The opinion
STATE OF MAINE SUPERIOR COURT
PENOBSCOT, ss. DOCKET NO. AP-02-11
ROBERT BERTA, ) DONALD L. GARBRECHT
) LAW LIBRARY
Petitioner )
) 29 200
v. ) JUDGMENT oct
)
J. DUKE ALBANESE, Commissioner ) FEED & ENTER ED
MAINE DEPARTMENT OF EDUCATION, __ ) SUPERIOR COURT
M.S.A.D. NO. 48, and NOKOMIS REGIONAL ) or ane
HIGH SCHOOL, ) OCT 24 2002
) -
Respondents ) PENOBSCOT COU NTY
Pending before the Court is Robert Berta’s (the ‘Petitioner”) Rule 80(c) Petition
seeking review of J. Duke Albanese’s, Commissioner of the Maine Department of
Education, (the “Commissioner”) decision denying his request for forfeiture resulting
from Superintendent William Brown’s (the “Superintendent’”) failure to provide written
notice of his decision not to renew the his teaching contract pursuant to 20-A MLR.S.A.
§13201. For the foregoing reasons the Commissioner’s decision is affirmed.
Background
The Petitioner worked as a first year probationary teacher at Nokomis Regional
High School during the 2000-2001 school year. On April 30, 2001, Principal Daniel
Mills met with the Petitioner and indicated he would not recommend the Superintendent
renew his contract. Principal Mills gave the Petitioner a copy of a Summary Evaluation
that stated, “Recommendation: I cannot recommend the [sic] Mr. Berta be granted a
second probationary contract.” Principal Mills either offered the Petitioner the
opportunity to resign or informed him if he did not resign his contract would not be
renewed. Mr. Berta received a copy of the recommendation but did not sign it.
On either April 30 or May 1, the Superintendent met with the Petitioner and
confirmed that he was not nominating him for another teaching contract. At this time the
Petitioner stated he did not intend to resign. The Superintendent did not notify the
Petitioner in writing of his decision, however, it was clear to all involved the nature and
basis of the decision. On May 1, 2001, the Board of Directors of Maine School
Administrative District No. 48 met to act upon probationary teacher nominations. The
list of probationary teachers did not include the Petitioner.
On October 1, 2001, the Petitioner filed a complaint with the Commissioner
stating he had never received written notice of the Superintendent’s decision pursuant to
20-A M.R.S.A. §13201 and was now seeking statutory forfeiture. After investigating the
complaint the Commissioner issued a decision on April 11, 2002, denying the Petitioner’s
request for forfeiture. The Commissioner ruled he had received oral and actual notice of
the Superintendent’s decision satisfying the notice requirement and therefore forfeiture
was inappropriate. The Petitioner then filed the present petition.
Arguments
The Petitioner contends the Superintendent’s oral notice regarding the non-
renewal of his contract was insufficient and did not satisfy the notice requirements
contained in 20-A M.R.S.A. §13201 (the “Statute’).
The Commissioner and the Maine School Administrative District No. 48 (the
“Respondents”) contend the Petitioner’s appeal is not timely. On the merits, the Court
must strictly construe the statute because it is penal in nature and not extend the language
beyond its plain meaning. The Court should find the Petitioner’s oral and actual notice
satisfied the notice requirements of the Statute. The Statute contains two separate clauses
and the clause containing the provision for forfeiture does not require written notice.
Discussion
Timely Appeal
The record indicates the Petitioner filed a petition pursuant to M.R. Civ. P. Rule
80(b) on May 10, 2001. The Petitioner filed this Complaint within the time provided by
the Administrative Procedure Act and M.R. Civ. P. Rule 80(b). Rule 80(b) allows the
courts to freely grant leave to amend the pleadings. On May 20, 2001, the Petitioner
amended the title of the petition to reflect review under MLR. Civ. P. Rule 80(c). As the
Petitioner filed the original petition within the appropriate time-period, and the rules
contemplate liberal amendments, the Petitioner’s amended petition is not time bared.
Penal Nature
The Respondents contend the court must construe 20-A M.R.S.A. §13201 strictly
because it is penal in nature. The Supreme Court in Hudson v. United States, 522 U.S. 93,
118 S.Ct. 488 (1997) developed the “‘intent-effect” test to determine whether a penalty is
criminal or civil. State v. Haskell, 2001 ME 154, [8, 784 A.2d 4. Initially determining
whether a particular punishment is civil or criminal is a matter of statutory construction.
Id. A court must determine if the legislature, in creating the penalty intended to create a
civil or penal penalty. Id. The Court must then decide if regardless of the legislative
intent, the penalty is so punitive that it warrants designation as penal. The individual
attempting to override legislative intent must show this by the “clearest proof’. Id.
The legislature placed 20-A M.R.S.A. §13201 in the civil code, and the
legislature’s intended purpose was to ensure that superintendents provided teachers with
appropriate notice of hiring decisions. In theory, a criminal sanction serves to "punish"
an individual for violating a legal norm, while civil sanctions serve to coerce, regulate or
compensate. Cooke v. Naylor, 573 A.2d 376, 377 (Me. 1990). The forfeiture provision
seeks to both coerce superintendents into providing notice and compensate and individual
who did not receive notice. In this case the legislature intended to enact a civil penalty.
However, the court must decide whether the statute’s purpose or effect is so punitive that
it transforms what the legislature intended as a civil remedy into a criminal penalty. State
v. Haskell, 2001 ME 154, (8.
Courts deem fines, reasonable in nature, as civil penalties because they have a
remedial, not punitive, purpose. State v. Anton, 463 A.2d 703, 707 (Me. 1983). The fact
that a penalty may secondarily deter behavior does not transform the penalty into a
criminal sanction. Department of Environmental Protection v. Emerson, 616 A.2d 1268,
1270 (Me. 1993). The Respondents offer no clear proof that 20-A M.R.S.A. §13201 is so
punitive that it negates the Legislature’s civil intent.
Standard of Review
Courts review an agency’s decision for abuse of discretion, errors of law, or
findings not supported by the evidence. Hopkins v. Department of Human Services, 2002
ME 129, {8, 802 A.2d 999. The Petitioner claims the Commissioner committed an error
of law when he ruled that actual oral notice satisfied the statutory notice requirement.
Petitioner has the burden to show the Commissioner’s decision was an error of law.
Freyburg Health Care Center v. Department of Human Services, 1999 ME 122, 7, 734
A.2d 1141. Courts give weight to an agency’s interpretation of an ordinance it
administers, and only overrules the interpretation if the language of the statute compels a
contrary result. Griffin v. Town of Dedham, 2002 ME 105, {7, 799 A.2d 1239.
Courts interpret statutes in order to give effect to legislative intent and in doing so
construe the terms reasonably with regards to the objectives and structure of the statute.
Id. Statutory interpretation is a question of law that Courts afford de novo review. In re
Jeremiah Y, 2002 ME 135, (7, 804 a.2d 357. Specific statutory provisions take
precedence over general provisions. Armstrong v. Town of Cape Elizabeth, 2000 WL
33675379, *6 (Me. Super. 2000) (quoting Zeigler v. American Maize-Products Co., 658
A.2d 219, 222 (Me. 1995). Courts apply the interpretive principle of ejusdem generis
when interpreting a general provision in a statute that contains a more specific provision.
New Orleans Tanker Corporation v. Department of Transportation, 1999 ME 67, {7, 728
A.2d 673. However, when the meaning of the language in a statute is plain, the Court
interprets the statute to mean exactly what it says. Kimball v. Land Use Regulation
Commission, 2000 ME 20, (18, 745 A.2d 387. When the legislature chooses clear
language the court does not look behind those words to ascertain legislative intent. Id.
Notice
20-A M.R.S.A. §13201 states in relevant part:
Prior to May 15" before the expiration of a first or 2" year probationary teacher’s
contract, the superintendent shall notify the teacher in writing of the
superintendent’s decision to nominate or not nominate that teacher for another
teaching contract. If, after receiving a complaint from a teacher, the
commissioner finds that the superintendent has failed to notify a teacher of a
decision not to nominate that teacher, the school administrative unit shall pay a
forfeiture to the teacher. The amount of that forfeiture shall be equal to the
teacher’s per diem salary rate times the number of days between the notification
deadline and the date on which notification is made or on which the complaint is
filed, whichever occurs first.
The Petitioner contends the statute entitles him to forfeiture because he never
received written notice of the Superintendent’s decision. The Respondents note the
forfeiture clause does not contain the more detailed “written notice” qualifier and
therefore “written notice” is not required to avoid the forfeiture. The Petitioner did not
receive written notice, however the Petitioner did receive actual timely notice. This
notice allowed the Petitioner to begin looking for another job, which he did, and allowed
the Petitioner to make an informed decision regarding any appeals, which he did.
The legislature drafted two separate sentences. The first sentence directed
superintendents to provide written notice to teachers. Written notice leaves no room for
misinterpretation and creates a record for appeal. However, the first sentence does not
provide a penalty for failing to comply. The legislature only provides a penalty for
failing to provide any notice at all. Failing to provide any notice would not allow the
teacher to make alternate employment plans, an appropriate situation for sanctions.
Viewed with the appropriate deference to the Commissioner’s interpretation, and the
Petitioner’s burden in mind, the statute in question does not clearly compel a contrary
result. Therefore, written notice is preferred but sanctions only apply if a superintendent
provides no notice at all, thus prejudicing the teacher.
The result would be the same even if the “written” requirement applied to the
forfeiture provision. Respondents argue that since the Petitioner received actual oral
notice, and written notice from the Principal, they have satisfied the notice requirement.
A technical violation of a statutorily prescribed manner of notice is not necessarily fatal.
Fleming v. Department of Corrections, 2002 ME 74, 10, 795 A.2d 692. When defective
notice does not prejudice the party receiving the notice a court may disregard failure to
comply with strict notice requirements. Id. Even though notice requirement contains the
mandatory term "shall", the Court can regard certain statutory requirements respecting
the details of the notice as directory. Seider v. Board of Examiners of Psychologists,
1998 ME 78, J5, 710 A.2d 890. It is undisputed in this case that the notice did not
prejudice the Petitioner and therefore to the court may disregard a failure to comply with
the notice requirement.
The Court must give the language of statutorily required notice mandatory, not
directory, effect when such language is "of the very essence of giving notice". Id. The
Court in Seider declined to strike the “written” from the notice requirement. However,
cases that refuse to strike “written” from notice requirements deal with statutory rights to
appeal. The notice provision in the present statute only serves to inform a teacher of
future employment status. Considering the above-discussed statutory construction, and in
light of the Petitioner’s burden, it is clear that “written” was not the essence of the notice
in this case and the Court could disregard the failure to comply with the “written”
requirement if it applied to the forfeiture provision.
THE DOCKET ENTRY IS:
The Commissioner’s decision denying Mr. Berta’s request for forfeiture is
affirmed.
The clerk is ordered to incorporate this decision into the docket by reference.
Otten
Jus ice, Superior Court
DATED: OctoberZ4 , 2002.
a we
Date Filed 05/10/2002 PENOBSCOT Docket No. _AP-2002-11
County
Action -80B--Appeat 80C APPEAL amended 5/22/02
ASSIGNED TO JUSTICE JEFFREY L. HJELM
Justice Hjelm RECUSED RE ASSIGNED TO. JUSTICE ANDREW M. MEAD
(amended 5/22/02)4J. DUKE ALBANESE, COMMISSIONER, MAINE
DEPARTMENT OF EDUCATION,
MAINE SCHOOL ADMINISTRATIVE DISTRICT. #48
ROBERT BERTA VS. and NOKOMIS REGIONAL HIGH SCHOOL
Plaintiff?s Attorney Defendant’s Attorney
DONALD F. BROWN, ESQ SARAH A. FORSTER, AAG.
36 PEN PLAZA 6 STATE HOUSE STATION
BANGOR, ME 04401 AUGUSTA, ME 04333-0006
FOR: J. DUKE ALBANESE, COMMISSIONER, MAINE
DEPARTMENT OF EDUCATION
DRUMMOND WOODSUM & MACMAHON
P O Box 9781, Portland ME 04104-5081
BY: Harry R Pringle, Esq.
Date of FOR: MSAD #48 and Nokomis Regional High
Entry School
5/10/02 Complaint (80B Review) filed. (attachment attached)
5/13/02 Case File Notice forwarded to Plaintiff's attorney.
5/13/02 Notice and Briefing Schedule 80B Appeal of Governmental Actions filed.
Copy forwarded to Plaintiff's. Attorney.
5/22/01 Amended Complaint Petition for 80C Review.
06/04/02 | Certification of Record filed.
6/5/02 Notice and Briefing Schedule 80C Appeal of Final Agency Actions filed.
. Copy forwarded to all attorneys of record.
6/5/02 Acknowldegment of Receipt of Summons as to Defendant Maine School
Administrative District #48 filed. (s.d. 5/24/02 by Harry Pringle,
| Esq.)
6/5/02 Certified Mail Receipt as to J. Duke Albanese, Commissioner, Maine
Dept of Education filed. (s.d. 5/22/02 of Amended Complaint/Petition
for 80C Review).
6/5/02 Certified Mail Receipt as to Attorney General's Office filed.
(s.d. 5/22/02 of Amended Complaint/Petition for 80C Review).
6/6/02 Notice of Appearance filed by Harry R. Pringle, Esq. on behalf of
Maine School Administrative District No 48 and Nokomis Regional High
School.
6/6/02 Copy of Notice and Briefing Schedule 80B Appeal of Governmental Actions
forwarded to counsel for M.S.A.D #48 and Nokomis Regional High School.