Scott v. Central Maine Power Co., Civ. No. 85-0187 B.

• Decision Date: 13 March 1989
• Docket Number: Civ. No. 85-0187 B.
• Parties: Robert F. SCOTT, Plaintiff, v. CENTRAL MAINE POWER COMPANY, et al., Defendants.
• Court: U.S. District Court — District of Maine

709 F. Supp. 1176

Robert F. SCOTT, Plaintiff, v. CENTRAL MAINE POWER COMPANY, et al., Defendants.

Civ. No. 85-0187 B.

United States District Court, D. Maine.

March 13, 1989.

Richard E. Poulos, John S. Campbell, for plaintiff.

John H. Montgomery, Merton G. Henry, Brian C. Shaw, Jensen Baird Gardner & Henry, Portland, Me., for defendant Thurlow.

Cabanne Howard, Asst. Atty. Gen., Augusta, Me., for defendants Bradford and Moskovitz.

Charles A. Harvey, Michael T. Healy, Portland, Me., for defendants Central Maine Power, Ellis, Russell, Gorman, Titcomb, Dufour & Reed.

David T. Flanagan, Cent. Maine Power Co., Augusta, Me., for Cent. Maine Power Co.

MEMORANDUM AND ORDER

CYR, Chief Judge.

Defendants Bradford and Moskovitz move to dismiss on the ground that they are absolutely immune from suit and, therefore, that the amended complaint fails to state a claim on which relief can be granted under 42 U.S.C. § 1983. Plaintiff objects to the United States Magistrate's recommendation that the motion to dismiss be granted, see Scott v. Central Maine Power Company, Civil No. 85-0187-B, Recommended Disposition of Motion of Defendants Bradford and Moskovitz to Dismiss (D.Me. June 8, 1987), and the court undertakes de novo review, see 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b).

I. BACKGROUND

The allegations of the amended complaint are considered true for present purposes.¹ See Kay v. New Hampshire Democratic Party, 821 F.2d 31, 33 n. 3 (1st Cir.1987).

At all relevant times Bradford was the Chairman of the Maine Public Utilities Commission (MPUC). Moskovitz was an MPUC staff attorney from 1978 through 1983 and became a commissioner of the MPUC in February 1984. Plaintiff Scott began working at Central Maine Power Company (CMP) in 1953 and became a vice president in 1974; Senior Vice President in 1977; and a member of the Board of Directors in September 1978.

On August 5, 1982, the MPUC issued an order requiring CMP to submit a proposed conservation loan program in accordance with the Maine Electric Rate Reform Act, Me.Rev.Stat.Ann. tit. 35 §§ 91 et seq. At a September 23, 1982 hearing on the proposed conservation loan program, Scott, who was CMP's principal witness, falsely testified that a March 1982 survey (which CMP management wished to keep confidential) had been destroyed. Although part of the March 1982 survey related to CMP customer attitudes toward a conservation loan program, the survey also requested CMP customers' views on unrelated matters. At the September 23 hearing, Scott provided the MPUC with all of the survey information relating to the conservation loan program.

During a recess in the hearing, Moskovitz advised Douglas Stevenson, a CMP employee, that he did not believe Scott's testimony that the March 1982 survey had been destroyed. Faced with the MPUC's belief that the March 1982 survey was retrievable, CMP management, including Scott, CMP President Elwin W. Thurlow and others, endeavored to preserve the confidentiality of the survey. On October 7, 1982, Scott provided the MPUC with an edited version of an executive summary of the survey.

On October 8, 1982, Moskovitz launched an investigation into the truthfulness of the testimony given by Scott at the conservation loan program hearing. An Ad Hoc Committee of the CMP Board of Directors was formed to determine, coordinate and direct CMP's legal position in regard to the MPUC investigation and to conduct CMP's own investigation. The Ad Hoc Committee suspended Scott, with pay, on October 12, 1982.

On October 15, 1982, the MPUC officially notified CMP and Scott of its formal investigation. Specifically, the MPUC notice stated:

The Commission is initiating a formal investigation under 35 M.R.S.A. § 296 with respect to whether there was an effort to withhold information from the Commission, who was responsible, and what actions should be taken by the Commission in response to the findings which may be made as a result of this investigation.

Amended Complaint, at ¶ 52. The investigation had been requested informally by Bradford, who had learned from Moskovitz about Scott's supposedly false testimony.

In addition to requesting an MPUC investigation, Bradford urged the Maine Attorney General to indict Scott for perjury. During November 1982, the Attorney General's Office interviewed Scott, Thurlow and others concerning the alleged CMP cover-up. On December 2, 1982, the Attorney General's Office determined that Scott would not be prosecuted for perjury. In response, Bradford wrote to the Attorney General:

I understand from David Moskovitz that Jim Brannigan stated that I do not disagree with the proposition that Bob Scott's false statements were not material to the Conservation Loan Program case.

There is a misunderstanding of some sort here. Jim Brannigan and I did not discuss materiality. The Commission's position, as reiterated by David Moskovitz on several occasions, was that Mr. Scott's false statement could well have influenced the course of the proceeding. We would be glad to provide testimony to that effect.

Amended Complaint, at ¶ 57.

The Maine Attorney General instead prosecuted Scott for "false swearing," a misdemeanor under Me.Rev.Stat.Ann. tit. 17-A, § 452,² and, on December 13, 1982, Scott pleaded guilty pursuant to a plea agreement with the Attorney General which provided that Scott would not be prosecuted for any other crime arising out of his false testimony before the MPUC. Scott was fined $500. Bradford was openly critical of the sentence.

The MPUC investigation intensified upon the scheduling of a series of depositions beginning in late December 1982. The MPUC retained Peter L. Murray, Esquire, an attorney having numerous business and social contacts with Bradford, to assist Moskovitz with the depositions. Murray had acted on at least one occasion as Bradford's personal attorney. Depositions of Scott, Thurlow and other CMP personnel were conducted from December 1982 through February 1983.

On January 11, 1983, the MPUC further clarified the scope of its formal investigation:

The notice of investigation places the reasonableness of the Company's actions (including all of its directors, officers, employees, and outside counsel and consultants) before, during, and after Mr. Scott's September 23, 1982 testimony within the scope of the Commission's investigation.

An understanding of CMP's polling practices, the purposes of the polls, the dissemination of the results, and their relationship to any effort to withhold information from the Commission is a necessary adjunct to a full understanding of this matter and is within the scope of this investigation.

See Amended Complaint, at ¶ 62.

On January 21, 1983, Moskovitz notified CMP that "the risk of criticism by the MPUC would be `increased by inaction or actions by CMP designed to satisfy the minimal concerns of the Commission, while not fully addressing the situation.'" Amended Complaint, at ¶ 67. In response to the Moskovitz letter, the CMP Ad Hoc Committee met, with Thurlow present, and discussed possible corrective measures by CMP. On February 3, 1983, Thurlow wrote the MPUC that Scott would be demoted to a non-policymaking position at one-half salary; that Scott would retire when he became eligible in two years; and that Thurlow himself would retire within three years.

On February 3 or 4, Bradford publicly stated that CMP's proposed measures were "not the end of the matter." On February 11, 1983, Bradford indicated that the MPUC probably would have taken no further steps against CMP had CMP apologized for Scott's false testimony shortly after the September 23 hearing.

The MPUC staff issued a preliminary investigation report on February 14, 1982, recommending, inter alia, that the MPUC find Scott guilty of contempt. The Maine media carried the MPUC report, which concluded that CMP officials had covered up Scott's false testimony.

On February 17, 1982, after meeting to discuss the MPUC preliminary report, the Ad Hoc Committee instructed the CMP lawyers to meet with Moskovitz and Murray to discuss measures to placate the MPUC to the point that the Scott investigation could be terminated. Unbeknown to Scott and his counsel, the CMP lawyers met that same day with Moskovitz and Murray at Brunswick, Maine. At that meeting, Moskovitz stated that in order to resolve the controversy Scott and another CMP official would have to be fired, a third CMP official would have to be reprimanded and Thurlow would have to retire sooner than proposed. The meeting reached an impasse.

The next day Moskovitz conferred with Bradford and another MPUC commissioner about the Brunswick meeting with the CMP lawyers. Later, on March 16, 1983, after Scott objected to Moskovitz' ex parte communications with Bradford, Bradford denied that he and Moskovitz had discussed matters pertaining to Scott. Immediately following the meeting with Bradford, Moskovitz informed the CMP lawyers that the Brunswick meeting was to be considered a "non-event" and that he and Murray had been instructed not to discuss a resolution of the Scott investigation with CMP counsel.

On February 19, after the CMP lawyers had reported on their Brunswick meeting with Murray and Moskovitz, the Ad Hoc Committee decided to discharge Scott, effective March 1, 1983. On February 22, the Ad Hoc Committee advised Bradford that Scott had been fired and that Thurlow's resignation would be accelerated.

On May 11, the MPUC staff, CMP and Scott stipulated the record in the MPUC investigation, so that the MPUC could issue a decision without a public hearing. See 65-407 C.M.R. Chapter 11, § 6(G)(2). On July 22, the MPUC issued a proposed decision concluding that contempt citations should issue against Scott, Thurlow, a third CMP official, and CMP. The MPUC issued its final decision on September 21, 1983, determining not to pursue contempt charges against any individual, and it accepted CMP's plea of nolo contendere upon payment of a $20,000...