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Pratt v. Ottum

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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2000 ME 203
Docket:	Lin-99-771	
on Briefs:	September 14, 2000
Decided:	November 27, 2000




	[¶1]  The individually named defendants, John Ottum, Daniel
Thompson, and Peter Quinn, appeal from the order of the Superior Court
(Lincoln County, Marsano, J.), which denied their motion for a summary
judgment on Count X of Robert S. Pratt's amended complaint, alleging civil
rights violations pursuant to 42 U.S.C. § 1983.  The defendants assert that
there are no disputes as to material facts and that they are entitled to
summary judgment as a matter of law on their defenses of qualified
immunity and legislative immunity.  Finding no material facts in dispute
regarding the qualified immunity defenses, we vacate and remand the
matter for the entry of a summary judgment in favor of the individually
named defendants.
	[¶2]  Defendants Ottum, Thompson, and Quinn were volunteer
members of the General Board and Executive Board of the Lincoln County
Planning Office (LCPO){1} prior to its dissolution in March, 1997.  The LCPO
was incorporated in 1990 as a non-profit, quasi-municipal corporation.{2} 
The LCPO was created in order to strengthen local government within
Lincoln County by identifying regional challenges and opportunities and by
assisting regional municipalities to coordinate their efforts to address those
challenges and opportunities that were beyond the means of any
municipality acting singularly.    
	[¶3]  Ottum, Quinn, and Thompson were appointed to the General
and Executive Boards of the LCPO by Lincoln County and member
municipalities.  The General Board possessed the general power to govern
the LCPO and was comprised of Ottum, Thompson, and Quinn, who served
as its Chairman, Vice-Chairman and Treasurer, respectively.  Ottum, Quinn,
and Thompson also served on the Executive Board, which was responsible
for implementing the plans of the General Board.  
	[¶4]  In 1989, during the defendants' tenure on the General and
Executive Boards, the Executive Board hired Pratt to serve as the LCPO's
Executive Director.  Pratt's duties included ensuring that the agenda,
minutes, and announcements of the General Board were written as
proposed, preparing draft annual budgets, overseeing the day-to-day
activities of the office, and preparing contracts and proposals.  Pratt's salary
and benefits were paid by Lincoln County, and the County provided him with
a car and a county identification.   Pratt's employment was memorialized in a
"Memorandum of Understanding."   In 1990, the LCPO adopted Lincoln
County's personnel policies and Pratt's employment became subject to its
provisions as well.{3}
	[¶5]  In October 1995, the General Board appointed an Evaluation
Committee to evaluate Pratt's job performance.   The Committee reported
numerous deficiencies in Pratt's performance.{4}  The General Board, through
Ottum, presented Pratt with the report and informed him that he must
make substantial improvement in the areas indicated.  Ottum told Pratt that
he would be reevaluated in six months.  
	[¶6]  In April 1996, the Committee reevaluated Pratt and
determined that he had not made the desired improvements.  The General
Board met on April 22, 1996, and authorized the Executive Board to request
Pratt's resignation and resolved that, if Pratt refused to resign, his position
would be terminated.  In response to this measure, Pratt requested that he
be able to submit a letter of resignation in which he would express his
decision to "retire." He also requested that he be allowed to draft a
retirement agreement and press release.{5}  The parties did not readily come
to an agreement over the terms of Pratt's retirement, primarily because of a
dispute over the amount of his severance package.  In August 1996,
negotiations broke down, Pratt withdrew his offer of resignation, and the
General Board voted to terminate his position retroactive to April 1996.
	[¶7]  Pratt appealed his termination to the Lincoln County Appeal
Board.  On October 7, 1996, the Appeal Board ruled that the LCPO had
deprived Pratt of his due process by (1) failing to properly advise him of his
probationary status in October 1995, when the Evaluation Committee was
appointed, (2) not following "progressive disciplinary action procedure,"
and (3) not permitting Pratt to attend the General Board's executive session
in order to respond to the evaluation, all of which was contrary to the
LCPO's personnel policy.  The Appeal Board ordered that Pratt be reinstated 
and that, "[i]f the Board of Directors desire to dismiss Mr. Pratt after
reinstatement, the proper notice and hearing must be provided." 
	[¶8]  The Appeal Board, however, did not decide the issue of
whether Pratt was entitled to back pay and benefits.  On November 5, 1996,
it issued a supplemental order, awarding Pratt back pay and benefits for the
period from August 20, 1996, the date of Pratt's dismissal, to the date of his
reinstatement.  It denied Pratt's demand for back pay and benefits for the
period immediately prior to August 20, 1996.
	[¶9]  On October 15, 1996, the Executive Board informed Pratt that
he had been reinstated, but that he was "not to participate in the operation
of the LCPO except as directed," that he was to "complete any and all
assignments from [his] home," and that he would "not have any supervisory
responsibilities."  Pratt eventually met with Thompson and Quinn on
November 5, 1996, and they informed him that he was to return to work
the next day, but that his duties had been substantially reduced.  During
Pratt's absence, the Executive Board had hired Terri Jones as its "Managing
Director."  The Executive Board had delegated to Jones the primary
responsibilities that Pratt had previously held.  Jones was also given Pratt's
	[¶10]  On November 6, 1996, Pratt filed a seven-count complaint
against the LCPO, including (1) an M.R. Civ. P 80B appeal of the Appeal
Board's adverse decision on back pay and benefits for the period between
April 23, 1996, and August 20, 1996; (2) statutory claims for unpaid wages
and compensatory time; (3) a plea for injunctive relief from the LCPO's
failure to fully reinstate Pratt to his executive duties; (4) a claim for breach
of contract, and (5) a section 1983 claim for violation of Pratt's First
Amendment and Due Process rights. 
	[¶11]  Upon his return to the workplace, the environment became
tense and unfriendly.  Pratt expressed concern to Ottum, Thompson, and
Quinn that the LCPO did not have the resources to pay two directors'
salaries and made statements to the press that the LCPO was in "dire
straits" because of a lack of funding.{6}  
	[¶12]  On January 17, 1997, Pratt conducted an evaluation of Donna
Heavener, a LCPO staff member, and was critical of her job performance.  
Heavener appealed Pratt's evaluation and characterized the appeal as a
grievance as well, alleging that Pratt was intimidating and harassing her for
perceived disloyalty relating to his prior termination.   On January 28, 1997,
Ottum wrote to Pratt and advised him that he was suspended with pay.    At
a February hearing on Heavener's grievance, the General Board went into
executive session and emerged from it with the news that they would not
hold the Heavener grievance hearing and that Pratt's suspension with pay
would continue because they had decided to dissolve the LCPO.  On
March 13, 1997, the General Board formally voted to dissolve the
corporation because its financial solvency was in jeopardy.  
	[¶13]  On June 4, 1997, Pratt amended his complaint, adding as
defendants, Lincoln County, the Board of County Commissioners, and the
defendants-in-interest in this interlocutory appeal-Ottum, Thompson and
Quinn.  In addition to adding two new claims against the governmental
defendants, this amended complaint added section 1983 claims against
Ottum, Quinn, and Thompson.    
	[¶14]  Ottum, Thompson, and Quinn filed a summary judgment
motion on February 1, 1999, asserting legislative and qualified immunity
defenses.    The Superior Court denied their motion.{7}  The court ruled, "[b]y
1996, it was well established 'that a constructive discharge of a public
employee without procedural due process constitutes an unconstitutional
deprivation of property.'  Because their actions violated plaintiff's clearly
established rights, defendants are not entitled to a qualified immunity as a
matter of law." 
	[¶15]  An order denying a motion for a summary judgment must be
reviewed for errors of law.  See Andrews v. Dep't of Envtl. Prot., 1998 ME
198, ¶ 10, 716 A.2d 212, 217.  The availability of the qualified immunity
defense is a question of law.  See id. at ¶ 13, 716 A.2d at 217.  Pursuant to
the death-knell exception to the final judgment rule, we will hear a
government official's interlocutory appeal from an order denying a motion
for summary judgment in which a claim of immunity is raised.  See id. 
(citing J.R.M., Inc. v. City of Portland, 669 A.2d 159, 160 & n.1 (Me. 1995)).  
A court ruling on a motion for summary judgment may consider only the
portions of the record referred to, and the material facts set forth, in the
Rule 7(d) statements.{8}  See Prescott v. State Tax Assessor, 1998 ME 250,
¶ 5, 721 A.2d 169, 172 (citations omitted).
 	[¶16]  Pursuant to 42 U.S.C. § 1983:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State . . ., subjects, or
causes to be subjected, any citizen of the United States . . . to
the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the
party injured in an action at law, suit in equity, or other
proper proceeding for redress . . . .
42 U.S.C. § 1983 (1994 & Supp. 2000).  Government officials may be sued in
their personal capacities for damages for actions they take in their official
capacity or otherwise, provided that while acting under color of state law,
they cause the deprivation of a federal right.  Andrews , ¶ 11, 716 A.2d at
217 (citation omitted).  An official may raise the defense of a qualified
immunity against such claims.  See id.  The qualified immunity defense
shields officials from liability stemming from the performance of a
discretionary function "insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person
would have known." Id. (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818,
102 S. Ct. 2727, 73 L.Ed.2d 396 (1982)).
	[¶17]  In the present case, the defendants are entitled to the
qualified immunity defense because "their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person
would have known."  The trial court erred as a matter of law in finding, on
these facts, that defendants were not entitled to a qualified immunity and,
accordingly, in denying defendants' motion for a summary judgment.

A.  Pratt Already Received Full Procedural Due Process.

	[¶18] The Superior Court found that "[b]y 1996, it was well
established 'that a constructive discharge of a public employee without
procedural due process constitutes an unconstitutional deprivation of
property." . . .  Because their actions violated [Pratt's] clearly established
rights, defendants are not entitled to qualified immunity as a matter of law." 
Pratt, however, had received the full procedural due process to which he
was entitled for the 1996 events to which the court was referring.  The
events, in fact, culminated in a decision and order of the Lincoln County
Appeal Board calling for Pratt's reinstatement.  Defendants, therefore, are
entitled to a summary judgment on this issue.  Furthermore, because the
LCPO has been dissolved, the issue of Pratt's employment status, particularly
after he was reinstated, is now moot.
B.  Constitutionally Protectable Property Interest Neither Exists In Pratt's
Job Duties Nor In Pratt's Suspension When Such Suspension Is With Pay.

 	[¶19]  Pratt argues the defendants are not entitled to a qualified
immunity because the defendants obstructed the reinstatement order of the
Appeal Board by (1) refusing to allow Pratt to perform the duties of his
previous position and (2) using a pretext to suspend him from the position
to which he had been ordered reinstated. 	
	[¶20]  Pratt's contention that the Board failed to reinstate him to the
identical duties he held prior to his wrongful termination is unavailing.  
First, Pratt offers no authority to support his proposition that he has a
property right in these specific job duties.{9}  Indeed, the jurisdictions that
have had the opportunity to consider this issue have expressly held that
there is no property right in particular job duties.  See Annapolis v. Rowe, 
717 A.2d 976, 987 (Md. App. 1998) (citing Royster v. Bd. of Trustees, 774
F.2d 618, 621 (4th Cir. 1985), cert. denied, 475 U.S. 1121, 106 S. Ct. 1638,
90 L.Ed.2d 184 (1986) (holding that any constitutionally protected property
interest employee had as a result of his employment contract has been
satisfied by payment of full compensation-including salary and benefits-due
under the contract)); Huang v. Bd. of Governors, 902 F.2d 1134, 1141-42
(4th Cir. 1990) (holding that constitutionally protected property interest in
employment does not extend to right to possess and retain particular job or
to perform particular services); Fields v. Durham, 909 F.2d 94, 98 (4th Cir.
1990), cert. denied, 498 U.S. 1068, 111 S. Ct. 786, 112 L.Ed.2d 849 (1991)
(stating "we have held that the constitutionally protected property interest
in employment does not extend to the right to possess and retain a
particular job or to perform particular services. . . .  Rather, the property
interest is more generally in continued employment, and no deprivation
exists so long as the employee receives 'payment of the full compensation
due under the contract.'" (emphasis added)).  Pratt's argument must,
therefore, fail because he had no property interest in the right to possess or
retain particular job duties.  See Gilbert v. Homar, 520 U.S. 924, 928, 117
S. Ct. 1807, 138 L.Ed.2d 120 (1997)  (finding "[t]he protections of the Due
Process Clause apply to government deprivation of those prerequisites of
government employment in which the employee has a constitutionally
protected 'property' interest.");  see also Lollar v. Baker, 196 F.3d 603, 607
(5th Cir. 1999) (holding "[t]he Constitution does not create property
interests; they are created and their dimensions are defined by existing
rules or understandings that stem from an independent source such as state
	[¶21]  With respect to the second question of whether the Board
obstructed the reinstatement order by using a pretext to suspend Pratt, this
contention too must fail.  It is undisputed that Pratt was receiving pay during
his 1997 suspension.  Although we have not previously had occasion to
decide, numerous other jurisdictions have held, and we agree, that
suspension with pay does not deprive an employee of a property right that is
protected by the Fourteenth Amendment of the U.S. Constitution.  See
Annapolis v. Rowe, 717 A.2d at 988 (holding that suspended employee had
no constitutionally protected property interest in actually performing job;
due process rights are not implicated so long as employee continues to
receive salary and benefits); Wasson v. Sonoma County Junior Coll. Dist., 4
F. Supp.2d 893, 906 (N.D. Cal. 1997), aff'd on other grounds, 203 F.3d 659
(9th Cir. 2000) (stating that "Wasson, by acknowledging that she was placed
on administrative leave, cannot claim that she was deprived of a property
interest in her employment, as a matter of law"); Hunt v. Prior, 673 A.2d
514, 524 (Conn. 1996) (holding that a suspension with pay did not carry
constitutional ramifications because plaintiff did not prove that he was
entitled to anything but his salary); Koelsch v. Town of Amesbury, 851
F. Supp. 497, 500 (D. Mass. 1994) (finding "[a] public employee's suspension
with pay does not implicate a constitutionally protected property interest");
Bd. of Educ. v. Harrell, 882 P.2d 511 (holding that a suspension with pay
does not violate any recognized property interest); Hicks v. City of Watonga,
942 F.2d 737, 746 (10th Cir. 1991) (holding that a "suspension with pay
[does] not invade any recognized property interest"); Pitts v. Bd. of Educ.,
869 F.2d 555, 556 (10th Cir. 1989) (holding that a two-day suspension with
pay does not deprive plaintiff of measurable property interest); Pierce v.
Engle, 726 F. Supp. 1231, 1237 (D. Kan. 1989) (holding that a school
principal's suspension with pay did not implicate a constitutionally
protected property interest); Gates v. Sicaras, 706 F. Supp. 169, 172-73
(D. Conn. 1989) (holding "[p]laintiff fails, however, to offer any evidence
pointing to a claim of entitlement to such benefits of employment beyond
his regular salary").  Because Pratt was suspended with pay, his due process
rights are not implicated.   Defendants are, therefore, entitled to a summary
judgment on this issue.
	[¶22]  Finally, Pratt contends that the defendants are not entitled to
a qualified immunity because they obstructed his reinstatement in retaliation
for appealing from the administrative and judicial decisions that had been
made.    A valid First Amendment claim requires a court to resolve a number
of issues.  First, a court must determine whether Pratt's actions are
protected by the Amendment.  This will be the case if Pratt exercised his
free speech{10} or petition{11} rights on a matter of public concern, as opposed
to a matter of personal interest.  See Tang v. State of R.I., Dep't of Elderly
Affairs, 163 F.3d 7, 12 (1st Cir. 1998).  Second, a court "must weigh the
strength of the employee's and the public's First Amendment interests
against the government's interest in the efficient performance of the
workplace."  Id. (citing Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968)).
Third, if Pratt and the public's First Amendment interests outweigh a
legitimate governmental interest in curbing the protected right, Pratt must
show that the exercise of the protected right was a substantial or motivating
factor in the adverse employment action taken by the defendants.  See id.
(citing O'Connor v. Steeves, 994 F.2d 905, 913 (1st Cir. 1993)).     
	[¶23]  The action to which Pratt points as the exercise of a right
protected by the petitions clause of the First Amendment fails on the first
prong; it does not involve a matter of public concern.{12}  The action relates
to the General Board's decision to remove him from his executive position
within the LCPO.  The decision was based on performance evaluations having
nothing to do with his exercise of a constitutional or federal right.  Because
this action, from its inception, involved only a matter of Pratt's personal
interest (his employment), it cannot serve as a basis for a First Amendment-
based section 1983 claim.  Thus, to the extent that Pratt's suit is based on
alleged retaliation for his exercise of rights protected by the petitions
clause, it fails.
	[¶24]  For all the foregoing reasons, the judgment of the Superior
Court must be vacated and this matter remanded for the entry of a summary
judgment in favor of Ottum, Quinn, and Thompson because they are entitled
to a qualified immunity.
	The entry is:
Judgment vacated.  Remand for entry of
judgment in favor of defendants Ottum,
Thompson, and Quinn.
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