School is back in session, and we're back looking at the Maine SJC's decisions of note. One came out today on the issue everyone likes to talk about (literally) – the First Amendment. Callaghan v. City of South Portland, 2013 ME 78 http://www.courts.state.me.us/opinions_orders/supreme/lawcourt/2013/13me78ca.pdf
Two people who were part-time employees of the City (in the library and parks and recreation departments, respectively) wanted to run for the school board. The personnel policy said no. They sued, represented by the able David Lourie, with the amicus participation of the MCLU, so congrats also to the able Zach Heiden. While the Superior Court (Warren, J.) entered an injunction that would prevent application of the policy generally, the SJC limited the injunction to only these two employees, saying that the balancing test applied in these situations recommended a narrow case-by-case approach. The majority decision was written by Justice Mead; CJ Saufley sat but did not participate in the opinion; and Justice Alexander dissented.
Basically, the issue of public employees running for office is, as this Court noted, a "legal morass." The SJC decided to apply a balancing test, not as strict as strict scrutiny and not as tepid as rational basis, essentially using the test applied when deciding public employee speech can be curbed (the Pickering test, per Pickering v. Board of Education, 391 U.S. 563 (1968).) Since running for office, the Court concluded, was a communication on matters of public concern, this shifted the burden to the CIty to show why the ban was required for the efficacy of the provision of public services. The City's arguments/evidence (essentially an affidavit from the City Manager) on this point, the majority said, was too speculative. The Court noted that the ban was recent and there was no parade of horribles shown prior to that; the employees wanted to run for School Board, and that Board and their public employee jobs were not linked; and a ban on using public facilities and electioneering on working time still applied. That the City Manager might feel awkward about the situation wasn't enough given that constitutional rights were at issue.
The majority also noted that the Hatch Act and its state counterpart (5 M.R.S. s. 7056-A) didn't apply because the School Board was elected in a nonpartisan election.
In dissent, Justice Alexander basically said that more deference should be given to the City's concerns, and he found them more legitimate because he saw conflicts of interest, real or the appearance of the same. For example, the library budget can compete with the School budget. What about decisions about how much the government should contribute to employee health and retirement benefits? Employee discipline? Collective bargaining?
So, to sum up, the takeaway is that the SJC isn't going to accept a flat ban on public employees running for office, at least something like a nonpartisan school board election, at least without having some real, concrete evidence as to how it degrades public employee performance and public confidence. Beyond that, each situation will be dealt with individually.
