Moreau v. Town of Turner

661 A.2d 677, 1995 Me. LEXIS 160
CourtSupreme Judicial Court of Maine
DecidedJuly 18, 1995
StatusPublished
Cited by15 cases

This text of 661 A.2d 677 (Moreau v. Town of Turner) is published on Counsel Stack Legal Research, covering Supreme Judicial Court of Maine primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Moreau v. Town of Turner, 661 A.2d 677, 1995 Me. LEXIS 160 (Me. 1995).

Opinion

GLASSMAN, Justice.

Bertrand Moreau appeals from the judgment entered in the Superior Court (Androsr-coggin County, Saufley, J.) affirming the decision of the Board of Selectmen of the Town of Turner dismissing him from his position as the Town’s code enforcement officer and granting a summary judgment (Atwood, J.) in favor of the Town on his complaint alleging a claim for damages pursuant to 42 U.S.C. § 1983 (1994) and a violation of the Freedom of Access Law, 1 M.R.S.A. §§ 401-410 (1989 & Supp.1994). Moreau contends that the trial court erred in determining that there was sufficient evidence before the Board to establish cause for his dismissal and by granting a summary judgment in favor of the Town. Finding no error, we affirm the judgment.

In 1989 the Town employed Moreau as the code enforcement officer. In May 1992, Moreau was told by the town manager, Kenneth Kokernak, that his job performance was no longer acceptable and he should consider searching for another position. In July 1992, [679]*679notwithstanding Kokernak’s written denial of Moreau’s request to attend a seminar on wetlands, Moreau attended the seminar after notifying Kokernak’s administrative assistant. On July 14, Kokernak suspended Mor-eau without pay for two days for taking an unauthorized vacation.

By a letter dated August 3, 1992, the Board notified Moreau that Kokernak had brought thirteen charges against him. Following public hearings on the charges at which Moreau was represented by counsel, the Board found the evidence was sufficient to support ten of the thirteen charges and voted unanimously to dismiss Moreau. The charges upheld by the Board concerned, inter alia, issuing building permits in violation of Town ordinances, failing to provide Koker-nak with requested information, being absent without authorization, failing to keep proper records, and lacking administrative ability.

By his three-count complaint, Moreau sought judicial review of the Board’s decision, pursuant to M.R.Civ.P. 80B; damages for the Town’s alleged deprivation of his property without due process by its suspension of him for two days without pay, pursuant to 42 U.S.C. § 1983;1 and a declaration that the Board’s decision was null and void for the alleged violation of 1 M.R.S.A. § 405(6) (1989), pursuant to 1 M.R.S.A. § 409 (1989).2 Moreau did not request a trial of the facts to permit the introduction of evidence not appearing in the proceeding before the Board and not stipulated by the parties pursuant to Rule 80B(d). Rather, Moreau filed a motion pursuant to Rule 80B(i) to specify the future course of proceedings and advised the court that his Rule 80B appeal could be resolved “independent of a resolution of plaintiffs two independent causes of action.”

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 ... 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.

Following a hearing on Moreau’s claim seeking judicial review of his dismissal, the court affirmed the Board’s decision dismissing Moreau. Thereafter, the Town filed a motion to dismiss or, in the alternative, for a summary judgment on Moreau’s remaining two counts. After a hearing, the court determined, inter alia, that Moreau had an adequate redress provided by state law for his claim pursuant to section 1983; and that by failing to file a proper motion for a trial on the facts pursuant to M.R.Civ.P. 80B(d), Moreau was confined to the record before the Board on his claim of a violation of 1 M.R.S.A. § 405(6). Accordingly, the trial court granted a summary judgment in favor of the Town on these two counts, and Moreau appeals.

I.

Moreau first contends that the trial court erred in determining that the evidence before the Board was sufficient to establish cause for his dismissal. We disagree. When, as here, the Superior Court reviews the record developed before the Board, we review the decision of the Board directly for an abuse of discretion, error of law, or findings unsupported by the evidence. International Paper Co. v. Bd. of Envtl. Protection, 629 A.2d 597, 599 (Me.1993).

“The municipal officers may remove a code enforcement officer for cause, after notice and hearing.” 38 M.R.S.A. § 441(1) (Supp.1994); see also Turner Personnel Policy, Aft. 22, § 22.5 (“All disciplinary actions [680]*680shall be for cause.”). We have stated that “[dismissal ‘for cause’ is appropriate when an employee’s conduct affects his ability and fitness to perform his duties.” Chapman v. City of Rockland, 524 A.2d 46, 47 (Me.1987) (citing Durepos v. Town of Van Buren, 516 A.2d 565, 566 (Me.1986)). “Cause” is a flexible concept that relates to an employee’s qualifications and implicates the public interest. Frye v. Town of Cumberland, 464 A.2d 195, 201 (Me.1983) (citations omitted). We have also noted that “cause for dismissal” clauses were put in statutes “to protect public employees from mass political firings upon the election of a new administration.” Id.

Here, the record reflects that the evidence before it supports the findings of the Board that Moreau did not accept supervision, he did not have a good understanding of the Town ordinances, and he lacked administrative ability, on which the Board based its determination that Moreau’s conduct affected his ability and fitness to perform his duties as a code enforcement officer. Accordingly, the trial court properly concluded that the evidence before the Board was sufficient to establish cause for Moreau’s dismissal.3

II.

Moreau next contends that the two-day suspension was a deprivation of his property, that he received inadequate due process, and that the trial court erred by granting a summary judgment in favor of the Town on this claim. We disagree.

“In reviewing the grant of a motion for a summary judgment, we examine the evidence in the light most favorable to the party against whom the judgment was granted and accord that party the benefit of all favorable inferences that may be drawn from the evidence to determine whether the record supports the trial court’s conclusion that there is no genuine issue as to any material fact and the defendant is entitled to a judgment as a matter of law.” Fisherman’s Wharf Assoc. II v. Verrill & Dana, 645 A.2d 1133, 1135 (Me.1994).

We previously have stated that “[wjhere state law provides adequate redress to a plaintiff deprived of a constitutionally protected property interest, no section 1983 action will he.” Gregory v.

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661 A.2d 677, 1995 Me. LEXIS 160, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moreau-v-town-of-turner-me-1995.