:; , L;L "' - It STATE OF MAINE ?!ifi";BERLAND, S$ SUPERIOR COURT :Al"f_
CUMBERLAND, ss LLERKDsGFFJCE CIVIL ACTION DOCKET NO. la1 FEB - b A 9: 3b7E-L C A P - C ' , AP-OY ' -- 7 C /
ROBERT SMITH,
Petitioner
v. DECISION AND ORDER AFTER REMAND SOUTHERN MAINE COMM CONIMUNITY COLLEGE, ET AL., DONALD L. GARBRT-C'Y1 [AW LlBRARv
Respondents MAY 1 5 2007
This matter is before the court, after remand, on petitioner Robert
Smith's ("Petitioner") Rule 80B appeal of his termination from employment
by respondent Southern Maine Community College ("SMCC"). Also before
the court is the motion of each party to strike the other's affidavit submitted
in purported compliance with the court's earlier remand order.
BACKGROUND
Petitioner claimed that he was terminated from his employment in
violation of his freedom of speech and due process rights under the Maine
and Federal Constitutions. When the court first considered the merits of
Petitioner's appeal, his free speech argument was rejected. However, the
court found that Petitioner had established a reasonable expectation of
continued employment that amounted to a protected property interest to
1 which due process protections were applicable. Then, turning to the
question of whether Petitioner had been given the process due him, the court
concluded that the record on that issue was inadequate and the case was
remanded for fbrther findings regarding the process afforded Petitioner. In
ordering the remand, this court determined that, even though it was
Petitioner's burden to produce a record sufficient for judicial review, he
could not do so with respect to the due process issue. Subsequently, each
party submitted an affidavit purportedly directed to the "findings"
requirement of the remand order.
The court now concludes after further review that the case should not
have been remanded. More specifically, it is clear that Petitioner failed to
meet his obligation to produce a record sufficient for judicial review of the
due process issue, and the court's prior determination that Petitioner could
not have done so was erroneous. Petitioner never requested a trial of the
facts on this issue, as he could have done pursuant to M.R. Civ. P. 80B(d),
and the court's remand order was tantamount to asking SMCC to create a
factual record that had not existed at the time of the appeal.'
Although Petitioner did not seek a trial of the facts to introduce evidence regarding the due process issue, he did file a motion to join his 8OB appeal with independent claims for constitutional violations (42 U.S.C. § 1983), defamation, intentional misrepresentation, and breach of contract. The court denied the motion, as untimely, and dismissed those independent claims. As the court noted in its prior decision, when necessary findings are
not implicit in the agency's decision or are not otherwise apparent from the
record, "the party aggrieved by the [I decision should request findings of fact
and conclusions of law before asserting the insufficiency of findings as a
ground for judicial review in an action brought pursuant to M.R. Civ. P.
80B." Id. Petitioner did ask for a written enumeration of the reasons for his
termination and received a reply from SMCC's counsel. See Letter of
Attorney Langhauser at Rec. Tab 92 However, he did not ask for or provide
to the court evidence regarding the sufficiency of either the school's notice
to him or his opportunity to be heard. We only know from the existing
record - counsel's letter -that he had an opportunity to be heard and,
from that, we may reasonably conclude that he had prior notice. Stated
another way, it is reasonably implicit from the record evidence of
Petitioner's opportunity to respond that he had some prior notice of the place
where and the time when the opportunity was to be given.
Based upon the foregoing, the court concludes that it should not have
remanded the case and that the decision of SMCC should be affirmed.
Mr. Langhauser's letter recites that "The College reviewed the events and found that the account provided by the students was not denied by Mr. Smith, who was offered the opportunity to present his side." Id. After remand, SMCC submitted the affidavit of Janet M. Sorter,
Ed.D., Vice President and Dean of Academic Affairs of SMCC, describing
the procedure afforded to Petitioner prior to his termination, and Petitioner
submitted his own affidavit.' Neither affidavit constitutes "findings".'
Even if they did, they do not of themselves establish that Petitioner was
given-or not given-the process due him. They only establish that some
process was accorded Petitioner. He was called into a meeting with the
Dean of Academic Affairs and the Dean of Students, he was informed of the
complaints against him, and he was given an opportunity to respond prior to
being discharged.
Decisions of the United States Supreme Court discussing the process
due to government employees in connection with their employment right
establish, first, that governments have broad powers in the selection and
discharge of their employees and, second, that the scope of any right to
continued employment asserted by a government employee is defined by
existing law, rules and standards securing the employment right. See Arnett
v. Kennedy, 4 16 U.S. 134, 15 1 (1974); Board of Regents v. Roth, 408 U.S.
564, 577 (1972); Slochower v. Board of Higher Education of New York City,
Petitioner's affidavit offers a competing version of the process he was given by SMCC. Petitioner would only properly have been able to present the material in this affidavit in a trial of the facts, which he did not request.
In this connection, the Court grants each party's motion to strike the other's affidavit. 350 U.S. 5 5 1, 559 (1956). The only principle that government employment
rules and legislation must honor in every instance is that someprocess,
including, minimally, an inquiry on the part of the government and a hearing
providing the employee an opportunity to defend himself, must be given.
See Roth, 408 U.S. at 577, Slochower, 350 U.S. at 559. SMCC met this
minimum .constitutional standard with the process it provided Petitioner. See
id. What Petitioner has failed to establish is that this process violated any
applicable law or SMCC7sown rules regarding the termination of its
employees.
SMCC is a part of the Maine Technical College System, governed by
20-A M.R.S.A. $5 12701 et seq. 20-A M.R.S.A. Section 12712(5)
establishes that the presidents of the colleges governed by this statute have
the responsibility to evaluate the performance of the faculty and staff of the
colleges under policies and standards developed by the board of trustees.
This is apparently the only statutory authority in Maine governing SMCC7s
actions with regard to Petitioner. Petitioner has not shown how, if at all, this
or any other statutory authority has been violated by SMCC.
Turning to the impact of any applicable school rules, according to the
SMCC Faculty Resource Handbook, disciplinary action to be taken against
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:; , L;L "' - It STATE OF MAINE ?!ifi";BERLAND, S$ SUPERIOR COURT :Al"f_
CUMBERLAND, ss LLERKDsGFFJCE CIVIL ACTION DOCKET NO. la1 FEB - b A 9: 3b7E-L C A P - C ' , AP-OY ' -- 7 C /
ROBERT SMITH,
Petitioner
v. DECISION AND ORDER AFTER REMAND SOUTHERN MAINE COMM CONIMUNITY COLLEGE, ET AL., DONALD L. GARBRT-C'Y1 [AW LlBRARv
Respondents MAY 1 5 2007
This matter is before the court, after remand, on petitioner Robert
Smith's ("Petitioner") Rule 80B appeal of his termination from employment
by respondent Southern Maine Community College ("SMCC"). Also before
the court is the motion of each party to strike the other's affidavit submitted
in purported compliance with the court's earlier remand order.
BACKGROUND
Petitioner claimed that he was terminated from his employment in
violation of his freedom of speech and due process rights under the Maine
and Federal Constitutions. When the court first considered the merits of
Petitioner's appeal, his free speech argument was rejected. However, the
court found that Petitioner had established a reasonable expectation of
continued employment that amounted to a protected property interest to
1 which due process protections were applicable. Then, turning to the
question of whether Petitioner had been given the process due him, the court
concluded that the record on that issue was inadequate and the case was
remanded for fbrther findings regarding the process afforded Petitioner. In
ordering the remand, this court determined that, even though it was
Petitioner's burden to produce a record sufficient for judicial review, he
could not do so with respect to the due process issue. Subsequently, each
party submitted an affidavit purportedly directed to the "findings"
requirement of the remand order.
The court now concludes after further review that the case should not
have been remanded. More specifically, it is clear that Petitioner failed to
meet his obligation to produce a record sufficient for judicial review of the
due process issue, and the court's prior determination that Petitioner could
not have done so was erroneous. Petitioner never requested a trial of the
facts on this issue, as he could have done pursuant to M.R. Civ. P. 80B(d),
and the court's remand order was tantamount to asking SMCC to create a
factual record that had not existed at the time of the appeal.'
Although Petitioner did not seek a trial of the facts to introduce evidence regarding the due process issue, he did file a motion to join his 8OB appeal with independent claims for constitutional violations (42 U.S.C. § 1983), defamation, intentional misrepresentation, and breach of contract. The court denied the motion, as untimely, and dismissed those independent claims. As the court noted in its prior decision, when necessary findings are
not implicit in the agency's decision or are not otherwise apparent from the
record, "the party aggrieved by the [I decision should request findings of fact
and conclusions of law before asserting the insufficiency of findings as a
ground for judicial review in an action brought pursuant to M.R. Civ. P.
80B." Id. Petitioner did ask for a written enumeration of the reasons for his
termination and received a reply from SMCC's counsel. See Letter of
Attorney Langhauser at Rec. Tab 92 However, he did not ask for or provide
to the court evidence regarding the sufficiency of either the school's notice
to him or his opportunity to be heard. We only know from the existing
record - counsel's letter -that he had an opportunity to be heard and,
from that, we may reasonably conclude that he had prior notice. Stated
another way, it is reasonably implicit from the record evidence of
Petitioner's opportunity to respond that he had some prior notice of the place
where and the time when the opportunity was to be given.
Based upon the foregoing, the court concludes that it should not have
remanded the case and that the decision of SMCC should be affirmed.
Mr. Langhauser's letter recites that "The College reviewed the events and found that the account provided by the students was not denied by Mr. Smith, who was offered the opportunity to present his side." Id. After remand, SMCC submitted the affidavit of Janet M. Sorter,
Ed.D., Vice President and Dean of Academic Affairs of SMCC, describing
the procedure afforded to Petitioner prior to his termination, and Petitioner
submitted his own affidavit.' Neither affidavit constitutes "findings".'
Even if they did, they do not of themselves establish that Petitioner was
given-or not given-the process due him. They only establish that some
process was accorded Petitioner. He was called into a meeting with the
Dean of Academic Affairs and the Dean of Students, he was informed of the
complaints against him, and he was given an opportunity to respond prior to
being discharged.
Decisions of the United States Supreme Court discussing the process
due to government employees in connection with their employment right
establish, first, that governments have broad powers in the selection and
discharge of their employees and, second, that the scope of any right to
continued employment asserted by a government employee is defined by
existing law, rules and standards securing the employment right. See Arnett
v. Kennedy, 4 16 U.S. 134, 15 1 (1974); Board of Regents v. Roth, 408 U.S.
564, 577 (1972); Slochower v. Board of Higher Education of New York City,
Petitioner's affidavit offers a competing version of the process he was given by SMCC. Petitioner would only properly have been able to present the material in this affidavit in a trial of the facts, which he did not request.
In this connection, the Court grants each party's motion to strike the other's affidavit. 350 U.S. 5 5 1, 559 (1956). The only principle that government employment
rules and legislation must honor in every instance is that someprocess,
including, minimally, an inquiry on the part of the government and a hearing
providing the employee an opportunity to defend himself, must be given.
See Roth, 408 U.S. at 577, Slochower, 350 U.S. at 559. SMCC met this
minimum .constitutional standard with the process it provided Petitioner. See
id. What Petitioner has failed to establish is that this process violated any
applicable law or SMCC7sown rules regarding the termination of its
employees.
SMCC is a part of the Maine Technical College System, governed by
20-A M.R.S.A. $5 12701 et seq. 20-A M.R.S.A. Section 12712(5)
establishes that the presidents of the colleges governed by this statute have
the responsibility to evaluate the performance of the faculty and staff of the
colleges under policies and standards developed by the board of trustees.
This is apparently the only statutory authority in Maine governing SMCC7s
actions with regard to Petitioner. Petitioner has not shown how, if at all, this
or any other statutory authority has been violated by SMCC.
Turning to the impact of any applicable school rules, according to the
SMCC Faculty Resource Handbook, disciplinary action to be taken against
an employee of SMCC must utilize procedures established by the applicable collective bargaining agreement. See Rec. Tab 4, unpaginated. However,
the applicable agreement is not part of the record in this case. Therefore, the
court cannot determine whether SMCC's treatment of Petitioner does or
does not meet the requirements of the agreement. Accordingly, Petitioner
has failed to meet his burden of establishing that he was not given the
process due him. To be clear, the Court's earlier charge on remand to
SMCC to supplement the record should not be misconstrued as placing any
burden on SMCC to provide the collective bargaining agreement. Petitioner,
as the moving party in this 80B appeal, had the burden of preparing and
submitting the record for review. M.R. Civ. P. 80B(e).
DECISION
Pursuant to M.R. Civ. P. 79(a), the Clerk is directed to enter this
Decision and Order After Remand on the Civil Docket by a notation
incorporating it by reference and the entry is
The Decision of Southern Maine Community College to terminate Petitioner's employment is AFFIRMED.
Date: February 5, 2007 -
Justice, sup;rior Court C D~~~~ i l ~10-08-2003 d Cumberland - Docket No. AP-03-62 County
Action - 80B _ Appeal _ _ _ - _
ROBERT SMITH SOUTHERN MAINE COMMUNITY COLLEGE WILLIAM BERTUN JANET SORTOR
VS.
Plaintiff's Attorney (Co-Counsel) Defendant's Attorney Howard T . Reben, Esq. Adrian Hansen, Esq. C h a r l e s Harvey E s q . ( a l l d e f e n d a n t s ) Reben, Benjamin and March Two C i t y C e n t e r 97 I n d i a S t r e e t P.O. Box 126 P.O. Box 7060 P o r t l a n d , Maine 04112-0126 P o r t l a n d , ME 04112 ( 2 0 7 ) 775-1300 ( 2 0 7 ) 874-4771 GEOFFREY STONE, ESQ ( p r o hac v i c e I
Date of Entry i