SOUTH PORTLAND – If South Portland intends to appeal to the U.S. Supreme Court for its right to keep municipal employees off the school board, city officials are keeping mum.

Following Monday’s City Council meeting, the six members that were present adjourned to executive session to consider their options following an opinion issued Sept. 9 by the Maine Supreme Court. In a 5-1 decision, the court ruled that South Portland violated the rights of two former city employees when it tried to bar them from running for seats on the school board.

In a press release issued immediately after the court ruling, City Manager Jim Gailey said the appeal could be made to the highest court in the land, “because the case involves an issue of federal constitutional law.”

However, on Tuesday, Gailey refused to say if the council reached a consensus on whether to file an appeal, known as a writ of certiorari, or to just let the matter rest. He also declined to say when a decision, either way, might be made public.

“No comment on executive session items,” he wrote in an email.

Mayor Tom Blake did not return multiple calls Tuesday.

At Monday’s meeting, Karen Callaghan, a former library employee who sued in 2011 when the city tried to stop her from running for re-election to the school board, urged the council not to continue the legal battle, just as she did when winning her case at the superior court level.

“The council, along with the city manager and the lawyer at the time, went into an executive session in May [2012] and without a public vote decided to appeal the decision,” said Callaghan. “At that time I stood here and asked you to please not waste more taxpayer money.”

Callaghan said the city now owes her attorney, David Lourie of Cape Elizabeth, “at least $30,000.”

“If you appeal, that’s just going to go up more,” said Callaghan. “So, I am asking this council to do the right thing this time. Please do not appeal the Maine Supreme Court ruling and waste more money.”

Gailey said the city has paid $33,107 to first defend against Callaghan’s suit, then to appeal when it lost. That amount does not include the amount Callaghan said is due to Lourie, or, as Gailey put it, “What they think they are owed.” It also only goes to December 2012, the last bill on the matter submitted by City Attorney Sally Daggett.

Callaghan filed suit against the city Sept. 26, 2011, 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.

“I felt it went way too far in limiting a person’s inalienable rights,” said Callaghan.

Initially, the updated policy also prevented employees from circulating petitions or posting political signs. Those passages were removed between the time Callaghan filed her suit and when it was heard in court.

Callaghan was 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.

On April 17, 2012, Superior Court Justice Thomas Warren upheld Callaghan’s free speech rights to engage in non-partisan political activity as a city employee. A month later, on May 8, 2012, the city appealed the ruling. Oral arguments by both sides were made Dec. 12, 2012, and the Supreme Court issued its ruling last Tuesday.

“This decision is a victory for free speech,” said Zachary Heiden, legal director of the American Civil Liberties Union of Maine. “People do not give up their fundamental constitutional rights when they take a government job.”

The 5-1 decision upheld Warren’s ruling on the eligibility of Callaghan and Edwards to run for office, largely a moot point now that neither collects a city paycheck. Callaghan quit her city job in May 2012 citing lingering hard feelings over her efforts to unionize workers there. She now works at the Scarborough Public Library.

However, while the Supreme Court said South Portland had violated the civil rights of Callaghan and Edwards, it declined to actually strike down the city policy. That, said Gailey, makes it tough to know how to proceed regarding whether the council should redraft the policy, or allow Gailey to continue to enforce what is on the books.

“That is a good question,” wrote Gailey. “The decision from the Law Court only applied to Callaghan and Edwards and the Personnel Policy wasn’t ever applied to either one of them. The decision, though favoring Callahan and Edwards, was silent with regards to the remaining employees and the Law Court didn’t go as far as to deem the Personnel Policy unconstitutional.”