The opinion
STATE OF MAINE SUPERIOR COURT
KENNEBEC, ss. CIVIL ACTION
Doc1<et No.: 10-APJ.2;
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~ IV / K E A)~ (o !3I 7 0 I I
Bryan Higgins,
Petitioner
DECISION AND ORDER
V.
Maine Criminal Justice Academy,
Respondent
This matter was heard on May 24,2011, on Petitioner's request, pursuant to M.R.
Civ. P. SOC, for judicial review of Respondent's decision to revoke Petitioner's
certification to work as a law enforcement officer in Maine. 1 Attorney William
McKinley represented the Petitioner. Assistant Attorney General Leanne Robbin
represented the Respondent.
Factual/Procedural Background
As of May 28, 2008, Petitioner had been employed as a Maine State Trooper for
approximately 18 years. At that time, Petitioner owned a 16-foot motorboat that he was
1
On May 12,2010, Petitioner filed a Motion for Additional Evidence by which motion Petitioner requested
that the Court include the April 4, 2011, decision of an arbitrator following a hearing at which Petitioner
challenged his termination from his employment as the result of the incident that is the subject of this
matter. The arbitrator concluded that there was no just cause for terminating and ordered Petitioner's
reinstatement provided that he is certified as a law enforcement officer in the State of Maine. Because the
decision was not rendered until April 4, 2011, Petitioner could not have filed his request with 10 days of the
filing of the record as required by M.R. Civ. P. 80C(e). Insofar as Petitioner filed the request within a
reasonable time after the issuance of the decision, the Court considers the request to be filed timely. In
addition, although the relevance of the decision might be marginal, the fact that Petitioner has employment
available as a law enforcement officer is at least arguably relevant to the appropriateness of the sanction
imposed in this case. The Court, therefore, grants Petitioner's motion and supplements the record as
requested.
offering for sale. On May 28, Robert Green expressed interest in the boat, and met with
Petitioner at Petitioner's home in Levant to inspect the boat.
After viewing the boat, Mr. Green agreed to purchase the boat for $1,740 in cash.
Before completing the purchase, Mr. Green wanted to take the boat to a local lake to test
the boat. Petitioner agreed with the understanding that he would hold Mr. Green's money
until Mr. Green returned with the boat. In the event Mr. Green decided not to purchase
the boat, he would return the boat, and Petitioner would return Mr. Green's money. Mr.
Green agreed that if he damaged the boat, he would be obligated to purchase it.
When Mr. Green returned to Petitioner's home, he informed Petitioner that he was
not interested in purchasing the boat. In the course of a brief inspection of the boat,
Petitioner noticed some damage to the propeller of the boat's motor. Petitioner,
therefore, withheld $100 of Mr. Green's money to compensate for the damage. He
returned the balance of the money to Mr. Green. As Mr. Green was leaving Petitioner's
property, Petitioner noticed more damage to the propeller. Although Petitioner called to
Mr. Green, Mr. Green proceeded to leave the premises.
Throughout his encounter with Mr. Green, Petitioner was off duty and was not
wearing his law enforcement uniform. When Mr. Green failed to stop despite
Petitioner's request, Petitioner retrieved his State Poiice vehicle from the garage in order
to pursue Mr. Green, to stop him, and to discuss the issues regarding the boat. At the
time, Petitioner's personal truck and his wife's vehicle were in the driveway.
As Petitioner pursued Mr. Green, using the radar with which his vehicle was
equipped, he determined that Mr. Green was traveling at a speed of 76 miles per hour in a
45 mile per hour zone. Petitioner then decided to stop Mr. Green for criminal speed.
After the stop, Petitioner placed Mr. Green in handcuffs, took him into custody, and
advised him that he was going to jail. Petitioner acknowledged that he does not typically
arrest an individual for criminal speed, but that he was influenced by his personal
involvement in the case.
Thereafter, Petitioner transported Mr. Green back to Petitioner's home. While at
his home, Petitioner subjected Mr. Green to a "pat down." During the "pat down,"
Petitioner detected the cash that Mr. Green had originally tendered for the boat.
Although Petitioner understood that the purpose of a "pat down" was to search for
contraband or items that could pose safety concerns, Petitioner removed and retained the
cash because he believed that he was entitled to the cash given his agreement with Mr.
Green.
At some point after arriving at his home, Petitioner decided not to take Mr. Green
to jail. Instead, he issued a summons to Mr. Green. As Petitioner was preparing the
summons, Mr. Green said that he "would take the boat."
On March 6, 2009, the State charged Petitioner with Official Oppression, in
violation of 17-A M.R.S. § 608. After a two-day trial, the jury was unable to reach a
verdict. The State subsequently decided not to retry the case provided that Petitioner
performed 20 hours of public service and refrained from future criminal conduct.
During the pendency of the criminal matter, based on the incidents of May 28, the
Board of Trustees of the Maine Criminal Justice Academy (the Board) informed
Petitioner of its decision to revoke his certificate to act as a law enforcement officer.
Petitioner subsequently requested an adjudicatory hearing to be held after the conclusion
of the criminal matter. On May 20, 2010, Hearing Officer James Smith conducted an
adjudicatory hearing after which he recommended the revocation of Petitioner's
certificate. The Board, on June 11, 2010, adopted the recommendation of the Hearing
Officer. Petitioner timely filed a request for judicial review pursuant to M.R. Civ. P. SOC
and 5 M.R.S. § 11002(3).
Discussion
In its review of agency action, the Court is "limited to the record upon which the
agency decision was based ... " 5 M.R.S. § 11006(1). The Court reviews "decisions
made by an administrative agency for errors of law, abuse of discretion, or findings of
fact not supported by the record." Save Our Sebasticook, Inc. v. Bd. of Envtl. Prot., 2007
ME 102, ~ 13, 928 A.2d 736, 740 (quotation marks omitted). In this review, the Court
"shall not substitute its judgment for that of the agency on questions of fact." 5 M.R.S. §
11007(3).
The Court "must affirm findings of fact if they are supported by substantial
evidence in the record, even if the record contains inconsistent evidence or evidence
contrary to the result reached by the agency." Friends of Lincoln Lakes v. Board of
Environmental Protection, 2010 ME 18, ~ 13, 989 A.2d 1128 (citations omitted). "The
'substantial evidence' standard does not involve any weighing of the merits of evidence.
Instead it requires us to determine whether there is any competent evidence in the record
to support a finding. Administrative agency findings of fact will be vacated only if there
is no competent evidence in the record to support a decision." Friends of Lincoln Lakes,
2010 ME 18, ~ 14 (citing, Lakeside at Pleasant Mountain Condo. Ass'n v. Town of
Bridgton, 2009 ME 64, ~ 11, 974 A.2d 893, 896; Fitanides v. City of Saco, 2004 ME 32,
~ 23, 843 A.2d 8, 15).
In this case, the Board determined that Petitioner's conduct constituted Official
Oppression, which is prohibited by 17 M.R.S. § 608, and, as a sanction, revoked
Petitioner's law enforcement certificate. Petitioner challenges both the finding of Official
Oppression and the sanction imposed.
Pursuant to 25 M.R.S. §2806(1)(B)(2), the Board "[m]ay suspend or revoke" an
officer's law enforcement certificate if the officer "[h]as engaged in conduct that is
prohibited ... by any provision of the Maine Criminal Code, chapter 15, 19, 25, or 45."
The offense of Official Oppression is included within chapter 25. According to Maine
law, "[aJ person is guilty of official oppression if, being a public servant and acting with
the intention to benefit himself or to harm another, he knowingly commits an
unauthorized act which purports to be an act of his office." 17-A M.R.S. § 608(1)
(2010).
The record establishes that Petitioner used his police vehicle to pursue an
individual (Robert Green) for the purpose of resolving a private dispute. Although Mr.
Green might have subsequently engaged in conduct for which Petitioner could
legitimately stop Mr. Green's vehicle, the fact remains that Petitioner intentionally used
the vehicle under circumstances that he knew to be inappropriate and unauthorized.
Even if the individuai 'slater conduct is such that Petitioner's use of the vehicle to
pursue Mr. Green for a private purpose cannot serve as the basis of a finding of Official
Oppression, Petitioner's actions after stopping the vehicle independently support the
Board's conclusion. After placing Mr. Green in handcuffs, a practice that Petitioner did
not routinely employ when he stopped an person for criminal speed, Petitioner
transported Mr. Green back to Petitioner's house to view the damage to the boat. At
Petitioner's home, Petitioner searched Mr. Green, and confiscated and retained the money
that Petitioner had previously tendered for the boat. Although Petitioner's search of Mr.
Green is arguably appropriate under the circumstances for safety reasons, his confiscation
and retention of the money is clearly not justified as part of his arrest of Mr. Green for
criminal speed. The record, therefore, contains substantial evidence to support the
Board's finding that Petitioner "knowingly commit[ted] an unauthorized act that
purport[ed] to be an act of his office."
Petitioner also contends that Respondent's decision to revoke Petitioner's
certificate was arbitrary, capricious, or an abuse of discretion. In support of his
argument, Petitioner cites a number of other matters in which Respondent imposed lesser
sanctions for what Petitioner characterizes as more serious conduct.
Although a comparative analysis of other sanctions might have some relevance to
the Board's determination of the appropriate sanction in Petitioner's case, such an
analysis is not controlling. The Board must assess each case on its own merits. Here, the
Board determined that revocation was warranted. In this case, the Board concluded that
Petitioner used his status as a law enforcement officer to obtain money from an individual
with whom he was involved in a private dispute. Given that the conduct was directly
related to his role as a iaw enforcement officer, and involved the misuse of the authority
afforded him as a law enforcement officer, the Court cannot conclude that the Board's
decision was arbitrary, capricious or an abuse of discretion.
Conclusion
Based on the foregoing analysis, the Court affirms the June 11, 2010, decision of
the Board of the Maine Criminal Justice Academy.
Pursuant to M.R. Civ. P. 79(a), the Clerk shall incorporate this Decision and
Order into the docket by reference.
Dated: ~Pf 3/11 ..v---
uperior Court
1-
Date Filed 7 I 2 /1 0 Kennebec Docket No. AP-10-22
County
~USTICE ASSIGNED: ROBERT MURRAY
Action Petition For Review
80C
Bryan Higgins vs. Maine Criminal Justice Academy
Plaintiff's Attorney Defendant's Attorney
William K. McKinley, Esq. Leanne Robbin, AAG
PO Box 9711
Portland, ME 04104-5011
Date of
Entry
7/9/10 Petition For Review Of Final Agency Action, filed 7/2/10. s/McKinley, Esq.
7/14/10 Return mail receipt served on Janet Mills, AAG on 7/7/10.
Return mail receipt served on John Rogers, on 7/7/10.
8/2/10 Certification of Record, filed. s/Robbin,.AAG (record in vault)
Index to Record, filed.
NOTICE AND BRIEFING SCHEDULE ISSUED
Copies to attys. of record.
9/13/10 Petitioner's Brief on 80C Appeal and Final Agency Action filed by Atty
McKinley.
9/27/10 Respondent's memorandum of law filed by Leanne Robbins, AAG.
10/6/10 Petitioner's Reply Brief, filed. s/McKinley, Esq.
NotJc'/3 of sottmg tor. t~y J, 4/ J;£ I L. ..U_) I~ liD (}· N/ v' /~ oll
sent to attorneys of record.
5/12/11 Petitioner's Motion for Additional Evidence and Incorporated Memorandum,
filed. s/McKinley, Esq.
5/23/11 Memorandum in Opposition to Petitioner's Motion for Additonal Evidence,
filed. s/Robbin, AAG
6/15/11 DECISION AND ORDER, Nivison, J. (6/13/11)
Based on the foregoing analysis, the Court affirms the June 11, 2010,
decision of the Board of the Maine Criminal Justice Academy.
Pursuant 'toM.R.Civ. P. 79(a), the Clerk shall incorporate this Decision
and Order into the docket by reference.
Copies to attys. of record.