Webber V. Town of Ogunquit

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SUPERIOR COL"RT CIVIL ACTION DOCKET NQ_ CV-1 0-309 SfATEOFMAJ:'<E YORK, SS. JljQ- '/DR- DI-;U-t5 JO'-fATHANL WEBBER, Plaintiff, ORDER TOWN OF OGlliQUlT, Defendant. L Background A. Procedural Posture Plaintiff Jonathan Webber brings this M.R. Civ. P SOB appeal together with an indepeudcnt cause of action for due process violations against the Town of Ogunquit arising out of his termination from employment as Director of Public Works Before the court are (1) cross-motions for summary judgment on Webber', due process claim and damages sought under Section 1983, and (2) opposing Rule SOB bnefs appealing the Town of Ogunquit's decision_ B. Facts The parties agree on the following facts unless otherv,.;se indicated_ Jonathan Webber ("Webber") was employed a1 the Director of the Department of Public Works in Ogunquit, Maine for 34 years prior to his termination_ (Def's S.M.F_ Def's SMF ~ ~ I; PI's Opp. L) At the time Webber was terminated, he reported to Thomas Fortier [ ('Fortier"'), who was then the Town Manager (Def."s S M_F ~'"]6, 9) There were no pen;onal or profess1 onal conflicts ben,.een Webber and F ort1er (Def 's S :'vi F _ 1: 7 ) Webber had an e;:ernplary record and received positive reviews throughout his tenure (PL'sSMF ~2) 1. Webber's OUl and License Suspension On Feburary 14, 2010, Webber was dming his per;onal vehicle in DoverFoxcroft, Maine when he was "1opped and arrested by police for operating under the mfluence of alcohoL (Def's S M F_ ,-'i[l0-11; PL's Opp_ Def" s S_M_F ~ 12) Fortier later testified before the Select Board of Ogunquit he heard about Webber's arrest "through the grapevine··! and in fact had previou;ly been asked by Jackie Bevm~, S_M_F a member of the Select Board, ''what he was going to do about it?'' (Def's ~ 18_) During a meeting between Fortier and Webber, Fortier represented that he was taking no disciplinary action on the OUI at that time (DeCs S_:'vf_F_ ~ 23) Fortier al:;o told Jackie Bevins he would take no adverse employment action because of the OUI (PI's S.M.F. ~ 40) Webber hired Attorney Jon Gale ("Attorney Gale'') to represent him in the OLJ case_ (Def's S_:\1 F ~ 26) Attorney Gale filed a notice of appearance, entered a '·not guilty'- plea, requested a jury trial, and requested an administrative hearing with the Bureau of Motor Vehicles CBMV''). (Def 's S :'vi F ,-~ 27-28) A B:\1V letter dated April 8, 2010 confirmed that Webber's license suspension was stayed pending further proceedings and he was permitted to dnve (PI'~ 1 S.MF f 12.) Due to a clerical error at The parues dispme wher> Webber and Fortler first di><:usscd the OUL Accordmg to \Vebber, Jt was d1scussed on 'numerous occasioru'' and Webber brought it up first (Pl.'s Opp. Def·s S_M F_ ,- L) In the Town's view, Forner confronted Webber weeks after Jt occurred. (Def.'s S_M F_ ,nl19-20.) 2 the Dover-Foxcroft District Court_ the appearance and plea was not docketed, this resulted m a "failure to appear'" and an arrest warrant was erroneously issued for Webber's arrest (Def '> S M F 11~ automatically (Def's S_Mf f 35 ) 2 32-35) As a result, his license .... as suspended Neither the Dlstrict Court nor the BMV notified Webber or h1s counsel that his license had been wspended for failure to appear (DeC s S.\1F '"]39) On May 14, 2010, Webber contacted Sharma Damren (''Damren"), an employee of the Ogunquit Police Department, who confirmed that his license had been suspended and there was a warrant for his arrest Damren told him how to ·"turn himself in'' (Def's S .'\1 F '11'11 41-45) Webber was confused, because hi~ attorney had informed him that according to the Bureau of Motor Vehicles, his license was not suspended (PI's Opp Def's SMJ'- '1'1141-45_) On the morning of Mav 17, 2010, Webber spoke with Fortter and informed him he would be out of work for a week for medical reasons (Def's S_M F f 58.i Just after lunch that same day, Attorney Gale called Webber and advised him tha.t his license wa.os suspended effecthe at m1dnight (meaning 12·00 AM, !1.1ay 18, 2010) (Def_'s SM.F. f 61.) Webber and Fortier spoke again the afternoon of \1ay l 7 (Def 's S M_F_ '1['"]62-63.) The parties dispute whether Webber brought up the suspen,ion during the conversation of the afternoon of May 17 'On May 18, 2010, Fortier called Webber to tell him tha.t 'Webber had no knowledge these of these eYeots at the tanc they trmspired_ (Pl.-, Opp_ Dd's S M F ~ 33-35.) 'Webber claims they d1scussed the OU; Fortier tesTified otherwlSe. (PI_ 's Opp_ Def_ 's S M F. ~58.) 4 Webber testtficd that he mfonned Fort1er about the suspensiOn, wh1ch Webber's daughter overheard. (Dcf's S..'vtf '~162-65.) Fort1cr testified that Webber d1d not inform h1m, and the Select Board •ccepted Fortier's >ersion (Dcf's S M F ,i'f 66-67.) 3 because of the suspension, the Tuwn needed tO pick up \Vebber's Town vehicle (Dcf's S M.F. ~ 70.) 2. Webber'~ Termination and Hearings on the Matter On May 21, 2010, Webber returned to work and Fortier handed him a letter stating he was terminated for failure to noli£).· the rown Manager of the suspension within 24 hours pursuant to Personnel Rule 5 l8(c). (Def.'s S MF ~ hcen~e 75) The Town of OgunqU1t's Personnel Rule 5. 18(c) provides ''The department head or To...n Manager shall be nonfied 1mmediately (w1thm 24 hours) in the e\enl a dri . . er's license is suspended or revoked for any reason" (Dcf 's S M F ~ 50)' The letter states ''since you have violated the Town's Personnel Rules. th1s letter serves as your notice oftermmation, effective immediately,. The deci>,iOn to fire Webber had been made pnor to 'vlay 21, 2010. (PI's S M F ~ 69) Webber, "-ith the a~sistance of coun~el, filed a letter challenging the termination for failure to provide a pre-termmation heanng (Def.'.l S.MF~8l) On July 14, 2010, a meeting was held with Fortier. the Ogunquit Police Chief, Town Counsel Linda \-fcGill ("Attorney McGill"'), Attorney Gale, and Attorney Susan Driscoll ("Attorney Driscoll'') as counsel for Webber, in attendance (Def 's S.M F. f 84.) The Tovm states that at this meeting, Fort1er "received more information'' than at th.c May 21, 2010 meeting Webber counters that this is obvious because Fortier "wa~ not presented any information prior to or at the time of the tennination •- (PI 's Opp. Def 's S.M.F ~'1 86-87) Fortier issued a letter on August 'i. 2010, upholding the termination decision. (Def's S M F. '1 88) Webber appealed to the Select Board and requested a publicheanng (Def'sS.MF.,91) 1 Webber was aware of the policy (Dcf ·s S Yl F f 52) 4 A hearing occurred September 14, 20!0 (Def.'s SMF ~ 92_) Ev1dence was submitted and Fortier, \Vebber, Artomey Gale, and Attomey Driscoll all te,1ified before the Select Board (Def 's S .\1 F f 92 ) 0 "!he hearing was ultimately continued to September 16, 2010 becauoe of a scheduling ~lmfltct (Def's S M.F m]JOJ-02.) At the September 16 hearing. Attorney Driscoll delivered a summary argument and then the floor was opened for questions_ (Def 's S .\-1 F_ n 106-07.) Fortier answered questions from the Select Board; \Vebber was not allowed to cross-examine him_ (PL's Opp Def. 's S M F 'f 109) After 57 mmutes, a motion was made for an executive session to be held outs1de the presence of the public (Def 's S M F ~ 110) After the executive session, the Board retumed to deliberate (Def 's S .\1 F ~'11 110, I 13_) A motion to reinstate Webber was made and failed, with only Board .\1ember Score in fa\· or (Def's S.M.f 'l'li 1!5-16.)' Thcrealler a motion to uphold Town .\tanager Fortier's decJSion was made and passed 4-1. (Def's S M.F. ~1~1119-20) Attomey McGill composed a written decision that the Board adopted on September 27, 2010. (Dcf's S.MF. ~~~ !24-25 ) 8 3. Jackie Bevins The Town denies or objects to most assenion< about Select Board .Member Jackie Bevins ("Bevms")- (Def's Resp pr_·s S \1.F 'li'l44-54) '!oncthe1ess, the fown admits 'Accordmg to Webber, at tills time he d1d not have accc;s to the packet comp1led for the Board, and was una" arc Boord Member Jackie Be,ms had ·1argctcd" him_ (Pt."s Opp Def's S.M.F_ 'f 94.) The packet conta1ncd a poster wi1h Webber's pollee mugshot cropped mto an old western-S!) lc '"WA:"-l TED'" border (DeC s Rcsp_ PI 's S. M.F ~ 80_) 'The Town· s add1tional >latemm! of facts is almost exclusi>cly devoted to pamting Board :'vlember Score man unfavomble light. (Dcf's Addt'l S.MF ,, l-22) Webber respunds that these factual allegal!ons arc irrelenml (PI 's Resp De f.'s Addt"! S M. F ~l-22 ) 'Webber contends the deciSIOn com:nns find1ngs n<Yer made b) the Board. (PL 's Opp_ De f.'s SMF.11l) 5 (I) Fortier first learned About Webber"> OCT from Bevin;, (2) Devins demanded to know what Fortier would do about it and he said he did not plan to do anything about it, (3) Bevins apparently ·'used the -r word' all the time"', (4) Bevins ~ailed Webber a «fucking crook" in Fortier's presence on numerous occasions. and (S) Bevins told Fort1er to fire \Vebber_ (Def 's Resp PI 's S M F 'li~ 45, 46, 49, 50, 60,61 ) According to Select Board .\1ember \tichael Score's deposition testimony, upon learning of the OUT, Bevins told Fourticr somethmg like, "this is the excuse you have to f1re that fuckmg crook, now we got him \Vhcre we want him We got him., (PL 's S_.\f_F ~ 62, R 654 ) Score further testified that he had ex parte Bevin~ communica~ons in which told him to uphold the decision to terminate 'Webber (Pl.'s SMF. 'l 77) According to Score's handwritten notes from the proceedings and depositioll., during the executive session of the September 16, 2010 hearing, Bevin< said "fuck the law. fuck Jon Webber" (PI's SM_F ~ (Def'sResp.PL'sSMF 93; R 379, 670, 706) The To-wn denies Score's allegations. f~62_77,93) II. Discussion The posture of tills case requires the court to consider Webber's 80B appeal and independent claims under separate starJdards of review_ The ~OB appeal is of the Town of Ogunquit Select Board's decision, while the mdependem claims are before this court's original jurisdiction JA Harvey, Mwne Crwli'ractice Rule 80B _r...-otes at 531 (3d ed_ 2011) 4,. Summary Judgment StarJdard Summary judgment is appropriate where there are no matenal facts m dispute and the moving party is entitled to judgment as a matter of law M_R Civ_ p_ 56 "A material 6 fact lS one having the potent1al to affect the outcome of the sUlt." Jiun±eil' Sohu.,, 2000 \1E 84, f 6, 750 A 2d 573 Where there i" ;uffic1ent evidence to support competmg ;ersions of matenal facts, the outcome must he decided by the factfinder at tnal .Vee rd. (citations omitted) B. Rule SOB Appeal Standard In SOB appeals. this court reviews the decision by the fact-finder below for errors of law, abuse of d1scretwn, or findings not supported by substantial evidence Frumds of Lmcoln Lakes v. Town of Lincoln, 2010 "'viE 78, ~ 9, 2 A 3d 284, Aydelmt v. Czry of Portland, 2010 ME 25. 'li 10,990 A.2d 1024 The party challenging the decimon below hm, the burden of proof to overturn the decision !d. Procedural unfairness is reversible error and a "decision can be 'arbitrary and capricious' if it was not the product of the requisite processes." Hopkins 11. Dep'l of Human Servs, 2002 \ffi 129, ~ 12, 802 A.2d 999 (citations omitted) This court re·views the operatlve decision 9 of the municipality directly. Stewart v. Town of Sedg!<-'lck, 2000 ME 157, ~ 4, 757 A 2d 773. C. Webber's Independent Claims The court fir>! considers, on croso-motions for summary judgment, Webber'< independent claims for due process violations and damages under Section 1983 1. Jurisdiction: \\'ehber '-fay Bring Independent Claims The Town asserts Webber's sole remedy for any due proces:; deiiciencics !S through his 808 appeal. (Def.'s Mot. Summ J 13.) Under Mame law, an 1ndependent 9 The parties agree the operati\'e decis,on rcv1cwcd here is the Boord's, not the Town Manager· s. (Pl · s Bncf24, Dcf's Opp Brief2-3.) The Boord clearly undertook de novo review because the Boord heard W!lne«es, cons1dcrcd c; 1dcncc, and reached a final decJS!On in the matter See Srewan, 2000 '\fE 157, ~ 4-7. 757 A 2d 773 7 cause of action may be brought in add1tion to 80B review __ 'vfercwr 1'. 10i+n of Fmrfie/d, 628 A 2d !053_ ]057 (VIe. 1993) ("That the court ha.IJUrildictwn to entertain a claim for revtew of government action pur>uant to Rule 80B does not prevent the filing of independent cn:li cla1ms otherwise available-·), see also So/mrt: v. Mame Sch Admm. Dlst.l>'o j9, 495 A2d 812,816 (Me 1985) (Ji·ee speech violation claim under Section !983 brought together with Rule 80!3 appeal) rhus, as a threshold matter. Webber may pursue independent claims together v,1th h1s Rule 80B appeal. The To"'n specifically emphasizes that the due proce"s claim lS duplicatlve of the 80B appeal-an argument addressed below in P:nt!I C 3 2. Due Process: Pre-Termination The cornerstone of due process is not1ce and a heanng. The State of \-faine and T0'-"11 of Ogunquit vests town managers with the power to remO\e employees only "for cause, after notice and hearing,. 30-A M R S § 2636; Ogunquit, Me , Town Charter § 405_5 The Ogunquit Town Charter thus vests pubhc employees with a property interest in continued employment Barber v. lnhah1tams of ?Own of Fairfield, 460 A 2d 1001, 1005 (Me 1983) (holding removal "for cause after notice and hearing" triggers due process protections) 10 A fonnal or elaborate pre-termination hearing is not required; the employee simply must ha\e an opportunrty to "clarify the most basic misunderstandings" and explain why termination is inappropriate_ ,\4oen v. lOwn of Fwrjield, 1998 Tl.fE 135, ~ 9, 713 A 2d 32L The part1es do not dispme the basic events leading to the tennination, but rather how to characteriz~ ~ach event Tn Webber's Yie>V, no pre-termination hearing occurred, 10 At oral argument, the 'lov.n conceded that Webber had a property lntcrcsJ m conlmm:d employment sufticJent to trigger due process prmccl.wm, but ar>,'lled Webber received all the process that was due under the law_ 8 because he received the May 21 termination letter wi!hout any notice he would be fired, and in fact Fortier had miginally informed Webber he would take no adverse action By Fortier's ov,<J admission, he was not yet aware of all the facts surrounding the OCI and license suspension on }v1ay 21 Becau>e the decision was made and the terminatwn letter issued before Webber had any chance to explam, Webber argues an unconsututional defect in pre-tenmnatwn process occurred The Town's characterizations arc somev.;hat incon;istent. The Town takes the position that the July 14 meeting was Webber's pre-tenninat10n opportunity to be heard and he rece1ved adequate process (Def', Opp Brief 6) In movmg for summar}' judgmem, the To"11 contends 1\lay 21-the day Webber received the termination Jetterwm, h1s "initial conference» to present his side of the story, and the letter was merely ·'written notice of the charges against him,. (Dcf's Mot Summ. J. 5) While Fortier admittedly decided to terminate Webber prior to May 21, the Tov,<J maintains the termination was not final until Augu>t 5, 2010. when Fortier i-~~ued a written opinion upholding the deciSion (Def 's .\lot Summ_ 7) The hearings before the Select Board on September 14 and 16 were po;t-termination hearings_ The Town cites Barber v_ fnhabirants of iO'>n of Fmrfie/d> 460 A.2d 1001 (Me 1983) and Frye v_ Inhabitams ofTawn of Cumberland, 464 ,\,.2d 195 (Me 1983) for the proposition that termination letters may be construed as mere suspension letters and therefore issued without any prc-tcrminacion process. (Dcf 's Opp PI 'o \1ot. Summ J. 57.) Barber involved a mther different situation_ There, a police chief had been reappointed year to year with one-year contracts_ The Tov,11 Manager composed several 9 letters warning the chief about misconduct thai violated personnel rules_ The chief was cvcntua!lv dismissed The fint letter merely informed the chief he would not be appointed the following year \lihen the chief appealed to the town council, the town manager suspended him with pay The second !cner_ alier the town council refused to support the dismis,al and the chief refu>ed to resign. dismissed the chief with pay pending another hearing before the town council Barher_ 460 A.Zd at 1003-04. Tellingly, after the chief got an attorney and !0\Vn counsel got involved, !he town rescinded the dismissal in a third letter a few days later and char4cterized the second letter as a suspension with pay_ Jd at !004 The Law Court held that the third letter '·acted to correct the language used in the March 5 letter" and the chief v,.as not prejudiced by the usc of"dismi,sar' rather than ·'su>,pension'' !d. at 1006. In Frye, a police chief v,.a_s >Uspendcd pending a month-long inve~;tigation into alleged violations of personnel regulations At the conclusion of the investigation> the chief received a letter mfoTTUing him he was terminated_ 464 A.2d at 196 Unlike Barber, where the police chief \Vas merely not reappointed for another year and was provided v,ith pay pending an opportunity to be heard_ Webber was summarily dismissed without warning or pay and no subsequent correspondence acted to remedy the dism1s&al without notice and a hearing The police chief m Frye had clear nol:!ce he faced terrmnation_ During the mvestigation, the chief was suspended for a month before finally rece1ving a tcrminatwn letter Webber, on the other hand, had no benefit of an investigation into the facts prior to the Iettcr and F OT\J er admitted he was not apprised of all the facts before the May 21 letter. Barber and Frye do not support the Town's sv.-eeping proposition_ Du~ process protecTions arc flexible and the process required can vary, but Webber plainly failed to receive any pre-deprivatiOn prncess. The 'vlay 2lletter clearly stated "tlus letter serves as your nol!ce of termination, efjec/ire 1mmedwtely" (emphasis added). rhe Town must take contorted positions to avoid the basic fact that the letter was, by its mvn terms, the effective tennination 11 The procedures thereafter cannot remedy the underlying constitutional violation_ Cleveland Rd. of Educ. v. Loudermil!, 470 1~ S_ 532, 542 (1985) (stating due process requires '·an indiv1dual be given an opportunity for a hearing before he is deprived of any significant property interest") (emphasis in original); Moen v. Tuwn rifFairfie/d, 1998 1\fE 135, f provided some warning and opportunity explain prior to termination)_ 10 9, 713 A2d 321 (holding employee must be The circumStances surrounding Webber's hcense :;uspension-a result of a clerical error at tlle Di,trict Court-is exactly the ·'mi<understanding" contemplated by requiring pre-termination pruce5s Moen, 1998 i\fE !35, <' 9, 713 A2d 32L Based on the undisputed facts_ Webber has established a prc-terminatwn depnvation of process entitling him to summary judgment on this aspect of his due process claim. 3. Due Process: Impartiality and Post-Termination Process The second component of Webber's due process argument touches on the impaniality of the proces~ he received \Vebber wntends that the termination decision and subsequent hearings -were tainted by bias and denied h1m due process (PL 's Brief 2729_) The Town raises two legal objections to Webber's claims ofbnus First_ the Town contends due process does not require a neutral arbiter_ (Def's Opp PI 's Mot Summ J As noted aboYe, the Town !.ales the poSition thm the Jul~ !4 mccnng was \Vebber"s prcl<:rmrnation opportun1ly lObe heard_ (Def-s Opp. Brief!,_) This effecti,·cl~ reads the word •·terminated'- out of the letter. That the letter was intended to tcrmmatc Webber '-' further confirmed by Fortier's August 5 letter. which references the Town Manager's "deciSion_ rommunicated to you by leuer on May 21, 20 l 0, to termmal<o your employment -, 1 II ll-!2 ) Second, citing Adelmo!l v. /Own ofRaldwm, 2000 ME 91, ~~ 6-7, 750 A.2d 577, the Town a%erts even if Webber has a vahd b1as claim, he rna} not bnng outside the SOB appeal, becau.~e the procedures under SOB Will be adequotc_ (DeCs Mot Surnm. J 12) 1. It is true that at 'Whether Bias Denies Due Process local boardo, a predisposition held by a decision-maker does not necessanly deny a party due process. See Lane Constr. Corp. v_ Town of Washmgton. 2008 ME 45, ~ 30, 942 A.2d 1202 Yet a ccnain degree of bias can compromise a decision to the pmnt that due process is denied. See, f.g, Pelkey "· Oty <if Presque Isle, 577 A 2d 341, 343 (Me_ 1990) (zoning board's decis10n violated due process where one of the new members of the board had previously been a vocal opponent of the proJect under consideration): Murton fit!/ !:~'stales, Inc. v. Iown of Oakland, 468 A.2d 989, 992 (VIe_ 1983) (proceeding without the ?Oning relief apphcant present, held before "admittedly biased opponents" of project, VlOlated due proces~) In Murto11 Hill, the La" Court Lipheld the Superior Court's determination not to remand to the board in light of a histOI)' of pervasive bias in the case as ··a reasonable means of according Mutton Hill its due process rights." 468 A.2d at 993. In arguing that bias can be compatible with due pmcess, the Town primarily relics on Regan v. School Admmzstranve Dis/net 63, which stated "an appreciable mea,ure of inherent hia.s is acceptable even on the part of the final, or 'ultimate,' decisiorunaker -, 2009 WL 1325166, at *16 (D_ Me May 12, 2009) (~itations omitted) The quoted language is taken out of context because Rer,an concerned the effect ofpost-tennination process where bias tainted pre-termination process_ See ;d at *17 (" rThe law] prohibit[ s] process that permits ;omeonc with bias from serving as the final decision-making 12 authonty on questions of fact and punisilment ·-) Webber'> allegations of bias by Jackie Bevins extend to the post-lermmation process before the Sel eel Board, which was indeed the final dects1on-makmg authority on questions of fact and pumshmenL Thus, unlike Regan, the bias was not remedied by neutral process prov1ded after the fact Cj Chmielmsk1 v. Massachuserts, 513 F.Jd 'lO'J, 318 (1 <I C1r 2008) (lin ding no due process violation v.here there was no allegatLon that po,t-tennination dccisionmaker was bmsed) As a matter of law, Webber may pursue his bias claim under Section 1983_ Webber's factual basis for alleged bias and an1mus, largely concerning Jackie Bevins, is detailed above and need not be repeated here_ The Town attempts to dtscredit Webber's claims by attacking Board Member Score's credibility_ (Dcf 's Opp. Brief 6-8.) While Webber does rely on Board Member Score to establish claims of 1mpropnety, Score is not the sole basis for the allegations because several accounts are corroborated by Fortier The following undisputed facts suggest impropriety- (1) Jackie Bevins confronted Fortier about Webber's UCI and asked what he would do about it, and Fortier originally claimed he would not do anything (Def's S M F f 18_) (2) The Select Board had a packet of iuformat1on during the September hearings that contained a po:;ter Wlth Webber's mug 5hot framed within an old-western scyle ·-wA.'-JTHl" border. (Def's Resp PI's S_:'vf_F_ ~ 80) (3) Jackie Bevins had called Webber a "fuckmg crook" in Fortier's presence a number of time:; and made clear her de<are for Fortier to fire Webber (Def 's Re:;p. );>I.'s S \-fF. ~~ 60-61 ) Based on the above, there are dJ>puted issues of material fact as to whether bias tainted the process Webber received that preclude enu·y of summary judgment for either 13 party. Nevertheless, Webber'o independent due proces<; claim may be dism1ssed if the Rule SOB appeal provides adequate relief ii. The Adequacy of the Rule SOB Appe:~l The viabihty of independent dmms brought with a Rule 80B appeal is measured by whether the procedures and remedie> m·aLlable under Rule 80B are adequate. Antler's bm & Rest.. LLC v. Dep"t '![P11b Safety, 2012 ME 143, •: 4. 60 A.3d 1248 ("When ... a [municipal]_. decision is revie\vable pursuant to 1\-f.R. (1v. P SOU , that process provides the ·exd usivc process for Jud1 ci al review unless i1 ts rnadequate "") (emphasis added) (citation omitted): see <Jlso Colby v. YorkCnry. Comm "rs, 442 A 2d 544, 547 (Me 1982) (concluding claims based on commi«ioner's failure to hold a hearing, excluding evidence. and reliance on an improper standard could be adequately reviewed by the court purluant to Rule SOB procedure). In Adelman, the petitioners appealed a municipal planning board's grant of a conditional use permit under Rule SOB. 2000 .'\1E 91, n 2-~, 750 A.2d 577 The petitioners also asserted an independent bias claim under 30-,\, MRS.§ 2605, the municipal conflict of interest law !d. ,- 6. The Law Coun held that the Superior Court did not abuse its discretion in dismiss1ng the independent bias claim, emphaslZlng that the "'allegations of bias arose from the Planning Board's conduct concerning the issuance of ~ 7 As a result, the 80B appeal of the perrmt denial 'if H~alrh & lfuman Servs., the Law Court again affinned the the conditional use permit" !d. would remedy any -wTongful bias. In Kane v. Dep 't Superior Court's decision that the petitioner's mdepcndent claims for civil rights violation> under Section 1983 were duplicative of her Rule 80C appeal. 2008 .\1£ 185, !4 ~ 31, 960 A 2d 1196 In so doing, the court ex arm ned (1} whether the claim relies on the same factual allegacions, and (2) whether the <;ame relief is sought. Jd More recently in Gorham v_ Andro_\coggin County, the Law Court reversed dismissal of an independent due process claim under Section l <)g3 brought together v,.lth a Rule 808 appeal_ 2011 MJ·: 63,1125,21 A 3d 115 While acknowledging the cases in which independent Section 1983 due process claims were dismissed as duplicative, the court focused on the fact that the petitioner, a com;<:twns officer, was a pubhc employee ruspended without pay before he had the opportunity to be heard Because this alleged deprivation of property occurred before the Conunissioner5 adm1mstrative hearing, we cannot, on this record_ conclude that direct rev1ew pursuant to Rule 808 would provide an adequate remedy for Gorham- s § 1981 claim Accordingl}, the court erred when it concluded that Gorham's § 1983 claim was not mdependcnt of his admmistrative appeal and should be dismissed fd_ '<otabl}, despite finding '"[t]he underlying facts alleged for both claimg were identical," the court concluded the separate due process claim was not duphcative of the Rule SOB appeal ld 11 6. At a mimmum, Webber's pre-termination due process drum survives under Gorham because Webber was terminated without pay and without any pre-termination proce>S Although the Town argues the remedy for \liebber's allegations is merely more process, unlike Adelman, Webber':; claim and potential remedy is not simply '\\Tapped up in the grant or denial of a permit Webber may be entiLled to damages and attorney's fee" not othenvise a\·ailable under Rule 80B M_R Civ P 801:l(i): Polk v_ Town of Lubec, 2000 ME 152, ~ 10, 756 A 2d 510 (damages may be pursued under Section 1983 because Rule 80B appeal does not pcm1it such remedies), see alm Men'1er, 628 A.2d al 1056 15 \.Vcbbcr is entitled to maintain hi~ md~pendent l!ue proce% claim for damages in addition to the 80I3 appeal As stated above, the parties· motwn~ for oummary judgment on the post- termination due process a>pect of\Vebber's independent da1ms must be denied because there are disputed issues of material fact regarding bias D. Whether Webber's Termination was Arbitrary, Capricinu•, and Contrary to the Town's Personnel Rules 1. The Scope of the Select Board Hearings Tov,.n Manager Fortier's letters dated May 21 and August 5 cite only Rule 5.18(c). failure to report a license suspension. as the basis for termmation. Webber first contends the Scloct Board improperly focused on the OU rather than the rule and thus the smpension at issue (PI 's Brief 17-18 ) The September 14 and 16 hearing tran~cript8 indicate lloard .'\{embers indeed focused on Webber's Olll (R 235-36, 304, 324, 347) The Board had to be reminded several limes that the OUT was not the rule violation at is>ue Among others. there were reminders by Attorney Jon Gale, R. 217-38, and Chairman Tramuta (R_ 305) {'-[Yl]y point is Mr \.Vcbbcr was not at all di<,mi,oed for [the OUI] The section of the personnel rules is 5 18 '') This, however. was not improper The issue of Vl'ebber"s communicatwn with Forl!er about the OVl was still relevant to Webber's overall credibility, a point Attorney Driscoll conceded during the September 16 hearing (R 331) Inquiring as to whether Webber clearly communicated with Fortier about the OllT was not legal error 2. Webber Did Not Violate Rule 5.18(c) Rule 5_18 provides "The department head or Town Manager shall be notified immediately (within 24 hours) in the event a dnver's license is suspended or revoked for 16 any reason_" Interpretation of a municipal enactment pre,entl a question of law !1/ugem v. l'own q(Camden, 1998 ME 92, 1' 7, 710 A.2d 245. Webber and Fort1er dispute several key dates and the content of conversations between them_"ln Webber's view_ his license \Va>, oflkially suspended at 12 AM on May 18_ 2010, and Webber had discussed the matter with Fortier on May 17 According to Forner, he first informed Webber he knew about the suspen;iun on :May 18, when Fortier called to arrange to pick up Webber's town vehicle In is undisputed Webber acknowledged the suspenswn during the conver:;at1on on May 18_ (DcCs S M.F mf 70- 7l,R. ]065.) E\'en 1f one accepts l;ortier's versiun of the facts, there was no violation_ The issue is whether the Town Manager was notified of the suspension within 24 hours of it going into effect. Fortier had knowledge because Fortier c-onfronted Webber and Webber acknowledged the suspension on May 18-within 24 hours of when the suspension went into effect at 12 AMn The apparcm purpose ofthe Rule >,uppons this reading_ During the hearing, Fortier stated that --liability concern~" formed the basis for retrieving the town 'ehicle from Webber on \1ay 1& (R 253_) To the extent the Board rested their decision on the fact that Webber received information from the Ogunquit Police Department that he license -was suspended and there wa~ a -warrant out for his arrest on Ylay 14, 2010, thi~ was error Fortier apparently ' Comphcanng the dispute betwe<;n Webber and Fort1Cf 10 (he fact that there were, in effect two ·'suspenswns" !he first was an error because of the Dover-Foxcroft D1stnct Coun's failure to docket Webber's not guilty plea_ and tho ~o~ond was the ''correci' suspension because it went mto effect after the BMV hearmg on May 17 The coun acl,now !edged the mtstake and removed the erroneous suspension and arrest warrant from Webber· s record ' Webber's acknowledgement of the ~uspcnswn constituted adequate affinnative notice to Fortier Rule 5 l8(c) is 1ntended to prewnt employees drivmg wrthout a vahd license, not to punish an employee's fa1lurc to proac~•ely confess the1r sins_ 17 learned about the ~uspenown on that day (R 250·53 ): 1 Both Attorney Jon Gale and the Bureau of Motor Vehicle" Webber had assured Webber that his licen1·e was valid, not suspended, and he could drh-e at least unt1l the May 17 hearing (PL's S M F ~ 12, R. 23.) The Tov,.TL cites no authority, and this court is aware of none_ that holds a public employee can be termmated for -,.iolaling a personnel rule when. as a factual and legal rnatter, the basis for the violatiOn is false and contrary to a"ourances from the state Whlle not entirely clear from the Board's decision upholding Fortier's decision, it appears Webber-s failure to inform Fort1er on May 14 factored into the Board's credibihty determination rather than the application of Rule 5. l 8( c) This l\ discu:;sed further below Because Webber acknowledged the suspension at least as early as May 18, within 24 hours of the suspenswn going into effect after the BMV hearing, Webber did not viol ate Rule 5 18(c) and the Board's finding to the contrary was legal error_ 3, The Select Board's Written Occision Lastly, Webber takes issue with the Select Board's wrirten decision, describing it as a "lawyerly" account composed by Towa Counsel that did not reflect the actual deliberations and fmdings of the Select Board (PI 's Brief 20 ) The Board was not required to compose its own detailed findings_ See Thacker v. Konowr Dev. Corp. 2003 J\1£. 30, ~ 10 n.4, 818 A 2d 1013 (upholding Board action where decision consisted of modifications tu a prc·pnnted checklist) Still, the Board ·was required to con<ider the evidence, apply the relevant rule, and reach a decision supported by the evidence. The Board could not abdicate its role by blindly defemng the Forner's application of Rule 5 l8(c). 1' If liab• lity conccms led Fomcr to act on :'vl:ay l 8, 1t is unclear why t.e first rece1ved notice of Webber's license suspension on ;.lay 14_ 18 f•• led to act when he Statement~ by Hoard Members indicate !hat they erroneously con>idered whether Rule 5 l8(c) wa:> violated to be an is,ue of fact and one ofcrcdibilit} in particular Board Member Simonds h1ghlighted the '·inconsistencies" in the evidence, and re>olved them in Javor offortier_ (R 355.) Cl don't know why Tom would mitiate a letter like thi-; unless there Wd~ - unless there was some meat there."') Similarly, Board Member Bevins summed up the 1ssue as ''Johnny's [\Vebbcr'sj word against Tom's [Fortier] ,. (R. 355) The Board's obligation, however, was to review the fown Manager's decision hy applying the relevant rule The Board's written decu;1on appeared to tum entirely on whether Webber informed Fortier of !he suspension on \1ay 17 (R 1065 ~ 5.) The written decision ultimately concluded: "The Board resolves !he conflict in statements in favor of Mr Fortier Therefore it appears that there was a ,·iolation ofpohcy 5 18(c)'' (R 1065 ~ 6_) Thereafter, citing the erroneous suspension Webber heard about on May 14, the Board continued Although Mr Wehber personally believed either that the police department's information was V.Tong or that the warrant and suspension, if issued, were wrong, he should have taken the information seriously In fact. there was a warrant out for him, and h1s license was suspended, e'en if later the"e things were shown to have happened in error Given the seriousness of the information the fact that the police department was obviously concemed and the potential for h1s being arrested he should Webber's decision not to have let his supervisor know of the situation contact .\1r Fortier on \1ay 14 when he \\as contacted by the police department and to take no action then, makes it more credible, to us, that he did not notify \.fr_ Fortier of the suspension -when they spoke on May 17. (R_ 1065 ~ 7) Based on the und1sputed facts, cred1bility was irrelevant to whether Webber violated Rule 5 18(c)_ The matter does not turn on whether Webber informed Fortier on May 17 because is undisputed that the <>uspension did not become effective until midnight on the morning of .\fay 18 Even adoptmg Fortier's vers1on and as.'>uming 19 that Webber only acknowledged the suspension during their later com·ersation on May 18, Fortier was informed of the suspension within 24 hours fhere was therefore no violation; no rational construction of Rule 5 18(c) could support a contrary conclus1 on Board Member Cavaretta, who acknowledged that a plain applicatlon of the rule could not support the Town \.1anager', decJ;wn, made thi.l most clear· ·'I think [Webber has] got >orne good la"yering and and the Town is getting sruck" (R 347) Yet Cavaretta again brought the issue back to Fortier's credibility, while acknowledging that ··a technicality"' seemed to prevent the Uoard from affirming the decision· [W]e're not standing behind [Fortier]. I have a real problem >vith that_ I don't hke the record of this case, but I have a real problem not _standing behind my managers, and I always ha\ e_ Tom is right in the way he handled this when you take everything into consideration, yet a technicalil} is holding us up here (R 356_) That "technicality'' was a personnel mle that the Board, in reviewing the Town .\tanager's decision, was charged to apply_ By framing the issue as one that merely considered Fortier's credibliity and deferred to his application of the rule, the Board failed to carry out this duty and committed revers1ble error The Board's decision improperly applied the rele;am rule, improperly deferred to the Town Manager, and was unsupported by competenr evidence Gensheimer v_ Town Ofi'hlppsbur!J, 2005 .\lli 22_ 'f 17_ 868 A.2d 161 The decision must therefore be vacated and rema~ded m. for further proceedings. Conclusion The Town's motion for summary judgment is hereby DENTED. Webber's motion for summary judgment is GRA.'\ITED IN PART and DE:"'TED IN PART. Webber's Rule 80B appeal is hereby GRt\.. 'HED_ Because Webber d1d not V!Olate Rule 5.1H(c) and 20 Board Members failed to properly conduct Webber's post-temunatwn hearings. the Select Board's decisicm must be reversed and remanded for further proceedings consistent with this order Date. (L_Q Justice, Superior Court CV-10 309 A TTORifEY FOR PLAll\ rlH' SUSAN 8 DRISCOLl_ BERGEN & PARKINSON Ll.C 62 PORTLAND ROAD, SUITE 25 K.ENI\EBUNK ME 04043 A ITORNEYS fOR D.EF£:'-IDANT_ MICHAEL E SA UlCER ROSIE M WILLIAMS lliO/'o,fPSOJ\ & BOWIE PO BOX 4630 PORTLANDI\.1E 04112

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