Was the town's decision 'unfortunate and misplaced?'

Federal judge panel puts Clukey v. Camden back in court

Wed, 05/22/2013 - 1:30pm


    CAMDEN — Overturning a federal district court decision, a panel of three judges in Boston has sent a lawsuit against Camden filed by former employee Alan Clukey back to court for reconsideration. The judges say the town failed to provide Clukey adequate due process in 2007 when it hired new police department employees.

    Judges Jeffrey Howard, Norman Stahl and Kermit Lipez, sitting on the First Circuit Court of Appeals, delivered their opinion May 21, reversing an earlier decision of U.S. District Court Judge George Singal, for the District of Maine.

    "The Clukey family is elated by the appellate court's affirmation that the town deprived Alan of both his livelihood and a federal constitutional right," said attorney David Glasser, of Camden, May 22. "The court's decision enables Alan to ask a jury of his peers to vindicate his economic and personal losses caused by the town's unfortunate and misplaced decision to treat his employment and his due process rights as disposable."

    The suit was initially filed by former Camden dispatcher Clukey, along with his wife, Dera, in 2011. Clukey had worked as police dispatcher in Camden for 31 years until 2007, when Camden voters decided to dissolve the town’s own emergency dispatch service and join the rest of the county's 911 service, Knox Regional Communications Center.

    Following that, Camden eliminated Clukey's job, along with two other dispatch positions, leaving three employees to look for new jobs.

    At the time, Clukey, the most senior employee in the department, belonged to the labor union, the Camden Police Benevolent Association (Fraternal Order of Police). And at the time his position was eliminated, his employment terms were outlined in a collective bargaining agreement between the association and Camden. After the dispatch department was dissolved, the police department advertised two vacancies — administrative assistant and parking enforcement officer. At the same time, there were also vacancies in other town departments.

    In Clukey's original suit, filed in October 2011, he said that the collective bargaining agreement stipulated he was to have been recalled to vacant positions in town government.

    The appeals court judges cited that clause in their decision: "In the event it becomes necessary for the employer to lay off employees for any reason, employees shall be laid off in the inverse order of their seniority, by classification, with bumping rights. Bumping shall not be allowed between the police function and the dispatcher function. Employees shall be recalled from lay-off according to their seniority provided they are qualified to fill the position.... The affected employee has recalll rights for 12 months from the date of such lay-off."

    According to the suit, Camden did not recall Clukey to either advertised position, and subsequently filled them with new hires without providing him with any notice "that he was not being recalled, or explaining how he could appeal this determination," wrote the appeals court judges.

    In Clukey's 2011 suit, attorney Glasser wrote, "As a result of the town's failure to have recalled Alan Clukey to employment, he has been forced to engage in less profitable and productive employment."

    That 2011 suit said the town failed to rehire Clukey and provide due process.

    In February 2012, a U.S. District Court magistrate recommended dismissal of the two federal counts against the town, and by default, the two state-law counts also cited in the complaint.

    Camden, represented by Bangor-based attorney Frederick F. Costlow, of the firm Richardson, Whitman Large and Badger, argued that Clukey's claim that his constitutional right to substantive due process failed to show a deprivation of a protected interest in life, liberty or property.

    "It is not enough to claim the governmental action shocked the conscience," the town had said, in the motion to dismiss.

    While Clukey said Camden violated his federally protected constitutional right to procedural due process of law by terminating his contractual employment recall rights without notice and an opportunity to be heard, judge George Singal dismissed the case, including two state law claims.

    Those two state law claims said Camden misrepresented itself to Clukey that it would honor his recall rights in his employment contract, and that the conduct of the town of Camden caused Dera Clukey to lose the comfort and companionship of her husband, the result of which she had been damaged.

    But the appeals court judges said U.S. District Court decision to dismiss the Clukey case and Camden's assertion that Clukey had no property interest in his right to recall ignored "the centrality of state law to the property interest inquiry."

    Citing a number of labor lawsuits around the country, and then Maine cases, the three argued that a tenured public employee has a protected property interest, and said that the First Circuit has joined "a majority of our sister circuits in concluding that public employees may have a protected property interest in their rank such that they may not be demoted without due process."

    Furthermore, they wrote that the Clukey allegation that Camden failed to provide him with any notice of any kind "is fatal to the town's argument."

    They suggested, however, that the town on remand is not foreclosed from offering evidence, and wrote: "We leave it to the district court to engage in a full-scale Mathews analysis on a more developed factual if doing so becomes necessary to resolve the case."

    A Mathew analysis is a due process methodology used when a right to private property clashes with a government interest. According to the legal dictionary, it is a "three-part test that determines whether an individual has received due process under the Constitution. The test balances (1) the importance of the interest at stake; (2) the risk of an erroneous deprivation of the interest because of the procedures used, and the probable value of additional procedural safeguards; and (3) the government's interest."

    According to Glasser, Clukey lives in Waldo County and has a new career as a house painter.

    With the remand, the case now gets filed again in U.S. District Court in Portland and begins the process, all over again, of being reviewed by a judge. Whether it goes to court, results in a settlement, or another judge dismisses other counts remains to be seen.


    Editorial Director Lynda Clancy can be reached at lyndaclancy@penbaypilot.com; 706-6657.