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[Andrews v. DEP, continued: ]

III.
	[¶10]  A party is entitled to a summary judgment if the material facts
are undisputed and if on the basis of the undisputed facts the party is
entitled to a judgment as a matter of law.  See Johnson v. Samson Constr.
Corp., 1997 ME 220, ¶ 5, 704 A.2d 866, 868.  We review the denial of a
summary judgment for an error of law.  See id.  Section 1983 of Title 42 of
the United States Code provides:  
[e]very 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 . . . .

42 U.S.C. § 1983 (1994 & Supp. 1998).  The DEP, a state agency, is not a
"person" pursuant to section 1983.  See Campaign for Sensible Transp. v.
Maine Turnpike Auth., 658 A.2d 213, 216 (Me. 1995).  The court erred in
not granting the DEP a summary judgment as to Andrews's section 1983
claims.  
	[¶11]  State officials sued in their personal capacities are "persons"
pursuant to section 1983.  See Hafer v. Melo, 502 U.S. 21, 23 (1991).{4}  A
state official sued for monetary damages pursuant to section 1983 may raise
the defense of qualified immunity.  See, e.g., Lyons v. City of Lewiston, 666
A.2d 95, 99 (Me. 1995).  Qualified immunity shields "'government officials
performing discretionary functions . . . from liability for civil damages 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 (1982)).  A public official
claiming qualified immunity thus must establish either that he or she did
not violate the plaintiff's rights or that "given the state of the law a
reasonable official would not have understood that he [or she] was doing so." 
Id. 
	[¶12]  "In order to determine that a right is clearly established, the
contours of the right must be sufficiently clear that a reasonable official
would understand that what he is doing violates that right.  The unlawfulness
must be apparent in light of preexisting law."  Parsons v. Wright, 649 A.2d
1108, 1111 (Me. 1994) (citations and quotations omitted).  We have
cautioned that an action's unlawfulness can be apparent even though that
action has not previously been held to be unlawful.  See Struck v. Hackett,
668 A.2d 411, 416 (Me. 1995).  We focus on the objective reasonableness of
the official's conduct, not on whether the plaintiff actually suffered a
violation of his or her rights.  See Lyons, 666 A.2d at 99.
	[¶13]  Whether a public official is entitled to qualified immunity is a
question of law.  See Struck, 668 A.2d at 416.  Our analysis begins with an
"identification of the right at issue and proceeds to place that right in
historical perspective.  What the law was and whether it was clearly
established at the time of the alleged violation are questions of law."  Lyons,
666 A.2d at 99-100.  Andrews asserts that the defendants violated his free
speech rights by subjecting him to adverse employment actions in
retaliation for his letter to the Maine Times.  The law has been clearly
established since the Supreme Court's decision in Pickering v. Board of
Education of Township High School District 205, 391 U.S. 563 (1968), that
"[a] government employee retains the First Amendment right to speak out,
as a citizen, on matters of public concern, so long as the employee's speech
does not unduly impede the government's interest, as employer, in the
efficient performance of the public service it delivers through its
employees."  O'Connor v. Steeves, 994 F.2d 905, 912 (1st Cir. 1993).  Our
inquiry is whether reasonable public officials could have disagreed as to
whether Andrews's letter to the Maine Times was entitled to the protection
afforded by Pickering.
	[¶14]  To determine whether a public employee's First Amendment
claim is actionable, we first must determine "whether the employee was
speaking 'as a citizen upon matters of public concern,' or, alternatively, 'as
an employee upon matters only of personal interest.'"  O'Connor, 994 F.2d
at 912 (quoting Connick v. Myers, 461 U.S. 138, 147 (1983)).  The
defendants do not dispute that Andrews's speech addressed a matter of
public concern.  Andrews's letter questioned the propriety of expending
public funds to clean up the environmental damage caused by preventable
industrial accidents.  The expenditure of public funds is a matter of public
concern.  See, e.g., Gardetto v. Mason, 100 F.3d 803, 814 (10th Cir. 1996)
("The speech of persons able to offer a well-informed perspective on
expenditures of public funds may be especially valuable to public debate on
such subjects."). 
	[¶15]  We next must "balance the strength of the employee's First
Amendment interest, and any parallel public interest in the information
which the employee sought to impart, against the strength of the
countervailing governmental interest in promoting efficient performance of
the public service the government agency or entity must provide through its
employees."  O'Connor, 994 F.2d at 912.   Several federal circuit courts have
observed that a public employee's free speech right, as guaranteed by the
Pickering decision and its progeny, will rarely be "clearly established" for
purposes of a qualified immunity analysis, because the degree of First
Amendment protection afforded by Pickering depends upon this fact-based
balancing test.  See, e.g., O'Connor, 994 F.2d at 917 n.11; Bartlett v. Fisher,
972 F.2d 911, 916-17 (8th Cir. 1992); Dartland v. Metropolitan Dade
County, 866 F.2d 1321, 1323 (11th Cir. 1989); Noyola v. Texas Dep't of
Human Resources, 846 F.2d 1021, 1025 (5th Cir. 1988).  Although we
caution that a right may be clearly established even if the degree of
protection that it receives varies according to a fact-based balancing, we
nevertheless recognize that the relative weights of the interests to be
balanced rarely will be sufficiently disparate to preclude reasonable officials
from disagreeing as to whether the employee's First Amendment rights
were violated.
	[¶16]  We agree with the defendants' contention that reasonable
public officials could disagree as to whether the DEP's interest in
maintaining its efficient operations outweighs Andrews's First Amendment
interest in his Maine Times letter.  The defendants have alleged two
disruptions in their efficiency:  Andrews's letter threatens to damage the
DEP's reputation because it suggests that the DEP blamed Andrews to cover
up DEP mismanagement and legislative mistakes; and his letter threatens to
interfere with the DEP's "regular operations by angering the Legislature and
inducing the Legislature, led by Representative Jacques, to enact further
amendments to the Oil Act which would further limit DEP's ability to
administer the Insurance Fund."  The defendants presented the deposition
testimony of Eugene Guilford, president of the Maine Oil Dealers
Association, in which he described the MODA's practice of advocating for
legislation that reduces the DEP's breadth of regulatory authority.  Guilford
indicated that "'if there was an instance that had in some way angered a
citizen in what they believed was unfair treatment at the hands of the
department, generally speaking, those were used to sustain arguments that
their regulatory authority should be restrained.'"  Guilford specifically
referenced the Knowltons' 1992 meeting with Andrews, testifying that he
had used the Knowltons' and Representative Jacques's dissatisfaction with
that meeting as an "'opportunity.'"
	[¶17]  The defendants also presented the deposition testimony of Alan
Prysunka, one of Andrews's DEP supervisors, in which he states that the
Maine Times articles in the June 25, 1993 edition, concerned him "'that
the portrayal of the overall program being mismanaged or that it was
established in a way that was unfair . . . would possibly lead to -- to legislators
reading it and others saying, Well God.  Look at this.  We've got to change
the law again.'"  Prysunka explained that Andrews's letter in response to
these articles concerned him not because of its substance but because it was
just more fuel to the fire . . . what I didn't want to have happen,
really, was then there may be a response from MODA or
somebody else writing this continuation of letters and letters
and just keeping it alive.  I really was hoping the first article
would come out and die and that would be the end of it.  That
was my biggest concern with Jon and his letter.

	[¶18]  We acknowledge that the defendants have failed to produce any
evidence that Andrews's speech impeded harmony among his DEP co-
workers or interfered with his supervisors' ability to maintain discipline. 
See, e.g., McDonough v. Trustees of the Univ. Sys. of New Hampshire, 704
F.2d 780, 784 (1st Cir. 1983) (articulating general guidelines for evaluating
an alleged disruption of workplace efficiency).  Courts are divided as to
whether an employee's speech may serve as justification for discipline when
the threatened disruption resulting from that speech primarily involves the
employer's external relationships.  Compare Flanagan v. Munger, 890 F.2d
1557, 1566 (10th Cir. 1989) (stating that police department "cannot justify
disciplinary action against plaintiffs simply because some members of the
public find plaintiffs' speech offensive and for that reason may not cooperate
with law enforcement officers in the future") with Bartlett, 972 F.2d at 917
(finding that state's efficiency interest outweighed state trooper's First
Amendment interest because evidence demonstrated that trooper's speech
caused damage to Highway Patrol's reputation and hostility on the part of
the public).  We determine that reasonable public officials could disagree as
to whether the defendants' conduct violated Andrews's First Amendment
right.  We therefore conclude that the DEP's employees are entitled to
qualified immunity from Andrews's section 1983 claim for damages.
IV.
	[¶19]  The individual defendants, however, may not invoke qualified
immunity as a defense to Andrews's section 1983 claims for declaratory and
injunctive relief.  See, e.g., Lugo v. Alvarado, 819 F.2d 5, 7 (1st Cir. 1987)
(stating that "a defense of qualified immunity is totally immaterial" to a
claim for injunctive relief).  The court therefore did not err in denying the
individual defendants' summary judgment motion as to those claims. 
	[¶20]  We wish to make clear that Andrews may proceed against the
individual defendants in their personal capacities for declaratory and
injunctive relief.  The distinction between official capacity and personal
capacity lawsuits is frequently misunderstood.  The Supreme Court has
described this distinction as follows:
	Personal-capacity suits seek to impose personal liability
upon a government official for actions he takes under color of
state law.  Official-capacity suits, in contrast, 'generally
represent only another way of pleading an action against an
entity of which an officer is an agent.
	. . . while an award of damages against an official in his
personal capacity can be executed only against the official's
personal assets, a plaintiff seeking to recover on a damages
judgment in an official-capacity suit must look to the
government entity itself.

Kentucky v. Graham, 473 U.S. 159, 165-166 (1985) (quotations and
citations omitted) (emphasis added).  "[T]he phrase 'acting in their official
capacities' is best understood as a reference to the capacity in which the
state officer is sued, not the capacity in which the officer inflicts the alleged
injury."  Hafer, 502 U.S. at 26 (emphasis added).  In this case, therefore,
Andrews may seek equitable relief against the defendants in their personal
capacities on the basis of injuries they inflicted upon him while performing
as State employees.
V.
	[¶21]  The Superior Court erred in denying the defendants a summary
judgment as to Andrews's state constitutional claims.  Andrews seeks
monetary, declaratory, and injunctive relief pursuant to article I, section 4 of
the Maine Constitution, which provides in relevant part:  "[e]very citizen   
may freely speak, write and publish his sentiments on any subject, being
responsible for the abuse of this liberty; . . . ."  Me. Const. art. I, § 4.  We
agree with the defendants' contention that this provision of the Maine
Constitution cannot support a private cause of action.
	[¶22]  In Bivens v. Six Unknown Named Agents of the Federal Bureau
of Narcotics, 403 U.S 388 (1971), the Supreme Court held that a litigant
could sue federal agents for damages resulting from their violations of his
Fourth Amendment rights, notwithstanding the absence of a federal statute
to provide such a remedy.  See id. at 389.  The Court noted both the lack of
"special factors counselling hesitation in the absence of affirmative action by
Congress" and the lack of an "explicit congressional declaration that
persons injured by a federal officer's violation of the Fourth Amendment may
not recover money damages from the agents."  Id. at 396-97.  Other
jurisdictions have analyzed whether litigants may imply private causes of
action pursuant to their state constitutions by applying a Bivens analysis. 
See, e.g., Board of County Comm'rs v. Sundheim, 926 P.2d 545 (Colo. 1996)
(en banc); Kelley Property Dev. v. Town of Lebanon, 627 A.2d 909 (Conn.
1993); Dick Fischer Dev. No. 2, Inc. v. Department of Admin., 838 P.2d 263
(Alaska 1992).     
	[¶23]  In this case, specific legislative action creating a private cause
of action for a violation of a person's rights under the Maine Constitution,
see Maine Civil Rights Act, 5 M.R.S.A. §§ 4681-4685 (Supp. 1997),
precludes the remedy sought by Andrews.   Pursuant to the Act:
[w]henever any person, whether or not acting under color of law,
intentionally interferes or attempts to intentionally interfere by
physical force or violence against a person, damage or
destruction of property or trespass on property or by the threat
[thereof] . . . with the exercise or enjoyment by any other person
of rights secured by . . . the Constitution of Maine . . ., the person
whose exercise or enjoyment of these rights has been interfered
with, or attempted to be interfered with, may institute and
prosecute in that person's own name and on that person's own
behalf a civil action for legal or equitable relief.

5 M.R.S.A. § 4682.  Andrews has not alleged an interference with his free
speech rights by physical force or violence, damage or destruction of
property, trespass on property, or threats thereof.  See 5 M.R.S.A. § 4682. 
He therefore has no cause of action pursuant to the Act.  We decline to
expand the available remedies for a violation of rights guaranteed by the
Maine Constitution beyond those which the Legislature in its wisdom has
provided.  	
	The entry is:
Motion to dismiss denied.  Remanded for entry of a
judgment in favor of the defendants on all claims
except as to claims against the individual defendants
for declaratory and injunctive relief pursuant to 42
U.S.C. § 1983.  

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