MSAD No.63 v. Comm'r of the Dep't of Educ.

Opinion

STATE OF MAINE SUPERIOR COURT CIVIL ACTION

KENNEBEC, ss. DOCKET NO. AP-08-77 ) /~:1' ;": /).. / ,­ "'-/ I ! , j I' /j)' - .

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MAINE SCHOOL AD:rvrrNISTRATIVE DISTRICT NO. 63 (MSAD No. 63),

Petitioner

v. DECISION

COMMISSIONER OF THE DEPARTMENT OF EDUCATION,

Respondent

And LOUISE REGAN, Party-In-Interest

Before this court is party-in-interest Louise Regan's motion to dismiss the petitioner's 80C appeal pursuant to M.R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted.

Louise Regan is the former Superintendent of MSAD No. 63. She was terminated from her employment as Superintendent by the MSAD No. 63 School Board. She appealed the Board's decision on August 6,2008, pursuant to 20-A M.R.S. § 1052(3).

Ms. Regan requested and suggested that the Commissioner stay her appeal while a federal lawsuit was litigated in Federal District Court. The Commissioner granted the request and stayed all the proceedings in the appeal until completion of the federal lawsuit.

MSAD No. 63 filed an 80C appeal (Petition For Review Of Failure Or Refusal To Act) arguing that the Commissioner must act on the pending appeal and that the

Commissioner has no discretion to continue or stay the appeal pending the conclusion of federal litigation. Regan has filed this Motion to Dismiss MSAD 63's 80C appeal. Discussion Petitioner argues that the stay constitutes an illegal delay in the appellate process. Petitioner asserts that the appeal to the Commissioner of Education by Louise Regan must be decided on the record established before the MSAD 63 school board and not an adjudicatory hearing requiring presentation of evidence and examination of witnesses.

An initial detennination of this issue is critical because there would be no reason to hold off the appeal while the federal case is pending if the appeal was simply on the record before the school board. However, if the parties to the appeal were able to develop the facts prior to an adjudicatory hearing before the Commissioner, then there is a legitimate interest in judicial economy in allowing the development of the facts by way of the discovery process in the federal litigation. It would be inefficient for the parties to proceed through a discovery process in the appellate procedure as well as a discovery process in the federal litigation.

This court concludes that Louise Regan's appeal to the Commissioner of Education is entitled to an adjudicatory hearing as set out in Title 5, Maine Administrative Procedures Act.

Title 20-A M.R.S. § 3 states that rules conducting adjudicatory hearings shall be held in accordance with the Maine Administrative Procedures Act.

Title 20-A M.R.S. § 1052(3) states that the Superintendent may appeal a school board's decision to the Commissioner and the Commissioner shall hold a hearing as part of the appeal. A hearing under this section necessarily includes a right to present evidence and examine witnesses. The language contained in Title 20-A M.R.S. § 1052(3)

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uses the term "hearing" rather than" adjudicatory hearing" but so does in the language contained the Maine Administrative Procedures Act, Title 5, §§ 952 and 952-A. They all use the term "hearing" rather than "adjudicatory hearing." They mean the same thing. Although section 1052(3) does not define "hearing" as an adjudicatory hearing under Title 5, most authorities equate the term "hearing" with a proceeding where evidence is admitted and witnesses are examined.

In Naylor v. Cardinal Local District of Education, 630 N.E.2d 725, 731 (Ohio 1994), the court held that a statutory hearing provided to a teacher disputing a nonrewewal of a contract includes the presentation of evidence and the examination of witnesses. See also Watahomigie v. Arizona Brd. of Water Quality, 887 P.2d 550,560-561 (Ariz. Ct. App. 1994).

By explicitly stating that any appeal under section 1052(3) would entitle the appellant to a hearing, the legislature clearly intended more than a review of the record below.

iIt is not clear whether the Commissioner needs a good reason to continue or stay the appeal of Regan pending the completion of the federal litigation; nevertheless, this court finds and concludes that federal litigation involving the same facts and the possible overlap of remedies certainly gives the Commissioner a good reason to continue the appeal. If the appeal did proceed at the same time as the federal litigation, the Commissioner most likely will be dealing with discovery and scheduling issues at the same time as the federal courts would be dealing with the same issues.

The development of the facts during the discovery process will not be duplicated by a discovery process in both the federal litigation and the appellate procedure before the Commissioner. There is no question that the discovery of evidence in the federal litigation will be used in the appellate process. Furthermore, the disposition of the case

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at the federal level may result in the resolution of the appeal. As stated above, the court is not certain that the Commissioner needs a good reason to continue or stay the appeal pending the federal litigation; however, this court finds and concludes that there is a good reason to continue and stay the appeal pending the federal litigation.

For this reason, the court finds that the Regan's motion to dismiss this pending SOC appeal shall be GRANTED. It is hereby ORDERED that the petitioner's SOC appeal is hereby DISMISSED.

The clerk is directed to incorporate this Order into the docket by reference.

Dated: January ?-\ ,2009 Attorney for Petitioner Brian Dench P.O. Box 3200 Auburn, ME 04212-3200

Attorney for Respondent Sarah Forster Office of Attorney General 6 State House Station Augusta, ME 04333-0006

Attorney for Party in Interest Thad Zmistowski P.O. Box 1210 Bangor, ME 04402-0111

Date Filed _~1~1"--,L---"1,",,,,3'-LL-,,,,0-'L8_ _ Kennebec Docket No. __--..eA.....P-uOCLJ8c=-:.L7..L7 ~ .

County

Action _ _~P"--'e"'_t....i""-t....i. .,QJ.jn"__.ofLJQ"_r"_____JR""'e"_'ylLi.. ,ec:.JwllL_ _ 80C

Maofna ' .1 • .:I." Di!'lt'rict' VS. C:omm Qf Depart. Qf Education et al Plaintiff's Attorney 1163 Defendant's Attorney Sarah FQrster AAG

- Bryan M. Dench, Esq. 6 State HQuse StatiQn 95 Main Street Augusta ME 04333-0006 P.O. BQX 3200 (fQr LQuise Regan)

Auburn, maine 04212-3200 Thad ZmistQwski Esq -Kelly M. HQffman, Esq. PO BQX 1210 PO BQX 3200 BangQr ME 04402-1210 Auburn, ME 04212-3200

Date of Entry

11/13/08 PetitiQn fQr Review, filed. s/Dench, Esq. 12/09/08 Filed 12/04/08: Entry Qf Appearance Qn behalf Qf CQmmissioner Qf the Department Qf Education filed by AAG Forster. CQmmissiQner's pQsitiQn is that the petitiQn fails tQ identify a failure tQ act.

Filed 12/05/08: MQtion to dismiss filed by Atty ZmistQwksi, attorney fQr LQuise Regan.

12/26/08 Letter entering appearance, filed 12/10/08. s/HQffman, Esq.

12/26/08 MotiQn TQ Dismiss PetititiQn And FQr Stay Of Filing Administrative RecQrd With InCQrporated MemQrandum Of Law, filed 12/10/08. s/FQrster, AAG 12/24/08 Plaintiff-Petitioner's MemQrandum in OppQsitiQn tQ MQtiQn tQ Dismiss, filed. s/HQffman, Esq.

1/2/09 Reply to Plaintiff Petitioners' MemQrandum in OppQsitiQn tQ MQtiQn tQ Dismiss, filed. s/Dumais, Esq.

1/5/09 Letter regarding MQtiQn tQ Dismiss, filed. s/HQffman, Esq.

sent to attorneys of record

1/8/09 Hearing held with HQn. Justice JQseph Jabar, presiding.

Bryan Dench, Esq. fQr the PetitiQner and Sarah FQrster,AAG for the RespQndent.

Oral arguments made tQ the CQurt. CQurt tQ take matter under advisement.

1/22/09 DECISION, Jabar, J. (1/21/09)

FQr this reaSQn, the CQurt finds that the Regan's MQtion tQ dimiss this pening 80C appeal shall be GRANTED. It is hereby ORDERED that the petitiQner 80C appeal is hereby DISMISSED.

CQpies mailed tQ attys. Qf recQrd.