Regan v. Maine S.A.D. 63

• Court: Superior Court of Maine
• Decided: May 30, 2008
• Docket: PENcv-08-109
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT PENOBSCOT, SS. OVILACTION ~~~f~~)~S·~~t2~8~?9~ I

LOUISE M. REGAN, F-1;-··::~--:---·--::-":-:::-:':'~l ".--l-~r.l( ~:4'; ":r_C) " c l' '/- ~itJ:·~I~,_. ..... , :'"1 T I' Plaintiff, $ , " i

v. 01"'''.7 (_. W ORDER MAINE S.AD 63 ET AL, t~" 3u Zool ~~eI1MV\ Defendant. .lJ-\()3~9't\\ff)" Qllci(\., PENOBSCOT COUNTY!

Hearing was held on the defendant's motion to dissolve temporary restraining

order on May 21, 2008. The plaintiff was present and represented by counsel, Thad B.

Zmistowski, Esq., while the defendant SAD 63 was present and represented by counsel,

Bryan Dench, Esq.. At this hearing the defendant urged the court to dissolve the

temporary restraining order (TRO) it issued on May 13, 2008 that enjoined the

defendant from continuing their investigation of plaintiff including conducting an

examination of plaintiff under oath.

Initially, the defendant argues that the restraining order should be dissolved

because it should not have been issued without notice because the defendant had

expressed its willingness to delay the examination under oath, causing the alleged harm

not to be immediate, and because it was clear who was representing the defendant.

Based on the level of participation that defendant had granted plaintiff and her lawyer

in their attempt to be present during meetings that involved plaintiff's employment

status, the court does not fault plaintiff for subjectively believing that it was necessary

to proceed on an ex-parte basis to exercise her statutory and constitutional rights in

resisting the employment action being taken against her. Additionally, the court accepts

\the explanation provided by plaintiff's attorney that it was not clear who was

Irepresenting the defendant. Finally, the court notes that M.R.Civ. P. 65 only requires that the applicant for the injunction certify the efforts that have been made to give

notice and the reasons supporting the claim that notice should not be required, which

was done. The criteria for dissolution, to be described in the following paragraph, do

not include the failure to prove adequate grounds justifying the earlier lack of notice.

As both parties agree, a party seeking temporary or injunctive relief must

demonstrate (1) that it will suffer irreparable injury if the injunction is not granted, (2)

that the injury outweighs any harm that granting the injunctive relief would inflict on

the other party, (3) that it has a likelihood of success on the merits, and (4) that the

public interest will not be adversely affected by granting the injunction. Because the

court is only acting on the motion to dissolve the TRO at this time, its analysis is

confined to issues surrounding the investigation and examination under oath. Other

issues raised in the motion for temporary restraining order and preliminary injunction,

such as the plaintiff's being placed on administrative leave with pay were not a part of

the order issued that the defendant seeks to have dissolved and therefore are not

resolved by this order.

Addressing a likelihood of success on the merits first, the court finds that it is

likely that the action taken by the SAD 63 board on March 24,2008 in deciding to

conduct an investigation of plaintiff was unlawful, but not because the action was

violative of 1 MRSA§ 405(6)(A). The court does not construe this section broadly

enough to preclude the board from meeting with its attorney without the plaintiff

present pursuant to 405(6)(E) to discuss commencing an investigation, but finds the

seclion to apply only when the board discusses or considers action that actually affects

the "employment, appointment, assignment, duties, promotion, demotion,

compensation, evaluation, disciplining, resignation or dismissal" of an individual

subject to the board's authority, or the actual "investigation or hearing of charges or complaints" against that person. Deciding whether to authorize another person or

entity to conduct an investigation does not fall within either of these statutory

categories.

What makes it likely that the action is unlawful is the fact that plaintiff was hired,

as described in the relevant "Superintendent's Contract", by "the Joint Union School

Board of School Administrative No. 63 and Airline Community School District No.8",

and the entity that authorized the investigation into her performance was SAD 63 only.

It is likely that it would be ruled that since plaintiff's employment contract was with the

joint entity, only the joint entity, acting lawfully, can terminate her employment. There

is no indication, since there was no member of CSD 8 present at the March 24 meeting,

that the authorization for the investigation was the product of a joint vote.

Addressing the other relevant criteria, the court finds that the injury to the

plaintiff if there were no injunction outweighs the defendant's interest in proceeding in

a manner that is potentially unlawfuC and the public interest will not be adversely

affected by preventing the defendant from proceeding in a manner that is potentially

unlawful.

Finally, for the injunction to persist, the court must find the existence of

irreparable injury to the plaintiff. On this point, the court agrees with the defendant's

contention that the plaintiff will not suffer irreparable injury if the injunction were

lifted. In a similar situation, the United States District Court for the District of Maine

ruled that the act of investigating a public official alone, with no resultant adverse

employment action taken by the public entity, does not implicate a protected property

or liberty interest. Temple v. Inhabitants of City of Belfast, 30 F.Supp. 2d 60, 65 (D. Me.

1998). Under these circumstances, it would be difficult to find the existence of

irreparable injury to the plaintiff. To provide guidance to the parties, and based on the pleadings and arguments

submitted thus far, the court will comment on an issue that may arise at a future

hearing. The plaintiff raises the additional issue in her motion for preliminary

injunction that has not yet been heard, of her having been placed on administrative

leave with pay unlawfully. Needless to say, the fact that the board that placed her on

administrative leave did not include any CSD 8 members is a potential infirmity. With

regard to the plaintiff's right to have been present in executive session when the board

discussed whether to place her on administrative leave with pay and voted to do so,

placing a person on leave is a decision of greater impact and consequence on the person

than a decision to hire someone to commence an investigation and section 405(6) may

require that she have the right to be present. Finally, in light of the relevant case law, it

is likely that being placed on paid administrative leave does not constitute irreparable

injury.

Based on the foregoing, the court grants defendant's motion to dissolve and

vacates its temporary restraining order signed on May 13, 2008.

The clerk is directed to incorporate this Order into the docket by reference.

Dated: May 30, 2008 ~ JUSTICE, SUPERIOR COURT 06/02/l~008 MAINE JUDICIAL INFORMATION SYSTEM ksmith PENOBSCOT COUNTY SUPERIOR COURT mjxxi048 CASE PARTY ADDRESS BOOK LOUISE MREGAN VS MAINE SCHOOL ADMINISTRATIVE DISTRICT 63 UTN:AOCSsr -2008-0043541 CASE #:BANSC-CV-2008-00109

LOUISE M. REGAN PL ATTY ZMISTOWSKI, THAD ATTY ADDR:80 EXCHANGE ST PO BOX 1210 BANGOR ME 04402-1210 ATTY CANDERS, JOHN F. ATTY ADDR:80 EXCHANGE ST PO BOX lLl~ ~ANuUK ME 04402-1210

MAINE SCHOOL ADMINISTRATIVE DISTRICT 63 DEF ATTY DENCH, BRYAN ATTY ADDR:95 MAIN STREET PO BOX 3200 AUBURN ME 04212-3200

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