The attorney for Democratic House Speaker Mark Eves expects to file a lawsuit against Gov. Paul LePage as early as July, alleging the governor illegally retaliated against Eves by threatening to withhold state funding from his employer, Good Will-Hinckley.
Eves and the nonprofit organization, which includes the Maine Academy of Natural Sciences charter school in Fairfield, signed an employment contract in late May. He was to have begun working as its next president on July 1.
The school rescinded its offer to Eves, of North Berwick, on Wednesday. Eves has publicly accused LePage of pressuring the school to do so by vowing to withhold $1.06 million in state funding over the next two years.
In a statement issued Friday, Good Will-Hinckley said its decision to rescind the job to Eves was “black and white” and based on the “financial consequences” for the school.
“This is a clear case of illegal retaliation [by the governor],” said David Webbert, a labor law and civil rights attorney in Augusta who is representing Eves. “The governor does not deny making the threat.”
If LePage also ordered the Department of Education to rescind a payment order of about $100,000 to Good Will-Hinckley, as the Maine Center for Public Interest Reporting reported Thursday, that would be further proof the governor acted on that threat, Webbert said.
In a statement to the BDN, the governor’s legal counsel Cynthia Montgomery said in a statement that if litigation were to come, “the First Amendment to the Constitution applies to Gov. LePage just like it applies to Speaker Eves. The only difference: in the bare-knuckle game of politics, the governor is not pulling the judicial branch of government into the fight.”
Legal experts interviewed by the BDN said Eves faces a significant hurdle in pressing his case under federal employment law that LePage illegally retaliated against him: proving the governor acted as an individual, rather than in his official capacity as governor.
Eves also would have to prove LePage acted in bad faith, with malice or with unreasonableness when he threatened to withhold state funding from Good Will-Hinckley unless it rescinded its hiring offer, according to an assistant professor at the University of Maine School of Law.
In response to the suit, LePage is expected to claim immunity from the lawsuit as governors in other states have done.
“There is no absolute [legal] immunity for an elected official,” Dmitry Bam, assistant professor at the University of Maine School of Law, said Thursday. “Elected officials have qualified immunity [from being sued]. They can’t be sued for the actions they take as public officials.”
Bam, who teaches employment and civil rights law at Maine’s only law school, said Thursday the governor also has a First Amendment right to express his political views.
That is what a federal judge said LePage did when he removed a mural from the lobby of the Department of Labor in 2011.
“As a public official, the governor does get a bully pulpit and the ability to express his opinion about public concerns,” Bangor employment attorney Charles Gilbert said Thursday. “Because Good Will-Hinckley receives public funds, that could give the governor a possible public interest.”
Gilbert said that if the school were private and did not receive taxpayer dollars, the governor’s actions would be deemed illegal.
In a news release issued early Thursday afternoon, LePage appeared to lay out a defense that he acted in his official capacity as governor, and in the best interest of taxpayers.
The governor said that “to have the school run by someone so opposed to charter schools would be very troublesome.”
The news release cited votes Eves cast against bills concerning charter schools and statements Eves made opposing using state funds for them.
Montgomery said in her statement that “the governor acted in the scope of his authority to address the school’s choice of a president who has fought against its mission throughout his political career.”
Webbert said LePage’s news release helps Eves’ case. The attorney pointed to two cases — one from Massachusetts, the other from West Virginia — in which federal appeals courts found that the governors of those states retaliated illegally against political rivals.
The decision in the Massachusetts case was written by 1st U.S. Circuit Judge Kermit Lipez of Maine. First Circuit decisions carry more weight with federal judges in Maine than those from other circuits.
“In 2002 then-Acting Governor Jane Swift fired Christy Peter Mihos and Jordan Levy from their positions as members of the Massachusetts Turnpike Authority after both men cast votes on the timing of certain toll increases on roads and tunnels in Massachusetts,” Lipez wrote in February 2004 for the three-judge panel that heard oral arguments.
Those judges agreed the First Amendment right at stake was “the right of a public official to vote on a matter of public concern properly before his agency without suffering retaliation from the appointing authority for reasons unrelated to legitimate governmental interests.”
Yet the 1st Circuit rejected Swift’s claim that as governor she had qualified immunity from the lawsuit. The panel found Swift’s actions violated the plaintiffs’ constitutional rights in clear violation of established law and that she should have known her actions violated those rights.
“Mihos exercised his best judgment as to the proper course of action, cast his vote, and was fired in retaliation for that vote for reasons unrelated to legitimate governmental interests,” Lipez wrote. “No reasonable public official could have failed to realize that a member of a public instrumentality cannot be terminated on such grounds for voting on matters of public concern within [her] authority.”
In the West Virginia case, the 5th U.S. Court of Appeals found in October 2006 that Gov. Joe Manchin III did not have immunity from a lawsuit filed by Don Blankenship, the owner of the largest coal company in West Virginia. Blankenship alleged that in retaliation for his opposition to a bond issue supported by the governor, Manchin ordered the West Virginia Department of Environmental Protection to investigate possible safety violations with the construction of a coal silo it had already approved.
It would likely be a judge who determines whether LePage is entitled to immunity. If the governor is not immune, a jury would decide if and how Eves was harmed by the governor’s actions and the amount of damages, if any, to which the speaker is entitled.
Bam, the law professor, said a lawsuit would have a lot of challenges to overcome but “it’s not beyond hope” that it could be successful.
An unanswered question that remains is who might defend LePage when the lawsuit is filed. The Maine attorney general’s office defends the state in civil actions, but Attorney General Janet Mills and LePage have clashed openly about his priorities.
Mills, a Democrat, has in the past refused to represent LePage in suits against the federal government on issues such as the Affordable Care Act and and welfare reform.
Timothy Feeley, spokesman for Mills, declined to comment on whether the office would represent the governor, because no suit has yet been filed.
Montgomery, the governor’s counsel, said she would accept the suit on the governor’s behalf — if one is filed.
“For all of his grandstanding in the media, Mr. Webbert has not yet filed a lawsuit against the governor,” Montgomery said. “Our reaction: Bring it on.”