The opinion
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STATE OF MAINE SUPERIOR COURT
CUMBERLAND, ss CIVIL ACTION
DOCKET NO. CV-03-124
GARY E. PLillviMER, ESTHER B. CLENOTI and
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RICHARD D. FEENEY, in their capadtj.a as.;;_ · 3 7) t,,JL
County Commissioners of the County of
Cumberland,
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ALFRED PIOMBINO, in his capacity as ..D ~<<.
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Register of Probate for Cumberland County 1) ,..,, 0
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A jury-waived trial in the above captioned case was held on May 2, 2003.
Thereafter the parties sought and were granted leave to file post trial briefs up until
May 16, 2003. A subsequent dispute over the county commissioners' failure to produce
a document that had been requested by defendant Alfred Piombino prior to trial
resulted in the filing by Mr. Piombino of a post-trial motion to dismiss and in the
alternative a motion for a mistrial on June 2, 2003.
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A hearing on Mr. Piombino' s motion to dismiss and for a mistrial was held on
June 30, 2003, and resulted in an order directing the county commissioners to produce
the document in question (Debra Barry's Maine State Retirement System Application)
to the court for in camera review, which resulted in its subsequent disclosure to Mr.
Piombino. The document did not contain any material evidence, and Mr. Piombino' s
post-trial motion to disn:uss or for a mistrial is therefore denied. 1
Turning to the merits of the controversy, the court makes the following findings
of fact and reaches the following conclusions of law:
1 The court plans to enter a separate order with respect to the failure to provide the document.
1. In mid February 2003 Alfred Piombino was duly appointed as
Cumberland County Register of Probate to fill the unexpired term of Herbert Adams,
who had been elected to the State Legislature_. Section 1-501 of Title 18-A provides that,
in the event of a vacancy under the circumstances presented in this case, the Governor
shall appoint a successor from the same political party as the Register of Probate who
has relinquished the office. In making the appointment, the Governor is required to
choose from the recommendations submitted by the county committee of the political
party. In this case former Register of Probate Adams was apparently a member of the
Democratic Party, and Mr. Piombino was the person recommended by the cou11ty
Democratic Committee to replace him.
2. Serving as Deputy Register of Probate under Adams was Debra Barry.
When Adams became a member of the legislature, Ms. Barry sought to succeed him as
Register of Probate, but she was defeated by Mr. Piombino in the election that was held
by the county committee to determine the person whom the committee would
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re co nun.end to the Governor.
3. The question in this case concerns the status of Ms. Barry once Mr.
Piombino was appointed. Mr. Piombino contends that Ms. Barry's tenure ended with
the tenure of the person who had selected her, former Register Adams. The County
Commissioners, citing 18-A M.R.S.A. §1-506 and 30-A M.R.S.A. §501, contend that Ms.
Barry is a county employee who may only be dismissed for cause and that Ms. Barry
remains deputy register.
4. Although Mr. Piombino has made it clear that he did not want Ms. Barry
to continue as the Deputy Register, he did not dismiss Ms. Barry for cause. Moreover,
under 30-A M.R.S.A. §501, Mr. Piombino could not have dismissed Ms. Barry for cause
without the prior approval of the County Commissioners.
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5. The County Commissioners have not approved the dismissal of Ms.
Barry.
6. Mr. Piombino's position is that he does not want Ms. Barry as his deputy,
that her term ended with the departure of Mr. Adams, and that he is therefore entitled
to appoint a new deputy of his choice. He apparently concedes that he cannot appoint
such a deputy without the approval of the county commissioners under 30-A M.R.S.A.
§501.
7. This has led to the present dispute, which is stoked to some degree by the
fires of politics. One of the county commissioners, Esther Clenott, supported Ms.
Barry's candidacy before the county committee and wrote to the Governor to object to
the method by which Mr. Piombino was recommended.2 Mr. Piombino was also
involved in a previous dispute with the county commissioners and with County
Manager Peter Crichton concerning former County Treasurer Diane Gurney. This has
resulted in a certain amount of distrust on both sides of the current dispute, which has
not helped the parties to resolve the issues that have arisen between them.
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8. Although the county commissioners' original motion for a preliminary
injunction was premised on the assertion that the absence of Ms. Barry from the
Register's office would be detrimental to the operations of that office, this assertion was
withdrawn prior to trial and was not borne out by the evidence at trial. Mr. Piombino's
proposed successor to Ms. Barry as Deputy Register was Deborah Barrett, who had
previously served as Deputy Register under Gerard Conley. Prior to trial an
agreement was worked out between the county commissioners and Mr. Piombino
whereby Ms. Barrett was hired as a temporary employee in the Register's office with
2 Ms. Clenott acknowledged at trial that she had not produced her correspondence with the Governor
even though it had been requested in discovery. ,. ~th~\lg~ Mr. Pio~bino obtained the documents in.
question anyway, the court takes a dim view of the failure to produce the documents in question. There
is no exemption in the rules of discovery for political correspondence.
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the understanding that she would function as Deputy Register until this dispute was
resolved.
9. Prior to trial, counsel for the county commissioners advised the court: that
the commissioners agreed that Ms. Barret_t was performing in a fully competent
manner. Moreover, the only evidence offered at trial was to the effect that the office of
Register under Mr. Piombino and Ms. Barrett was functioning in a satisfactory manner.
Although the uncertainty and divisiveness engendered by the current dispute over Ms.
Barry's status is a potentially disruptive factor, the court concludes that the
commissioners have not demonstrated on this record that there would be irreparable
harm to the operations of the Register's office in the absence of injunctive relief.3
10. There was also unrebutted evidence at trial that Ms. Barry had made
various statements around the time of Mr. Piombino's appointment suggesting that if
she remained as Deputy Register, she would undermine Mr. Piombino and would not
cooperate with him. The court does not rule on whether or not this evidence would
constitute cause to dismiss Ms. Barry.4 However, this evidence is more than sufficient to
· reinforce the court's view that it would not grant to the county · commissioners either
preliminary or permanent injunctive relief restoring Ms. Barry to her position if the
commissioners prevailed, but would limit itself to a declaratory judgment at this time.
At some point down the road, supplemental relief upon a proper showing may be
available under 14 M.R.S.A. §5960.
11. The enmity between Ms. Barry and Mr. Piombino is not attributable solely
to Ms. Barry. There was evidence that even before Mr. Piombino learned of evidence
that Ms. Barry had made statements declaring herself unwilling to cooperate with him,
3 The court has been informed that Ms. Barrett has since resigned. However, the court is required to
base its decision on the evidence adduced at trial and cannot take account of post trial developments.
4 For one thing, Ms. Barry was not a party to th.is action ,md would be entitled to offer ev'idence in
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rebuttal in any proceeding to dismiss her for cause. The issue of cause cannot be litigated in her absence.
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Mr. Piombino told Mr. Crichton that he would seek to have Sheriff's Deputies remove
Ms. Barry from the Register's Office if she were there when he arrived on his first day
of work.
12. To the extent that the underst~dings of prior occupants of the Register's
Office are relevant here, Mr. Piombino offered evidence that Ms. Barrett, in her prior
tenure as Deputy Register, had .interpreted her employment as being subject to the
tenure of the Register for whom she served as deputy. Ms. Barrett further understood
that she had no right to stay on once a new Register was elected, and she testified that
she had derived this understanding from the Register of Probate for whom she worked
and from a prior Probate Judge.
13. Irrespective of any disputes as to the facts, the court finds the nub of the
dispute to be legal rather than factual in nature. 18-A M.R.S.A. §1-506 states, "Any
register of probate in this State may appoint a deputy register of probate for the
county, subject to the requirements of Title 30-A, section 501."
14. Section 501 of Title 30-A in turn provides that all county officers shall
submit to the county commissioners the name of -any person the county officer
proposes to employ. The county commissioners may approve the employment of the
person in question, and if approval is withheld, shall notify the county officer of the
reasons for their disapproval within 14 days. See 30-A M.R.S.A. §501(1).
15. Section 501 also provides that county officers may dismiss a department
employee only for cause or for budgetary reasons and that an employee may not be
dismissed for cause without the prior approval of the county commissioners. 30-A
M.R.S.A. §501(3) (A).
16. The court concludes that, notwithstanding the understanding of Ms.
Barrett and others, 18-A M.R.S.A .. §1-506 does not make Ms. Barry's term coterminous
with that of the Register who appointed her. On its face, that statute makes a deputy
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register's appointment subject to the requirements of 30-A M.R.S.A. §501. The most
logical interpretation is that section 501 is applicable to all aspects of the appointment,
from initial hiring to discharge. Specifically, under §501(3)(A) Ms. Barry cannot be
dismissed without cause and without the pri~r approval of the county commissioners
except for budgetary reasons.
17. To the extent that 18-A M.R.SA. §1-506 is ambiguous, the interpretation
that Ms. Barry's tenure in office is not subject to termination when a new Register takes
office is consistent with the relevant legislative history. Both the first sentence of 18-A
M.R.S.A. §1-506 and the predecessor to 30-A M.R.S.A. §501 were derived from L.D.
1614, 110th Legis., l81 Sess. (1981). The statement of fact in L.D. 1614 states, "this ne:w
draft involves the county commissioners . . . in overseeing the appointment and
discipline or dismissal of all county employees, including deputy county officers"
(emphasis added).
18. While the conclusion that a deputy register's tenure is protected by 30-A
M.R.S.A. §501 follows from the relevant statutes and legislative history, the issue is not
entirely free from doubt because of certain case law and policy ·arguments advanced by
Mr. Piombino. Specifically, Mr. Piombino notes that in Longley v. State Employees
Appeals Board, 392 A.2d 529 (Me. 1978), the Law Court stated that "apart from statute.
. . a public officer cannot give an appointee a tenure of office beyond his own." 392 A.
2d at 531, quoting Ross v. Hanson. 227 A.2d 606, 609 (Me. 1967)(emphasis added). In
contrast to Longley. there are statutes in this case governing the tenure of a deputy
register of probate and those statutes provide that a deputy register may not be
dismissed except for cause or for budgetary reasons. Moreover, Longley involved a
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gubernatorial appointee who served at the Governor's pleasure. Under the applicable
statutes, a deputy register does not serve at the pleasure of the register of probate. 5
19. The Law Court's decision in Struck v. Hackett, 668 A.2d 411 (Me. 1995), is
more troublesome because that case involved language in 30-A M.R.S.A. §381 that is
identical to the provision in 18-A M.R.S.A. §1-506 that the county commissioners rely
upon in this case. Section 381 provides that county sheriffs may appoint full time or
part time deputies, "subject to the requirements of section 501." Language in the Struck
decision can be·read to suggest that section 381 only makes section 501 applicable to the
. appointment of deputies and not their termination. See 668 A.2d at 41. However, in
upholding the sheriff's right to terminate a deputy in the Struck case, the Law Cou,rt
primarily relied on the fact that the deputy in question was a probationary employee.
Specific statutory language relating to probationary employees would have been
rendered meaningless if probationary employees had all of the rights of regular
employees under section 501.
20. The better reading of Struck, therefore, is that it turned on Struck's
probationary status. There is · also no indication in Struck that the Law Court was
directed to the legislative history contained in L.D. 1614. As noted above, that legislative
history demonstrates a legislative choice to make the employment of deputy county
employees subject to the ultimate appointment and dismissal power of the county
commissioners.
21. Mr. Piombino nevertheless argues forcefully- and the court agrees -that
5 Mr. Piombino's interpretation of the statute would make considerably more sense if the deputy
register served at the register's pleasure. If one accepts the proposition that a register should have the
right to select a deputy who enjoys his confidence, it is difficult to see why, once a deputy is selected,
the register should have no ability (absent cause) to remove that deputy until the register himself
leaves office. Moreover, if one adopts µie notion that a deputy's tenure ends the minute the Register
who appointed that deputy leaves office, a deputy would not be available to serve during the interim
period before a new Register takes office - a q~e when the deputy's leadership would .~ __IJlO~t needed.
While these anomalies would be eliminated if a deputy register served at the register's vleasure, the
court can find no statutory basis for that conclusion.
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there are strong policy arguments against reaching the above conclusion. Most notable
among these are the policy concerns mentioned in Longley - that an elected
department head should not have to work with a holdover deputy. These
considerations are particularly strong in the instant case, where the deputy actually ran
as a candidate against Mr. Piombino in the county democratic committee. The court
agrees that, under the circumstances of this case, it makes eminent sense that Mr.
Piombino should not have to rely upon the loyalty of a political opponent.
22. However, the court is constrained to reach the view that the legislature
held a different view of the deputy register position - one that essentially categorizes
deputy registers as civil service employees. The legislature did not foresee a situati9n,
where a deputy register would run for the office of register without giving up her
position and would thereafter assert a right to remain in the deputy's position in order
to serve under the person she had run against. That the Legislature did not foresee the
situation presented here, however, does not give the court authority to rewrite the
relevant statutes.
23. -Under the circumstances, perhaps Ms. Barry would have been well
advised to resign her position as deputy once she became a candidate for register, but
the court has not been made aware of any statute or personnel rule obliging her to do
so. Alternatively, the county commissioners should perhaps have instituted a rule that
candidacy for a political office is incompatible with civil service status and required Ms.
Barry to resign if she chose to run. Once again, however, the court is not aware of any
legal requirement to impose a rule of this nature.
24. Mr. Piombino has raised two other arguments. First, he contends that the
county commissioners do not have standing.to pursue this lawsuit. The court finds that
there is standing in the instant case because 30-A M.R.S.A. §501 -gives the commissioners
.control .o:ver the dismissal of deputy registers and they will have been deprived of that
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control if Mr. Piombino can unilaterally dispense with Ms. Barry's services. Standing
exists here because the commissioners have a direct stake in the controversy that exists
over the authority to terminate the deputy register.
25. Mr. Piombino also argues that when this case was commenced, the
commissioners had not properly authorized the filing of a lawsuit. The court agrees.
The combination of 30-A M.R.S.A. §102 and the Freedom of Access Law requires that
county actions .such as the authorization of a lawsuit be taken in a public session.
However - albeit after the fact - the commissioners have since met and voted to ratify
·the lawsuit, and the suit was authorized by the time of trial. Under these circwnstances,
the court can see no reason to dismiss this case without prejudice and require t~e ·
parties to begin this lawsuit all over again.
The entry shall be:
For the foregoing reasons, the court issues a declaratory judgment declaring that
Ms. Barry's employment did not automatically terminate when former Register
Herbert Adams resigried··to take his legislative seat and that 30-A M.R:S.A; §501
governs her dismissal. However, the court finds, in light of Struck and the policy issues
discussed above, that this case presents a close question and therefore stays this
judgment until July 16, 2003 to give Mr. Piombino time to appeal and to seek a further
stay from the Law Court. If Mr. Piombino appeals and files a motion for a stay with the
Law Court within that time period, the stay granted by this court will remain in effect
until the Law Court acts on Mr. Piombino's motion for a Stay. As noted above, the
court will not grant any injunctive relief at this time. This is without prejudice to the
rights of the parties upon proper showing to seek supplemental relief under 14
M.R.S.A. 5960.
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The clerk is directed to incorporate this order in the docket by reference
pursuant to Rule 79(a).
Dated: July 3, 2003
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Thomas D. Warren
Justice, Superior Court
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