No longer under the Tuscan sun?


Here I am esconced in my new office on the working waterfront, pondering the interface between a recent decision of the Maine SJC, Walsh v. Town of Millinocket [] and a decision from 1931, Tuscan v. Smith, 130 Me. 36, 153 A. 289.  The common issue is what happens if one of multiple members of a governmental decision-maker is purportedly no good.

In Walsh, there was a 7 member town council.  One of the members displayed discriminatory animus against the plaintiff.  The Council voted 4-3 to eliminate the plaintiff's position.  There was no disagreement that only one of the members displayed this animus.  In a WhistleBlower Protection Act  suit, the SJC concluded that judgment for the plaintiff was not foreclosed by this fact.  In upholding the jury verdict, the SJC cited Supreme Court precedent as to how an employer can be found liable for employment discrimination based on the discriminatory animus of an employee who intentionally influenced, but did not make, the ultimate employment decision.  Staub v. Proctor Hosp., ––– U.S. ––––, ––––, ––––, 131 S.Ct. 1186, 1189, 1194, 179 L.Ed.2d 144 (2011) []   "Although Staub involved a private employer and action by a single decision-maker, rather than a public employer and action by a multi-member council," the SJC found that Staub's reasoning applied.  The Court stated:  "We have not explicitly addressed the circumstances under which discriminatory animus of one or a minority of members of a multi-member local council or commission can be found to be a 'substantial factor' or a 'motivating factor' causing an adverse employment action approved by the multi-member body," and rejected the reasoning  of an Eleventh Circuit decision concluding that the improper motives of one member of a three-member majority was insufficient to impute improper motive to a three-person decision-making body. Matthews v. Columbia Cnty., 294 F.3d 1294, 1297 (11th Cir.2002) [] The SJC stated:

"The Eleventh Circuit's approach appears to not fully appreciate the decision-making dynamics of local councils and commissions, which can be influenced by the improper but unstated views of a member with a particular interest in a matter to whom other members may defer in collegial discussions. As the First Circuit has observed, “[B]ecause discriminatory animus is insidious and a clever pretext can be hard to unmask … it may be overly mechanistic to hold [a plaintiff] to strict proof of the subjective intentions of a numerical majority of council members.” Scott–Harris v. City of Fall River, 134 F.3d 427, 438 (1st Cir.1997), rev'd on other grounds sub nom.  Bogan v.Scott-Harris, 523 U.S. 44, 118 S.Ct. 966, 140 L.Ed.2d 79 (1998)." 

Scott-Harris was a Section 1983 case in which the plaintiff alleged the enactment of an ordinance was an unconstitutional penalty under the First Amendment for her expression of issues of public concern.  The ordinance was enacted by the majority and signed by the mayor.  The First Circuit said:  "Th[e] question is best framed as follows: How many municipal legislators (or, put another way, what percentage of the legislative body) must be spurred by a constitutionally impermissible motive before the municipality itself may be held liable under section 1983 for the adoption of a facially neutral policy or ordinance? This is a difficult question, and the case law proves a fickle companion."  After reviewing the case law, the First Circuit said: "we assume for argument's sake (but do not decide) that in a sufficiently compelling case the requirement that the plaintiff prove bad motive on the part of a majority of the members of the legislative body might be relaxed and a proxy accepted instead. Nevertheless, any such relaxation would be contingent on the plaintiff mustering evidence of both (a) bad motive on the part of at least a significant bloc of legislators, and (b) circumstances suggesting the probable complicity of others."  

There is logic to the conclusion that, as a general matter, a bad apple on a multi-member board might infect the others such that a plaintiff in a discrimination case.  The devil, as always, is in the details, and the portability of the Court's reasoning to other contexts – like direct administrative appeals.

How does the reasoning in Walsh jive with that in Tuscan v. Smith, 130 Me. 36, 42, 153 A. 289 (1931)?  There, the Court found that a statute prohibiting town officials from voting on matters in which they are financially interested did not require invalidating a vote on a lease in which one of three selectmen was interested, because original vote was unanimous.  Thus, in a conflict of interest context, the Court did appear to apply a simple head count approach. 

Take the following scenario:  a plaintiff wants a permit.  He claims that one of seven board members has a conflict of interest.  The town lawyer disagrees.  The board, after public deliberation, denies the permit application 7-0, articulating a valid basis for doing so on the merits.  The plaintiff files an 80B appeal and whoopsy, the town lawyer was wrong, there was a conflict and that board member shouldn't've voted.  Who must prove what to get or avoid a remand for a new vote without the board member with the conflict?  Does the plaintiff have to show that the board member tainted the views of others?  How many others?  How does he show that taint if the record (i.e. the deliberations) are clean on their face?  Is having one member with a conflict enough to produce a prima facie case of bias, so now it's off to the races in getting a trial and deposing all the board members etc?  The SJC in Walsh notes that animus infection to others can be "unstated," so do you even have to show taint beyond the one bad apple to prevail in an 80B and 80C? 

In Walsh, the vote was 4:3.  I'm guessing that the member with the bad animus was part of the 4, so if you just excluded that vote, it would be 3:3.  Transplanting this to the administrative appeal context, normally, ordinances say that you have to have a majority to get your permit.  So if you just excluded the one conflicted vote, the permit applicant would lose.  Is that fair?  Does it make a difference if the vote is more disparate?  Does the plaintiff have to show more taint if the vote is 7-0 then if it was 4-3?

Having a board member with a conflict is a due process violation.  The general rule is that to prevail on a due process claim, the plaintiff must show prejudice – the burden is on him.  In the abstract, one bad vote in a 7-0 ruling doesn't show harm — or does it?  And if it doesn't, then what more, if anything, must be in the record, in order to get the plaintiff past the hump of no new evidence? 

It could be that the Court's decision in Walsh is limited to the regular trial context and has no bearing on administrative appeals.  But if so, why?  If proof of discriminatory animus of one member of a board is potentially enough to prevail in a regular trial context where the plaintiff has the ultimate burden of proof in showing discrimination was a motivating factor, why wouldn't it similarly be enough at least to prove a prima facie case of bias or a sufficient offer of proof under Rule 80B(d) or 80C(e)?  Or do you still need at least an itsy bit more? 

From a town's perspective, it might be better to have an automatic remand if one board member shouldn't've voted, if the alternative is discovery, depositions of the board members etc.  From the applicant's perspective, aside from those potential litigation costs, this could mean more delay and obstacles to development, over which it has no control.  It's the board's determination whether anyone has a conflict; board members have a duty to hear cases unless they really do have a conflict; and people in board proceedings are always banding about claims of conflict or bias.