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Eves v. Lepage

United States District Court, D. Maine

May 3, 2016

MARK W. EVES, Plaintiff
PAUL R. LEPAGE, Defendant.



Before the Court is Defendant’s Motion to Dismiss (ECF No. 9). The Court previously granted the parties’ Joint Motion for Oral Argument (ECF No. 21) and held oral argument on April 13, 2016. Immediately prior to oral argument, the Court granted without objection Plaintiff’s Motion for Leave to File Second Amended Complaint (ECF No. 33), thereby making the Second Amended Complaint (ECF No. 38) the operative pleading for purposes of the pending Motion to Dismiss. (See 4/13/16 Proc. Order & Report of Conf. (ECF No. 36).) Having fully considered the written and oral submissions of counsel, the Court now GRANTS the Motion to Dismiss.


The Federal Rules of Civil Procedure require only that a complaint contain “a short and plain statement of the grounds for the court’s jurisdiction . . . a short and plain statement of the claim showing that the pleader is entitled to relief; and a demand for the relief sought[.]” Fed.R.Civ.P. 8(a)(1)-(3). In deciding a motion seeking dismissal for failure to state a claim, the Court assumes the truth of the complaint’s well-pleaded facts and draws all reasonable inferences in plaintiff’s favor. Schatz v. Republican State Leadership Comm., 669 F.3d 50, 55 (1st Cir. 2012). The Court may “supplement [the complaint’s] factual allegations by examining ‘documents incorporated by reference into the complaint, matters of public record, and facts susceptible to judicial notice.’” Butler v. Balolia, 736 F.3d 609, 611 (1st Cir. 2013) (quoting Haley v. City of Boston, 657 F.3d 39, 46 (1st Cir. 2011)).

A viable complaint need not proffer “heightened fact pleading of specifics, ” but in order to survive a motion to dismiss it must contain “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). In considering a motion to dismiss, the Court should “begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). A plaintiff must include enough facts supporting a claim for relief that “nudge[s] [the] claims across the line from conceivable to plausible.” Twombly, 550 U.S. at 570. “If the factual allegations in the complaint are too meager, vague, or conclusory to remove the possibility of relief from the realm of mere conjecture, the complaint is open to dismissal.” Haley v. City of Boston, 657 F.3d 39, 46 (1st Cir. 2011) (quoting SEC v. Tambone, 597 F.3d 436, 442 (1st Cir. 2010)); see also Iqbal, 556 U.S. at 678 (stating that the Court need not accept “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements”). However, “[T]he court may not disregard properly pled factual allegations, ” even if the allegations are “improbable” or the chance of “a recovery is very remote and unlikely.” Ocasio-Hernández v. Fortuno-Burset, 640 F.3d 1, 12 (1st Cir. 2011).


In accordance with the motion to dismiss standard and recognizing that there has been no discovery, the Court makes no factual findings at this stage of the proceeding and draws the following recitation from the allegations found in the Second Amended Complaint (ECF No. 38):

The Maine State Legislature convenes for a biennium that is divided into two sessions. Members of the Maine State Legislature are paid a set salary for this two-year term. See 2 M.R.S.A. § 2. Currently, the salary totals $24, 056, with $14, 074 paid during the first regular session and $9, 982 paid during the second regular session. When the Legislature is in session, legislators also currently receive a $38 per diem for housing or mileage and tolls. The first session generally convenes in December and, by statute, defaults to adjourning on the third Wednesday in June. See id. The second session generally convenes the following January and, by statute, defaults to adjourning no later than the third Wednesday in April. See id. Given this salary level and schedule, most members of the Maine Legislature maintain additional jobs or income streams to support themselves.

Plaintiff Mark W. Eves, a Democrat, is an elected member of the Maine House of Representatives representing a district that includes his residence in North Berwick, Maine. Eves is serving his fourth term and, thus, is ineligible to be re-elected to his current seat once his present term ends in December 2016.[2] Eves first successfully ran for state representative in 2008. He was first elected Speaker of Maine’s House of Representatives in 2012 and re-elected as Speaker in 2014. As Speaker, Eves is responsible for the operating budget and management of the House of Representatives and the non-partisan offices including the Office of the Executive Director, the Office of Fiscal and Policy Review, the Office of Information Technology, the Office of Policy and Legal Analysis, and the Office of Program Evaluation and Government Accountability.

In addition to serving in the Maine Legislature, Eves is a trained marriage and family therapist with fifteen years of work experience in the field of behavioral health and family therapy, including experience in community health organizations and running his own clinical private practice. Upon moving from California to Maine in 2003, he worked as a Program Director and Family Therapist for Odyssey Children’s Therapeutic Center in Sanford, Maine. Beginning in 2004, he began working for Sweetser in various positions. From about 2010 to 2013, Eves was the Director of Business Development for Sweetser; a position in which he reported directly to Sweetser’s Chief Executive Officer. Eves also served as President of the Maine Association for Marriage and Family Therapy from 2006 to 2008.

Good Will-Hinckley (“GWH”) is a private, not-for-profit organization focused on serving at-risk and non-traditional youth from across Maine. Located in Fairfield, Maine, it offers educational, counseling and social service programs to help at-risk youth. Originally opened as a farm, school and home for needy boys in 1889, GWH has operated on donations and governmental grants for most of its existence. Currently, GWH operates several other institutions on its campus, including a college step-up program, in partnership with Kennebec Valley Community College, the Glen Stratton Learning Center for youth with emotional and behavioral challenges, a nutrition program, the Carnegie Library and the LC Bates Museum.

Via legislation passed in 2009, the State of Maine established “the Center of Excellence for At-risk Students” and designated GWH “to serve as the nonprofit charitable corporation with a public purpose to implement the Center of Excellence for At-risk Students.” 2009 Maine Session Laws Ch. 296 (codified in relevant part at 20-A M.R.S.A. §§ 6951-6954). Following this designation, GWH opened a charter school, called the Maine Academy of Natural Sciences (“MeANS”) in September 2012. MeANS has its own board of directors and its own principal. MeANS receives discretionary state funding pursuant to its designation as “the Center for Excellence for At-risk Students.” See 20-A M.R.S.A. § 15689-A(20) (“The commissioner may expend and disburse funds for the Center of Excellence for At-risk Students in accordance with the provisions of chapter 227.”). (See Def.’s Mot. at 5 n. 2.) For the two-year state budget covering July 1, 2013 through June 30, 2015, this discretionary funding totaled $1, 060, 000, which was paid to GWH.[3] GWH relied on this discretionary state funding to pay for salary, wages, benefits, and other operational expenses such as food, transportation, and utilities.

In September 2014, the then-president of GWH, Glenn A. Cummings, resigned after serving in the position for about four years. Cummings had been Speaker of the Maine House of Representatives from December 2006 until December 2008.[4] Although Cummings opposed charter schools while serving in the Maine Legislature, he oversaw the start of a charter school during his tenure at GWH and state funding for GWH was strongly supported by Governor LePage. After President Cummings resigned, GWH conducted a nationwide search for a successor. This search was led by its Interim President, Richard A. Abramson, who headed up a six-person President Search Committee. The Search Committee received nineteen applications for review. Ultimately, the Committee identified six candidates to be interviewed. Among those six candidates was Eves, who had submitted a letter of application and resume for the President position on March 8, 2015. The six candidates selected for interviews by the Search Committee were each asked to then submit three current letters of reference.[5]

On April 24, 2015, Eves participated in a telephone interview with the Search Committee.[6]After these six initial interviews, the Search Committee met and narrowed the top candidates to three, including Eves. On April 29th and 30th, these three remaining candidates visited GWH’s campus, where they met selected parents and staff, and met with the GWH Senior Leadership Team for an interview. The Senior Leadership Team consisted of the Vice President of Operations, the Director of Finance, the Principal of MeANS, the Director of IT, the Director of Curriculum/Assessment, the Director of Admissions, and the LC Bates Museum Curator. All three candidates were asked the same questions.

On April 30, 2015, the GWH Senior Leadership Team provided the Search Committee with a memo detailing their evaluation of the three remaining candidates and their unanimous conclusion that “after much discussion about all three candidates, among your senior leaders, the individuals who have boots on the ground and will be working extensively with the President, it is our wish to put forth only one candidate for recommendation, and that candidate is MARK EVES.” (Second Am. Compl. ¶ 63.) Their memo cited his “extensive clinical experience, ” his “balance of executive administration and fundraising experience, ” and his “leadership style and polished approach” as reasons the seven-person Leadership Team supported Eves over the other two finalists. (Id.)

Ultimately, by May 5, 2015, two finalists, including Eves, were scheduled for May 15, 2015 interviews with the full boards of GWH and MeANS. On May 13, 2015, Eves and the other finalist each had an informal meeting with GWH Board Chair John P. Moore and two members of the Search Committee. After the May 15th interviews, the full boards of GWH and MeANS unanimously voted to offer Eves the President position. On June 5, 2015, Eves signed a two-year employment agreement with GWH. The agreement had a for-cause termination provision and no conditions or contingencies regarding (1) any form of actions or approvals by the State or (2) the receipt of funds from the State. Eves’ selection as the next President was announced by the GWH Board of Directors on June 9, 2015. The Board statement detailing Eves’ selection touted his experience as a “behavioral counselor dealing with at-risk children and families, his clinical and administrative experience in the field of behavioral health, ‘as well as his statewide policy and leadership experience as Speaker of the Maine House of Representatives.’” (Second Am. Compl. ¶ 70.)

Defendant Paul R. LePage, a Republican, is the elected Governor of the State of Maine. In the Spring of 2015, the Governor and the Maine Legislature were attempting to complete the work of the first regular session of the 127th Maine Legislature, including the State’s biennial budget for the two-year period beginning on July 1, 2015. As the legislative debates escalated in the waning days of the session, on May 29, 2015, Governor LePage held a press conference during which he stated that he would veto every bill sponsored by a Democrat for the rest of the time he is in office unless the Legislature agreed to support his plan to have a referendum vote on eliminating Maine’s income tax. At the same press conference, Governor LePage stated: “Frankly, I think the Speaker of the House should go back home where he was born.” (Second Am. Compl. ¶ 74.)

On the morning of June 5, 2015, Governor LePage learned that Speaker Eves had been selected by GWH to be its new President. That same day, LePage telephoned Richard Abramson, then the Interim President of GWH. LePage told Abramson that he was extremely upset to learn about the hiring of Eves as the new President. LePage used profanity to describe the Speaker and his work. During the call, Abramson attempted to explain the search process that culminated in Eves’ selection. On or soon after June 5, 2015, LePage also sent a handwritten note directly to the GWH Board Chair. This note referred very negatively to Eves, including the statement that he was a “hack.” (Second Am. Compl. ¶ 98.) The Board Chair understood upon reading this note that GWH would lose $1, 060, 000 in state funding if it retained Eves as its new President. In fact, the not-yet-enacted state budget called for discretionary funding totaling $1, 060, 000 ($530, 000 per year for the next two years).

On the following Monday, June 8, 2015, LePage sent a public letter to the Board Chairs of GWH and MeANS urging that they reconsider the decision to hire Eves as the new President of their organization. In this letter, he described Eves as “a longtime opponent of public charter schools” and complained that Eves “fights every effort to reform Maine’s government.” (Second Am. Compl. ¶ 101.) After considering this letter, the GWH Board, which includes people of various political affiliations, agreed that their selection of Eves was well-supported and was not based on political considerations.

On June 8, 2015, LePage also received a call from Gregory W. Powell, the Chairman of the Board of Trustees of the Harold Alfond Foundation, in response to a voicemail LePage had left Powell.[7] In the conversation that followed, LePage explained to Powell that he was withdrawing all support, including financial support, from GWH as long as Eves remained as President of the organization. After the call, Powell researched exactly how much funding the state would be withdrawing. Then, on June 18, 2015, Powell sent a letter to the Chair of the GWH Board indicating GWH was facing “a likely loss of $1, 060, 000 in state funding over the next two years for the residential programming” and expressing “a serious concern of the Harold Alfond Foundation regarding the future financial viability” of GWH “given the likely state funding loss” and “by extension its ability to achieve the goals” required for it to receive its $2, 750, 000 future grant from the Foundation.

Additionally, on June 8, 2015, LePage vetoed ten bills that were sponsored by Democrats. In doing so, LePage explained: “As promised, I am vetoing all bills sponsored by Democrats because they have stifled the voice of Maine citizens by preventing them from voting on the elimination of the income tax.” (Second Am. Compl. ¶ 76.)

On or about June 9, 2015, Governor LePage told his Acting Commissioner of the Maine Department of Education (the “DOE”), Tom Desjardins, and his Senior Policy Advisor, Aaron Chadbourne, that he would not send any more funding to GWH that was not required by law. In response to LePage’s pronouncement, Acting Commissioner Desjardins intervened to stop an installment payment check of $132, 500 in discretionary funds to GWH that, consistent with prior practice, had already been submitted by the DOE to the Office of the State Controller for payment to GWH in the upcoming quarter beginning on July 1, 2015.[8]

On June 22, 2015, Eves’ lawyer communicated with LePage’s Chief Counsel and requested that LePage withdraw his threat against GWH to withhold budgeted discretionary funding unless it fired Eves because that threat violated Eves’ clearly established First Amendment rights. Eves’ counsel provided LePage’s Chief Counsel with copies of two cases upholding similar claims against Governors, including a decision of the United States Court of Appeals for the First Circuit.[9]On June 23, 2015, LePage’s Chief Counsel reported to Eves’ lawyer that the Governor would not withdraw his threat regarding the GWH funding. However, through June 23, 2015, LePage also did not take any steps to reduce or eliminate the $1, 060, 000 in discretionary funds allotted in the proposed state budget for GWH.

GWH fired Eves on June 24, 2015. Eves publicly reported that his firing was caused by LePage’s threat to withhold funding. In the days that followed his firing, Eves received emails from three members of the GWH Senior Leadership Team expressing their support for his qualifications and selection as well as an email from former Interim President Richard Abramson stating that he believed Eves “would have been a wonderful fit for Hinckley.” (Second Am. Compl. ¶¶ 107 & 108.)

In response to media coverage of Eves’ firing, on or about June 25, 2015, Maine State Senate President Mike Thibodeau, a Republican, issued a public statement reading in part: “I am very saddened by this situation and shocked by what is being alleged. Nearly all legislators depend on a career outside of the State House to provide for their families.” (Second Am. Compl. ¶ 112.) Similarly, Maine State Senator Roger Katz, a Republican, stated publicly: “I just don’t think there is any question that Mark Eves is qualified to lead GWH. This really goes beyond the political. This is personal and vindictive. I often disagree with Speaker Eves, but he’s a fine and honest man. More importantly, he’s a husband and a father of three beautiful kids who is trying to support his family. Political battles are one thing, but trying to ruin someone economically is quite another.” (Second Am. Compl. ¶ 113.)

After initially refusing to confirm or deny any role in the GWH decision to dismiss Eves, on June 29, 2015, LePage was asked directly by a reporter whether he “threatened to withhold money” from GWH because of its hiring of Speaker Eves. LePage responded, “Yeah, I did! If I could, I would! Absolutely; why wouldn’t I? Tell me why I wouldn’t take the taxpayer money, to prevent somebody to go into a school and destroy it. Because his heart’s not into doing the right thing for Maine people.” (Second Am. Compl. ¶ 114.)

In his July 7, 2015 radio address, LePage again admitted that he made the financial threat against GWH to get Eves fired because of Eves’ public statements and other political activities opposing charter schools: “He [Eves] worked his entire political career to oppose and threaten charter schools in Maine. He is the mouthpiece for the Maine Education Association. Giving taxpayers’ money to a person who has fought so hard against charter schools would be unconscionable.” (Second Am. Compl. ¶ 122.) In that same July 7th radio address, LePage accused Eves of misconduct: “Former legislator Paul Violette, the past head of the Maine Turnpike Authority, went to jail for enriching himself and misappropriating public money. . . . These former legislators used their political positions to land cushy, high-paying jobs in which they were trusted to use taxpayer money to improve the lives of Mainers. They abused that trust and had to face the consequences of their actions. The same is true of Mark Eves.” (Second Am. Compl. ¶ 121.) On July 30, 2015, during a radio interview, LePage incorrectly stated that Eves submitted his application for the GWH job “and seven days later after a national search he was awarded the job.” (Second Am. Compl. ¶ 124.) Also, during a July 30th radio interview responding to questions about why he intervened in GWH’s hiring of Eves, LePage said: “[Eves] is a plant by the unions to destroy charter schools. . . . I believe that is what his motive is. . . . That man had no heart.” (Second Am. Compl. ¶ 13.) LePage then analogized his decision to pull funding from GWH to “one time I stepped in . . . when a man was beating his wife” and stated, “Should I have stepped in? Legally, no. But I did. And I’m not embarrassed about doing it.” (Id.)

The default statutory adjournment date for the first session of the 127th Maine Legislature was June 17, 2015.[10] However, the session was extended multiple times and the first session did not finally adjourn until July 16, 2015. See Opinion of the Justices, 123 A.3d 494, 501-03 (Me. 2015). One of the final issues to be resolved in the first session was passage of the state’s biennial budget (L.D. 1019) for the fiscal period beginning on July 1, 2015. As amended, L.D. 1019 was passed by both the Maine House of Representatives and Senate on June 17, 2015. As allowed by Maine statute, the Governor then exercised his right to issue line-item vetoes of particular appropriation amounts. See Me. Const. art. IV, pt. 3, § 2-A. All told, the Governor issued sixty-four line item vetoes, which were then considered and overridden by the Maine House of Representatives and Senate in votes that took place on June 18th & 19th.[11] See 1 Legis. Rec. H-934 - H-956 (1st Reg. Sess. 2015); 1 Legis. Rec. S-1191 - S-1225 (1st Reg. Sess. 2015). On June 29, 2015, the Governor issued a general veto on the budget bill. See 1 Legis. Rec. S-1331 - S-1332 (1st Reg. Sess. 2015) (H.C. 322); see generally Opinion of the Justices, 673 A.2d 1291 (Me. 1996) (describing the operation of the line item veto and the general veto powers the Governor has under the Maine Constitution). Both houses of the Maine Legislature overrode this veto on June 30, 2015, thereby enacting the biennial budget that included the discretionary funding for GWH.

On October 15, 2015, the GWH Board Chair testified before the Maine Legislature’s Government Oversight Committee. He testified that (1) Speaker Eves was selected to be GWH’s next President because he was the most qualified applicant and (2) Speaker Eves would be its President today except for Governor LePage’s threats to withhold $1, 060, 000 in budgeted state funding unless Speaker Eves was fired.[12]


The factual allegations laid out above clearly display a “war of words” between the head of Maine’s executive branch and a leader of Maine’s legislative branch. Such battles are an inevitable and intended part of a government built on the separation of powers. As the First Circuit explained in another recent case, “Governors and administrations [as well as legislators] are ultimately accountable to the electorate through the political process, which is the mechanism to test disagreements.” Newton v. LePage, 700 F.3d 595, 604 (1st Cir. 2012). As the extensive analysis that follows shows, the federal courts serve as a poor substitute mechanism for resolving such disagreements. In fact, many of the doctrines discussed herein were developed to avoid the use of the judicial branch to resolve political disputes that are rightly reserved for the electorate.

In his recently filed Second Amended Complaint, Plaintiff makes clear that his pending claims are based on Defendant’s various statements and “threats” that Plaintiff claims brought about the termination of his private employment:

Eves is not challenging any action by LePage regarding (a) proposing, modifying, supporting, or not supporting any item in the state budget or proposed budget; (b) signing or vetoing the state budget; or (c) vetoing any bill. Rather, Eves is only challenging the threats and adverse actions by LePage regarding his exercise of the executive power to decline to “expend and disburse” discretionary funds that were authorized but ...

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