as an independent, stand-alone tort claim, as distinguished from a theory imposing
vicarious liability, this claim is dismissed. As conspiracy is not a separate tort claim,
this count may not go forward as pled.
3. Due Process Claim.
Abbott has alleged a violation of his due process rights under Article I, Section 6
A of the Maine Constitution. The Town argues that this provision does not create a
private right of action, and that such a claim would have to be brought under the Maine
Civil Rights Act ("MCRA"), which provides legal and equitable remedies to plaintiffs
who argue that their constitutional rights have been violated. See 5 M.R.S.A. § 4682(1
A). This section, however, is limited to deprivation of rights by a state actor "by
physical force or violence," and would not apply to Abbott's claim regarding the
fairness of his hearing. See id. 3 The Court may consider the personnel policies included in the file.
3 Maine cases, however, have discussed due process rights in the context of
employment. The Law Court has stated that "a necessary predicate for [a due process
claim] is a cognizable property interest." Carroll F. Look Constr. Co. v. Town of Beals, 2002
ME 128, C][ 11, 802 A.2d 994, 997. Viewing the facts most favorably to Abbott, his
complaint establishes that he had a 22-year career with the Sanford Police. This is
enough to demonstrate a potential property interest in that position4, and the nature of
any such interest will need to be established through discovery. It is too early to
determine that, beyond a doubt, Abbott is entitled to no relief on this basis. The motion
on this claim is Denied.
4. Intentional Infliction of Emotional Distress Claim.
a. Discretionary Function and MWCA Immunity.
First, the Town argues that it is immune from tort claims such as this under the
Maine Tort Claims Act ("MTCA"). The MTCA provides that governmental entities
typically are immune from liability for the intentional torts of their employees. 14
M.R.S.A. § 8103(1) (2005). Although governmental employees face liability for their
intentional torts, "immunity is the rule and liability the exception for governmental
entities." Carroll v. City of Portland, 1999 ME 131, C][ 6 n.3, 736 A.2d 279,282 n.3. Here, the
Town is immune from the tort claims raised in Counts II and III.
The analysis differs for the Town employees. Employees are entitled to
immunity under the MTCA for "performing or failing to perform a discretionary
function or duty, whether or not the discretion is abused." 14 M.R.S.A. § 8104-B(3)
(2005). To determine whether an act is a discretionary function, the Law Court employs
4 For example, this Court determined that an adjunct instructor at a local college who did not have an employment contract nevertheless had a property interest in his position there because he had a "reasonable expectation of continued employment:' Smith v. Southern Me. Community College, CUMSC AP-2003-62 (Me. Super. Ct., Cum. Cty., May 31, 2005) (Humphrey, J.).
4 a four-factor test: (1) whether the act "involve[s] a basic governmental policy, program,
or objective; (2) whether the act was "essential to the realization" of the policy; (3)
whether it demanded "the exercise of basic policy evaluation, judgment, and expertise;"
and (4) whether the agency had legal "authority and duty" to act. Adriance v. Town of
Standish, 687 A.2d 238, 240 (Me. 1996) (citing Darling v. Augusta Mental Health Inst., 535
A.2d 421, 426 (Me. 1987)). If, however, an employee's behavior "is found to exceed the
scope of his or her discretion, that immunity may not apply." Lewis v. Keegan, 2006 ME
93, «JI 14, 903 A.2d 342, 346. Ascertaining the scope of an employee's discretion may
"require determination by the fact-finder." Id.
Green and Jones allege that they are entitled to immunity for performing the
discretionary function of investigating Abbott's conduct. Viewing the facts most
favorably to Abbott, however, he has alleged sufficient facts to indicate that Green and
Jones may have exceeded the scope of their investigatory discretion. If they did, they
would forfeit their immunity for this intentional tort. At this early stage, insufficient
factual development has occurred to allow the Court to determine whether immunity
applies and whether, if so, Green and Jones somehow forfeited that immunity.
Dismissal on this basis would be premature.
In addition, both defendants contend that the Maine Worker's Compensation Act
("MWCA") is another source of immunity. The MWCA provides that governmental
entities and employees are immune for employee personal injury claims "arising out of
or in the course of employment." 39-A M.R.S.A. § 104 (2005). The Act "bars all
common law claims that arise out of work-related injuries in the course of
employment." Gordan v. Cummings, 2000 ME 68, «JI 13, 756 A.2d 942, 945. "The
substantive determination of whether a defendant is immunized from civil liability
under the WCA turns on a wide examination of factors." Clark v. Means, 2002 WL 89037
5 (Me. Super. Jan. 14, 2002). For example, in Clark, the trial court denied the defendant's
motion to dismiss the plaintiff's tort claims due to MWCA immunity because the
complaint was not required to be "a comprehensive rendition of all of the circumstances
that might be relevant to" the immunity analysis. Id.
Here, the allegations involve conduct outside the scope of Abbott's employment
that seems to have impacted his employment, but that impact does not necessarily
render the alleged behavior employment-related. Although the defendants contend
that Abbott's participation in the investigation constitutes proof that it was
employment-related, Abbott was placed on leave and was required by his supervisors
to participate in hearings. Such involuntary participation should not bar Abbott's
claims regarding those hearings due to MWCA immunity.
Also, it is unclear at this early stage whether Jones and Green's behavior in the
cOurse of the investigation, or the investigation itself, would constitute a "work-related
injury," as Abbott's alleged conduct involved his personal life, not his service on the
police force. Determining whether such an injury arose "out of or in the course of
employment" involves an inherently factual inquiry. See Knox v. Combined Ins. Co. of
America, 542 A.2d 363, 366 (Me. 1988) (remanding sexual assault claim for fact-finding
regarding potential MWCA immunity). The MWCA, therefore, is not a proper basis for
dismissing this claim until a more substantial record is developed that would support
immunity.
b. Merits of lIED Claim.
Turning to the underlying claim, to establish a claim for lIED, a plaintiff must
show that the defendant intended to inflict emotional distress or recklessly did so; that
defendant's conduct was "so extreme and outrageous as to exceed all bounds of
decency"; and that the conduct in fact caused severe distress to the plaintiff that an
6 ordinary person "could not be expected to endure." Colford v. Chubb Life Ins. Co. of
America, 687 A.2d 609,616 (Me. 1996) (citations omitted).
Again viewing the facts favorably to Abbott, he has satisfied the minimum
showing to survive a motion to dismiss on this claim. He has alleged an intentional
campaign to oust him on the part of the Town officials. Assuming the truth of the facts
Abbott alleged, "extreme and outrageous" behavior may be proven because allegations
of an extramarital affair, which Abbott denied, resulted in the end of his 22-year career
just a few months after they surfaced. Understandably, this could cause him severe
distress. Abbott also notes that he was severely distressed by the publication of his
termination on the Town's website. Although this information could have been
obtained via the Freedom of Access Act, Abbott correctly notes that there is some
difference between making information available upon request and deliberately
publicizing it without such a request. Whether the actions of the officials were so
"extreme and outrageous" that they would survive summary judgment remains to be
determined; however, Abbott has averred enough facts in his favor to withstand a
motion to dismiss.
5. Declaratory Iudgment Claim.
Abbott also seeks a declaratory judgment per 14 M.R.S. § 5951 (2005). A
declaratory judgment action is a long-recognized method by which a person can obtain
"a binding judicial determination of [his or her] legal rights" in property. Colquhoun v.
Webber, 684 A.2d 405, 411 (Me. 1996). Thus, to state a claim for declaratory judgment,
Abbott would have to allege a property interest in his employment. To meet that
requirement Abbott contends that the Town Charter constitutes his employment
contract. This is doubtful but, as discussed above, it is premature to determine that
Abbott had no property interest whatsoever in his 22-year position with the police
7 force. As he should have the opportunity to establish the nature of that alleged
property interest, this claim should not be dismissed at this time.
6. Punitive Damages Claim.
Abbott concedes that he may not recover punitive damages against the Town.
See 14 M.R.S. § 8105(5). He maintains, however, that he has alleged entitlement to
punitive damages from the other defendants that would survive a motion to dismiss.
To warrant a punitive damages award, a plaintiff must prove "express or implied
malice by clear and convincing evidence." Batchelder v. Realty Resources Hospitality, LLC,
2007 ME 17, err 13, 914 A.2d 1116, _ (citing Tuttle v. Raymond, 494 A.2d 1353, 1361-63
(Me. 1985)). In Abbott's case, the intentional conduct of the officers that forms the basis
of his lIED and conspiracy claims could entitle him to punitive damages if he can
demonstrate by this heightened standard of proof that the conduct was malicious. This
claim should not be dismissed until Abbott has had a chance to undertake discovery on
this issue.
The Defendants' Motion to Dismiss raises serious issues concerning the viability
of the claims asserted. However, if proven, the Plaintiff's allegations raise serious issues
concerning his termination. Prudence dictates that the parties should have the
opportunity to develop a more complete record before dispositive pre-trial rulings are
made.
CONCLUSION
Count II, alleging conspiracy as an independent tort claim is Dismissed;
otherwise, the Motion to Dismiss is Denied.
Dated: May Z!j, 2007
G. thur Brennan Gene R. Libby, Esq. - PL Justice, Superior Court Anne Carney, Esq. - DEFS 8 STATE OF MAINE SUPERIOR COURT CNILACTION YORK, ss. DOCKET NO. AP-q7703 . \ '. . ' I I I /., l.:? ."," I'" I. '-1 ; I .' , I ~ / '/ C I
INHABITANTS OF THE TOWN OF SANFORD, MAINE, MARK GREEN and THOMAS JONES,
Defendants
Before the Court is Plaintiff Lyndon Abbott's (Major Abbott) Rule BOB appeal of
the Town of Sanford's December 14, 2006 decision terminating his employment.
Following hearing, the appeal is Denied.
BACKGROUND AND PROCEDURAL HISTORY
The issue before the Court is whether the Town wrongfully terminated the
employment of Major Abbott. The events giving rise to this case began with an
October 4, 2006 report to the Sanford Police Chief, Thomas Jones (Chief Jones), that
Major Abbot was rumored to be having an affair with a Town official. Major Abbott
was employed by the Sanford Police Department for twenty-two years. He attained
the rank of Major, which included the duties of internal affairs investigator.
After receiving the report of the alleged affair, Chief Jones consulted with the
Town Manager, Mark Green (Town Manager) regarding how to proceed. Generally, a
member of the command staff would have conducted such an internal affairs
investigation; however, the other ranking officer was excluded because of a perceived bias against Major Abbott. Chief Jones and the Town Manager met with the Town's
counsel Bryan Deneb (Town Attorney) to determine how to proceed.
On October 10, 2006, the Town Manager and the Chief confronted Major Abbott
with the allegations. Major Abbott denied the allegations and was subsequently
suspended pending an investigation. The Town then hired the Town Attorney's
partner, Attorney Stephen Wade, to conduct the internal investigation. This
investigation concluded that Major Abbott was untruthful in his responses to his
superiors. The Chief recommended that Major Abbott be terminated.
On November 21,22 and December 1, 2006 a termination hearing pursuant to 30
A M.R.S.A. §2671 was held, presided over by the Town Manager. At the hearing Major
Abbott was represented by counsel and had full opportunity to present and cross
examine witnesses. Major Abbott twice requested at hearing that the Town Manager
recuse himself based on allegations of bias. These requests were denied. On December
14, 2006, the Town Manager rendered a decision terminating Major Abbott's
employment.
1. Standard of Review
As an intermediate appellate court, the Superior Court reviews municipal
administrative decisions "directly for abuse of discretion, legal error, or findings
unsupported by substantial evidence in the record." Rowe v. City of5. Portland, 1999 ME
81, err 5, 730 A.3d 673, 675 (citing Twigg v. Town of Kennebunk, 662 A.2d 914, 916 (Me.
1995)). "Substantial evidence exists when a reasonable mind would rely on that
evidence as sufficient support for a conclusion." Forbes v. Town of 5w. Harbor, 2001 ME
9, err 6, 763 A.2d 1183, 1186. The burden of persuasion is on the party challenging a
municipal decision to show that the evidence compels a different result. Twigg, 662
') A.2d at 916. The Court must not substitute its judgment for that of the municipal
decision maker on factual issues. Id.
Primarily at issue in this case is whether there was substantial evidence in the
record to support the Town's decision, and whether the Town abused its discretion by
failing to provide a fair and impartial hearing.
II. Substantial Evidence in the Record
Major Abbott asserts that the findings of the Town were not supported by
substantial evidence in the record. Administrative hearings are not subject to "the
highly technical rules of evidence." Frye v. Inhabitants of the Town of Cumberland, 464
A.2d 195, 200 (Me. 1983) (citations omitted). Accordingly, under Maine's
Administrative Procedure law:
[e]vidence shall be admitted if it is the kind of evidence upon which reasonable persons are accustomed to rely in the conduct of serious affairs. Agencies may exclude irrelevant or unduly repetitious evidence.
5 M.R.S. § 9057 (2007).1 The court considers the entire record to determine if the hearing
.officer, ''based upon all of the testimony and exhibits before him, ... could fairly and
reasonably find the facts as he did." Frye, 464 A.2d at 200. "Substantial evidence exists
when a reasonable mind would rely on that evidence as sufficient support for a
conclusion; the possibility of drawing two inconsistent conclusions does not render the
evidence insubstantial." Adelman v. Town of Baldwin, 2000 ME 91, <[ 12, 750 A.2d 577,
583. The court "will not substitute [its] own judgment for the [town's] judgment." Id.
1 The Law Court has further articulated the rule to be:
When ... review of the record reveals reliable, probative evidence in support of the agency findings and conclusions, the fact that irrelevant or incompetent evidence was admitted... does not amount to reversible error .... Only when the agency is shown to have relied upon incompetent evidence to the prejudice of the complaining party can the admission of such evidence require reversal of the agency decision.
Frye, 464 A.2d at 200. In this case the Town determined that Major Abbott had several affairs and lied
about those affairs to the investigator. The Town Manager, as fact finder, determined
that the testimony of certain witnesses was sufficiently credible and probative to
support a finding that Major Abbott's denial of the affairs was not credible. Based on
the entire record, the Court finds the evidence substantial enough that a reasonable
mind could have relied upon it to reach such a conclusion. This Court cannot substitute
its own judgment for that of the hearing officer and because the record does not compel
a contrary result, the appeal on these grounds must be denied.
III. Abuse of Discretion for Failure to Provide a Fair and Impartial Hearing
Major Abbott asserts that he was not afforded a fair and impartial hearing due to
the bias of the Town Manager, who presided over the termination hearing. (See PI. Br.
2.)
a. Standard for Recusal in Municipal Hearings
"[A] proceeding to remove an incumbent from public office is judicial in nature,
. and [] municipal officials in such removal proceedings must assume the role of a
deliberate, unprejudiced tribunal and provide the incumbent with a full and fair
hearing." Frye, 464 A.2d at 199 (citations omitted). In order to provide an individual
with a full and fair hearing, the hearing officer must not prejudge the case. Id. (citing
Seviginy v. City of Biddeford, 344 A.2d 34,40 (Me. 1975)). "[H]e should suspend his own
judgment till the hearing is completed, that it may be the result of the hearing, and not
of a pre-conceived opinion./I Id. However, "prior involvement in some aspects of a
case will not necessarily bar a[n] ... official from acting as a decision maker." Id.
(quoting Goldberg v. Kelly, 397 U.S. 254, 271 (1970)).2
The Goldberg Court stated: Moreover, "a hearing officer enjoys a presumption of honesty and integrity."
Mrs. V. v. York Sch. Dist., 434 F.supp 2d 5, 12-13 (D. Me. 2006). Thus the burden is on
the party alleging bias to "produce evidence sufficient to rebut this presumption ... II
that is "more than mere speculation and tenuous inferences." Gomes v. Univ. of Maine
System, 365 F.Supp. 2d 6, 31 (D. Me. 2005) (internal citations and quotations omitted).
When a claim is made that a hearing officer performed both investigatory and
adjudicatory functions, that combination of functions alone is not a per se violation of
due process rights. Withrow v. Larkin, 421 U.s. 35, 58 (1975). That being said, such a
claim does not
preclude a court from determining from the special facts and circumstances present in the case before it that the risk of unfairness is intolerably high. Findings of that kind made by judges with special insights into local realties are entitled to respect. ...
Id. However, parties advancing such arguments "have a very difficult burden of
persuasion to carry." Pathak v. Dept. of Veterans Affairs, 274 F.3d 28, 33 (1st Cir. 2001)
(citing Withrow, 421 U.S. at 47). . .- - ~ - Here, the burden was on Major Abbott to put forth evidence sufficient to rebut
the presumption that the Town Manager acted fairly and impartially. The Court is
limited to a review of the record. See Lane Constr. Corp. v. Town of Washington, 2008 ME
45, <[ 29, _ A.2d _ (citing Baker's Table, Inc. v. City of Portland, 2000 ME 7, <[ 9,743 A.2d
237, 240-41).
While this case was under advisement in this Court, the Law Court decided a
case clarifying the line for mandatory recusal by a town officer. See id. 130. The Lane
[W]e are unable to say that the possible involvement of that official in aspects of a case prior to the review of proposed termination necessarily disqualifies him for conducing a fair hearing. Some degree of previous familiarity and informal contact with a case by a hearing officer is a common phenomenon in many administrative agencies. That the review officer is familiar with, or even has formulated opinions about, the facts of a case prior to review is not in itself sufficient to disqualify him.
r Court held that, although the planning board chairman in that case "personally
supported" plaintiff's application before the board, "the evidence provided by [the
party in interest] fell short of proving that his conduct at the meetings was biased or
that he participated in them from a standpoint of predisposition." Id. Evidence found
insufficient to prevail on the issue of bias was 1) a letter from the chairman to the local
newspaper prior to hearing "expressing distain for the land use ethic of people 'from
away'" [presumably the parties in interest]; 2) an alleged statement of the chairman to a
former chairman supporting the Lane project; 3) an alleged statement by. the chairman
"at a local store talking about the project and apparently trying to engage others in the
conversation." The Lane Court considered this evidence in light of the extensive due
process afforded the parties in interest.
Lane provides guidance with respect to the case sub judice: Major Abbott was
provided with three full days of hearing, ort the record, wherein he was permitted to
call and cross-examine witnesses. He claims three specific instances as substantial
. evidence of bias in this matter: 1) a statement by the Town Manager to Chief Jones that
he supported the recommendation for removal; 2) personal e-mails of Major Abbott
proffered by the Town Manager's attorney to Major Abbott's attorney on the eve of
hearing, and 3) an affidavit of the Town Finance Director, Mr. Walsh (Walsh Affidavit),
alleging a "plan" to pay for the internal investigation using the remainder of Major
Abbott's salary after his termination.
The evidence produced on these points does sustain individually or collectively
Major Abbott's "very difficult burden" of proof. The statement of Chief Jones, at
hearing, that he was under the impression that Town Manager Green was in accord
with his decision to recommend removal represents the kind of expression of personal
support for a position found insufficient to show bias by the Lane Court. Id.
L With respect to the e-mails, while the Town concedes that they were produced
through the Town Manager, this is insufficient to show bias per se. Major Abbott retains
the burden of showing that that the Town Manager's action exceeded the dual
investigatory and adjudicatory function inherent in his office. See Pathak, 274 F. 3d at
33. Particularly so when the Town Manager explicitly states he has not "read them
thoroughly" and will not consider them. Tr. 14.
The most cogent evidence produced to show that there may be "special facts and
circumstances present. .. that risk unfairness...." was an affidavit containing hearsay
from an unidentified declarant.
Citing to the hearsay nature of the evidence and, through counsel, denying the
existence of any "plan" to use the balance of Major Abbott's salary upon termination to
pay for the internal investigation, the Town Manager declined to recuse himself. While
this presents a close and frankly quite troubling question, the quality of the evidence on
this point is insufficient to sustain Major Abbott's substantial burden to overcome the
strong presumption that the Town Manager acted impartially.
The entry will be as follows:
Plaintiff's Rule 80B appeal is Denied; the Town's Administrative decision is Affirmed.
Dated: April 1, 2008
PLAINTIFF: GENE R. LIBBY, ESQ. - LIBBY O'BRIEN KINGSLEY 62 PORTLAND RD, SUITE 17 KENNEBUNK ME 04043
DEFENDANT: ANNE CARNEY ESQ NORMAN HANSON & DETROY PO BOX 4600 PORTLAND ME 04112-4600