Russell v. State of Maine, Unemployment Ins. Comm'n

STATE OF MAINE SUPERIOR COURT

CIVIL ACTION

KENNEBEC, ss. DOCKET NO. AP-03-51

TAM KEN - 3/aR pon

CHRISTOPHER RUSSELL,

Petitioner

v. _o::;DECISION AND ORDER

STATE OF MAINE, UNEMPLOYMENT a

INSURANCE COMMISSION, wie

Respondent

This matter is before the court on petition in accordance with MLR. Civ. P. 80C.

Christopher Russell, previously the husband of Linda Labbe, worked at the family

roofing company (Dow Roofing) of his ex-father-in-law Michael Labbe. According to

averments of petitioner, his father-in-law suffered from early onset Alzheimer’s disease

and petitioner, previously an employee of Dow Roofing, was prevailed upon by his

then-wife to become the President of the corporation while being told that his duties

would not change. Christopher Russell was listed as the President, Treasurer and one

of the two Directors of Dow Roofing on the 2001 Annual Report submitted to the State

of Maine.

Based on the 2001 Annual Report, the Maine Tax Division of the Bureau of

Unemployment Compensation (“the Bureau”) sent petitioner an Assessment of

Personal Responsibility amounting to $14,642.78 for the payment of unemployment

contributions of Dow Roofing. This Assessment was sent via certified and registered

mail! to his last known address’ on October 8, 2002. A person named Edward W.

Russell signed the certified mail receipt on October 21, 2002.

A notice of Tax Lien for the $14,642.78 naming petitioner was filed on November

21, 2002. A “twelve day notice” (final Notice for Demand and payment) was sent to

petitioner’s last known address and to Dow Roofing on January 2, 2003." On April 28,

2003, a disclosure subpoena and a copy of a warrant issued on March 4, 2003, were sent

to petitioner’s last known address and Dow Roofing.

Petitioner admits to receiving this last mailing and reacted by requesting

reconsideration by the Bureau averring that he was merely an employee of Dow

Roofing and had never been an employer as defined by the relevant statute. On April

29, 2003, petitioner appealed the assessment levied on him on October 8, 2002. Ina

decision dated June 6, 2003, respondent Bureau found that Christopher Russell’s appeal

was not timely and that a determination in this matter had been final as of November 7,

2002.

Ina letter dated June 10, 2003, and received by the Bureau on June 11, 2003,

petitioner requested reconsideration of the June 6, 2003 decision. This request was

denied on August 1, 2003. Petitioner timely filed for review of the August 1, 2003

denial with this court.

The administrative Record was filed with this court on September 25, 2003.

Respondent's brief, due within forty days of this filing pursuant to MLR. Civ. P. 80C(g)

' Petitioner asserts in his petition and in his brief that the notice was mailed “certified, but not registered, mail.” The

copy of the return, signed by Edward W. Russell, has both the certified and registered mail boxes checked. Neither

side has made representations as to the meaning of the certified mail receipt.

> This appears to continue to be his present address, 280 Northern Avenue, Augusta, Maine 04330.

> By now the amount due had grown to $14,916.21 due to accrued interest.

and the Notice and Briefing Schedule dated September 29, 2003, was filed on December

8, 2003."

When the decision of an administrative agency is appealed pursuant to MLR.

Civ.P. 80C, this Court reviews the agency’s decision directly for abuse of discretion,

errors of law, or findings not supported by the evidence. Centamore v. Dep’t of Human

Services, 664 A.2d 369, 370 (Me. 1995). “An administrative decision will be sustained if,

on the basis of the entire record before it, the agency could have fairly and reasonably

found the facts as it did.” Seider v. Board of Exam’r of Psychologists, 2000 ME 206 (9, 762

A.2d 551, 555 (Me. 2000) (citing CWCO, Inc. v. Superintendent of Ins., 1997 ME 226, {6,

703 A.2d 1258, 1261 (Me. 1997)). In reviewing the decisions of an administrative agency,

the Court should “not attempt to second-guess the agency on matters falling within its

realm of expertise” and the Court’s review is limited to “determining whether the

agency’s conclusions are unreasonable, unjust or unlawful in light of the record.”

Imagineering v. Superintendent of Ins., 593 A.2d 1050, 1053 (Me. 1991). The focus on

appeal is not whether the Court would have reached the same conclusion as the agency,

but whether the record contains competent and substantial evidence that supports the

result reached by the agency. CWCO, Inc. v. Superintendent of Ins., 703 A.2d 1258, 1261.

“Inconsistent evidence will not render an agency decision unsupported.” Seider, 762

A.2d 551 (citations omitted). The burden of proof rests with the party seeking to

overturn the agency’s decision, and that party must prove that no competent evidence

supports the Board’s decision. Id.

Factual determinations must be sustained unless shown to be clearly erroneous.

Imagineering, 593 A.2d at 1053 (noting that the Court recognizes no distinction between

* Petitioner in his Reply brief moves this court to strike the respondent's brief as untimely. Although this

brief was filed on the thirty-third day after the filing of petitioners brief, it appears timely pursuant to

M.R. Civ. P. 6(c). :

the clearly erroneous and substantial evidence in the record standards of review for

factual determinations made by administrative agencies). “A party seeking review of

an agency’s findings must prove they are unsupported by any competent evidence.”

Maine Bankers Ass'n v. Bureau, 684 A.2d 1304, 1306 (Me. 1996) (emphasis added).

“When the dispute involves an agency’s interpretation of a statute administered

by it, the agency’s interpretation, although not conclusive on the Court, is accorded

great deference and will be upheld unless the statute plainly compels a contrary result.”

Maine Bankers Ass'n, 684 A.2d at 1306 (citing Centamore v. Department of Human Services,

664 A.2d 369, 370 (Me. 1995)).

Petitioner’s central argument is that he was never an “employer” under Maine

law despite being listed as the record President, Treasurer and an officer of Dow

Roofing. This averment goes to both strands of the argument he offers in this court.

As a matter of fairness and equity he asserts that holding him responsible for

unemployment compensation taxes is unjust as he served as President, etc. only as a

‘family duty and his role was barely that of a figurehead. Petitioner asserts that the

methods used to give him notice of the Bureau’s assessment were only applicable to an

“employer” and not applicable to a person accused of being a mere “responsible

individual.”

Respondent defends the correctness of its refusal to grant petitioner’s appeal and

especially the correctness of its decision not to reconsider petitioner’s appeal citing the

strict time limits set forth for perfecting an appeal in the Employment Security Law:

1. APPEAL TO THE COMMISSION.

A. An employer may appeal determinations by the commissioner or

the commissioner's designated representatives made under sections 1221,

1222 and 1225, or an assessment made under section 1225, to

the commission by filing an appeal, in accordance with regulations

that the commission prescribes, within 30 days after notification is mailed

to the employer's last known address as it appears in the records of the

bureau or, in the absence of such mailing, within 30 days after the

notification is delivered. If the employer fails to perfect this appeal, the

assessment or determination is final as to law and fact.

12 M.RS.A. § 1226(1)(A).

Respondent asserts that the Law Court has held the statutory time limits to be

jurisdictional and therefore to be'strictly enforced.

[Clourts are not at liberty to read into the Act provisions which the

Legislature did not incorporate therein, nor may they enlarge the scope of

the statute, under the guise of construing the legislation. Toothaker v. Maine

Employment Security Commission, Me., 217 A.2d 203, 210 (1966); Red Bird v.

Meierhenry, S.D., 314 N.W.2d 95, 96 (1982). It follows that the

administrative authorities, as well as the courts themselves, have no

inherent power to extend or ignore statutory appeal periods in the

absence of delegated statutory authority to do so. See Whitchurch v.

Department of Employment Security, 139 Vt. 566, 433 A.2d 284, 286 (1981).

The specific periods of appeal statutorily affixed to the several steps in the

chain of administrative review are jurisdictional and mandatory.

McKenzie v. Maine Employment Sec. Com., 453 A.2d 505, 509 (Me. 1982).

Respondent also notes that although petitioner avers that he did not receive

notice and was unaware of the assessment until he received the disclosure subpoena he

never contends that the assessment and notice were not sent to his address.

Respondent cites authority for the proposition that the mailing procedures they

undertook comport with due process requirements. State v. Lamare, 553 A.2d 1260, 1262

(Me. 1989) ("mail addressed to a licensee at the address he himself supplied is

reasonably calculated to reach him.") quoting State v. Kovtuschenko, 521 A.2d 718, 719

(Me. 1987).

Petitioner’s failure to appeal the assessment made that assessment final 30 days

after October 8, 2002. Petitioner’s failure to appeal that assessment until the reality of a

warrant and a disclosure subpoena spurred him to action in an untimely manner —

created a fatal jurisdictional defect in his appeal.

The entry will be:

The decision of the State of Maine Unemployment Insurance

Commission of June 6, 2003, in the matter of Case No. 03-E-09032, Account

No. 01-67597-009 denying petitioner’s appeal from an assessment of

responsible individual determination issued by the Maine Department of

Labor, Bureau of Unemployment Compensation Divisions is AFFIRMED.

Dated: March 22 _, 2004 CO

<— fonald H. Marden

Justice, Superior Court

Date Filed

Docket No. __AP03-5]

Kennebec

8/29/03

‘County

Action Petition for Review

Christopher Russeil

80B

J. MARDEN

VS. State of Maine, Unemployment Insurance Comm

Plaintiff’s Attomey

Brian Condon, Esq.

258 Main Street

Winthrop, Maine

Defendant’s Attorney

Pamela Waite, AAG

Elizabeth Wyman, AAG.

Office of Attorney General

6 State House Station

Augusta ME 04333-0006

04364

Date of

Entry

8/29/03 Petition for Review,Determination of Liability, filed. s/Condon, Esq.

9/12/03 Letter of Appearance on behalf of the State of Maine, filed.

s/P. Waite, AAG and E. Wyman, AAG.

9/25/03 Administrative Record, filed. s/Waite, AAG

9/29/03 Notice of briefing schedule mailed to attys fo record.

11/4/03 Pettioner's Brief, filed. s/Condon, Esq. (attached exhibit A)

12/8/03 Brief of Respondent Maine Unemployment Insurance Commission, filed.

s/Waite, AAG

12/19/03 Petitioner's Reply Brief, filed. s/B. Condon, Esq. (filed 12/18/03)

Notice of setting fof 3l “| o¢ .

sent to attorneys of record. —

3/4/04 Oral arguments had with Hon. Justice Donald Marden, presiding.

Brian Condon, Esq. for the Plaintiff and Elizabeth Wyman, AAG for the State.

Oral arguments made to the court. Court totake matter under advisement.

3/24/04 DECISION AND ORDER, MARDEN, J.

The decision of the State of Maine Unemployment Insurance Commission

of June 6, 2003, in thematter of Case No. 03-E-09032, Account No. 01-67597-

009 denying petitioner's appeal from an assessment of responsible individual

determination issued by the Maine Department of Labor, Bureau of Unemploy-

ment Compensation Divisions is AFFIRMED.

Copies mailed to attys.

Copies mailed to Deborah Firestone, Garbrect Library and Goss.