2010, Edwards expressed an interest in being appointed to fill an

existing vacancy on the Board. After the City Clerk questioned whether Edwards

could be appointed given his City employment, Edwards decided not to pursue the

appointment. He asserts a continued interest in serving on the Board.

         [¶7]     In September 2011, the employees filed a complaint pursuant to

42 U.S.C.A. § 1983,2 asserting that the City’s personnel policy was “an

unconstitutional restraint on political speech” that violated the First Amendment to

the United States Constitution.3 They also moved for a temporary restraining



   1
     Callaghan’s one-time “grandfathering” was formalized in the November 2011 amendment to the
personnel policy. Pursuant to the current language, the City Manager would not have similar discretion
should Callaghan again decide to run for reelection to the Board.
   2
       Title 42 U.S.C.A. § 1983 (West, Westlaw through P.L. 113-22) provides, in part:

         Every person who, under color of any statute, ordinance, regulation, custom, or usage, of
         any State or Territory or the District of Columbia, subjects, or causes to be subjected, any
         citizen of the United States or other person within the jurisdiction thereof to the
         deprivation of any rights, privileges, or immunities secured by the Constitution and laws,
         shall be liable to the party injured in an action at law, suit in equity, or other proper
         proceeding for redress . . . .

The City is a “person” subject to suit for purposes of the statute. See Richards v. Town of Eliot,
2001 ME 132, ¶ 38, 780 A.2d 281; Polk v. Town of Lubec, 2000 ME 152, ¶ 12, 756 A.2d 510; Moen v.
Town of Fairfield, 1998 ME 135, ¶ 7 n.3, 713 A.2d 321.
                                                                                                    5

order; that motion was denied because Callaghan’s name was on the ballot, she

was running unopposed, and the vacancy Edwards had expressed an interest in no

longer existed.

         [¶8] The employees moved for summary judgment and the City requested

summary judgment in its favor. The court granted the employees’ motion in part,

permanently enjoining as unconstitutional the personnel policy’s prohibitions

against City employees (1) running for and serving on the Board, and

(2) participating in Board elections by circulating petitions and campaign literature,

soliciting contributions, and contributing political service on their own time. The

court let stand provisions barring City employees from participating in Board

elections by using the influence of their City jobs, using any City-owned facilities

or property, or politicking during working hours. The court made it clear that its

order applied only to the School Board, and not to elections involving the City

Council or any other elective office. This appeal followed.

                                       II. DISCUSSION

A.       Nature of the Employees’ First Amendment Interest

         [¶9] The employees seek to participate in two activities that implicate the

First Amendment: (1) serving on the Board; and (2) circulating petitions and


     3
     The employees did not, and do not now, assert a separate violation of article I, section 4 of the
Maine Constitution.
                                                                                   6

engaging in other campaign-related activities, either for themselves or for other

candidates.     Identifying the precise degree of constitutional protection those

activities enjoy is not an easy task.          The Eleventh Circuit has noted that

“[p]recedent in the area of constitutional protection for candidacy can be best

described as a legal morass.” Randall v. Scott, 610 F.3d 701, 710 (11th Cir. 2010);

see   Matters    v.   Estes,   No.   1:13:-cv-578,   2013   WL   2403663,    at   *3

(N.D.N.Y. May 31, 2013) (“The extent of a public employee’s right to run for

public office is not clearly established.”).

      [¶10]     A plurality of the United States Supreme Court has stated that

candidacy is not a fundamental right such that strict scrutiny is required before it

may be restricted. Clements v. Fashing, 457 U.S. 957, 963 (1982) (plurality

opinion); see Carver v. Dennis, 104 F.3d 847, 850-51 (6th Cir. 1997) (“[T]he

[Supreme] Court has never recognized a fundamental right to express one’s

political views through candidacy.”).

      [¶11] That said, although candidacy is not a fundamental right, it is clear

that candidacy and related political activities are matters of significant

constitutional import. See Clements, 457 U.S. at 977 n.2 (Brennan, J., dissenting)

(“Although we have never defined candidacy as a fundamental right, we have

clearly recognized that restrictions on candidacy impinge on First Amendment

rights of candidates and voters.”). The First Circuit has stated unequivocally that
                                                                                    7

“[c]andidacy is a First Amendment freedom,” and therefore “the government may

place limits on campaigning by public employees [only] if the limits substantially

serve government interests that are important enough to outweigh the employees’

First Amendment rights.” Magill v. Lynch, 560 F.2d 22, 27, 29 (1st Cir. 1977)

(quotation marks omitted). In Randall, the Eleventh Circuit noted that “[w]hile

there is no fundamental status to candidacy requiring the rigorous standard of

review that is applied in voters’ rights cases, there is at least some constitutional

right to candidacy”; accordingly, “restricting candidacy . . . must be the least

restrictive means of furthering a vital government end. . . . Even though Clements

does not make clear the degree of constitutional scrutiny required for candidacy

restrictions, the [Supreme] Court does suggest that political candidacy is entitled to

at least a modicum of constitutional protection.” 610 F.3d at 711-12 (quotation

marks omitted).

      [¶12] The Supreme Court itself has recognized “the Constitution’s special

concern with threats to the right of citizens to participate in political affairs,”

Borough of Duryea, Pa. v. Guarnieri, 131 S. Ct. 2488, 2498 (2011) (quotation

marks omitted), and has described “participation in political campaigns” as “close

to the core of the First Amendment,” Waters v. Churchill, 511 U.S. 661, 672

(1994). See also Moen v. Town of Fairfield, 1998 ME 135, ¶ 18, 713 A.2d 321

(noting   the   Supreme    Court’s    recognition   of   “employees’     fundamental
                                                                                   8

constitutional interest in supporting the political candidates of their choice”).

Relevant to the employees’ asserted right to be free to circulate petitions and

campaign literature and to contribute political service on their own time during

Board campaigns, the Supreme Court has said that “[p]etition circulation . . . is

core political speech, because it involves interactive communication concerning

political change. . . . First Amendment protection for such interaction . . . is

[therefore] at its zenith.”    Buckley v. Am. Constitutional Law Found., Inc.,

525 U.S. 182, 186-87 (1999) (quotation marks omitted).                 See Randall,

610 F.3d at 711 (“Although being a candidate is not the same as supporting a

candidate, the two acts are closely related.”).

      [¶13] In sum,

      [a] plaintiff’s candidacy cannot be burdened because a state official
      wishes to discourage that candidacy without a whisper of valid state
      interest. An interest in candidacy, and expression of political views
      without interference from state officials who wish to discourage that
      interest and expression, lies at the core of values protected by the First
      Amendment.

Id. at 713. In terms of applying those values and thereby deciding which of the

competing interests must prevail in this case between the employees and the City,

we are left in the same position in which the First Circuit found itself thirty-six

years ago:

      What we are obligated to do in this case . . . is to apply the [Supreme]
      Court’s interest balancing approach to the kind of nonpartisan election
                                                                                9

      revealed in this record. . . . We cannot be more precise than . . .
      characterizing the Court’s approach as “some sort of balancing
      process.” It appears that the government may place limits on
      campaigning by public employees if the limits substantially serve
      government interests that are important enough to outweigh the
      employees’ First Amendment rights.

Magill, 560 F.2d at 27 (citation and additional quotation marks omitted).

B.    The Applicable Test

      [¶14] Like the constitutional interests to be protected, the contours of the

balancing test we are to apply are not precisely defined. Nevertheless, as Justice

Breyer recently noted:

      Regardless of the label [used to describe the standard of review],
      some . . . approach is necessary if the First Amendment is to offer
      proper protection in the many instances in which a statute adversely
      affects constitutionally protected interests but warrants neither
      near-automatic condemnation (as “strict scrutiny” implies) nor
      near-automatic approval (as is implicit in “rational basis” review).

United States v. Alvarez, 132 S. Ct. 2537, 2552 (2012) (Breyer, J., concurring in

the judgment). The Supreme Court has articulated two similar tests that may be

employed to balance the important First Amendment rights of prospective

candidates and the electorate against the significant interest of the State in

maintaining the efficient and trustworthy operation of government.

      1.    The Pickering test

      [¶15] In Pickering v. Board of Education, the Supreme Court rejected the

notion that the government acting in its role as an employer may impose unlimited
                                                                                   10

restrictions on its employees’ First Amendment rights, at the same time

recognizing that the government may lawfully impose some restrictions on

employee speech that would be unlawful if imposed on citizens who are not

government employees. 391 U.S. 563, 568 (1968); see also United States v. Nat’l

Treasury Emps. Union, 513 U.S. 454, 465 (1995) [hereinafter NTEU] (“In

Pickering and a number of other cases we have recognized that Congress may

impose restraints on the job-related speech of public employees that would be

plainly unconstitutional if applied to the public at large.”); Waters, 511 U.S. at 671

(“[T]he government as employer indeed has far broader powers than does the

government as sovereign.”).

      [¶16] Pickering announced a balancing test for analyzing public employees’

First Amendment claims, which the Supreme Court has consistently employed in

subsequent cases: “The problem in any case is to arrive at a balance between the

interests of the . . . citizen, in commenting upon matters of public concern and the

interest of the State, as an employer, in promoting the efficiency of the public

services it performs through its employees.” 391 U.S. at 568. See also NTEU,

513 U.S. at 465-66; id. at 480 (O’Connor, J., concurring in the judgment in part)

(“The time-tested Pickering balance . . . provides the governing framework for

analysis of all manner of restrictions on speech by the government as employer.”);
                                                                                   11

Waters, 511 U.S. at 668; Rankin v. McPherson, 483 U.S. 378, 384 (1987); Connick

v. Myers, 461 U.S. 138, 142 (1983).

      [¶17] Accordingly, when, as here,

      a public employee sues a government employer under the First
      Amendment’s Speech Clause, the employee must show that he or she
      spoke as a citizen on a matter of public concern. . . . Even if an
      employee does speak as a citizen on a matter of public concern, the
      employee’s speech is not automatically privileged. Courts balance the
      First Amendment interest of the employee against “the interest of the
      State, as an employer, in promoting the efficiency of the public
      services it performs through its employees.” This framework
      reconcile[s] the employee’s right to engage in speech and the
      government employer’s right to protect its own legitimate interests in
      performing its mission.

Borough of Duryea, Pa., 131 S. Ct. at 2493 (quoting Pickering v. Bd. of Educ.,

391 U.S. 563, 568 (1968)) (citation and additional quotation marks omitted).

      [¶18] Whether an employee’s speech in a particular case involves a matter

of public concern and, if so, whether the governmental employer can demonstrate

that its interest outweighs the employee’s interest in engaging in that speech, are

each questions of law reviewed de novo.          Moen, 1998 ME 135, ¶¶ 14-15,

713 A.2d 321.    “[T]he balance we must strike . . . is driven entirely by the

individual facts of th[e] case . . . consider[ing] the importance of the public speech

at issue . . . .” Id. ¶ 23; see also Andrews v. Dep’t of Envtl. Prot., 1998 ME 198,

¶ 15, 716 A.2d 212 (noting that “the degree of First Amendment protection

afforded by Pickering depends upon [a] fact-based balancing test”).
                                                                                     12

      2.     The Anderson test

      [¶19] In contrast to Pickering, which focused on the First Amendment

rights of government employees to speak on matters of public concern, in

Anderson v. Celebrezze the Supreme Court examined the First Amendment rights

of voters to have candidates for whom they might wish to vote appear on the

ballot. 460 U.S. 780, 786, 806 (1983). The Court first observed that “[t]he impact

of candidate eligibility requirements on voters implicates basic constitutional

rights.” Id. at 786. To weigh those rights against the government’s interest in

elections that are “fair and honest and [accompanied by] some sort of order, rather

than chaos,” id. at 788 (quotation marks omitted), the Court articulated a balancing

test that is very similar to, and no more definitive than, the balancing test it set out

in Pickering:

      [A court] must first consider the character and magnitude of the
      asserted injury to the rights protected by the First and Fourteenth
      Amendments that the plaintiff seeks to vindicate. It then must identify
      and evaluate the precise interests put forward by the State as
      justifications for the burden imposed by its rule. In passing judgment,
      the Court must not only determine the legitimacy and strength of each
      of those interests; it also must consider the extent to which those
      interests make it necessary to burden the plaintiff’s rights. Only after
      weighing all these factors is the reviewing court in a position to decide
      whether the challenged provision is unconstitutional. The results of
      this evaluation will not be automatic; as we have recognized, there is
      no substitute for the hard judgments that must be made.

Id. at 789 (citation and quotation marks omitted).
                                                                                  13

      [¶20]    This test, like the Pickering test, requires a reviewing court to

(1) identify the First Amendment interest asserted by the employee/citizen and the

magnitude of that interest; (2) identify the government’s interest in restricting the

First Amendment interest at issue, the strength of the justification for the

restriction, and the extent to which the restriction is necessary to vindicate the

government’s interest; and then (3) balance factors (1) and (2) in making a

determination as to which outweighs the other given the facts of a particular case.

      3.      Hatch Act concerns

      [¶21] Before proceeding to an application of these balancing tests to the

facts of this case, we take note of, and find to be unpersuasive, the City’s argument

that this case should be viewed as a straightforward Hatch Act case and resolved as

such. In general, the federal Hatch Act, 5 U.S.C.A. §§ 7321-7326 (West, Westlaw

through P.L. 113-22), and its Maine counterpart, 5 M.R.S. § 7056-A (2012),

prohibit certain political activity by covered government employees. The City

argues that because the Supreme Court has upheld some restrictions on

government employee political activity under the Hatch Act, the restrictions at

issue here are per se constitutional.     Even in cases where the Hatch Act is

discussed, however, the Supreme Court has noted the applicability of the Pickering

test when First Amendment rights are at issue. See NTEU, 513 U.S. at 467;

U.S. Civil Serv. Comm’n v. Nat’l Ass’n of Letter Carriers, 413 U.S. 548, 564
                                                                                   14

(1973) (applying Pickering test to limitations on partisan activity imposed by

Hatch Act).

      [¶22] In any event, the Hatch Act as construed by the Supreme Court, and

5 M.R.S. § 7056-A by its explicit terms, apply to partisan political activity.

See NTEU, 513 U.S. at 470-71; Broadrick v. Oklahoma, 413 U.S. 601, 606, 616-17

(1973); Nat’l Ass’n of Letter Carriers, 413 U.S. at 556; see also Blaylock v. U.S.

Merit Sys. Prot. Bd., 851 F.2d 1348, 1351-54 (11th Cir. 1988) (explaining Hatch

Act’s focus on partisan activity). For example, the Maine equivalent of the Hatch

Act explicitly allows state employees to run as “a candidate for public office in a

nonpartisan election,” 5 M.R.S. § 7056-A(6)(D), and even as a candidate in a

partisan election for a local office, id. § 7056-A(4). Elections to the South Portland

School Board are nonpartisan. Accordingly, Hatch Act philosophical concerns for

efficient, corruption-free government are helpful here to the extent that they inform

the governmental interest side of the balancing ledger, but they are not

independently determinative of the analysis in this matter.

C.    Application of the Pickering and Anderson Tests to These Facts

      [¶23] Initially, we conclude that it is not necessary for us to choose either

the Pickering test or the Anderson test to the exclusion of the other because the

First Amendment interests asserted by the employees prevail under either test. On
                                                                                                        15

the facts of this case, satisfying Pickering necessarily satisfies the similar

requirements of Anderson.

        [¶24] The first part of the Pickering test requires the employees to show that

their right to run for election to the Board and to engage in political activity in

regard to Board elections is speech involving a matter of public concern.

See Moen, 1998 ME 135, ¶ 14, 713 A.2d 321. The employees have met their

burden here. By offering themselves as candidates for service on the Board, they

seek to communicate to the electorate their positions on issues concerning

South Portland schools and their ideas for improving the community’s school

system. See Connick, 461 U.S. at 145 (“[T]he Court has frequently reaffirmed that

speech on public issues occupies the highest rung of the hierarchy of First

Amendment values, and is entitled to special protection.” (quotation marks

omitted)). Such communication “fall[s] within the protected category of citizen

comment on matters of public concern rather than employee comment on matters

related to personal status in the workplace.”4 NTEU, 513 U.S. at 466. From the

community’s perspective, the selection of members of the community to serve on

the Board is unquestionably a matter of public concern. Finally, as we have

   4
      The Pickering test does not apply when a government employee speaks “as an employee upon
matters only of personal interest” rather than “as a citizen upon matters of public concern.” United States
v. Nat’l Treasury Emp. Union, 513 U.S. 454, 466 (1995) (quotation marks omitted). For example,
“private speech that involves nothing more than a complaint about a change in the employee’s own duties
may give rise to discipline without imposing any special burden of justification on the government
employer.” Id.
                                                                                 16

discussed, candidacy for office is subject to some measure of First Amendment

protection.

      [¶25] The employees having satisfied their burden on the first prong of the

test, the burden then shifts to the City to demonstrate that “its interest, as an

employer, in providing efficient public services outweighs the employee[s’]

interest[s].” Moen, 1998 ME 135, ¶ 14, 713 A.2d 321. The Supreme Court has

recognized that precisely describing that burden is difficult because it varies with

the facts in every case:

      Pickering unmistakably states . . . that the State’s burden . . . varies
      depending upon the nature of the employee’s expression. Although
      such particularized balancing is difficult, the courts must reach the
      most appropriate possible balance of the competing interests.

      ....

      Because of the enormous variety of fact situations . . . we do not deem
      it either appropriate or feasible to attempt to lay down a general
      standard . . . .

Connick, 461 U.S. at 150, 154 (quotation marks omitted); see Moen, 1998 ME 135,

¶ 23, 713 A.2d 321 (“the balance . . . is driven entirely by the individual facts of

th[e] case”).

      [¶26] In this case the magnitude of the City’s intrusion on the employees’

interests in participating in the School Board electoral process—interests that lie

“close to the core of the First Amendment,” Waters, 511 U.S. at 672—is high. As
                                                                                       17

a result, the City’s burden of justification to show that its interests as an employer

outweigh the employees’ interests is correspondingly high. See NTEU, 513 U.S.

at 483 (O’Connor, J., concurring in the judgment in part) (“As the magnitude of

intrusion on employees’ interests rises, so does the Government’s burden of

justification.”); In re R.M.J., 455 U.S. 191, 203 (1982) (stating that in order to

regulate nonmisleading commercial speech, “the State must assert a substantial

interest and the interference with speech must be in proportion to the interest

served”); Moen, 1998 ME 135, ¶ 23, 713 A.2d 321 (stating that the Pickering

analysis requires consideration of “the importance of the public speech at issue”).

      [¶27] Furthermore, “unlike an adverse action taken in response to actual

speech, this ban chills potential speech before it happens.” NTEU, 413 U.S. at 468.

The City’s personnel policy chills the employees’ prospective candidacy for the

Board and potential participation in Board campaigns, activity implicating the First

Amendment, by raising the specter of an adverse employment action should they

engage in it. Accordingly, “the [City’s] burden is greater with respect to this . . .

restriction on expression than with respect to an isolated disciplinary action.” Id.

      [¶28] Taking these principles into account, the City must demonstrate that

the interests of both (1) the employees, and (2) the citizens of South Portland who

may want the employees to represent them on the Board, or who may want a

candidate to serve that would benefit from the employees’ active support, “are
                                                                                     18

outweighed by that expression’s necessary impact on the actual operation of the

Government.” Id. (emphasis added) (quotation marks omitted). Although it has a

significant burden, the City’s interest is not negligible, as the Supreme Court has

recognized: “The government’s interest in achieving its goals as effectively and

efficiently as possible is elevated from a relatively subordinate interest when it acts

as sovereign to a significant one when it acts as employer.” Waters, 511 U.S. at

675.   “Interference with work, personnel relationships, or the speaker’s job

performance can detract from the public employer’s function; avoiding such

interference can be a strong state interest.” Rankin, 483 U.S. at 388. Accordingly,

we are mindful that “[t]he Pickering balance requires full consideration of the

government’s interest in the effective and efficient fulfillment of its responsibilities

to the public.” Connick, 461 U.S. at 150.

       [¶29] Against this legal backdrop we turn to the ultimate question: whether,

on these facts, the City demonstrated a “necessary impact on the actual operation

of the Government,” NTEU, 513 U.S. at 468 (quotation marks omitted), sufficient

to outweigh the employees’ demonstrably strong First Amendment interest in

running for election to the Board or actively participating on their own time in

Board campaigns. We conclude that the Superior Court correctly found that the

City has not met that burden because it failed to demonstrate that these employees’
                                                                               19

Board-related political activities would have an actual impact on municipal

government operations, as opposed to a speculative or theoretical impact.

      [¶30]   The City’s justification for the personnel policy’s restrictions is

grounded wholly within the affidavits submitted by the City, principally the

affidavit of James Gailey, the South Portland City Manager.          His affidavit

describes the interaction between the city operations side of South Portland

government, headed by the City Manager, and the school department, headed by

the Board. In sum, Gailey avers that (1) the Board manages the schools, submits

an annual budget to the City Council for approval, and must have its debt

addressed by the Council; (2) the City Manager has occasional contact with

members of the Board about school-related issues; (3) the Board furnishes budget

estimates to the Manager, and other reports when requested; and (4) some

functions and costs are shared by the city operations side of municipal government

and the school department, such as insurance, annual independent auditing,

payroll software, the purchase of bulk commodities, utilities, and increasingly

consolidated information technology departments.

      [¶31] Nowhere does Gailey’s affidavit assert that he has any disciplinary

authority over or direct influence on members of the Board as such, nor does it

recite that a member of the Board has any authority over him or any other

employee on the city operations side of South Portland government. The affidavit
                                                                                                          20

sets out a list of laudable goals for municipal government that Gailey proffers as

justification for the personnel policy at issue,5 but it does not establish how any of

these goals is actually hindered by the service of a part-time librarian or part-time

parks and recreation worker on the Board. To the contrary, despite Callaghan’s

and Edwards’s service on the Board for a total of twenty-three years, the City

offers no instance, or even a suggestion of an instance, where their membership on

the Board and simultaneous employment in another City department created any

actual difficulty or interference with the goals for municipal government that

Gailey identifies. Furthermore, the affidavit does not cite a single instance of any

adverse impact on the operation of City government occurring as a result of any

City employee serving on the Board in the years before 2010, years when such

service was not prohibited by the personnel policy.

         [¶32] Some of the most serious evils postulated in Gailey’s affidavit, for

example an employee “using [his] employment status with the City, or City work

time, to influence local elections”; “using ‘company time’ to collect petition


  5
      In part, Gailey avers that

         [w]ith regard to . . . the “political activity” provision of the Personnel Policy, there are a
         number of reasons why I want this provision in the Personnel Policy. I want there to be
         efficient and effective municipal government operations; I want a municipal government
         that enjoys public confidence; I want individual citizens to be free of municipal
         governmental discrimination based on their political activities or connections; I want
         municipal government employees to be free of employer pressure in their personal
         political decisions; and I want to prevent a situation where a subordinate employee runs
         against a supervisor.
                                                                                                     21

signatures for local elections or e-mail[ing] fellow employees or members of the

general public about local elections”; or engaging in politicking “to influence

fellow employees or members of the general public with whom they come into

contact as part of their employment”; remain prohibited by the portions of the

personnel policy affirmed by the Superior Court, meaning that if an employee

engaged in those activities, he or she would still be subject to discipline. Another

justification asserted by the Gailey affidavit that would be of serious concern if

actually present, namely “prevent[ing] a situation where a subordinate employee

runs against a supervisor,” cannot occur here because the ban on City employees

running for City Council remains in place, and the School Board has no

supervisory authority over City employees.6 In sum, the core threats to municipal

administration identified by Gailey are not presented in any fashion by Callaghan

and Edwards serving on the School Board.

       [¶33]      Viewing the facts objectively, following the Superior Court’s

judgment the City retains effective weapons in its personnel policy to neutralize

what it terms the “viper in the nest”—thus far purely theoretical—that it fears. The

most concrete impact on the actual operation of City government demonstrated by

Gailey’s affidavit is his assertion that it would “likely be awkward” if he were

   6
      Nor could a school department employee run for election to the Board and thereby gain authority
over his or her supervisor; that possibility is foreclosed by statute. See 20-A M.R.S. § 1002(2) (2012).
                                                                                                   22

involved in a disciplinary action against a City employee who also served on the

Board, or “would be awkward” if he requested budget estimates or reports from the

Board if a member was also a City employee. As the trial court concluded, it

might be personally uncomfortable if the City Manager was in a position to

discipline a Board member for some incident that occurred in the course of his or

her City employment, but the Manager’s personal discomfort falls far short of the

strong showing of a necessary impact on the actual operation of City government

required under the Pickering analysis before these City employees’ First

Amendment rights may be restricted.7

       [¶34] Because, on the facts of this case, and with specific regard to School

Board elections and these employees, 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,”

Moen, 1998 ME 135, ¶ 14, 713 A.2d 321, the Superior Court correctly found that

the personnel policy’s prohibitions on these two employees running for election to

the Board or actively participating in Board elections on their own time violate the

First Amendment.8



   7
      Why it would be awkward for the City Manager to request routine budget information from the
Board if one or more of its members was also a City employee is, as the Superior Court also concluded,
not apparent.
                                                                                                         23

D.       Remedy

         [¶35]    The court went beyond the unique circumstances of these two

employees, however, and enjoined the policy’s enforcement against all City

employees. We do not think it necessary or advisable to do so in this case,

choosing instead to follow the Supreme Court’s prudent advice that “although the

occasional case requires us to entertain a facial challenge . . . we neither want nor

need to provide relief to nonparties when a narrower remedy will fully protect the

litigants.”9 NTEU, 513 U.S. at 477-78.

         [¶36]    At oral argument, the employees conceded that the City could

lawfully prohibit some City employees from running for the Board, for example

the City Manager himself and perhaps supervisors or those employees with direct

input into the City’s budgetary process, but they offered no principled dividing line

to separate employees who could lawfully be barred from running from those who

could not. We decline to usurp the role of City officials in drawing that line


     8
      We remain true to our rule that “[o]rdinances are presumed constitutional.” Fitanides v. City of
Saco, 2004 ME 32, ¶ 10, 843 A.2d 8. Callaghan and Edwards met their initial burden to show that the
personnel policy restricted their efforts to speak on matters of public concern. If they had not met that
burden, the policy’s presumption of constitutionality would remain, and the City would prevail. See id.
¶ 14. Thus we have done what the dissent contends we failed to do, which is to “initially presume that the
ordinance is constitutional.” Dissenting Opinion ¶ 50.
     9
      Positive relief is required for these plaintiffs, however, because the factual record is complete. The
parties had a full opportunity to present facts at the summary judgment level, and the facts they presented
were essentially uncontroverted. Thus, there is no reason for us to simply remand this matter to the trial
court for further fact-finding.
                                                                                   24

beyond fulfilling our responsibility to say that under the factual circumstances of

this case, these two employees could not, consistent with the First Amendment, be

prohibited from running or participating in Board elections. Although a blanket

prohibition would doubtless be easier for the City to enforce, here it overreaches,

and our “acknowledging the difficulty of rendering a concise formulation, or

recognizing the possibility of borderline cases, does not disable us from identifying

cases far from any troublesome border.” Brown v. Hartlage, 456 U.S. 45, 56

(1982). That said, it is best left to City officials more intimately familiar with the

inner workings of South Portland municipal government than we to promulgate a

policy that both promotes efficient government and does not offend the First

Amendment rights of its employees.

       The entry is:

                   As to these plaintiffs, judgment affirmed. As to
                   other City of South Portland employees, judgment
                   vacated.    Remanded for further proceedings
                   consistent with this opinion.




ALEXANDER, J., dissenting.

      [¶37] Today the Court holds that the First Amendment to the United States

Constitution may, if a judge agrees, be applied to bar municipalities from

prohibiting their employees from being a candidate to hold a second position in the
                                                                                       25

same municipality that may create a conflict of interest between the employee’s

obligations as a political employee in one position and the employee’s obligations

as a nonpolitical employee in the other position. From that holding, I respectfully

dissent.

      [¶38]    The Court has comprehensively addressed the federal and state

precedents on federal, state, and local government employees’ rights to freedom of

expression and the extent to which government may, as a condition of

employment, limit those rights by prohibiting those who already hold one office

from seeking and holding a second office with the same government entity. The

Court correctly observes, citing a recent Eleventh Circuit opinion, that the issue of

constitutional protections for a government employee seeking to become a

candidate for a second government office is a “legal morass.” Court’s Opinion ¶ 9.

See Randall v. Scott, 610 F.3d 701, 710 (11th Cir. 2010) (“Precedent in the area of

constitutional protection for candidacy can be best described as a legal morass.”);

Matters v. Estes, 2013 WL 2403663, at *3 (N.D.N.Y. May 31, 2013) (“The extent

of a public employee’s right to run for public office is not clearly established.”).

      [¶39]    Unfortunately, after recognizing that the issue of constitutional

protections for a public employee’s candidacy for a second office is a “legal

morass,” Court’s Opinion ¶ 9, the Court then analyzes the issue as if it were a

public employees free speech case, such as United States v. Nat’l Treasury Emps.
                                                                                     26

Union, 513 U.S. 454 (1995), and In re R.M.J., 455 U.S. 191 (1982), subjecting the

candidacy restrictions to something like the strict-scrutiny analysis that is applied

to speech restrictions to shift to the City the burden of justifying its prohibitions on

city employees seeking one city office while they hold another city office. Court’s

Opinion ¶¶ 23-34.

      [¶40] The only legal issue to be adjudicated is the plaintiffs’ 42 U.S.C.A.

§ 1983 (West, Westlaw through P.L. 113-22) claim that the First Amendment to

the United States Constitution is violated by the City’s prohibition on employees

holding nonpolitical positions in City government from becoming a candidate for a

political position in City government.        Accordingly, we may look to First

Amendment precedent addressing similar restrictions imposed on state and federal

employees to evaluate the validity of the restrictions in this case.

      [¶41]    Applying those precedents, the Court generally vacates the trial

court’s injunction barring the City from enforcing its prohibition of its nonpolitical

employees from seeking and holding a second, political office in the City. In

support of generally vacating the injunction, the Court notes that although the

employees agreed that the City could prohibit some employees from running for

the School Board or other elective City offices, the employees “offered no

principled dividing line to separate employees who could lawfully be barred from

running from those who could not.” Court’s Opinion ¶ 36.
                                                                                  27

      [¶42]   But then the Court purports to divine the dividing line that the

employees themselves failed to identify and decides that the prohibition on

employees seeking and holding two offices, proper as to all other City employees,

is somehow improper as to the two employee-plaintiffs. Rather than establishing a

specific rule of law to provide reasoned guidance to state and local governments,

and their employees, on whether an employee holding one office may retain that

office while seeking and holding another office within the same governmental unit,

the Court leaves the issue to an after-the-fact decision by a court—a decision upon

which two judicial fact-finders could reach different results, and a decision that

likely would not be final until long after the election in which an individual sought

to be a candidate. See Court’s Opinion ¶ 36.

      [¶43] Holding that this important issue of municipal governance—whether

municipal employees, in the face of a municipal policy prohibiting it, may seek and

hold two municipal offices at once—is a factual decision left to a court in each

instance, fails to provide the guidance that appellate courts should provide in

addressing important public policy questions.

      [¶44] If this case were about plaintiffs’ nonpartisan pamphleteering at the

Maine Mall, or running for the School Board in Scarborough, on the employee’s

free time, of course, I would agree with the Court that the City could not prevent

such activity by its employees. But this case is about a municipality’s capacity to
                                                                                   28

prevent each of its employees from engaging, on City time, in a blatant conflict of

interest between the City department, employing the employee and another City

department, the most expensive department in City government, in which the

employee seeks to be the master.

      [¶45] The State properly prohibits its classified employees from running for

or serving in the Maine Legislature, preventing conflicts between the budgeting,

policy, and priority setting interests of the two positions.          See 5 M.R.S.

§ 7056-A(3) (2012). The State properly prohibits its classified employees from

advocating before the Legislature for the interests of, or contracting with,

themselves or any entity which may result in a benefit to themselves or any entity

in which they have a substantial financial interest. 5 M.R.S. §§ 18, 18-A (2012).

These restrictions are important to preserving both the appearance and the reality

of integrity in State government operations. To promote both the appearance and

the reality of integrity in City government operations, the City can impose similar

requirements on its nonpolitical, classified employees.

      [¶46] Karen Callaghan is an employee of the Library Department. The

Library Department’s budget needs and priorities directly compete with and are

affected by budgeting decisions and priorities that may be demanded by the School

Board. Further, the Library Department’s and the School Board’s interests may

conflict on issues such as intellectual property acquisitions and access, use of one’s
                                                                                                       29

facilities by the other, and the role of the educational services provided by each in

the community.

        [¶47]     Burton Edwards is an employee of the Parks and Recreation

Department.10 The Parks and Recreation Department’s budget needs and priorities

directly compete with and are affected by budgeting decisions and priorities that

may be demanded by the School Board. In addition, the Parks and Recreation

Department’s and the School Board’s interests may conflict on issues such as

maintenance priorities (whose grass gets mowed first) and proper and joint uses of

fields, playgrounds, tennis courts, and the like.

        [¶48] Further, the employees’ status as department employees and School

Board executives and legislators can create direct personal conflicts when

considering collective bargaining agreements and employee discipline practices,

and deciding issues such as the proper scope of and municipal contributions to

employee benefits, health insurance, and retirement plans.                             The issue of

government contributions to employee health and retirement benefits is perhaps the

most controversial and costly issue facing state and local governments today. Any

person who is an employee in one municipal department and an executive and

   10
      The Court’s opinion indicates that Burton Edwards works for the City approximately four hours per
week, but its reasoning applies equally to employees working four, or fourteen, or forty hours per week. I
agree that for a case such as this, the important freedom of expression and governmental integrity
principles addressed by the Court should not be dependent on the number of hours per week a person
works.
                                                                                                            30

legislator in another municipal department is certain to have a conflict-of-interest

and obligations whenever these issues have to be addressed.

        [¶49] The Court’s opinion that the City cannot prevent these particular

employees from seeking and holding two conflicting positions within City

government is flawed in two significant ways. First, it gives short shrift to the

conflict of interest concerns addressed by the City policy, although adoption and

enforcement of similar restrictions by the State and federal governments,

acknowledged by the Court, demonstrate that such policies are indeed a legitimate

governmental interest to be respected in constitutionality analysis.11 See Court’s

Opinion ¶ 32.

        [¶50]      Second, despite acknowledging that there is no “fundamental

constitutional right” to run for a second municipal office, and that the

strict-scrutiny burden-shifting analysis does not apply, the Court fails to give the

City’s policy the benefit of the doubt to which it is entitled under our standards of

review for constitutional claims made against municipal ordinances and policies

implementing those ordinances.                    See Court’s Opinion ¶ 10.                     When the

constitutionality of a local ordinance is challenged, we have said that we will


   11
       The Court attempts to distinguish the well accepted prohibitions on State employees running for
State elected offices by asserting that the State prohibitions are limited to partisan elections, but the State
conflict of interest laws, 5 M.R.S. §§ 18, 18-A (2012), contain no such limitation. They apply to all
conflicts of interest, not just those that involve participation in partisan elections. See 5 M.R.S.
§ 18-A(2).
                                                                                   31

initially presume that the ordinance is constitutional. Fitanides v. City of Saco,

2004 ME 32, ¶ 10, 843 A.2d 8. Accordingly, the challenger has the burden of

proof to demonstrate that an ordinance is unconstitutional or is being applied in an

unconstitutional manner. Quiland, Inc. v. Wells Sanitary Dist., 2006 ME 113, ¶ 16,

905 A.2d 806.

       [¶51] The Court’s opinion places the burden on the City to justify its

restrictions, but that is not where the burden should lie. Placing the burden on the

City is directly contrary to our precedents stating that when the constitutionality of

an ordinance is challenged, we initially presume that the ordinance is not violative

of the Constitution until the plaintiff makes a case that the ordinance or

government action implementing the ordinance is unconstitutional. See Fitanides,

2004 ME 32, ¶ 10, 843 A.2d 8.

       [¶52]    The Court has acknowledged that the City could impose its

restrictions on the City’s other classified employees, and can bar all its classified

employees from running for the City Council. Because there is no rational basis

for distinguishing between treatment of candidacy for the City Council and

candidacy for the School Board, which controls the largest budget of any City

agency, I would hold that the plaintiffs have failed to meet their burden of

demonstrating that the City restriction does not protect a legitimate governmental

interest.
                                                                                 32

       [¶53] The constitutional propriety of restricting municipal employees from

holding two offices within the same municipality is established by the Court’s

opinion. With constitutional propriety established, the courts have no business

getting into the minutiae of examining whether this legitimate restriction should be

applied to candidacy of particular employees for the City Council or to the

candidacy of some employees, but not other employees, for the School Board.

There is no dispute about the facts here or about the serious conflicts of interest

that would be created if, contrary to municipal policy, employees of municipal

departments are permitted to run for the School Board. Accordingly, I would

vacate the judgment of the Superior Court, and remand with direction to deny the

plaintiffs’ claims for relief.




On the briefs:

       Sally J. Daggett, Esq., and Mark A. Bower, Esq., Jensen Baird Gardner &
       Henry, Portland, for appellant City of South Portland

       David A. Lourie, Esq., Portland, for appellees Karen Callaghan and Burton
       Edwards

       Zachary L. Heiden, Esq., American Civil Liberties Union of Maine
       Foundation, Portland, for amicus curiae American Civil Liberties Union of
       Maine Foundation
                                                                                  33

At oral argument:

        Sally J. Daggett, Esq., for appellant City of South Portland

        David A. Lourie, Esq., for appellees Karen Callaghan and Burton Edwards



Cumberland County Superior Court docket number CV-2011-428
FOR CLERK REFERENCE ONLY
