BRIGGS v. TOWN OF RUMFORD

UNITED STATES DISTRICT COURT

DISTRICT OF MAINE

LINDA-JEAN BRIGGS, )

)

PLAINTIFF )

)

V. ) CIVIL NO. 2:19-CV-59-DBH

)

TOWN OF RUMFORD, ET AL., )

)

DEFENDANTS )

DECISION AND ORDER ON MOTION TO DISMISS

This case challenges the authority of a Maine town’s select board to provide

in its town manager’s employment agreement that it can terminate her without

cause. After oral argument on August 8, 2019, and subsequent submissions

from the parties, I conclude that the town lacks authority to terminate the town

manager without cause. With one exception, I DENY the defendants’ motion to

dismiss the plaintiff’s complaint under Fed. R. Civ. P. 12(b)(6) for failure to state

a claim.

FACTUAL BACKGROUND

The plaintiff’s complaint contains the following factual assertions, which I

take as true for purposes of ruling on the defendants’ motion.

The Town of Rumford employed the plaintiff, Linda-Jean Briggs, as its

town manager. In February of 2018 the parties signed a 3-year employment

agreement. Section 4 of that agreement provided: “Town may terminate the

employment of BRIGGS pursuant to Chapter 1-A, Section 2 of the Town

Ordinances [an Ordinance provision concerning termination of the town

manager “for cause”]. In the event of termination by the Select Board without

cause, BRIGGS shall be paid a lump sum amount equal to six (6) months salary

as liquidated damages.” (Emphasis added).

In December 2018-January 2019, Rumford first suspended then

terminated the town manager without cause and tendered her a check for six

months’ salary. The town manager declined to cash the check, appealed her

termination to the Board of Appeals, and received notice from the Board that it

had no jurisdiction to hear her appeal.

PROCEDURAL BACKGROUND

The town manager then filed a complaint in this court. She claims that

under Maine statutes and a Rumford ordinance, the town cannot suspend or

terminate her without cause, notice, and a hearing (Count 1); and that the town’s

action deprived her of her property interest in employment in violation of the

Maine Constitution’s due process clause, Art. I, § 6-A (Count 2), and the due

process clause of the Fourteenth Amendment to the United States Constitution

(Count 3). The town and its select board members moved to dismiss all counts

against them for failure to state a claim upon which relief can be granted, Fed.

R. Civ. P. 12(b)(6).

At the oral argument I raised with the parties some issues concerning the

record before me. The parties then stipulated that the copy of the employment

agreement attached to the defendants’ motion is accurate and authentic and can

be considered on the motion, and that the defendants tendered to the town

termination “without cause.” Without objection, certified copies of the town

charter and the relevant ordinance were admitted to satisfy Maine and federal

precedents about how a court can consider local ordinances.1 See, e.g., Summit

Realty, Inc. v. Gipe, 315 A.2d 428, 429-30 (Me. 1974); Getty Petroleum Mktg. v.

Capital Terminal Co., 391 F.3d 312, 321 (1st Cir. 2004).

JURISDICTION

This federal court has jurisdiction over the dispute only if Count 3

concerning Fourteenth Amendment procedural due process adequately states a

federal claim.2 That in turn depends upon whether the Rumford town manager

had a property interest in her continued employment to support a federal due

process claim (“nor shall any state deprive any person of . . . property without

due process of law,” U.S. Const. Amend. 14). According to the First Circuit: “It

is well established that a public employee has a constitutionally protected

property interest in his continued employment when he reasonably expects that

his employment will continue.” King v. Town of Hanover, 116 F.3d 965, 969 (1st

Cir. 1997). “In the presence of a ‘for cause’ requirement, the employee typically

has a legal basis for thinking he will, in all likelihood, be able to keep the job; in

the absence of such a requirement, the state law typically does not provide him

with good grounds for such an expectation.” Bennett v. City of Boston, 869 F.2d

1 The Town’s lawyer provided copies of the certified documents to the court and the plaintiff’s

lawyers, and after the hearing provided the original certifications. I admitted the documents

provisionally so that the plaintiff’s lawyers could have an opportunity to review and challenge

them. No challenge has been received.

2 The plaintiff asserts federal question jurisdiction over Count 3, 28 U.S.C. § 1331 (the Complaint

says § 1341, ¶ 5, but I consider that a typographical error like the error in asserting that she

was terminated in 2018, ¶¶ 8, 14, when it was actually 2019), and supplemental jurisdiction

19, 21 (1st Cir. 1989). Thus, the central question on the motion to dismiss is

whether the town can terminate its town manager only for cause; if so, that is a

property interest sufficient to generate federal procedural due process

requirements.

ANALYSIS

The town manager argues that Maine law—both by statute and by town

ordinance—prevents a town from terminating a town manager without cause,

and that her employment agreement provision to the contrary is therefore

unenforceable.

Maine has an “enabling” statute (subchapter 2 of chapter 123 of 30-A

M.R.S.A., first enacted in 1939) by which municipalities can adopt a “town

manager plan” form of government by specifically voting at a town meeting that

they are adopting “this plan.”3 But adoption of the “town manager plan” is not

compulsory,4 and some towns adopted their own town manager government

without using the plan, by providing for it in their charter and having the

Legislature adopt their charter by Private and Special Law.5 Rumford was one

3 30-A M.R.S.A. § 2631(1) states:

The form of government provided in this subchapter shall be known as the “town

manager plan” and, together with general law not inconsistent, shall govern any

town in which the voters have adopted this plan at a meeting held at least 90 days

before the annual meeting.

4 See Maine Mun. Ass’n, Local Government in Maine p. 19 (2016):

With the passage of Home Rule, Maine’s cities and towns gained the authority to

adopt by local charter any form of government employing a town/city manager.

Thus, a town also has the option of choosing the statutory Town Manager Plan or

of setting forth its own list of duties and responsibilities for the manager in the

local charter.

5 Once Maine adopted home rule for municipalities (1969-70), a private and special law was no

longer necessary.

of the early adopters,6 well before the existence of the enabling statute and maybe

as early as 1927.7

Prodded by my questioning at oral argument, the parties have proffered

different, competing, versions of Rumford’s current source of authority for its

town manager form of government. Counsel for Rumford argues that the town

has never adopted the legislature’s “town manager plan” as such. If that is

correct, the provisions of subchapter 2 of chapter 123, all concerning the “town

manager plan,” would be inapplicable. Instead, the terms of Rumford’s town

charter and ordinances, as well as general state statutes that apply to all

municipalities, would govern its town manager form of government.

The plaintiff, on the other hand, points out that when the Maine legislature

adopted the 1969 version of its “town manager plan” legislation, it stated that

“[a]ll municipalities operating under the repealed Title 30, chapter 213,

subchapter II are deemed to have made the adoption [of the “town manager plan”]

as of October 1, 1969.” 30-A M.R.S.A. § 2639. The plaintiff contends that when

Rumford adopted its current town manager form of government in 1951

6 James J. Haag, The Manager Plan in Maine App. B, p. 60 (1971). According to the Maine

Municipal Association, Camden was first, in 1925, “followed by Fort Fairfield, Mt. Desert,

Washburn, Rumford and Dexter.” Maine Mun. Ass’n, Local Government in Maine p. 19 (2016).

It appears that cities earlier led the conversion to manager forms of government. Orren Chalmer

Hormell, Maine Towns p. 23 (1932) (Auburn first, Portland second).

7 According to James J. Haag, Rumford first adopted a town manager plan of government in

1927 by charter. James J. Haag, The Manager Plan in Maine App. B p. 60 (1971). (Haag’s work

was subject to review and comment by a number of people “familiar with Maine manager

government for review and comment,” including town and city managers and academics. See id.

at 1-2.) I have not found a source for that assertion of town adoption in 1927. In fact, Private

& Special Laws of 1927, ch. 21 sec. 2 reveals that the Rumford Falls Village Corporation was

authorized to “hire a village manager” that year. (Rumford Falls Village was a component part

of the Town of Rumford.) Private & Special Laws of 1935, ch. 48 sec. 5, authorized a town

manager for the Town of Rumford itself in 1935. But I also note that a history of Maine treats

Bion Jose as Rumford Town Manager from 1927 onwards. Maine: Resources, Attractions, and

Its People p. 81 (Harrie Coe ed. 1928). In any event, whether the Town of Rumford was first

pursuant to a private and special law, it was necessarily operating under the

repealed law the 1969 legislation referred to. Rumford disagrees, saying that

when the town voted to adopt its charter in 1951, “it was voting to accept a

statute passed by the Legislature,” “with specific provisions governing the town

manager position,” and “not voting to ‘employ a town manager’” under the

repealed statute. Defs.’ Reply to Pl.’s Suppl. Mem. at 2 (ECF No. 26). Although

it seems to me that Rumford has the better argument, one Maine Superior Court

case arguably supports the plaintiff’s view. McSorley v. Inhabitants of the Town

of Carmel, 2001 WL 1719217 (Me. Super. Ct. May 30, 2001) (Marsano, J.).

If these competing versions of the source of Rumford’s governance

structure made a difference in this case, I would certify the question to the Maine

Law Court under Me. R. App. P. 25 as an important question of state law. But

in the end, the disagreement does not affect this case’s outcome.

The Rumford Town Charter, as most recently amended, provides that its

town manager must have at least a 1-year contract and, after the first year, can

have up to a 3-year contract. Article XVIII § 1. Although the Charter does not

state on what grounds the town manager can be terminated, the Rumford Town

Ordinances do. The chapter dealing with the town manager states: “The

Selectpersons may remove or suspend the Town manager for cause . . . in

accordance with the following procedures.” Ch. 1A, sec. 2 (emphasis added).8

8 The ordinance says that “for cause” includes, but is not limited to, the grounds described in

chapter 36 of the ordinances. Those are: failing to attend at least 50% of the regularly scheduled

meetings; conviction of a Class A, B or C crime; conviction of a Class D or E crime that involves

moral turpitude; using town property without authority; using the office without authority to

influence subordinates, employees and other departments; violating chapter 38 (dealing with the

That ordinance subchapter then goes on to specify that the “selectpersons shall

file a written preliminary resolution with the Town clerk stating the specific

reasons for the proposed removal,” copying the manager within 10 days; the

manager has the right to reply in writing and request a public hearing; the

hearing must occur between 10 and 30 days after the request; the selectpersons

must adopt or reject the resolution of removal; the manager has the right to

appeal the decision to the Board of Appeals within 5 business days; and the

Board must hear the appeal within 10 days. Id. These procedures are identical

to those found in the statutory town manager plan, except that the statutory

town manager plan does not include the right to appeal the decision to the Board

of Appeals.9 Moreover, another statute that applies to municipalities generally

provides: “Except where specifically provided by law, charter or ordinance, the

municipal officers shall appoint all municipal officials and employees required

by general law, charter or ordinance and may remove those officials and

employees for cause, after notice and hearing.” 30-A M.R.S.A. § 2601 (emphasis

added). According to Rumford’s charter, the town manager is an appointive

9 30-A M.R.S.A. § 2633(3), the town manager plan legislation, provides:

The selectmen may remove or suspend the town manager for cause in accordance

with the following procedures.

A. The selectmen shall file a written preliminary resolution with the town

clerk stating the specific reasons for the proposed removal. A copy of that

resolution shall be delivered to the manager within 10 days of filing.

B. Within 20 days of receiving the resolution, the manager may reply in

writing and request a public hearing.

C. Upon request for a public hearing, the selectmen shall hold one at least

10 days but not more than 30 days after the request is filed.

D. After the public hearing or at the expiration of the time permitted the

manager to request the public hearing, if no such request is made, the

officer of the town. Art. II, § 2. Section 2601, therefore, applies to Rumford’s

town manager even if section 2633(3) (the town manager plan provision for

removing the town manager) does not.

The town argues that, despite section 2601’s and the ordinance’s explicit

reference to termination for cause, with notice and a hearing, the town was

entitled to seek, as it did in the employment agreement, the town manager’s prior

agreement to her termination without cause, notice, and hearing. It points out

that the Maine statutes and the Rumford ordinance do not explicitly prohibit

negotiating away the requirement of cause, notice, and hearing for termination.

Defs.’ Reply at 2 (ECF No. 14). Employment at will is common in Maine, and

freedom of contract is valued. Defs.’ Mot. at 5 (ECF No. 7), Defs.’ Reply at 2. The

town argues therefore that the parties should be able to place their own economic

value on various provisions and negotiate accordingly, and that no public policy

is violated by their agreement on termination without cause, notice, and hearing.

As a result of the “without cause” provision in its employment agreement, the

town argues, the town manager had no reasonable expectation of continued

employment and thus no right to due process once it tendered her the money

the employment agreement called for.

There is no Maine Law Court decision on point, and there appears to be

only one out-of-state decision that is at all analogous. In Ramsey v. City of Sand

Point, 936 P.2d 126 (Alaska 1997), a city ordinance required just cause for

dismissal of the police chief, but the city and the chief negotiated and executed

an employment agreement allowing termination without just cause upon

and obtained a provision both narrowing the list of permitted “just cause”

terminations and requiring severance pay for all other terminations. The Alaska

Supreme Court found that the chief had thereby intentionally waived his right

to just cause. The Alaska Court did recognize a limitation on the ability to waive

statutory rights: “parties may agree to waive statutory rights unless a question

of public policy is involved,” id. at 130 (emphasis added), and a statute “is not

waivable if it was enacted for the protection of the public generally,” id. at 131.

But Ramsey found that the just cause requirement of the city’s ordinance for

terminating its police chief was for the benefit of only the parties to the contract,

that it did “not affect the rights of third parties or the public generally,” and that

the parties could therefore waive it. Id.

The relationship between a select board (or a city or town council) and its

town manager, with their allotted roles in municipal governance, is distinct from

the relationship with a police chief who, while an important officer, has an

assigned subordinate role (generally subordinate even to the town manager).

Tensions between a legislative body, like a select board, and its town manager

are not uncommon. Commentator Haag, writing in 1970 about town

council/manager government (Rumford’s government is select board/manager),

stated:

A council-manager charter should provide a procedure for

removal of the manager. While it is rare that a manager might

refuse to resign at the request of the council, there may be

circumstances when a manager feels obligated to bring the

issues precipitating his removal to public attention. Without

an appropriate removal procedure, the manager could be

summarily fired by formal action of the council, without any

public hearing. The elements of such an appropriate

managerial removal procedure are: a formal action of the

council to suspend the manager with reasons given for the

suspension; the opportunity for the manager to respond and

request a public hearing; a public hearing, if so requested; a

formal action of the council in approving or rejecting the

removal of the manager; and the continuance of the manager’s

salary until removal is finalized by council action.

James J. Haag, Municipal Administrative Organization p. 6 (1970) (emphasis

added). Haag went on to say that that Maine’s “town manager plan” created just

such a procedure for town meeting-selectmen-manager towns, id., and added:

“Such procedure is an obstacle to arbitrary and capricious council action and it

assures an opportunity for any charges against the manager to be publicly aired

and answered.” Id. at 7.10

The same reasoning applies here. Maine’s general statute on termination

of municipal officials, Maine’s statutory town manager plan, and Rumford’s

ordinance on termination of the town manager—all recognizing the need for

cause, notice, and public hearing—embody an important public policy for

municipal government, assuring public transparency in the relationship between

the town select board and town manager. Allowing those parties to waive the

requirements in advance might serve their own interests, but it does not serve

the interests of townspeople in learning why the select board is terminating the

town manager. Prospective waiver of this sort is different in kind from after-the-

fact settlement of a dispute. Prospective waiver allows the select board to

proceed with impunity in its relationship to the town manager, not having to

reckon with controversy and public attention that may come to light under the

10 Although Haag was referring to Maine’s “town manager plan,” subchapter 2 of chapter 123 of

30-A M.R.S.A., in particular section 2633(3) concerning suspension and removal of a town

manager, Rumford’s ordinance mirrors the removal procedures of cause, notice, and hearing.

cause, notice, and hearing provisions if the town manager insists on them.11

Moreover, prospective waiver removes the threat of injunctive relief for an

improper termination. Finally, why would the legislature (and the town in its

ordinance) go to the trouble of outlining the detailed procedures for termination,

only to have the select board say “Never mind” by obtaining a prior contractual

waiver? I conclude that the statutes and the ordinance requiring cause, notice,

and hearing for termination reflect an important public policy in the transparent

administration and management of town affairs, and that it is not outweighed

by the parties’ interest in freedom of contract.

In summary, the town manager has a property interest in her 3-year

contract that the statute and ordinance provide can be terminated only for cause.

Therefore, she states a cause of action in Count 3 for a deprivation of procedural

due process under the United States Constitution that is not subject to dismissal

under Rule 12(b)(6). That creates federal question jurisdiction for Count 3. 28

U.S.C. § 1331. Because Count 3 is viable, Counts 1 and 2 can proceed in federal

court under supplemental jurisdiction. 28 U.S.C. § 1367(a).

Count 2, the state due process claim survives the 12(b)(6) motion for the

same reason as Count 3. The Maine Law Court’s definition of property interest

in public employment for purposes of the state constitution’s due process clause,

Art. I, § 6-A, is equivalent to the federal definition. Specifically, “[a] public

employee has a constitutionally protected property interest in continued

11 I recognize that even given my holding in this decision, the town might be able to settle this

lawsuit by paying sufficient money to the town manager plaintiff, without ever providing cause,

notice, and a hearing. But it is materially different to have the town manager’s prior advance

waiver of cause, notice, and hearing for termination by contractually establishing an amount as

employment where a justifiable expectation of continuity is guaranteed to some

extent by state statute, contract, or implicit conduct or policy.” Durepos v. Town

of Van Buren, 516 A.2d 565, 566 (Me. 1986); accord Barber v. Inhabitants of

Town of Fairfield, 460 A.2d 1001, 1005 (Me. 1983) (where statute provides for

removal of police officer for cause after notice and hearing, it limits the power to

discharge and “create[s] a property interest in the plaintiff’s employment”).

Finally, Count 1, the statutory and ordinance claim, survives for the

reasons I described in text finding those laws enforceable despite the parties’

agreement to the contrary.

As part of their motion, the defendants seek dismissal of all claims against

the members of the select board whom the plaintiff sued in their official

capacities. Although the Complaint does not distinguish the relief sought

against them and against the town, the plaintiff has said in her response to the

motion that “Plaintiff requests injunctive relief against these Defendants, not

damages.” Pl.’s Opp’n at 18 (ECF No. 10). I therefore GRANT the named select

board defendants’ motion to dismiss any damages claim against them. The claim

for injunctive relief, however, remains.

I DENY the defendants’ motion to dismiss, except for the claim for damages

against individual members of the select board; in that respect it is GRANTED.

SO ORDERED.

DATED THIS 30TH DAY OF SEPTEMBER, 2019

/S/D. BROCK HORNBY

D. BROCK HORNBY

UNITED STATES DISTRICT JUDGE