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Pratt v. Ottum, attorneys and footnotes

Attorneys for plaintiff:

Ronald E. Colby III, Esq.
Sumner H. Lipman, Esq.
Lipman & Katz, P.A.
P O Box 1051
Augusta, ME 04332-1051

Attorneys for defendants:

Edward R. Benjamin Jr., Esq.
Lisa Fitzgibbon Bendetson, Esq.
Thompson & Bowie
P O Box 4630
Portland, ME 04110
(for Ottum, Quinn & Thompson)

William R. Fisher, Esq.
P O Box 6760
Portland, ME 04103-6760
(for County Commissioners)
FOOTNOTES******************************** {1} . The LCPO's incorporated name is the Municipal Resource and Planning Office of Lincoln County. {2} . The LCPO existed prior to 1990, but performed its duties as an unincorporated, quasi- municipal entity. {3} . There is a dispute as to whether, in 1992, the LCPO amended its personnel policies to provide that the LCPO had direct responsibility for hiring and terminating employees and to provide for alternative payment options, such as flex time and compensatory pay for hours worked in excess of 48 hours weekly. There is no indication that this dispute has an impact on the issues presented in this case. {4} . The Committee's report is neither cited in nor appended to the defendants' 7(d) statement. The defendants simply cite to the Ottum, Quinn, and Thompson affidavits. Because Pratt does not contest the fact that the Committee issued a negative evaluation, this fact is deemed admitted. Aside from the defendants' affidavits, the specific deficiencies in Pratt's performance have no independent corroboration. Pratt disputes all of these alleged deficiencies in his 7(d) statement, but he does not aver that they are false. Because he does not provide record citation to a contrary affidavit or to other evidence, the defendants' description of his deficiencies are not "properly controverted" and may be deemed admitted. See M.R. Civ. P. 7(d)(2). The deficiencies the defendants assert include the following: (1) Lincoln County municipalities were not participating in the LCPO because they believed Pratt performed little or no service for them; (2) municipalities were recommending that Lincoln County withhold financial support from the LCPO; (3) the LCPO had to reimburse $7000 to the State for services for which Pratt improperly billed it; and (4) the Department of Transportation indicated it would not contract for any additional work with the LCPO because of Pratt's billing irregularities. {5} . Pratt presented the County Commissioner with alternative retirement letters. In one letter, he expressed only the desire to retire. In a second letter, Pratt added a paragraph containing criticism of the Board's management of the LCPO, blaming them for its lack of success. {6} . The defendants acknowledge that the LCPO was no longer financially viable. Although they had relieved Pratt of any real authority over the LCPO's operation, they state in their statement of material fact that "Mr. Pratt put forth no plan that would address the financial disaster overtaking the LCPO." {7} . The court also ruled on the summary judgment motions of all interested defendants. With respect to the remaining claims, the court awarded back pay and benefits from April 23, 1996, the day Pratt was informed that he must resign or face termination, until August 20, 1996, the date the Board formally terminated him. Pratt's claim for injunctive relief was dismissed as moot. A summary judgment was denied against Pratt's claim for violation of 26 M.R.S.A. §§ 621 & 626 (1988 & Supp. 1999), which govern the time of payment and the remedies available for nonpayment of wages. A summary judgment was granted on Pratt's claim for unpaid compensatory time under the same statutory provisions on the ground that comp time does not qualify as wages and is not recoverable under those provisions. A summary judgment was denied on Pratt's claim for breach of the employment contract. Finally, a summary judgment was granted on Pratt's 1983 claim against the County and the LCPO on the ground "that Plaintiff's damages were not caused by a policy or custom[, but] by the Board's failure to follow policy." Presumably, this aspect of the ruling also extends to the individual defendants in their official capacities. All other counts were withdrawn. {8} . Rule 7(d) provides: (1) In addition to the material required to be filed by subdivision (b) of this rule, upon any motion for summary judgment there shall be annexed to the motion a separate, short and concise statement of material facts, supported by appropriate record references, as to which the moving party contends there is no genuine issue to be tried. (2) The party opposing a motion for summary judgment shall file with the material required to be filed by subdivision (c) of this rule a separate, short and concise statement of material facts, supported by appropriate record references, as to which it is contended that there exists a genuine issue to be tried. All material facts set forth in the statement required to be served by the moving party, if supported by appropriate record references, will be deemed to be admitted unless properly controverted by the statement required to be served by the opposing party. M.R. Civ. P. 7(d) (emphasis added). Pursuant to this rule, Pratt filed a lengthy statement of material facts and responded to specific factual statements put forth in defendants' statements of fact. However, most of the facts Pratt alleged have one-and only one-record citation, which is to "Pratt Affidavit at 22." Because there is no page 22, we assume Pratt is referring to Paragraph 22 of his affidavit. Paragraph 22 provides: I have read the Memorandum prepared by counsel on my behalf and the facts stated therein at page 2 through 8 and on page 11 exclusive of the last two lines, and footnote 4 on page 14 are true. This record citation does not conform with the prescriptions of Rule 7(d)(2) and is, therefore, an improper record reference. See M.R. Civ. P. 7(d)(2). Although we do not base our decision on Pratt's inadequate record references, this interlocutory appeal could, alternatively, be vacated on the ground that the defendants' statement of fact, to which Pratt responded in the above proscribed manner, are deemed true and uncontroverted. In that instance, the facts in evidence do not demonstrate that defendants have violated any "clearly established statutory or constitutional rights," and Pratt's Count X claim fails. {9} . In fact, Pratt does not cite any authority in support of his Due Process claim. {10} . Pratt argues that the General Board's adverse employment measures were taken in retaliation for his public comments about the "dire straits" in which the LCPO was in financially. We do not reach this part of Pratt's First Amendment contentions because he failed to provide sufficient record evidence to support his claim. See Your Home, Inc. v. City of Portland, 432 A.2d 1250, 1254 (Me. 1981) (stating appeal must be denied if appellant has not presented adequate record for review) (citations omitted). {11} . The United States Supreme Court has not ruled on whether a section 1983 claim based on a violation of the petitions clause must meet the public concern test. See Gable v. Lewis, 201 F.3d 769, 771 (6th Cir. 2000). The majority of Circuit Courts that have addressed the issue conclude that the rights at issue should not be treated differently. Thus, these courts hold that in order for a public employee to have a viable section 1983 claim, the petition for redress must involve a matter of public concern. See Tang v. State of R.I., Dep't of Elderly Affairs, 163 F.3d 7, 12 (1st Cir. 1998); White Plains Towing Corp. v. Patterson, 991 F.2d 1049 (2nd Cir. 1993), cert. denied, 510 U.S. 865, 114 S. Ct. 185, 126 L.Ed.2d 144 (1993); Day v. South Park Indep. Sch. Dist., 768 F.2d 696 (5th Cir. 1985), cert. denied, 474 U.S. 1101, 106 S. Ct. 883, 88 L.Ed.2d 918 (1986); Zorzi v. County of Putnam, 30 F.3d 885, 896 (7th Cir. 1994); Rendish v. City of Tacoma, 123 F.3d 1216, 1221 (9th Cir. 1997); Martin v. City of Del City, 179 F.3d 882, 889 (10th Cir. 1999). The Seventh and Ninth Circuits appear to have written the most on the topic. The primary rationale these courts follow is that there is no hierarchy among the rights protected by the First Amendment. See Rendish, 123 F.3d at 1222; Belk v. Town of Minocqua, 858 F.2d 1258, 1261 (7th Cir. 1988). Currently, it appears that only the Third and Sixth Circuits follow a different rule. In San Filippo v. Bongiovanni, 30 F.3d 424, 439 (3rd Cir. 1994), cert. denied, 513 U.S. 1082, 115 S. Ct. 735, 130 L.Ed.2d 638 (1995), the Third Circuit addressed the issue of whether "there are contexts in which the petition clause protects values additional to those protected by the speech clause. It concluded: The first amendment's petition clause imposes on the United States an obligation to have at least some channel open for those who seek redress for perceived grievances. . . . [W]hen government - federal or state - formally adopts a mechanism for redress of those grievances for which the government is allegedly accountable, it would seem to undermine the Constitution's vital purpose to hold that one who in good faith files an arguably meritorious "petition" invoking that mechanism may be disciplined for such invocation by the very government that in compliance with the petition clause has given the particular mechanism its constitutional imprimatur. Id. at 442. The Sixth Circuit held, on other grounds in Gable, that the "public concern" test should not be read into the petition clause because the Supreme Court had included-within the scope of the petition clause-complaints "respecting resolution of [a party's] business and economic interests . . . ." Gable, 201 F.3d at 771 (quoting California Transp. v. Trucking Unlimited, 404 U.S. 508, 510, 92 S. Ct. 609, 30 L.Ed.2d 642 (1972)); but cf. Valot v. Southeast Local Sch. Dist. Bd. of Educ., 107 F.3d 1220, 1226 (6th Cir. 1997), cert. denied, 522 U.S. 861, 118 S. Ct. 164, 139 L.Ed.2d 108 (1997) (holding speech does not generally touch on matter of public concern, as that requirement has been interpreted, where its aim is to air or remedy grievances purely of a personal nature). Given the scope the Supreme Court defined, the Sixth Circuit held that the petition clause itself is not generally limited to matters of "public concern" but includes a party's private business interests. Id. {12} . Pratt essentially argues that his wrongful termination and his action to redress that wrong were of public concern because the LCPO was a public agency, Pratt was a public figure, the public is concerned about who leads its public agencies, and the press followed the course of this dispute. In other words, Pratt argues, by virtue of holding a "high profile" public office, a public employee's personal concern over retaining his or her job automatically meets the public concern test. We reject his contention.

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