Mullin v. Town of Fairhaven

284 F.3d 31, 2002 U.S. App. LEXIS 4353, 2002 WL 398478
CourtCourt of Appeals for the First Circuit
DecidedMarch 19, 2002
Docket00-2355
StatusPublished
Cited by40 cases

This text of 284 F.3d 31 (Mullin v. Town of Fairhaven) is published on Counsel Stack Legal Research, covering Court of Appeals for the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mullin v. Town of Fairhaven, 284 F.3d 31, 2002 U.S. App. LEXIS 4353, 2002 WL 398478 (1st Cir. 2002).

Opinion

LIPEZ, Circuit Judge.

This case requires us to apply First Amendment law to the decision of a town to remove for cause appointed local officials unwilling to comply with the directive of the Board of Selectmen that they rescind a vote. Plaintiffs claim that the Board of Selectmen of the Town of Fairha-ven violated their First Amendment rights when it removed them from the Town’s Conservation Commission for the exercise of their votes to replace the Chair and co-Chair of the Commission.. Upon the close of plaintiffs’ evidence at a bench trial, the district court found no First Amendment violation and entered judgment in favor of the Town of Fairhaven and two members of the Board of Selectmen (collectively “defendants”). This appeal ensued. We affirm.

I.

A. The Controversy

The Town of Fairhaven Conservation Commission (“Commission”) consists of seven members appointed by the Board of Selectmen (“Board”) for an unpaid term of three years. The plaintiffs in this action— William Mullin, Antonio Lopes, David Gammons, and William Markey (collectively “plaintiffs”) — were four of the seven members serving on the Commission in 1997.

The Town bylaw establishing the Commission mandates that “[t]he Commission shall elect by majority vote from among the members a Chair and Co-Chair, each for a term of one (1) year.” The Commission customarily holds its annual elections on the same day as the Town meeting. Accordingly, in June 1997, the Commission conducted its annual elections following the Town meeting, naming Marinus Van-der Pol as Chair and Winfred Eckenreiter *34 as co-Chair. Prior to the June 1997 elections, Mullin had been serving as Commission Chair.

At a Commission meeting held on October 20, 1997, only four months into the one-year term of the new Chair and co-Chair, Mullin moved to reorganize the Commission, Markey seconded Mullin’s motion. Vander Pol, who understood the bylaws to prescribe a one-year term, stated that the Commission would vote on Mullin’s motion, whether a reorganization would be “lawful or not.” Although the Commission’s annual chairmanship elections are typically included on the meeting agenda, the October 1997 mid-term reorganization was not on the agenda.

Co-Chair Eckenreiter was absent from the October 20 meeting. The six other members were present. The motion to reorganize passed by a 3 to 2 margin, with one abstention by Gammons, who abstained from voting because of Eckenreiter’s absence. Mullin and Markey nominated each other for the positions of Chair and Co-Chair respectively. 1 The Commission then voted Mullin as Chair and Mar-key as co-Chair.

The mid-term reorganization prompted the Board of Selectmen to consult the Town Counsel, who advised in an opinion letter that the Commission did not have legal authority to remove the Chair and co-Chair from their positions mid-term:

The Town by-laws provide that “[t]he [Conservation] Commission shall elect by majority vote from among the members a Chair and Co-Chair, each for a term of one (1) year.” Town by-laws, c. 8, § 8-1. There is no provision in the by-laws or in any other applicable law authorizing the Commission to remove either the chairman or the co-chairman from that office prior to the expiration of his one-year term. General law c. 40 § 8C which provides for the appointment of Conservation Commissions is silent on this issue.
Under similar provisions the Massachusetts courts have held that an appointing authority does not have the authority to remove an appointee from office during his term unless that authority is expressly stated in the general laws. I am aware of no reason that the same law of construction should not apply to a town by-law.
Accordingly, it is my opinion that under these circumstances the Conservation Commission did not have legal authority to remove the chairman and co-chairman from their respective positions.

On November 5, 1997, the Board sent identical letters to each of the seven Commission members, notifying them that their October 20, 1997, reorganization violated the Town’s bylaw, and enclosing a copy of Town Counsel’s opinion letter and the relevant Town bylaw. In the letters, the Board indicated that they had voted two to one to require the Commission to rescind as illegal this reorganization at its next meeting. 2 The letter also advised *35 that failure to rescind would “lead to additional action by the Board of Selectmen.”

Prior to the transmittal of these letters, a curious event transpired at the Commission meeting held on November 3, 1997, which commenced with Mullin and Markey sitting as Chair and co-Chair. Deposed co-Chair Eckenreiter moved to reorganize the Commission again. Gammons and Lopes were absent from this meeting; all other Commission members were present. The motion to reorganize again was unanimously passed by all members present, including Mullin and Markey. Eckenreiter nominated Vander Pol as Chair, his nomination was seconded, and the Commission members unanimously elected Vander Pol as Chair,

After the meeting adjourned, Mullin decided that this latest reorganization had no binding effect because he believed it had been initiated by Eckenreiter only to prove the point that the Commission could “do this back and forth” every week if midterm reorganizations were valid. Thus, at the subsequent Commission meeting on November 17, 1997, Mullin and Markey disregarded the November 3 reorganization and reassumed the positions of Chair and co-Chair. At that meeting, in response to the November 5 letter by the Selectmen, Mullin moved that the Commission reconsider the October 20 reorganization “subject to a second legal opinion” to be obtained at Town expense. Eckenreiter then moved to rescind the October 20 reorganization. The motion to rescind failed by a vote of three in favor to four opposed. Plaintiffs were the four members who refused to rescind the October 20 reorganization, 3 despite having been advised of its illegality of the reorganization. 4

In response to plaintiffs’ refusal to rescind the allegedly unlawful reorganization, the Board informed them in separate letters dated December 1, 1997, that it would hold a hearing to determine whether to remove plaintiffs from their positions on the Commission, in accordance with the Town bylaws. Under these bylaws, Commission members “may be removed [for cause] by [the] Board pursuant to the provisions of [Mass. Gen. Laws eh.] 40, § 8C.” Section 8C provides that an individual appointed to the Conservation Commission “may, after a public hearing, be removed for cause by the appointing authority.” Mass. Gen. Laws ch. 40, § 8C. The letters indicated the Board’s intention to consider “any or all of the following as possible grounds for removal” of plaintiffs:

[Their] recent participation in the removal of the chairman and co-chairman of the Commission despite their election, pursuant to Town By-Law c. 8, section 8-1, to a one year term to those positions on June 30,1997.

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Bluebook (online)
284 F.3d 31, 2002 U.S. App. LEXIS 4353, 2002 WL 398478, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mullin-v-town-of-fairhaven-ca1-2002.