By Dina Samfield
SHIRLEY — In a press release issued on Wednesday, the American Civil Liberties Union announced that Shirley Finance Committee and Sewer Commission member Robert Schuler has settled his lawsuit against the town of Shirley and four town officials.
The release states that the town paid $35,000 in legal fees one month after they lifted the order indefinitely banning Schuler from town property.
The “stipulation of dismissal with prejudice” in Robert Schuler v. Town of Shirley, and (then selectman) Armand Deveau, (selectmen) David Swain and Kendra Dumont, and (then Chief Administrative Officer) David Berry, cites a letter issued on June 25, 2013, from Shirley Police Chief Gregory Massak to the plaintiff.
The letter states that during an executive session of the Shirley Board of Selectmen the previous evening, the selectmen voted to rescind the “No Trespass Order,” and that Schuler was “free to visit any of the Town owned property and participate in any meetings of the committees you serve.”
ACLU Cooperating Attorney Nicholas I. Leitzes, of Skadden, Arps, Slate, Meagher & Flom LLP, who brought the lawsuit on February 14, 2013, with fellow attorney Kurt Wm. Hemr, issued the following statement:
“We are pleased that today’s settlement puts an end to the Shirley Selectmen’s violations of Mr. Schuler’s constitutional rights, which prevented him from being an active part of his community. The lifting of the order and the agreement to pay fees implicitly acknowledges what we have said all along — that Mr. Schuler’s animated words were no threat.”
The ban on entering public buildings came about after a May 2011 meeting of the Finance Committee, during which Mr. Schuler expressed frustration about the Shirley Selectmen’s lack of action on an impending budget deadline.
Using hyperbole, he said that the slow pace made him want to “pull my gun out and start shooting or something.” Although the selectmen were not present at the meeting, at which the other FinCom members expressed no alarm at his comments, the selectmen subsequently issued the “No Trespass Notice” prohibiting Mr. Schuler from setting foot onto town property.
Since making the statement in question, Mr. Schuler has been reappointed to the FinCom, where he is serving his fourth term, and reelected to the town Sewer Commission, where he is serving his third term.
The lifting of the notice allowed Schuler to once again attend meetings in person and carry out the responsibilities of an elected and appointed official. Prior to June 25, Schuler had been participating in his committees remotely, through a conference call, as is permitted by 940 CMR 29.10. That regulation, however, did not permit his remote presence to count toward a quorum.
The civil action was brought pursuant to 42 U.S.C. Sections 1983 and 1988, and the First and Fourteenth Amendments of the United States Constitution.
The First Amendment prohibits the making of any law prohibiting the freedom of speech. The fourteenth amendment addresses citizenship rights and equal protection of the laws, and applies to the actions of all state and local officials.
Section 1983 allows liability to attach where a government official acts outside the scope of the authority granted to him by state law. Unlike states and state agencies, which are entitled to Eleventh Amendment immunity in federal court, local governments have no immunity from damages flowing from their constitutional violations.
Section 1988 allows for an award of attorney’s fees to a prevailing plaintiff.
“Now we are finally done,” remarked Leitzes, when asked for comment on the case, which took longer to settle than he had expected.
He said that the town “did demand a nondisclosure agreement, but we rejected it.”
“We were hoping they would issue an apology (to Schuler), but they agreed to pay the attorney’s fees and withdrew the notice without much fanfare, and Schuler now has all the rights he had beforehand,” he said.
Leitzes stated that the selectmen appear to maintain that they do not regret their decision, but added, “This couldn’t have worked out better as far as we are concerned. We would have liked an apology, but we are very satisfied with the fees paid to the ACLU.”
Asked for comment on the outcome, Schuler said simply, “It’s been a long road — a set of unfortunate circumstances –b ut I’m happy with the result. I’m back on the job.”