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Andrews v. DEP dissenting opinion

DANA, J., with whom ROBERTS, J., joins, concurring in part and dissenting
in part.

	[¶24]  I agree that Andrews's motion to dismiss this appeal should be
denied, that the individual defendants may not invoke qualified immunity as
a defense to an action for equitable relief, and that the DEP, a state agency,
is not a proper defendant in a section 1983 action.  I also concur in the
Court's judgment that the defendants are entitled to a summary judgment
on Andrews's claims brought pursuant to the Maine Constitution, although I
am not convinced that the Maine Civil Rights Act necessarily precludes a
private cause of action for a constitutional violation in the absence of physical
force or violence, damage or destruction of property, trespass on property,
or threats thereof.  Andrews, however, was entitled to, and utilized, the
grievance procedure available to him under his collective bargaining
agreement.  See 26 M.R.S.A. § 979-K (1988).  He was also entitled to judicial
review of the resolution of the grievance procedure.  Id. § 979-M.  These
dispute resolution procedures, in my opinion, provided a constitutionally
adequate remedy to Andrews for retaliation for engaging in protected
speech.  See Bush v. Lucas, 462 U.S. 367 (1983) (refusing to recognize
private cause of action under the First Amendment for federal employee
whose free speech rights had been violated by his supervisors in light of
extensive civil service remedies for unlawful employment practices).
	[¶25]  I do not concur, however, in the Court's conclusion that
"reasonable public officials could disagree as to whether the defendants'
conduct violated Andrews's First Amendment right," and I would deny a
summary judgment for the individual defendants on the basis of qualified
	[¶26]  The Court, in a clear and concise manner, articulates the
proper standard to be applied in cases alleging an interference with a public
employee's First Amendment right to speak out on matters of public
concern.  Unfortunately, it then fails to apply the standard in any meaningful
way.  The Court determines simply that because the fact-based balancing test
required in public employee free speech cases makes it difficult for public
officials to determine whether an employee's rights were violated,
reasonable public officials could disagree as to whether Andrews's rights
were violated in this case.  The facts of this case, however, fall so squarely
within the parameters of Pickering v. Board of Education of Township High
School District 205, 391 U.S. 563 (1968), that I cannot agree that any
reasonable public official would have a question whether Andrews's letter to
the Maine Times could be the subject of retaliation.
	[¶27]  In Pickering a public school teacher was dismissed from
employment for writing and publishing a letter to the editor of his local
newspaper that was highly critical of the board of education and the district
superintendent of schools.  See id. at 564.  In particular, Pickering objected
to the board's allocation of school funds between educational and athletic
programs, and to both the board's and the superintendent's handling of two
bond issues and two proposed tax increases intended to benefit the schools. 
In applying its balancing test and concluding that Pickering's dismissal was
impermissible, the Supreme Court held that Pickering's criticisms were
valid subjects of public concern, did not impede the proper performance of
his daily duties in the classroom, and did not interfere with the regular
operation of the schools generally.  See id. at 572-73.  I am not convinced
that the circumstances surrounding Andrews's letter to the Maine Times
are sufficiently distinct from those in Pickering, notwithstanding the
defendants' claimed disruptions to their efficiency.
	[¶28]  The defendants' allegation that Andrews's letter had the
potential to damage the DEP's reputation is pure speculation and is easily
distinguishable from cases where courts have granted qualified immunity
upon a showing of actual damage to a department's reputation with the
general public.  See, e.g., Bartlett v. Fisher, 972 F.2d 911, 917 (8th Cir.
1992) (court presented with affidavit from police officer that described
encounters with "belligerent" members of public as a result of fellow
officer's letter alleging a ticket-writing quota system).  A conclusory
assertion that a public employee's otherwise protected speech may diminish
his employer's reputation, without any evidence that it has done so, does
not, as a matter of law, sufficiently outweigh the employee's right to speak
on a matter of public concern.  See Powell v. Basham, 921 F.2d 165, 168
(8th Cir. 1990) (per curiam).  Any speech that criticizes a governmental
department necessarily has the potential to damage an agency's reputation,
but surely this mere potential cannot be sufficient to support disciplinary
action against an employee, for if it was, the Supreme Court would have
upheld the school board's dismissal of Pickering.{5}
	[¶29]  Moreover, the defendants' assertion that Andrews's letter
threatened to interfere with the DEP's regular operations by angering the
Legislature, which in turn would set limits on the DEP's responsibilities,
aside from once again resting on speculation, is tenuous at best.  In support
of their contention, the defendants rely in part on the deposition of the
president of the Maine Oil Dealers Association, Eugene Guilford.  Guilford
testified that he used the acrimonious meeting between the Knowltons and
Andrews as an example to lobby the Legislature for restrictions on the DEP's
authority.  Guilford's and the Maine Oil Dealers Association's attempt to limit
the authority of the DEP was its standard practice, however, and had
nothing to do with the publication of Andrews's letter.  Alan Prysunka,
Andrews's supervisor, expressed his concern that the letter would cause the
issue of the DEP's alleged shortcomings to remain in public focus.  Even if
Andrews's letter resulted in legislative action adverse to the DEP's interest,
as alleged by the defendants, such legislative action cannot be characterized
as the type of interference with the efficiency of the DEP that would
outweigh an employee's right to speak out on an issue of public importance.
	[¶30]  The law has been clearly established since the Supreme Court's
Pickering decision in 1968 that a public employee may not be disciplined
for speaking out on a matter of public interest when that speech does no
more than criticize generally his employer and does not directly interfere
with the efficiency of the department for which he works.  Because I believe
that Andrews's conduct and its effect on the DEP is virtually
indistinguishable from the facts presented in Pickering, I conclude that the
defendants are not entitled to qualified immunity, and I would allow
Andrews's section 1983 claim for damages to go forward.

Attorney for plaintiff: David G. Webbert, Esq., (orally) Johnson & Webbert, LLP P O Box 29 Augusta, ME 04332-0029 Attorneys for defendants: Andrew Ketterer, Attorney General Dennis J. Harnish, Asst. Atty. Gen., (orally) 6 State House Station Augusta, ME 04333-0006
FOOTNOTES******************************** {1} The individual defendants, Dennis Phillips, Alan Prysunka, David Sait, and George Viles, all were employed by the DEP as of the initiation of this suit. {2} Andrews complaint also included a claim pursuant to the Whistleblowers' Protection Act, 26 M.R.S.A. §§ 831-840 (1988). The court granted the defendants a summary judgment as to this claim. Andrews has not appealed from that portion of the court's judgment. {3} An arbitrator determined that the DEP violated the parties' collective bargaining agreement by issuing this oral reprimand to Andrews, and he ordered the penalty's rescission. {4} In contrast, state officials sued in their official capacities are "persons" pursuant to section 1983 only if sued for injunctive relief, not for monetary damages. See Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 & n. 10 (1989). {5} We recently determined that the First Amendment rights of a police sergeant who urged other officers to surreptitiously tape conversations with the Chief of Police were outweighed by the interest of the police department in providing effective and efficient law enforcement. See Moen v. Town of Fairfield, 1998 ME 135, __ A.2d. __. We noted there that the sergeant's speech was not made in a public setting, did not relate to the department's responsibilities to the public, did not advance other public interests, and was motivated in part by private employment interests. See id. at ¶ 23. In contrast, Andrews wrote a letter to the editor of a local newspaper, discussed issues of public import regarding the DEP's responsibilities and raised general issues of public policy.

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