The opinion
STATE OF MAINE SUPERIOR COURT
CUMBERLAND, ss. DOCKET NO AP-09-25 ,
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BRIAN BAILEY,
Petitioner
v.
INHABITANTS OF THE
TOWN OF YARMOUTH, MAINE,
Respondent.
ORDER
Before the Court is Petitioner Brian Bailey's ("Bailey") Rule 80B appeal of the
Town of Yarmouth's ("Town") March 2, 2009 decision terminating his employment.
Following hearing, the appeal is DENIED.
BACKGROUND AND PROCEDURAL HISTORY
The issue before the court is whether the Town wrongfully terminated Bailey's
employment. The Town hired Bailey as a Waste Water Treatment/Collection Systems
Operator on November 14,2006, employment beginning on November 20,2006. The
terms and conditions of Bailey's employment were governed by a collective bargaining
agreement with the Yarmouth Waste Water Division Employees Association.
Bailey's personnel file, part of the administrative record utilized by the Town,
contains documentation of various incidents of Bailey's poor job performance:
• A warning letter dated January 7, 2008, from Dan Jellis, the Town Engineer, to
Bailey that relieved Bailey from snow plow duties after Foreman David Cline
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reported that Bailey exhibited loud, angry, and irrational behavior when reporting
for duty on December 29,2007;
• A letter dated June 30, 2008, from Jellis to Bailey documenting two occasions
which Bailey did not report to work or inform his supervisor when he would
return to work;
• A letter dated December 1,2008, from Lead Operator Chris Cline to Bailey's
Supervisor, Tom Connolly, that states that Bailey did not check the pump room as
assigned, did not refuel or test run the portable or plant generator as assigned, and
left early without permission. When questioned about these assignments Bailey
responded that he forgot;
• Critical IncidentlEvent Log: Connolly documented Bailey's performance between
January 20, 2009-January 30, 2009. The documentation indicated that:
o Bailey failed to tell a lead operator about his medical restriction for lifting;
o Bailey did not follow through with the cleaning, greasing, refueling, or
charging of a loader and compost mixer resulting in a dead battery and 5
yards of frozen compost in the mixer;
o Bailey lied about checking pump stations and associated alarms, indicating
that he had checked them, even though the computer system that records
alarm tests indicated they had not been tested;
o Bailey was assigned to check pump stations and stated that the wet well
floats did not need to be cleaned even though they had been checked by
the Supervisor the day before who indicated that they were in dire need of
cleaning;
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o Bailey asked to leave work early because of back pain, but was later
observed plowing driveways in his personal vehicle;
o Bailey called in sick claiming that he fell on the ice at home and broke his
foot, but upon return he brought in a worker's compensation form from his
doctor stating that his foot was injured at work, and when asked why he
did not correct the form prior to leaving the office he feigned ignorance.
On March 2,2009, by letter from Dan Jellis to Bailey, Bailey's employment was
terminated. The reasons listed in the termination letter included: a pattern of inattention
to duties; not providing medical documentation of a return to work date; and for
fabricating facts to supervisors about work accomplished. On that same day, Bailey went
to Town Manager Tupper's office to protest the termination and refute the claim that he
lied about checking the pump station in January. Tupper advised Bailey that he needed to
use the formal grievance process and directed him to check with the union about
representation.
Subsequently Bailey filed an oral grievance with Connolly, which was denied on
March 10, 2009. On March 12,2009, Bailey, through his attorney, sent a grievance
appeal letter to Town Manager Nathaniel Tupper. Tupper forwarded the letter to Town
Engineer Jellis in accordance with Step B of the Wastewater Division Union Contract
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gnevance process.
1 The Wastewater Grievance procedure states:
Grievances, which for the purposes of this Agreement shall be defined as disputes with
respect to the interpretation of application of the specific terms of this Agreement, shall be
processed in the following manner:
A. An employee who believes he has a grievance shall first present the grievance, in an
informal manner, within seven (7) days of its occurrence, to the division supervisor.
A reasonable effort shall be made to resolve the grievance, informally, with seven (7)
working days.
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On March 20, 2009, Jellis forwarded Bailey his entire personnel file and
responded to his grievance letter. Jellis reiterated the reasons for discharge as: "1) Lying
to his supervisor about work accomplished, 2) A pattern of inattention to his duties: and
3) An apparent lack of attention to and a disregard of requests to keep Tom informed of
when Brian would be able to return to work."
On April 3, 2009, Jellis and Connolly met with Bailey and his attorney to discuss
the termination. On April 7, 2009 Bailey, through his attorney, submitted a proposed
settlement to the Town with an offer to complete a substance abuse and anger
management evaluation, counseling, dropping the requests for back pay, and 20 hours of
community service in exchange for keeping his job. By letter dated April 10, 2009, Jellis
informed Bailey that he would not reverse his decision to terminate his employment, and
that Bailey had the right to appeal his decision to the town manager.
On May 12,2009, Town Manger Tupper met with Bailey, his attorney, and Jellis
for Step 3 of the grievance process. At the meeting Bailey objected to Tupper's questions
regarding whether Bailey's current description of the events of January 27 were
consistent with his March 2 statements to Tupper. Bailey objected that any consideration
of these conversations by Tupper would be unfair because when Bailey spoke to Tupper
B. If the employee is not satisfied with the decision rendered above, the union shall
reduce the grievance to writing and submit it to the Town Engineer within five (5)
days of the decision above. The written grievance shall contain: (a) a concise
statement of the events allegedly giving rise to the grievance, (b) the specific section
of this Agreement alleged to be violated, (c) all evidence available in support of the
claimed grievance and (d) a statement as to when the grievance arose, became known
or should have become know to the employee. A written determination with respect
to the grievance shall be made by the Town Engineer within five (5) working days.
C. If the decision of the Town Engineer is not satisfactory to the employee, the union
may appeal the grievance to the Town Manager, in writing, within three (3) days.
The Town Manager shall render his decision in writing to the employee and the
union within seven (7) working days of the date the grievance is received. In matters
pertaining to discipline and discharge, the findings of the Town Manager shall be
final and binding, pursuant to Town Charter there shall be no appeal therefrom.
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on March 2 his termination was not yet under review, and further, that Tupper should be
disqualified as an unbiased reviewer since he was an actual witness to the events. These
requests were denied. On June 2, 2009, Tupper rendered a decision upholding the
termination of Bailey's employment. Tupper also addressed Bailey's bias concerns as
unfounded since his inquiry was merely to gauge the consistency of Bailey's portrayals
of the January 27 incident, and further, that there were no substantial differences in the
way Bailey recounted his conversation of January 27 between March 2 and May 12, and
as such the impact of the conversations did not lead to any unfair preconceptions or
biases.
On June 29, 2009, Bailey filed an 80B complaint and two independent claims for
a Freedom of Access Act violation, and a Due Process Violation. Bailey's 80B brief
does not include a position on the Freedom of Access Act, and as such the court deems
the issue as waived.
DISCUSSION
I. Standard of Review
As an intermediate appellate court, the Superior Court reviews municipal
administrative decisions "directly for abuse of discretion, legal error, or findings
unsupported by substantial evidence in the record." Rowe v. City o/S Portland, 1999
ME 81, ~ 5, 730 A.3d 673, 675 (citing Twigg v. Town o/Kennebunk, 662 A,2d 914, 916
(Me. 1995)). "Substantial evidence exists when a reasonable mind would rely on that
evidence as sufficient support for a conclusion." Forbes v. Town o/Sw. Harbor, 2001
ME 9, ~ 6, 763 A,2d 1183, 1186. The burden of persuasion is on the party challenging a
municipal decision to show that the evidence compels a different result. Twigg, 662 A.2d
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at 916. The Court must not substitute its judgment for that of the municipal decision
maker on factual issues. Id.
Primarily at issue in this case is whether there was substantial evidence in the
record to support the Town's decision, and whether the Town abused its discretion by
failing to provide a fair and impartial hearing.
II. Substantial Evidence in the Record
Bailey asserts that the findings of the Town were not supported by substantial
evidence in the record. Administrative hearings are not subject to "the highly technical
rules of evidence." Frye v. Inhabitants ofthe Town ofCumberland, 464 A.2d 195,200
(Me. 1983) (citations omitted). "Substantial evidence exists when a reasonable mind
would rely on that evidence as sufficient support for a conclusion; the possibility of
drawing two inconsistent conclusions does not render the evidence insubstantial."
Adelman v. Town ofBaldwin, 2000 ME 91, ~ 12,750 A.2d 577, 583. The court considers
the entire record to determine if the hearing officer, "based upon all of the testimony and
exhibits before him, ... could fairly and reasonably find the facts as he did." Frye, 464
A.2d at 200.
In this case the Town Manager ultimately decided that Bailey's termination was
warranted due to his fabricating certain facts and pattern of inattention to work. The
Town Manager, as fact finder, determined that the supporting documents and testimony
of certain witnesses were sufficiently credible and probative to support a finding of
inattention to work detail and that Bailey's denials of the allegations were not credible.
Based on the entire record, the Court finds the evidence substantial enough that a
reasonable mind could have reached such a conclusion. This Court cannot substitute its
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own judgment for that of the hearing officer and because the record does not compel a
contrary result, the appeal on these grounds must be denied.
III. Due Process Violations
Bailey also alleges that his due process rights were violated throughout the
termination proceedings. To the extent that Bailey argues that his termination was
governed by the Town of Yarmouth Employee Handbook and not the Wastewater
Division Collective Bargaining Agreement, the court disagrees. The Statement of
Disclaimer and Collective Bargaining Unit Statement in the handbook both indicate that
the handbook is for informational purposes only, and that Wastewater Division
employees are governed by the terms and conditions of the collective bargaining
agreement.
Bailey also asserts that he was not afforded a fair and impartial hearing due to the
bias of Town Manager Tupper who presided over the Step C grievance hearing.
In order to provide an individual with a full and fair hearing, the hearing officer
must not prejudge the case. Frye, 464 A.2d at 199 (citing Seviginy v. City ofBiddeford,
344 A.2d 34, 40 (Me. 1975)). "[H]e should suspend his own judgment till the hearing is
completed, that it may be the result of the hearing, and not of a pre-conceived opinion."
Jd. However, "prior involvement in some aspects of a case will not necessarily bar a[n] .
. . official from acting as a decision maker." Jd. (quoting Goldberg v. Kelly, 397 U.S.
254,271, 90 S. Ct. 1011, 1022,25 L. Ed. 2d 287,301 (1970) (noting that a degree of
"familiarity and informal contact with a case by a hearing officer is a common
phenomenon in many administrative agencies. That the review officer is familiar with, or
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even has formulated opinions about the facts of a case prior to review is not in itself
sufficient to disqualify him."».
The court finds no evidence in the administrative record suggesting that Tupper's
role in Bailey's termination tainted the result such that Bailey's due process rights were
violated. 2 See Lane Constr. Corp. v. Town a/Washington, 2008 ME 45, ,-r 29,942 A.2d
1202,1210-11. Although Bailey went to the Town Manager Tupper's office immediately
after receiving his termination and told Tupper that he never lied about the events that
occurred on January 27, this did not necessarily render him biased. Tupper's Grievance
Appeal Decision demonstrates that he thoroughly examined all aspects of Bailey's claim,
reviewed all relevant evidence, and came to a decision based on the evidence before him.
On the record, his actions cannot be said to be a result of bias.3
CONCLUSION
The entry will be as follows:
Petitioner's Rule 80B appeal is DENIED; the Town's Administrative decision is
AFFIRMED. The clerk shall incorporate this Order into the docket by reference pursuant
to M.R. Civ. P. 79(a).
2 The court notes that Bailey's motion for trial on the facts was denied by this court on September
23,2009, therefore the court only considers at the administrative record in making its decision.
See Lane, ~ 29,942 A.2d at 1210-11.
3 Bailey relies on Moore v. State ofMaine Board ofDental Examiners, KEN-AP-07-65 (Decision
and Order, April 15,2008). However, the fact that Bailey went to the Town Manager's office
immediately after receiving his termination and told him that he had not lied to Connolly does not
make the Town Manager a witness. Moreover, the facts in Moore are inapposite to the facts here.
In Moore, the Board's determination was that the petitioner did not meet the minimum accepted
standards of practice. The patient, NF, sought a second opinion from an oral surgeon who was
also a member of the Board, who encourage the patient to file a complaint with the Board, and
who testified as an expert witness before the Board. In vacating the Board's decision, the court
reasoned that "his role as a sitting board member combined with his pre-complaint treatment of
NF, his role in advising NF to file a complaint, his expressed opinions of the efficacy of the
complaint as seen by the Board on which he sat, combine to create an intolerable risk of bias or
unfairness." [d. None of those factors exist in the case at hand.
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