SOUTH PORTLAND – Following a Maine Supreme Court ruling that found South Portland violated the rights of two public employees by barring them from running for seats on the municipal Board of Education, City Attorney Sally Daggett will file for a “motion to reconsider.”

However, Mayor Tom Blake said Thursday the filing is a technical appeal only, made to “get some clarification” on the Sept. 10 decision.

In a 5-1 vote, the court affirmed the April 17, 2012, ruling of Superior Court Justice Thomas Warren, which upheld the free-speech right of South Portland librarian Karen Callaghan and part-time public works employee Burton Edwards to engage in non-partisan political activity as city employees. And yet, in doing so, the court did not actually strike down the 2010 personnel policy that prevented their candidacies.

“We struggled with that,” said Blake. “It [the ruling] is kind of fuzzy and didn’t really give us a lot of direction. It was like, what are they saying? What do they mean? What do they want us to do? We don’t know. Help us out.”

However, the only way to get the Supreme Court justices to elaborate on their decision is to appeal it.

“We’re not saying we disagree, or that we’re not going to abide by it. What we are asking for is to get some clarification,” said Blake, noting that the court decision is somewhat moot, given that neither Callaghan nor Edwards work for the city any longer. The question now, said Blake, is how, or even if, the city’s personnel policy should be amended.

“In order for us to ask any questions of the court, we have to apply for reconsideration. There’s no other option,” he said. “We’d like to just write them a letter and say, ‘Could you please explain this further?’ but we can’t.”

But asking questions is as far as the appeal process will go, Blake added. Immediately after the Sept. 10 ruling, City Manager Jim Gailey issued a press release stating that because the case involves constitutional issues of free speech, South Portland could file what is known as a writ of certiorari in order to appeal the decision to the highest court in the land. Following a closed-door council meeting on Sept. 16, that option is now off the table.

“We have definitely ruled out going to the U.S. Supreme Court. There is no interest there,” said Blake.

The Sept. 16 executive session marks the second time the South Portland City Council has made a decision in executive session in violation of Maine’s Freedom of Access Act. In May 2012, the council decided in private to appeal the Superior Court ruling. It never released how councilors voted on the question, drawing a stern rebuke from then-Councilor Rosemarie De Angelis.

“I agree with the discussion on legal strategy being privileged,” she said at the time. “But this was a decision, it was a vote that should have taken place in public, so that everyone knows where each councilor stands.”

Following that May 2012 decision, Gailey refused comment other than to say there was no actual vote, which would have been a clear violation of state law. Instead, the council reached a “consensus decision” on how Daggett should proceed, he said.

“It’s just ludicrous to say, ‘We reached a consensus,” Mal Leary, president of the Maine Freedom of Information Coalition, said at the time. “How do you know you reached it? At some point you have to count heads.”

On Tuesday, Gailey refused to say how the council again reached a closed-door consensus, as indicated by Blake.

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

Blake also would not say how councilors lined up on the questions of not filing an appeal to the U.S. Supreme Court, or filing a motion to reconsider with the Maine Supreme Court.

“I’ve really already said all I can comment on,” he said.

At the Sept. 16 City Council meeting, Callaghan urged the council not to continue the legal battle. South Portland now owes her attorney, David Lourie of Cape Elizabeth, “at least $30,000,” she said.

“I am asking this council to do the right thing,” said Callaghan. “Please do not appeal and waste more money.”

According to Gailey, South Portland has spent $33,107 to defend against Callaghan’s suit, then to appeal when it lost. That amount only counts bills submitted by Daggett through December 2012, her most recent invoice on the issue, he said.


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