Tripp v. Town of Bethel

• Court: Superior Court of Maine
• Decided: June 1, 2005
• Docket: OXFap-04-004
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT OXFORD, SS CIVIL ACTION DOCKET NO. AP-04-004

DARREN TRIPP, Petitioner

-- TOWN OF BETHEL, Respondent

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I. STATUS OF THE CASE . **>-- . r

Petitioner Darren Tripp was the Chef of Police fdy'the Town of Bethel. He has

filed this appeal and request for a trial of the facts pursuant to M.R.Civ.P. 80(B) after he

was fired by the town manager and h s dismissal was approved by the selectmen for

the Bethel.

11. BACKGROUND

The record establishes the following facts.

On December 2, 2003 an armed robbery occurred in the Town of Bethel at

approximately 1:45 PM. Between 1:48 and 2:00 the police dispatcher attempted ten

times to contact police chef Darren Trip by phone, cell phone, and pager. On the

eleventh attempt, contact was made with Tripp through the town office. Tripp and

another officer stated that the phone in their office never rang; however, two town

employees indicated they Qd hear the phone in the police department office ring.

Although there is a dispute as to whether the phone was worlung, Tripp did use the

phone to make an outgoing call to respond to dispatch.

Town manager Scott Cole wrote to Tripp on January 5,2004 regarQng &us

incident and Tripp responded by letter on January 16,2004. Cole wrote again on January 28,2004 and Tripp responded on February 2,2004. On February 12,2004, Cole

wrote to Tripp terminating his employment, citing Tripp's failure to maintain contact

with dispatch thereby delaying response to an emergency. Articulated in the letter was

Cole's belief that the phone did ring on December 2nd. In h s defense, Tripp cited

correspondence with a phone company repairman, who found, on December 31,2003,

that the office answering machne was interfering with the phone.

Tripp appealed h s dismissal to Bethel's Board of Selectmen. After a hearing,

during whch both sides presented witnesses and evidence and Tripp testified, the

Board of Selectmen made FinQngs of Fact: One finding stated that the Selectmen

believed that that the two town employees did hear the phone ring and that it was more

probable than not that the phone did ring; another finding dealt with the two letters

from the phone repairman, both dated January 12,2004. The first letter stated that

problems with answering machnes could be intermittent and could cause problems for

up to a week before causing no dial tone; the second letter said that the problems could

be caused for up to a week "or more."

Trigp admitted asking the repairman to change the wording of the first letter, but

he maintained that he asked the repairman to do so only to more accurately reflect a

conversation between the two in which the repairman stated that cheap answering

machnes could cause intermittent problems. The selectmen found the first letter (the

one without the "or more") to be more correct than the second and based their

deliberations on that letter. Weighng in favor of the first letter was the fact that the

phone company approved it. After the phone company discovered that the letter was

changed, it withdrew its opinion in total and refused to allow the repairman to testify at

the termination hearing. During the termination hearing, there was discussion regarding another lawsuit

between the petitioner and the town. 1 T h s suit was still active when petitioner was

involved in h s termination hearing before the selectmen. The selectmen heard

testimony from both sides on March 9, 2004 and promulgated their findings of fact on

March 11, 2004. The Selectmen upheld the town manager's decision to terminate Tripp

by a 3-2 vote.

111. PETITIONER'S CLAIMS

Tripp alleges that he was denied procedural due process in h s termination

hearing. He alleges bias, that there was not a proper record, and that there were

potential ex parte communications. Tripp also alleges he was injured when the

selectmen choose to believe the first letter from the phone company and because the

repairman did not testify as to why the letter was changed. The Town of Bethel argues

that the selectmen properly came to their decision based on Tripp's unavailability to

respond to the emergency, and the implication arising from Tripp's request to the

repairman to change the opinion letter.

As part of h s appeal Tripp has asked for a separate trial of the facts before the

court.

In 2002 the town manager asked petitioner to dismiss a ticket. Petitioner refused and informed the local district attorney. In February 2003, petitioner learned that the town manager was compiling complaints regarding him. Petitioner responded by playing a recording of the conversation regarding the summons to several selectmen. In March 2003 Cole suspended Tripp and offered him two months salary to resign. Tripp hired an attorney and incurred $7,000 in legal fees defending his job performance. In April, Tripp returned to duty. The selectmen indicated that the town would not reimburse Tripp for lus legal fees. In September 2003, Tripp filed suit with the Maine Human Rights Commission alleging retaliatory actions by the town manager. IV. DISCUSSION

A. Motion for Trial of the Facts, M.R.Civ.P. 80B(d).

Under Rule 80B(d), "[ilf the court finds on motion that a party to a review of

governmental action is entitled to a trial of the facts, the court shall order a trial to

permit the introduction of evidence that does not appear in the record of governmental

action and is not stipulated." M.R. Civ. P. 80B(d).

"The purpose of Rule 80B(d)is to allow the parties to an appeal of a

governmental action to augment the record presented to the reviewing court with those

facts relevant to the court's appellate review of agency action." Baker's Table, Inc. v. City

of Portland, 2000 ME 7, ¶9, 743 A.2d 237, 240.

Rule 80B(d)is not intended to allow the reviewing court to retry the facts that were presented to the governmental decisionmaker, nor does it apply to any independent civil claims contained in the complaint. Rather, it is intended to allow the reviewing court to obtain facts not in the record that are necessary to the appeal before the court. . . . For example, the complainant may augment the record if there are claims of ex parte communication or bias alleged, with suflcient particularity, to have had an effect on the fairness of the governmental proceedings, . . .

Baker's Table, 2000 ME 7,¶9, 743 A.2d at 240-41 (internal citations and notes omitted)

(first emphasis in orignal, second added); see also, White v. Town of Hollis, 589 A.2d 46,

48 (Me. 1991) (Rule 80B(d) motion was properly denied because petitioner was not

entitled to relief as a matter of law); Ryan v. Town of Camden, 582 A.2d 973, 975 (Me.

1990) ("vague allegations" of bias insufficient); and, Carl L. Cutler Co. v. State Purchasing

Agent, 472 A.2d 913, 918 (Me. 1984) ("bare allegation" of "social friendslup" insufficient).

In addition, "[a] prima facie showing of misconduct is required before plaintiff is

permitted to inquire into the mental processes of an administrative decision maker."

Ryan, 582 A.2d at 975 (internal quotations omitted). The court cannot allow a trial of the

facts based on "vague, unsubstantiated allegations of bias and predisposition." Id. In h s case Tripp argues that he should be allowed to have a trial on the facts

because he has made a prima facie case of bias and in order to introduce evidence that

does not appear in the record. To support h s argument, he points to the fact that h s

other lawsuit against the city was mentioned at the hearing and during the selectmen's

deliberations. Furthermore, Geoffrey Hole, Esq., the town's attorney, represented town

manager Cole at the hearing; whle at the same time, according to Tripp, advising the

selectmen regarding the termination hearing.

Tripp points to two opinion letters from March 2004 that Hole wrote to the

selectmen regarding Tripp's termination. The letters, however, are dated after the

selectmen had decided to terminate Tripp, but before publication of the Findings of

Fact. Tripp does not accuse Hole of impropriety, but alleges that Hole's presence

violated the proceeding's fundamental fairness and that the Selectmen's continued

reliance on Hole "infers" undue bias.

The town responds that everyone (including Tripp's counsel) knew that Hole

was the town lawyer and had been for years, that the selectmen had independent

counsel during the hearing, and that if Tripp was uncomfortable with the arrangement,

he could have objected at the hearing and not raise it for the first time on appeal.

Separate counsel h r e d for the termination hearing gave the selectmen a

memorandum on how the process should work and independently advised the

selectmen as they deliberated. Tripp's counsel did object to the inclusion of the

suspension and lawsuit in the evidence considered by the selectmen, but the attorney

advising the selectmen correctly stated that Tripp's counsel opened the door with h s

cross examination of Cole. Tripp's counsel first mentioned the lawsuit when he asked

the town manager if that was the reason he terminated Tripp. The town also argues that there are not any facts outside the record that this court would need to determine if

the termination hearing prejudiced Tripp.

Tripp alleges by having to appeal h s termination to the Board of Selectmen, who

were his opponents in another matter, he was deprived of a fair and impartial hearing.

It is unclear what other way Tripp could have disputed his suspension.

The petitioner points to comments by selectmen regarding the prior lawsuit,

although several mentioned the March 2003 suspension and lawsuit together. While

Tripp alleges that he was terminated in part based on h s other lawsuit, he could also

have been terminated in part based in h s earlier suspension.

Tripp argues that a trial on the facts before h s court (with its subpoena power)

would allow the phone repairman to testify regarding the conversations that led to the

first and second opinion letters. He believes that the town manager convinced the

phone company to prevent the repairman's testimony at the hearing and if the

repairman were to testify, he would state that answering machines can cause

intermittent problems for more than a week, that he changed the letter to reflect that,

and that he did not feel pressured to do so. Tripp does not address the fact that the

repairman might testify that he did feel pressure when asked by the chef of police to

change an opinion letter that impacted the chef's job performance.

The town argues that regardless of the testimony of the repairman, the fact that

Tripp asked for the second letter (to explain h s lack of response on December 2nd) was

what created a cause of concern for the selectmen. Though Tripp alleges that the

repairman's testimony is necessary, the selectmen heard testimony from the town

manger and Tripp, saw the letters, and read the e-mails regarding the change in

wording. It was the implication of impropriety and how that reflected on Tripp that

most concerned the selectmen. For h s court to hold a trial of the facts in t h s case, it would have to find that

Tripp made a sufficient prima facie showing of bias, that there were facts not on the

record that need development in discovery, and that there were ex parte

communications. Plaintiff alleges only that there are "potential" ex parte

communications. The letters that Tripp points to were written after the selectmen made

the decision to terminate lum.

The petitioner further alleges that a proper record was not made. The record in

t h s case consists of transcripts of both hearings before the selectmen, the

correspondence between petitioner and the town manager, the correspondence between

the town manger and the phone company, and the Finhngs of Fact. What is not in the

record is the phone repairman's testimony as to the conversation regarding the

answering maclune, the conversation regarding the change in the letter, and the

explanation for the change. Although Tripp alleges that this testimony will explain

why he did not answer the phone on December 2nd, the implication made by Tripp's

request to the repairman to change the letter weighs substantially against lus crehbility.

It is unlikely whether any additional testimony would have (or could) overcome that

implication. The issue of credibility is solely withn the role of selectmen as fact-finders.

In reviewing the decision of the Board of Selectmen, h s court must examine the

entire record in order to determine whether, based on the testimony and evidence

before the board, they could have fairly and reasonably found as they did. Ryan v.

Town of Camden, 582 A.2d 973,975 (Me. 1990). In h s case, the burden of proof rests

with the petitioner. T h s court cannot substitute its own judgment, especially as to

issues of credbility, where there may be a reasonable difference of opinion based on the

evidence. Id. In reviewing the termination proceedings, the 3 - 2 decision clearly

indicates there was a difference of opinion. In h s reply brief, the petitioner discusses the timing of events on December 2nd

and compares the timeline taken from the hspatch records with what the town

employees remember. Tripp finds several inconsistencies and alleges the selectmen

disregarded the dispatch supervisor's testimony and accorded too much weight to the

"remembered evidence" of the town employees. He further argues that the logs should

have been afforded more crehbility. During their deliberations the selectmen did

discuss how much weight to give the logs, considering some notes were written in after

the fact (based on what was heard on the radio). The selectmen were wary of giving too

much weight to what was written in and did discuss the credibility of Tripp and the

town employees regarding the ringing of the telephone.

While Tripp argues that h s court should determine whether the logs represent

all communication during the twelve minutes in question and disregard the town

employees' memories, there is sufficient evidence and testimony in the record to

explain why the selectmen came to their conclusion.

After reviewing the record as it exists, Tripp has not made a sufficient showing

"to inquire into the mental processes of an administrative decision maker." Rynn v,

Town of Camden, 582 A.2d at 975 (quoting Frye v. Town of Ctrmberland, 464 A.2d 195,200

(Me. 1983)). The present record contains testimony from both sides of a lengthy hearing

process, as well as the selectmen's deliberations and their justification for upholding

Tripp's termination. There is substantial evidence to justify why the selectmen found as

they did. There is no valid reason to have a tnal for any further evidence.

B. Appeal of Administrative Action, M.R.Civ.P. 80B.

Reasons advanced by the petitioner to support his request for a trial of the facts

also form the basis for h s appeal of his dsmissal: Denial of due process; failure of the town to permit the malung of a proper record; conflict of interest by town's long

standing attorney representing the town manager at the hearing; and, bias in

considering petitioner's other suit against the town. All of these issues were discussed

with respect to petitioner's request for a trial. The decisions thereon are equally

applicable to the appeal itself.

Both parties agree that the central issue to Tripp's dismissal was whether or not

the telephone actually rang in h s office. T h s is clearly a matter of credibility, solely

w i h n the province of the fact finder. T h s court cannot substitute its opinion and must

accept the selectmen's decision unless there is no evidence to support it; and there is.

The board chose to believe the other town employees that they heard the phone ring.

As to the exclusion of the second letter from Oxford Networks, the court finds

that it adds little, if anything, and would not change any result even if considered fully.

The letter addresses techrucal problems with the police department answering machne;

that it interfered with the dial tone. There is no suggestion that the dial tone

interference on December 31st prevented the telephone from ringrng to signal an in-

coming call several weeks previous on December 2"d. Coulombe's second letter (Record

#lo) "that these lunds of troubles with electronic equipment such as answering

machnes can cause intermittent problems up to a week or more prior to a complete no dial

tone" (emphasis added) portends to deal with a situation more than four weeks

previous and only creates speculation. It is also established that when Tripp was finally

notified of the robbery, he was able to immediately make a call out, indicating that there

was no problem with &ding out at that time on December 2nd.

No person, other than those who testified at the hearing have any direct

knowledge as to what happened at the time in question. The selectmen had all the

information needed to make a decision. The record is sufficient to uphold their action. Petitioner's counsel argues in h s brief that "[alfter the hearing was concluded, it

was discovered" that Geoffrey Hole had acted as the town's attorney for many years

and they continued to seek h s advice here even though he was acting as counsel for the

town manager. The record shows that both Chef Tripp and h s attorney were aware of

Mr. Hole's long-term representation of the Town of Bethel.' As noted above, no

objection was voiced at the hearing or any other time before h s appeal.

The court agrees with the town, that the allegations of bias against Tripp due to

the other lawsuit are "vague" and "bare" and are insufficient to affect the board's

decision. See Baker's Table, supra.

V. DECISION

The clerk will make the following entry as the decision and Order of the court:

A. Petitioner's Motion for a Trial of the Facts is DENIED.

B. The decision of the Board of Selectmen to dismiss petitioner Damen Tripp is AFFIRMED.

SO ORDERED.

Justice, ~ u ~ h m d o & - t

2 The court is personally aware that Mr. Hole has appeared in open court for the Town of Bethel and other municipalities in Oxford County as counsel of record in a number of proceedings over the better part of two decades. RICHARD CALCAGNI - PLAINTIFF DISTRICT COURT BOX 265 AUGUSTA WINTHROP ME 04364 Docket No AUGDC-CV-2002-00051 A :ney for: RICHARD CALCAGNI

FARRIS FOLEY & DICK DOCKET RECORD 88 WINTHROP STREET AUGUSTA ME 04330

vs RICH RYAN - DEFENDANT 19 SOUTH MAIN STREET MECHANIC FALLS ME 04256 MARY RYAN - DEFENDANT 19 SOUTH MAIN STREET MECHANIC FALLS ME 04256 Attorney for: MARY RYAN E CHRISTOPHER L'HOMMEDIEU - RETAINED L'HOMMEDIEU LAW OFFICE PARKVIEW OFFICES 54 PINE STREET LEWISTON ME 04240

Filing Document: COMPLAINT Minor Case Type: UNFAIR TRADE PRACTICES Filing Date: 03/11/2002

D .ket E v e n t s : 02,-1/2002 FILING DOCUMENT - COMPLAINT FILED ON 03/11/2002

03/11/2002 Party (s): RICHARD CALCAGNI ATTORNEY - RETAINED ENTERED ON 03/11/2002 Plaintiff's Attorney: RICHARD FOLEY

03/11/2002 Party(s) : RICHARD CALCAGNI SUMMONS/SERVICE - CIVIL SUMMONS FILED ON 03/11/2002

03/13/2002 Party(s) : RICH RYAN RESPONSIVE PLEADING - ANSWER FILED ON 03/11/2002

04/16/2002 Party (s): RICHARD CALCAGNI SUMMONS/SERVICE - CIVIL SUMMONS FILED ON 04/16/2002 Defendant's Attorney: RICHARD FOLEY MARY RYAN

05/01/2002 Party(s) : RICH RYAN RESPONSIVE PLEADING - ANSWER FILED ON 05/01/2002 RICH RYAN PRO SE

05/01/2002 Party(s) : MARY RYAN RESPONSIVE PLEADING - ANSWER FILED ON 05/01/2002 PRO SE MARY RICH

ot ./2002 HEARING - PRETRIAL/STATUS SCHEDULED FOR 10/02/2002 a 2:00 NOTICE TO PARTIES/COUNSEL Page 1 of 7 P r i n t e d on: 07/05/2005