Wark v. Town of Standish

• Court: Superior Court of Maine
• Decided: March 5, 2015
• Docket: CUMap-14-046
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss CIVIL ACTION DOCKET NO. AP-14-04/

DAWNWARK,

Petitioner DECISION AND ORDER v.

THE TOWN OF STANDISH,

Respondent

I. Background

A. Procedural Posture

Petitioner Dawn Wark brings this action pursuant to M.R. Civ. P. SOB.

Petitioner appeals a denial of general assistance for basic necessities by

respondent Town of Standish. (Pet's Ex. lA.) She was disqualified from general

assistance eligibility for 120 days due to fraud. She appealed the decision to the

Town of Standish fair hearing officer, who affirmed the disqualification decision.

(Letter of 8/8/14.)

B. Facts

Petitioner moved to Standish, Maine and began receiving general

assistance in late 2013. The record contains applications, approvals, and voucher

benefits that were paid between January 2014 and July 2014. (Pet's Exs. 2-5.) On

July 30, 2014, the Town of Standish General Assistance Manager issued a Notice

of Determination for General Assistance Eligibility and stated petitioner was

"denied for 120 days do [sic] to fraud." (Pet's Ex. 1A.) The Notice explained:

It was brought to my attention that you have been transferring prescriptions to Portland and paying cash for them. I was not informed of money in kind from any family members or as to why

1 you are transferring prescriptions back to Portland when I'm paying for you to live in Standish.

(Pet's Ex. 1A.) Petitioner appealed the denial and requested a hearing. (Pet.'s Ex.

1A at 4-5.) A hearing was held on August 5, 2014, before Fair Hearing Officer

Terence Christy. A case manager from Catholic Charities and a paralegal from

Pine Tree Legal Assistance represented petitioner.

Among other necessities, petitioner received assistance for prescription

drug purchases. She had also received vouchers for prescription drug purchases

from Catholic Charities. (Tr. 23:6-22.) Petitioner required the medication to treat

a number of illnesses, including chronic obstructive pulmonary disease, asthma,

and emphysema. (Tr. 17:7-9.) During the winter and into spring of 2014,

petitioner contracted pneumonia, which resulted in a trip to the emergency room

on July 24, 2014. (Tr. 22:17-18; 24:16-20.) While in the hospital, petitioner

attempted to call the Town's general assistance officer to request additional

assistance for new prescription medication to treat complications related to the

pneumonia. (Tr. 24:18-20; 25:10-17.) Petitioner testified she never received a call

back while at the emergency room. (Tr. 24:12-25:5.) Because she believed she

would not receive a call back, petitioner picked up the prescription from the

Portland pharmacy with her father on July 28, the day she was released from the

hospital. (Tr. 25:10-26:1.) Petitioner's father paid cash to the pharmacy for the

prescription. (Tr. 29:17-18.) Petitioner had previously reported receiving in kind

income from her father on her April 2014 application. (Tr. 42:7-11.) Petitioner

sometimes picked up prescriptions from the Portland pharmacy for convenience

because many of her doctors are located in Portland. (Tr. 26:18-20.)

2 The Hearing Officer affirmed the denial on two grounds: (1) failure to

disclose outside sources of income to purchase prescription medicine; and (2)

transferring prescriptions from a Standish pharmacy to a Portland pharmacy,

which "open[ed] the door to the fraud charge by transferring something that was

already paid for by the Town of Standish." (Letter of 8/8/14.) The Hearing

Officer also advised petitioner to keep her case manager and general assistance

officer updated as to mailing address, living arrangements, and money in kind.

(Id. 2.)

II. Discussion

A. Rule SOB Standard

The Superior Court reviews government agency decisions pursuant to

Rule SOB for errors of law, abuse of discretion, or findings not supported by

substantial evidence. Aydelott v. City of Portland, 2010 ME 25, CJI 10, 990 A.2d

1024. The party challenging the decision below has the burden of proof to

overturn the decision. Id. The petitioner must establish "not only that the

[decision maker's] findings are unsupported by record evidence, but also that the

record compels contrary findings." Total Quality, Inc. v. Town of Scarborough,

5S8 A.2d 2S3, 2S4 (Me. 1991).

The court reviews the interpretation of municipal ordinances de novo.

Nugent v. Town of Camden, 199S ME 92, CJI 7, 710 A.2d 245. In construing

ordinances, the court looks "to the plain meaning of its language to give effect to

the legislative intent, and if the meaning ... is clear, [the court] need not look

beyond the words themselves." Wister v. Town of Mount Desert 2009 ME 66, CJI

17, 974 A.2d 903. "The terms or expressions in an ordinance are to be construed

reasonably with regard to both the objectives sought to be obtained and the

3 general structure of the ordinance as a whole." Jordan v. City of Ellsworth, 2003

ME 82, 1 9, 828 A.2d 768 (internal quotation marks omitted).

B. General Assistance, False Representations, and Income

State law requires municipalities to administer a general assistance

program by ordinance. 22 M.R.S. § 4305(1) (2014). The ordinance must govern

eligible persons and relief amounts, provide individuals the opportunity to apply

for relief, and provide that relief shall be denied or furnished within 24 hours

after the application submission. Id. § 4305(3)(A)-(C).

The Town of Standish has adopted the model general assistance ordinance

drafted by the Maine Municipal Association. Standish, Me., Gen. Assist.

Ordinance; (Tr. 64:8-19.) Under the ordinance, at the time of application, the

applicant is obligated to "provide accurate, complete and current household

information and verifiable documentation" as to income, resources, assets,

employment, use of income, names and addresses of any relatives legally liable

for the applicant's support, and "any change in this information from a previous

application that would affect household eligibility." Ordinance, § 4.5. Consistent

with state law, written decisions must be issued within 24 hours, "each time a

person applies, whether assistance is granted, denied, reduced or terminated."

Ordinance, § 4.6.

The fraud provision of the ordinance states:

It is unlawful for a person to make knowingly and willfully a false representation of material fact' to the administrator in order to

'The false representation provision of the state's general assistance statute states: "Whoever knowingly and willfully makes any false representation of a material fact to the overseer of any municipality or to the department or its agents for the purpose of causing that or any other person to be granted assistance by the municipality or by the State is ineligible for assistance for a period of 120 days and is guilty of a Class E crime." 22 M.R.S. § 4315 (2014).

4 receive general assistance or cause someone else to receive general assistance. False representation shall consist of any individual knowingly and willfully: (a) making a false statement to the general assistance administrator, either orally or in writing, in order to obtain assistance to which the applicant or the applicant's household is not entitled; (b) concealing information from the general assistance administrator in order to obtain assistance to which the applicant or applicant's household is not entitled; or (c) using general assistance benefits for a purpose other than that for which they were intended.

Ordinance, § 6.4.

The Law Court has had occasion to vacate several municipal decisions in

which general assistance was denied on the basis of fraud or a failure to report

mcome. In Gilman v. City of Lewiston, the court held that a Lewiston

administrator erred by denying assistance on the basis that the applicant failed to

report income. 524 A.2d 1205, 1208 (Me. 1987). Under the Lewiston ordinance,

the applicant had the right to receive first notice about conflicting information or

the need for further information prior to a denial. Id. at 1207-08. Because a

failure to report income was not a basis for denial under the ordinance and the

applicant was not provided an opportunity to supplement the information about

his earnings, the court vacated the decision. Id. 1208.'

Ranco v. City of Bangor concerned an alleged willful and knowing false

representation of material fact to obtain general assistance. 1997 ME 65, 691 A.2d

1238. When the Rancos applied for general assistance, they failed to disclose that

a third person, Christopher Lombard, lived with them. Id.

with a caseworker, Ms. Ranco asked if the household would be eligible for more

assistance if a third person moved in. Further questioning revealed Mr.

'The City did not allege plaintiff knowingly or willingly made a false statement of material fact. The court, accordingly, did not consider whether the omission constituted fraud. Id. 1208 n.2.

5 Lombard's presence and resulted in a denial for fraud. Id. err 4. With Ms. Ranco's

help, Mr. Lombard had separately applied for general assistance the previous

month and disclosed his temporary residence in the Ranco home. Id. err 2.

The Law Court held that the record did not support a finding that by

omitting Mr. Lombard from their application, the Rancos willfully or knowingly

made a false statement of material fact to obtain more assistance. Id. err 7. The

court emphasized that if the Rancos intended to make false statements to obtain

additional assistance, Mr. Lombard could have applied as a one-person

household, entitling them to several hundred dollars in additional funds. Id. The

inquiry as to the effect of a third person in the household at the caseworker

meeting and omission from the application was insufficient to constitute general

assistance fraud under 22 M.R.S. § 4315.

C. The Record Does Not Support A Finding of Fraud

The focus of this appeal is whether petitioner committed fraud when she

accepted and did not immediately report medication that was paid for by her

father.' In order to commit fraud, petitioner must have knowingly and willfully

made a false statement of material fact to receive general assistance. Ordinance, §

, The other issues discussed by the hearing officer are not relevant. Petitioner should have ensured that the Town's general assistance administrator and pharmacies from which she acquired medication had updated information but this has no bearing on fraud. To constitute fraud, the ordinance is clear that the applicant must make a false statement or conceal information in order to obtain assistance. Ordinance, § 6.4(a)-(b ). There was no evidence in the record that petitioner listed false addresses or failed to update her address in order to obtain assistance to which she was not entitled. The fact that petitioner picked up her prescriptions from a Portland rather than Standish pharmacy is similarly not relevant. The Town does not point to any provision in state law or the ordinance that requires filling a prescription for drugs paid for by general assistance at a pharmacy in the municipality in which the applicant resides. Even if there were such a rule, a violation would not give rise to fraud unless there was evidence to suggest petitioner transferred the prescription to other pharmacies to obtain additional assistance wrongfully.

6 6.4. The alleged fraud here stems from petitioner's failure to report income in

kind, the medicine provided by her father.

As required in the ordinance and consistent with this record, applicants

for general assistance apply each month. Accurate, complete, and up-to-date

information regarding income and support from family members is required at

the time the applicant submits the application for assistance. See Ordinance, §

4.5.

Petitioner was denied assistance based on fraud on July 30, 2014, before

she had the opportunity to submit a new application. At the hearing, the

Standish General Assistance Officer, Ruth-Ann LaBrecque, testified that on July

29, the Hannaford pharmacy contacted her by phone and informed her that

petitioner had transferred prescriptions to Portland and paid cash for them.

Officer LaBrecque then called state authorities. She testified:

I've not had a case of fraud before. I've not had to do any of this type of thing so I called the state of Maine and I spoke to one of the field examiners and I explained the situation and they said it's fraud. And I said okay, she has an appointment tomorrow . . . Should I notify her ahead of time I'm determining that she's ineligible for GA due to fraud? And I was advised yes.

(Tr. 42:20-43:2.) The denial on the basis of fraud was made, therefore, before

petitioner submitted an application for the following month.

Respondent focuses on the eligibility provision of the ordinance to argue

petitioner was obligated to report the income immediately after obtaining the

medication on July 28, or at least prior to July 29 when Officer LaBrecque

received the call from the pharmacy. In respondent's view, petitioner's failure to

report immediately the income amounted to a knowing and willful material

misrepresentation to obtain general assistance to which she was not entitled.

7 (Resp. Brief 9.) This argument has no explicit support in the ordinance or state

law.

The eligibility provision in the ordinance provides:

The overseer may redetermine a person's eligibility at any time during the period that person is receiving assistance if the overseer is informed of any change in the recipient's circumstances that may affect the amount of assistance to which the recipient is entitled or that may make the recipient ineligible, provided that once a determination of eligibility has been made for a specific time period, a reduction in assistance for that time period may not be made without prior written notice to the recipient with the reasons for the action and an opportunity for the recipient to receive a fair hearing upon the proposed change.

Ordinance, § 6.3. • This provision provides a procedure for the program overseer

to take steps toward reducing assistance or determining a recipient is no longer

eligible based on a change in circumstances.

The correct procedure in this case would have required Officer LaBrecque

to provide petitioner with written notice of the proposed change to her general

assistance on the basis of information received from the pharmacy. Pending an

opportunity for a fair hearing, the notice would amount to a "proposed change."

Rather than proposing to reduce the petitioner's general assistance, Officer

LaBrecque denied the application and alleged fraud. (Pet's Exs. lA, 4.) This

occurred before petitioner had the opportunity to apply and disclose her income

for that month.

Under the ordinance, the Town's eligibility determination and the

applicant's obligation to disclose outside sources of income do not arise until the

recipient reapplies. Ordinance, § 6.3. ("The overseer shall determine eligibility

·Section 6.3 tracks the state procedure. See 22 M.R.S. § 4309(2).

8 each time a person applies or reapplies for general assistance . . . [r]epeat

applicants are also responsible for providing any changes of information

reported on previous applications including changes in his/her household or

income that may affect his/her eligibility.") Even if petitioner had failed to

report the income on her application, the denial prior to the fair hearing

contravened the ordinance. Ordinance, § 6.4 ("No person may be denied

assistance solely for making a false representation prior to being given the

opportunity for a fair hearing.")

The income may have affected petitioner's eligibility by reducing the

assistance amount, but failing to report the income prior to applying did not

amount to fraud. Petitioner could not knowingly or willfully make a false

statement of material fact by "concealing information from the general assistance

administrator in order to obtain assistance to which the applicant . . . is not

entitled" until petitioner applied. Ordinance, § 6.4(b ).

Instead of waiting to see whether petitioner reported the income on July

30, Officer LaBrecque issued a denial and alleged fraud. If petitioner had been

afforded the opportunity to apply, there is no evidence she intended to conceal

the income, contrary to respondent's argument. (Resp.'s Br. 9.). Similar

information had been reported in the past. Petitioner previously disclosed $43 of

in kind income, also medication supplied by her father, on her April 2014

assistance application. (Pet's Ex. 2; Tr. 42:7-11.) As there is no evidence in the

record to support a finding of fraud, the denial must be vacated.

Although the court in Ranco and Gilman construed different ordinance

schemes, those cases provide several principles that support the result here.

When the court examines whether an applicant willfully or knowingly makes a

9 false representation of material fact to obtain assistance, or is culpable for failure

to report income, the court looks to the application. Ranco, 1997 ME 65, 1 3, 691

A.2d 1238 ("The general assistance application completed by the Rancos ... did

not indicate that anyone else was living with them."); Gilman, 524 A.2d at 1207

(noting applicant failed to report income on his application). If the ordinance

provides a procedure for reviewing periodic changes in a recipient's eligibility,

those procedures must be followed. Id. at 1207-08. Unless otherwise allowed by

those procedures, a general assistance administrator may not issue a denial

before providing the applicant the opportunity to explain or supply additional

information relevant to eligibility. Id. at 1208; see also Ordinance,§ 6.3. Lastly, as

emphasized above, the record must contain some evidence that the applicant

intentionally concealed the information for the purpose of obtaining additional

assistance. Ranco, 1997 ME 65, 1 7, 691 A.2d 1238.

III. Conclusions

Petitioner was denied general assistance and accused of fraud before she

applied and was given an opportunity to disclose additional income. The record

contains no evidence that petitioner knowingly or willfully concealed the income

in order to obtain additional assistance. Because the record compels a contrary

conclusion, the court vacates the decision. Total Quality, Inc., 588 A.2d at 284.

The entry is

The Decision of the Town of Standish Fair Hearing Officer dated 8/8/14 is VACATED. This case is REMANDED to the Town of Standish for further proceedings consistent with this Decisi nand Order.

Dated: March 5, 2015 Nanc ills Justice, Superior Cour

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