Temple v. Inhabitants of City of Belfast, Civil No. 98-CV-160-B.

• Decision Date: 04 December 1998
• Docket Number: Civil No. 98-CV-160-B.
• Citation: 30 F.Supp.2d 60
• Parties: E. Robert TEMPLE, Plaintiff, v. INHABITANTS OF THE CITY OF BELFAST, et al., Defendants.
• Court: U.S. District Court — District of Maine

30 F.Supp.2d 60

E. Robert TEMPLE, Plaintiff, v. INHABITANTS OF THE CITY OF BELFAST, et al., Defendants.

Civil No. 98-CV-160-B.

United States District Court, D. Maine.

December 4, 1998.

COPYRIGHT MATERIAL OMITTED

Edmond J. Bearor, Rudman & Winchell, Bangor, ME, for the Plaintiff.

Lee K. Bragg, Bernstein, Shur, Sawyer & Nelson, Portland, ME, for Defendants Cheston, Lewis, Whitely & Belfast.

Marvin H. Glazier, Vafiades, Brountas & Kominsky, Bangor, ME, for Defendant Whitely.

Michael A. Dudy, Kozak, Gayer & Brodek, P.A., Bangor, ME, for Defendant Lewis.

Glen L. Porter, William DeVoe, Eaton, Peabody, Bradford & Veague, Bangor, ME, for Defendant Cheston.

ORDER AND MEMORANDUM OF DECISION

BRODY, District Judge.

Plaintiff E. Robert Temple ("Plaintiff"), Code Enforcement Officer for the City of Belfast, has filed a complaint against four Defendants asserting a number of claims for damages arising out of conduct occurring between the fall of 1997 and March 1998.¹ Essentially, Plaintiff claims he was subject to an investigation and hearing rife with illegalities, which were part of a highly orchestrated campaign by several maliciously motivated individuals to oust him from his position.

Plaintiffs Complaint alleges that Defendant City of Belfast ("Belfast") violated 42 U.S.C. § 1983 (Counts I, II, and III), the Maine Civil Rights Act, 5 M.R.S.A. § 4681 et seq. (Counts I, II, and III), and the Maine Freedom of Access Act, 1 M.R.S.A. § 401 et seq. (Count III) and committed defamation (Counts IV and VII); that Defendant Jon Cheston ("Cheston") committed defamation (Count V); that Defendant Michael Lewis ("Lewis"), Defendant Robert Whiteley ("Whiteley"), and Cheston engaged in tortious interference with a contract (Count VI); and that Lewis and Whiteley committed an invasion of privacy (Count VIII). Each Defendant has filed a Motion to Dismiss pursuant to Fed.R.Civ.P. 12(b)(6). For the reasons discussed below, the four Motions to Dismiss are GRANTED.

I. MOTION TO DISMISS

When confronted with a Motion to Dismiss brought pursuant to Fed.R.Civ.P. 12(b)(6), the Court views all of Plaintiff's factual averments as true and indulges every reasonable inference in Plaintiff's favor. See Aulson v. Blanchard, 83 F.3d 1, 3 (1st Cir.1996). The Court may grant Defendants' Motion to Dismiss "only if it clearly appears, according to the facts alleged, that the plaintiff cannot recover on any viable theory." Correa-Martinez v. Arrillaga-Belendez, 903 F.2d 49, 52 (1st Cir.1990). The Court may consider a Rule 12(b)(6) motion to dismiss brought after a defendant has filed its answer if, as done here by Belfast, the defendant raises the failure to state a claim as an affirmative defense in its Answer. See Gerakaris v. Champagne, 913 F.Supp. 646, 650-51 (D.Mass.1996).

II. BACKGROUND

Plaintiff was hired by Belfast as a licensed plumbing inspector in 1985. In 1987, Plaintiff became Belfast's Assistant Code Enforcement Officer, and in 1994, he was appointed Belfast's Code Enforcement Officer. In the spring of 1997, the City Council ("Council") awarded Plaintiff a $5,000 pay increase.

According to Plaintiff, Belfast's personnel code provides that the City Manager is responsible for disciplining the Code Enforcement Officer, and that an employee may appeal disciplinary action proposed by the City Manager to the Council. The Council may then either concur with the proposed action, or recommend alternative discipline. Thus, the Council's role in disciplinary matters is advisory in nature. To date, Plaintiff has never been disciplined by a City Manager.

In the summer of 1997, at the urging of Council members Lewis and Cheston, the Council hired an attorney, Robert E. Miller ("Miller"), to compile information regarding Plaintiff's job performance for possible use in contemplated termination proceedings. Plaintiff alleges that the Council held secret executive sessions during which his employment was discussed on October 21, November 18, and December 9, 1997. The Council did not invite Plaintiff to attend these sessions and did not disclose their subject matter to him.

After several months, Miller sent Council members a confidential letter (the "Miller Letter") dated January 6, 1998, stating his preliminary determinations that Plaintiff:

... has demonstrated a lack of good understanding of the ordinances within his jurisdiction and a failure to enforce local regulations in a uniform and non-discriminatory manner. In my view, the Council will find that his conduct has affected his ability and fitness to perform his duties as Code Enforcement Officer.

It will be my recommendation that the Council give serious consideration to a revocation of his appointment as Code Enforcement Officer and dismissal as an employee of the City of Belfast ...

(Compl. ¶ 21.) Miller had admonished Cheston in the fall of 1997 that disclosure of personnel documents violated Maine law. Upon receiving the Miller Letter in January 1998, however, Cheston immediately presented a copy of it to The Waldo Independent, Inc. which thereafter accurately published its contents.

On February 3, 1998, Miller issued a letter to the Council alleging various deficiencies in Plaintiff's job performance and recommending that he be terminated. Plaintiff alleges that Miller's recommendation was based on false information obtained through the misstatements and illegal acts of Lewis, Whiteley, and Cheston, and that these misstatements and illegal acts were executed purposely to fabricate a foundation for Miller's recommendation.

In support of this contention, Plaintiff alleges that the following conduct occurred: on October 28, 1997, Lewis and Cheston provided a representative of the Building Officials and Code Administrators Institute with misleading information about Plaintiff's decisions in connection with the development of a particular piece of property. The two asked the representative to address all correspondence to them to Lewis's residence rather than to Belfast City Hall.

In the fall of 1997, Lewis entered Plaintiff's locked office at night without his permission, via a doorway otherwise blocked by a photocopier, and removed a file that was sitting on his desk.² The file contained information that was potentially damaging to Lewis. Lewis entered Plaintiff's office with the assistance of City Assessor Whiteley, whose office is adjacent to Plaintiff's.

At other times during the fall of 1997, Lewis and Cheston allegedly provided incomplete and misleading information to the State Fire Marshals' Office and the State Planning Office; Lewis and Whiteley contacted Belfast residents and encouraged them to file complaints against Plaintiff; and Lewis participated in the hiring of a third party to surreptitiously tape record a conversation with Plaintiff in order to entrap him. The Council later approved the use of this tape recording in its investigation and Miller eventually published its contents.

In March 1998, the Council held a hearing to evaluate Plaintiff's fitness to continue serving as Belfast's Code Enforcement Officer. Before the hearing, Plaintiff's attorney advised the Council of his belief that it lacked jurisdiction over the matter. In addition, Plaintiff requested that the Council determine as a body whether members Cheston and Lewis harbored prejudice or bias toward him and whether they could determine his fate impartially. The Council rejected Plaintiff's request and permitted each Council member to assess individually his capacity to evaluate Plaintiff impartially. Cheston and Lewis both determined that they could do so, and ultimately, with their participation, the Council voted 3 to 2 to retain Plaintiff in his position. He continues to work in that capacity presently.

Plaintiff's Complaint states that he has suffered the following damages as a result of Defendants' conduct: injury to his reputation (stigmatization as a dishonest and incompetent Code Enforcement Officer); dimming of future employment prospects; unspecified physical and emotional injury; unspecified financial costs incurred in defending his reputation; attorney's fees and costs; and punitive damages as against Cheston, Lewis, and Whiteley.

Plaintiff claims that Belfast violated his due process rights when Cheston published the Miller Letter (Count I), when the Council conducted an investigation and hearing over which it lacked jurisdiction (Count II), and when the Council held executive sessions which violated the Maine Freedom of Access Act (Count III). He also asserts defamation claims against Belfast based on the publication of the Miller Letter (Count IV) and of the surreptitiously-obtained tape recording (Count VII). Plaintiff additionally brings a defamation claim against Cheston based on the publication of the Miller Letter (Count V); a tortious interference with contract claim against Lewis, Whiteley, and Cheston based on their intentionally false and misleading statements to state officials and citizens (Count VI); and an invasion of privacy claim against Lewis and Whiteley based on their unauthorized entry into his office and removal of a file from his desk (Count VIII).

III. DISCUSSION

A. § 1983 Claims

In Counts I, II, and III, Plaintiff alleges violations of 42 U.S.C. § 1983. Section 1983 authorizes actions for relief against "[e]very person who under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory ... subjects, or causes to be subjected, any citizen of the United States or other person ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws." 42 U.S.C. § 1983 (1994). The Fourteenth Amendment dictates that no "State [shall] deprive any person of life, liberty, or property, without due process of law ...." U.S. Const. amend. XIV, § 1. Due process claims may be presented under either of two theories: procedural due process or substantive due process. See Pittsley v. Warish, 927 F.2d 3, 6 (...