Labor memo at center of controversy

Gov. Paul LePage called a luncheon meeting last month of state employees who hear appeals of unemployment claims because he and the commissioner at the Department of Labor had been getting complaints from the public that the process was unfair, a spokesman for the governor said Friday.

In early March, Jennifer Duddy, chairwoman of the top appeals board for the Department of Labor, learned about the complaints and was asked by Labor Commissioner Jeanne Paquette to draft a memo that would address issues that might prevent someone appealing a decision from getting a fair hearing, Duddy said Friday.

Her 10-page memo, which she wrote over a weekend in early March, outlined problems she identified as interpretations of rules at the Department of Administrative Hearing that might have led to unfair hearings. Her memo also proposed solutions to the problems by suggesting changes to rules that govern the administration of the employment security law.

In an interview with the Sun Journal, Duddy said the memo was offered as a work in progress and was only a snapshot of her thoughts at the time.

It doesn't necessarily represent her current thinking, she said.

“Practically none of these suggestions may be worthwhile,” she said Friday. “I couldn't tell you whether they're worthwhile or not.”

When it was first written, she handed the document to Paquette who, in turn, passed it along to the governor's office.

Peter Steele, LePage's director of communications, said Friday the governor called a gathering of departmental workers after reading Duddy's memo, saying: “Let's get everybody together and talk about this.”

LePage hosted a March 21 luncheon at the Blaine House to do that, and afterward some hearing officers reported in a Sun Journal investigation that they were told during that luncheon meeting that they were doing a poor job. They felt pressured to find more cases in favor of employers, they said.

LePage, through a spokesman, denied the charge, calling it “outrageous.”

The Duddy memo was requested, Steele said, because the governor "can't make a decision unless he has information. He had dealt with these issues (of business complaints) for years and thought they should look into it."

The governor, Steele said, "is not trying to insert himself in any cases. This is the result of many, many complaints."

Duddy said her memo wasn't intended as talking points for LePage.

According to data from the U.S. Department of Labor dating back at least five years, roughly one-third of workers' appeals to the Division of Administrative Hearing are successful. While the number of hearings had risen markedly due to the recent recession, the percentage of cases decided for employees had not.

Duddy's memo — provided to the Sun Journal by the governor's office — contained actual case studies and a series of "problems" and draft "solutions."

One of the six so-called “problems” Duddy described was that “hearing officers do not understand that reliable relevant hearsay is admissible in evidence in Maine's administrative unemployment proceedings.” She went on to write that hearing officers “at times erroneously exclude relevant evidence,” including letters, emails and photos because the originator of those documents was not available at the hearing for cross-examination.

Another “problem” Duddy identified was that hearing officers at the Division of Administrative Hearing sometimes won't allow one of the parties at a hearing to call witnesses because that testimony might be repetitive. She proposed as a "solution" adding to the rule a clause that would say repetitive evidence can't be excluded if it would serve to corroborate evidence that's in dispute.

Duddy said she explored two “problems” in her memo that didn't originate with her examination. She said she was asked to research possible law changes and report her findings, along with proposed "solutions," to Paquette.

She noted as a “problem” that the Maine Supreme Judicial Court interpreted a policy statement in Maine's Employment Security Law “to conclude that the law should be construed liberally in favor of the employee seeking benefits."

Her proposed "solution": “We should consider reversing this policy statement.”

The second draft solution examined proposed changes in the collection and interpretation of "rules of evidence."

In reflecting on the recent luncheon meeting and the examination of complaints to assess problems and determine solutions, Duddy said she had never thought to approach any of the hearing officers about their rulings because the officers were making decisions based on findings of fact and interpretation of law. In the past, when there were differences in interpretation of the law or rules, they would seek out the counsel of a lawyer at the Office of the Attorney General, she said.

Duddy, who heads the Unemployment Insurance Commission, the final agency appeals authority that hears appeals from the Division of Administrative Hearings at the Department of Labor, said she has a “very, very productive, cordial” relationship with Linda Rogers-Tomer, the chief hearing officer at the Division of Administrative Hearings, and that she observes the chain of command, starting with Rogers-Tomer and ending with Paquette.

“That's how it works,” she said.

Steele defended the governor's decision to meet directly with hearing officers to voice his concerns and elicit their feedback. Steele said Friday that some officers who say they felt intimidated by this direct contact were merely trying to discredit the governor in an act of self-preservation by the employees.

According to Steele, "People in state government — and I'm not saying these specific hearing officers — they believe that management is harassment. Some of these people have never had any management or oversight, and there's a lot more oversight and checking into things than have ever been checked into before.

"They don't like that if they've been autonomous for 10 or 20 years," he said.

cwilliams@sunjournal.com

Daytime Managing Editor Judith Meyer contributed to this report

Editor's note: Jennifer Duddy is appointed by the governor to serve on the Unemployment Insurance Commission and is not an employee of the Department of Labor. She reports directly to the governor.

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 's picture

Has the governor, or a

Has the governor, or a governor's appointee, or any of the people writing news stories on this issue bothered to actually read the Maine statutes that apply? It doesn't seem so. If hearings officers are issuing decisions that are wrong, the losing parties and commission and the governor already have a way to fix the problem. Under ALREADY EXISTING Maine law the party that feels it has been wronged can ask for further review within the DOL. Here's what the law has to say:

"5. Commission review. The commission may on its own motion affirm, modify or set aside any decision of the Division of Administrative Hearings on the basis of the evidence previously submitted in that case or direct the taking of additional evidence, or may permit any of the parties of that decision to initiate further appeals before it. The commission shall permit such further appeal by any of the parties interested in a decision of the Division of Administrative Hearings and by the deputy whose decision has been overruled or modified by the Division of Administrative Hearings. The commission may remove to itself or transfer to the chief administrative hearing officer or to another administrative hearing officer the proceedings on any claim pending before the Division of Administrative Hearings. Any proceedings so removed to the commission shall be heard in accordance with the requirements in subsection 3. All hearings conducted pursuant to this section may be heard by a quorum of commissioners, as defined in section 1081, subsection 3. The commission shall promptly notify the interested parties of its findings and decisions."
[ 1987, c. 641, §10 (AMD) .]

How often have the complaining parties actually followed through and asked for further review? How often has the commission on its own motion or otherwise "affirm[ed], modified] or set aside any decision of the Division of Administrative Hearings" as it is authorized to do?

Even more telling, how often has a commission order setting aside a hearing officer’s decision been upheld in a followup court appeal? How often has a hearing officer’s original decision been reinstated by a court after being set aside by the commission? That is, what have the courts had to say about the decisions being made by hearing officers?

FRANK EARLEY's picture

That's how it works.............

Evidently the Governor and his staff have a serious problem with definition. the word "Intimidate" and the Word "Coercion" are two words that can describe LePages approach to everything. Honesty can not be legislated. Something is either fair or it is not. You cannot interject laws to "Tweak" the out come. Once the Governor states his intent to somehow change the outcome, he is destroying the system. This system is in place in forty nine other States, why is Paul LePage the only one who somehow knows the best way to generate the proper outcomes? He just doesn't get it. I doubt he ever will......

I'm looking forward to

I'm looking forward to knowing IF the hearing officers came up with solutions about the customer complaints which is the whole reason for the luncheon to begin with! Will these workers have to improve their job performance and deal with the customers complaints or are will they be allowed to shift blame?

I'd like to hear from some of these customers so that THEY can set the record straight whether or not they're getting fair service!

CLAIRE GAMACHE's picture

The rules

Apparently this governor follows only one rule and that's the one that says he wins and gets to impose his ideology everywhere no matter how. If you don't like the existing rules change them or cheat is the new normal in Maine state government. I think by now we can forget about any state entity being fair, legal or impartial about anything. It will serve him right if this ends up with all the cases that have been heard and denied requiring new hearings. And I'm wondering if "all those complaints" originated with the same" anonymous" email that got the mural moved.

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