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Moen v. Town of Farfield
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MAINE SUPREME JUDICIAL COURT						Reporter of Decisions
Decision:	1998 ME 135
Docket:	Ken-97-615	
Argued:	March 4, 1998
Decided:	June 3, 1998


Panel:	WATHEN, C.J., and ROBERTS, CLIFFORD, RUDMAN, DANA, LIPEZ, SAUFLEY, JJ.



GARY MOEN v. TOWN OF FAIRFIELD


SAUFLEY, J.

	[¶1]  Gary Moen appeals from a summary judgment entered in the
Superior Court (Kennebec County, Kravchuk, J.) in favor of the Town of
Fairfield.{1}  On appeal, Moen argues that the existence of genuine issues of
material fact precluded judgment against him on his claims that he was
denied a meaningful opportunity to be heard prior to being terminated from
the Town's police department, and that he was terminated for engaging in
speech protected by the First Amendment.  We affirm the judgment.
	[¶2]  In October 1991, Chief John F. Pouliot of the Fairfield Police
Department promoted Gary Moen to the position of patrol sergeant.  At the
time, Moen was also shop steward for the members of Teamsters Local #340
employed within the department.  As patrol sergeant, Moen was responsible
for sixteen or seventeen patrol officers.  Pouliot relied upon Moen to foster
loyalty and discipline among the patrol officers, carry out Pouliot's orders
and assure that the patrol officers also carried out those orders, and keep
their discussions concerning police department business confidential. 
Pouliot also considered it essential that he have confidence in Moen's
willingness and ability to carry out his orders on behalf of the department.
	[¶3]  At some point during 1992, Moen began secretly taping his
conversations with Pouliot because Moen distrusted him and wanted to
preserve an accurate record of their conversations for future grievance
proceedings and other possible legal actions.  Moen played these taped
conversations for other officers and for individuals outside the department. 
Moen also encouraged the other officers to tape their conversations with
Pouliot secretly.  Four of those officers ultimately responded to Moen's
encouragement.  The resulting tape recordings were later presented as
evidence in Maine Labor Relations Board proceedings concerning possible
Maine Labor Relations Act violations by the Town.  The MLRB ultimately
found that the Town had unlawfully interfered with the rights of its union
employees in violation of 26 M.R.S.A. § 964(1)(A) (1988).{2}
	[¶4]  When Pouliot discovered that Moen had been secretly taping
their private conversations, he met with Moen, notified him of the
discovery, and placed him on administrative leave with pay pending an
investigation.  During his investigation of Moen's conduct, Pouliot learned
that Moen had played the taped conversations for officers within the FPD as
well as for officers from the Fairfield Fire Department.  Pouliot also learned
that Moen had encouraged other officers to tape their conversations with
Pouliot.  Moen admitted to all of these actions.  
	[¶5]  In the course of his investigation, Pouliot met with Moen on four
separate occasions over the course of two weeks.  During the last two
meetings, Moen was accompanied by his union representative, Ernest
Canelli III.  Canelli, as Moen's representative, also engaged in two additional
telephone conversations with Pouliot in which the two discussed the
possibility of discipline other than termination for Moen's actions.  
	[¶6]  Following his investigation, Pouliot concluded that Moen's
actions, including encouraging other officers to tape their conversations
with Pouliot, undermined his authority as Chief of the police department
and encouraged disloyalty and disobedience within the department.  Pouliot
also decided that he no longer had confidence in Moen's willingness and
ability to carry out his orders and keep their discussions confidential. 
Pouliot terminated Moen's employment at the close of their last meeting.  At
a subsequent proceeding, the MLRB found that Pouliot's termination of
Moen was justified and not rendered in retaliation for Moen's union
activities.
	[¶7]  Pursuant to 26 M.R.S.A. § 968(5)(F) (Supp. 1997) and M.R. Civ. P.
80C, Local #340 and Moen then filed a complaint in the Superior Court
seeking review of the MLRB's Decision and Order.  In the complaint, Moen
also asserted a whistleblower protection claim pursuant to 26 M.R.S.A. § 833
(1988) and alleged, pursuant to 42 U.S.C. § 1983 (Supp. 1998),{3} that the
Town had terminated him in violation of his rights to procedural due
process and free speech.  Prior to discovery, the court (Alexander, J.)
affirmed the MLRB's Decision and Order and dismissed the whistleblower
protection claim.  Neither of those rulings are challenged on appeal. 
Following the close of discovery, the court (Kravchuk, J.) granted the
Town's motion for summary judgment with respect to the section 1983
claims.  This appeal by Moen followed.
	[¶8]  A party is entitled to summary judgment where there is no
genuine issue of material fact and that party is entitled to judgment as a
matter of law.  See Chadwick-BaRoss, Inc. v. T. Buck Constr., Inc., 627 A.2d
532, 534 (Me. 1993); M.R. Civ. P. 56(c).  In ruling on a motion for summary
judgment, "the court is to consider only the portions of the record referred
to, and the material facts set forth, in the Rule 7(d) statements."  Gerrity
Co., Inc. v. Lake Arrowhead Corp., 609 A.2d 293, 295 (Me. 1992).  On
appeal, we view the evidence in a light most favorable to the appealing party
and review the trial court's decision for errors of law.  See Keyes Fiber Co. v.
Lamarre, 617 A.2d 213, 214 (Me. 1992).
I. Procedural Due Process
	[¶9]  Moen first argues that a genuine issue of material fact exists
concerning whether he had a meaningful opportunity to be heard prior to
his termination.  Due process requires that a tenured public employee be
given notice and an opportunity to be heard prior to termination.{4}  See
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546 (1985).  This
pretermination hearing, however, need not be formal or elaborate, as long as
the employee has the opportunity to tell his or her side of the story and
explain why termination should not occur.  See id. at 545-46.  "The
pretermination hearing is merely the employee's chance to clarify the most
basic misunderstandings or to convince the employer that termination is
unwarranted."  Powell v. Mikulecky, 891 F.2d 1454, 1458 (10th Cir. 1989).
	[¶10]  Moen does not dispute that he met with Pouliot on four
different occasions and that his union representative, who attended two of
those meetings, also conferred with Pouliot twice by phone.  In addition,
Moen concedes that he was neither intimidated nor afraid of Pouliot, that he
was given several opportunities to respond to Pouliot's questions, and that
his representative was given access to Pouliot to argue for a sanction less
severe than termination.  Most importantly, Moen cannot identify any
information that Pouliot should have had but did not obtain from him during
these meetings. 
	[¶11]  The sole basis for Moen's claim that a genuine issue of material
fact exists is his conclusory assertion that he was not "given the opportunity
to ask questions or present his side of the story."  In light of the undisputed
facts regarding his opportunities to be heard and his admission that he
could not identify any information that Pouliot failed to obtain from him
during the course of the pretermination investigation, Moen's conclusory
allegation does not present a material dispute of fact regarding his
opportunity for a pretermination hearing.
	[¶12]  The Town was required to provide Moen with a meaningful
opportunity to be heard.  See Loudermill, 470 U.S. at 545-46.  It was not,
however, required to provide that opportunity in the form of a full
evidentiary hearing.  See id.  Moen was provided with a more than ample
opportunity to be heard.  The court committed no error in granting
summary judgment to the Town on Moen's procedural due process claim.
II. Freedom of Speech
	[¶13]  Moen next argues that he was engaging in constitutionally
protected speech when he encouraged other officers to tape their
conversations with Pouliot.  To prevail on his claim that the Town violated
his right to freedom of speech by firing him, Moen must first demonstrate
that his statements to the other officers were protected by the First
Amendment and that these statements, if protected, were a motivating
factor in Pouliot's decision to fire him.  See Brasslett v. Cota, 761 F.2d 827,
839 (1st Cir. 1985).  If Moen is successful on those points, the Town must
then prove that it would still have terminated Moen in the absence of his
statements.  See id.  Because the motion court correctly determined that
Moen's statements were not protected by the First Amendment, we do not
reach the latter two issues.  
	[¶14]  To determine whether a public employee's speech is entitled to
the protection of the First Amendment, the court must engage in a two-part
analysis.  First, the court must determine whether the employee has shown
that his or her speech involved a matter of public concern.  See Connick v.
Myers, 461 U.S. 138, 143-49 (1983).  Next, if the employee is successful in
this initial regard, the court must determine whether the State has
demonstrated that its interest, as an employer, in providing efficient public
services outweighs the employee's interest, as a citizen, in commenting on a
matter of public concern.  See id. at 149-54; see also Pickering v. Board of
Educ., 391 U.S. 563, 568 (1968) ("The problem in any case is to arrive at a
balance between the interests of the [employee], as a citizen, in commenting
upon matters of public concern and the interest of the State, as an
employer, in promoting the efficiency of the public services it performs
through its employees.").
	[¶15]  Each of these issues presents a question of law.  See Connick,
461 U.S. at 148 n.7 ("The inquiry into the protected status of speech is one
of law, not fact."); see also Brasslett, 761 F.2d at 839-40 (construing Bose
Corp. v. Consumers' Union of U.S., 466 U.S. 485 (1984)).  We review
questions of law de novo.  See H.E. Sargent, Inc. v. Town of Wells, 676 A.2d
920, 923 (Me. 1996). 
A. Matter of Public Concern
	[¶16]  "Whether an employee's speech addresses a matter of public
concern must be determined by the content, form, and context of a given
statement, as revealed by the whole record."  Connick, 461 U.S. at 147-48.  
In Connick, an assistant district attorney who was displeased with a
proposed transfer distributed a questionnaire to her fellow staff members
concerning office transfer policy, office morale, confidence in supervisors,
the need for a grievance committee, and whether employees felt pressured
to work in political campaigns.  See id. at 140-41.  After being fired, in part,
for distributing the questionnaire, the assistant district attorney filed suit,
claiming that she had been terminated for engaging in constitutionally
protected speech.  See id.
	[¶17]  The United States Supreme Court concluded that the questions
relating to office transfer policy, office morale, confidence in supervisors,
and the need for a grievance committee did not involve matters of public
concern because they were not directed toward the performance and
potential wrongdoing of the district attorney's office relative to its public
trust in investigating and prosecuting criminal cases.  See id. at 148. 
Rather, the Court found that those questions arose from the assistant
district attorney's disagreement with her proposed transfer, and were
related only to matters of internal discipline and morale within the
workplace.  See id.  The Court cautioned that "the First Amendment does
not require a public office to be run as a roundtable for employee complaints
over internal office affairs."  Id. 
	[¶18]  The Court, however, concluded that one question in the
questionnaire was significantly different from the others.  It determined that
asking whether employees felt pressured to work in political campaigns did
involve a matter of public concern, primarily because of the employees'
fundamental constitutional interest in supporting the political candidates of
their choice and the demonstrated public interest in government employees
being evaluated on the basis of meritorious performance and not political
service.  See id. 
	[¶19]  In this case, Moen's speech similarly involved a matter of public
concern.  Although motivated in part by a personal desire to gain improved
employment benefits and obtain the assistance of the organized labor
process in that effort, Moen's speech was also motivated by his objective, as
union steward, to effectuate the goals of the MLRA.  To the extent Moen
sought personal gain for himself or his fellow employees through
employment benefits, his statements were not a matter of public interest. 
The right of public employees to join, form, and participate in labor
organizations for the purpose of representation and collective bargaining is,
however, like the political question in Connick, a matter of public concern
about which public employees must have the freedom to speak.{5}  The court
therefore did not err in concluding that Moen's "'speech,' encouraging
subordinate police officers to tape record their meetings with the Chief of
Police, constitute[d] comment upon matters of public concern."  
B. The Government's Interest
	[¶20]  Because Moen's speech involved a matter of public concern, we
next apply the Pickering balancing test to determine whether Moen's
speech was entitled to First Amendment protection.  "The Pickering
balance requires full consideration of the government's interest in the
effective and efficient fulfillment of its responsibilities to the public." 
Connick, 461 U.S. at 150-52.  Here, the public employer has the burden of
demonstrating that its interests outweigh Moen's interest in unfettered
speech.  See id. at 150.  That balance will depend upon a number of factors,
including (1) the need to maintain discipline or harmony among coworkers,
(2) the need for confidentiality, (3) the need to curtail conduct that impedes
the employee's proper and competent performance of his daily duties, and
(4) the need to encourage a close and personal relationship between the
employee and his superiors, where that relationship calls for loyalty and
confidence.  See Breuer v. Hart, 909 F.2d 1035, 1039-40 (7th Cir. 1990).
	[¶21]  When an employer's fulfillment of its public responsibilities
requires close working relationships between coworkers, the employer will
be given great deference with respect to its judgment concerning employee
speech that threatens those relationships.  See Connick, 461 U.S. at 151-52. 
Because the efficient and effective function of law enforcement is especially
dependent upon close working relationships, "[s]peech that might not
interfere with work in an environment less dependent on order, discipline,
and esprit de corps could be debilitating to a police force."  Breuer, 909
F.2d at 1041.  An employer who is confronted with such debilitating
employee speech need not "allow events to unfold to the extent that the
disruption of the office and the destruction of working relationships is
manifest before taking action."  Connick, 461 U.S. at 152.
	[¶22]  At the time he encouraged the other officers to tape their
conversations with Pouliot, Moen was a sergeant serving as second-in-
command for patrol operations with supervisory authority over sixteen or
seventeen patrol officers.  Pouliot relied upon Moen to foster loyalty and
discipline among the patrol officers and to assure that orders were
understood and carried out.  Pouliot also considered it essential that he have
confidence in Moen's willingness and ability to carry out his orders on behalf
of the department.  Moen's "speech" compromised the necessarily close
working relationship between Pouliot and Moen, his second-in-command for
patrol operations, and also compromised the necessarily close working
relationships between Pouliot and his patrol officers.{6}  We agree with the
motion court:  "Plaintiff was second in command, thereby creating an
inevitable schism in the loyalty and obedience of the other officers."{7} 
C. The Balancing Analysis
	[¶23]  Because the balance we must strike here is driven entirely by
the individual facts of this case, we must again consider the importance of
the public speech at issue before completing the analysis.  If the speech for
which Moen seeks protection had been directly related to a violation of
Pouliot's public trust in providing law enforcement services, the balance
might well be different.  See id.  ("[A] stronger showing may be necessary if
the employee's speech more substantially involve[s] a matter of public
concern.")  The importance of Moen's speech, however, did not outweigh
the Town's interest in the efficient and effective fulfillment of its public
responsibilities.  Although we have concluded that his speech involved a
matter of public concern because of its connection to the MLRA's goals,
Moen's speech did not occur in a public setting, did not relate to a violation
of the police department's responsibilities to the public, did not advance any
other public interests, and was motivated in part by the private employment
interests of the Fairfield Police Department's union employees.
	[¶24]  Having considered the interests at stake, we conclude, as did
the motion court, that the Town's interest in providing effective and
efficient law enforcement outweighed Moen's public speech interest in
encouraging secret taping in order to uncover possible MLRA violations.  Cf.
Breuer, 909 F.2d at 1039-42 (county's interest in providing effective and
efficient law enforcement outweighs deputy sheriff's interest in accusing
sheriff of favoritism and stealing county property); McMurphy v. City of
Flushing, 802 F.2d 191, 196-99 (6th Cir. 1986) (city's interest in providing
effective and efficient law enforcement services outweighs police officer's
interest in accusing, threatening, and disparaging his superior officers
concerning their alleged incompetence and criminal conduct).  Moen's
conversations with the other officers were therefore not entitled to the
protection of the First Amendment.  The court committed no error in
granting summary judgment to the Town on Moen's free speech claim.{8}
	The entry is:
Judgment affirmed. 

Attorney for plaintiff: Howard T. Reben, Esq., (orally) Sunenblick, Reben, Benjamin and March P O Box 7060 97 India Street Portland, ME 04112 Attorney for defendant: Robert M. Hayes, Esq., (orally) Linda D. McGill, Esq. Moon, Moss, McGill, Hayes & Shapiro, P.A. P O Box 7250 Portland, ME 04112-7250
FOOTNOTES******************************** {1} Although Teamsters Union Local #340 was a named plaintiff in this case both at trial and on appeal, Local #340 lacks standing to assert Moen's constitutional claims. See Common Cause v. State, 455 A.2d 1, 6 (Me. 1983) ("The general rule is that a litigant may not assert the constitutional rights of third parties."). Because only Moen's constitutional claims are at issue before this Court, Local #340 is not a proper party to this appeal. {2} Pursuant to 26 M.R.S.A. § 964(1)(A), public employers, their representatives, and their agents are prohibited from interfering with, restraining, or coercing employees in the exercise of the rights guaranteed in section 963. Those guaranteed rights include the right to join, form, and participate in labor organizations for the purposes of representation and collective bargaining. See 26 M.R.S.A. § 963 (1988). {3} Title 42 U.S.C. § 1983 provides, in pertinent part, that: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof 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 . . . . A municipality is a "person" for the purposes of section 1983. See Monell v. Department of Soc. Servs., 436 U.S. 658, 700 (1978). {4} The Town does not dispute that Moen was entitled to a pretermination hearing. See 30-A M.R.S.A. § 2671(1) 1996. {5} See 26 M.R.S.A. § 961 (1988), which states that: It is declared to be the public policy of this State and it is the purpose of this chapter to promote the improvement of the relationship between public employers and their employees by providing a uniform basis for recognizing the right of public employees to join labor organizations of their own choosing and to be represented by such organizations in collective bargaining for terms and conditions of employment. {6} In his brief, Moen relies heavily upon Rankin v. McPherson, 483 U.S. 378 (1987), where the U.S. Supreme Court ruled in favor of an employee after applying the Pickering balancing test. Rankin, however, involved an administrative level clerical employee in an agency marginally involved in law enforcement who was terminated following her offhand statement, made in response to news of an assassination attempt on President Reagan, that "[I]f they go for him again, I hope they get him." Id. at 380-81. The matter at bar involves the second-in-command in an agency devoted solely to law enforcement. Given these significant factual distinctions, Rankin provides little guidance for resolution of this case. {7} The MLRB also found that "Pouliot was justified in terminating Moen because Moen failed to meet the higher standard of conduct that Pouliot expected of his command-supervisor of patrol." {8} Because we conclude that Moen's constitutional rights have not been violated by the Town, we need not reach the Town's claim that it cannot be held liable pursuant to section 1983 where Moen has failed to identify any policy or custom of the Town that caused him to be deprived of his constitutional rights.