August 18, 2019
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Appeals court sides with LePage in legal feud with former House speaker

Troy R. Bennett | BDN
Troy R. Bennett | BDN
Governor Paul LePage delivers his final State of the State address before a joint session of the Maine Legislature in Augusta in this BDN file photo.

The 1st Circuit Court of Appeals ruled Wednesday that Paul LePage was within his rights as governor when he threatened to withhold more than $1 million in funding for a charter school if it hired his political rival, then-House Speaker Mark Eves.

Three of the court’s six judges issued a concurrent ruling, however, warning that while LePage enjoyed “qualified immunity” based on the specific details of this case, government officials shouldn’t see the decision as a sign they can legally wield funding as a coercive tool in the future.

The decision appears to put an end to a four-year legal battle after LePage threatened to cut his discretionary funding for Fairfield-based charter school operator Good Will-Hinckley because it agreed to hire Eves as its president in 2015. The organization backed out of the hiring after the threat of funding cuts.

[Appeals court revives former House Speakers lawsuit against Paul LePage]

The full appeals court Wednesday affirmed 2016 rulings by a smaller appeals court panel and the district court, saying LePage could do that under what’s known as the policymaker exception.

The exception allows government leaders to fire political opponents in policymaking positions where they could undermine the agenda of elected officials.

In effect, this protects incoming governors and presidents, among others, from being sued by Cabinet members of previous opposing administrations for being replaced on the grounds that they disagree with the new boss.

In this case, the Legislature directed Good Will-Hinckley to launch and manage “a public entity, the Center for Excellence of At-risk Students,” and “gave the governor the discretion to fund the center.”

“The Legislature specified that the discretionary state funding GWH receives to implement the center is expressly subject to the satisfaction of the commissioner of education (and by extension, the governor),” the appeals court decision reads, in part.

“This suggests that the operation of [the center] is a public function closely tied to the ‘implementation of policies of [LePage’s] administration,’” the ruling continues. “And a reasonable governor could have believed that a significant reason the funding of the center was left to whoever was the occupant of the governor’s job was to ensure that, in implementing the center, GWH would follow that administration’s educational policy directives.”

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In their concurrent ruling, three judges noted that LePage’s actions were legal, but only because of the “narrow” exception, and referenced other cases in which government leaders unconstitutionally cut off contracts with private service providers because of their political affiliations.

“Let’s never forget … that the policymaker exception is exactly what its name implies: an exception — and a ‘narrow’ one at that — to the clearly-established rule against politically-motivated firings,” the concurrent ruling reads, in part. “And in dealing with the First Amendment — which protects some of our most cherished rights — courts must be ever-vigilant in ensuring that this limited exception doesn’t swallow the rule. Anything less would deal a serious blow to the fundamental principles of our democracy.”

[LePage is bartending in Bar Harbor this summer]

Patrick Strawbridge, the attorney who represented LePage, told the Portland Press Herald the former governor has moved on from the legal battle and “is happily retired.”

David Webbert, the attorney representing Eves, told the Press Herald the ruling is “not a complete victory for us,” but he appreciated that the concurrent ruling sent a “message” to future administrations.

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