AUGUSTA — The chief hearing officer at the Maine Department of Labor's Division of Administrative Hearings said in an email she was “totally shocked” after attending a luncheon hosted by Gov. LePage at the Blaine House last month where he reportedly scolded hearing officers for doing their jobs poorly in the wake of complaints by businesses.
“It's hard to describe how painful this is,” Linda Rogers-Tomer wrote in a March 22 email to Laura Boyett, who heads the Bureau of Unemployment Compensation.
A hearing examiner talks of “dark times” as those who hear unemployment claim appeals seek to keep free from political influence.
Those communications are among scores of emails released by the Department of Labor this week in response to a Freedom of Access Act request by a Portland Press Herald columnist.
The 486 pages of documents reveal, among other things, friction between the Division of Administrative Hearings and political appointees who fielded complaints lodged by businesses.
The emails revolve around the March 21 luncheon called by LePage. He met with about eight hearing officers, their supervisors and political appointees at the department, including Labor Commissioner Jeanne Paquette and Jennifer Duddy, chairwoman of the Unemployment Insurance Commission, which hears cases on appeal by employees and employers from the Division of Administrative Hearings. Duddy was appointed to the post by LePage.
Rogers-Tomer apparently was reacting to Duddy's remarks at the luncheon, calling them “pretty vicious.”
Duddy had written a 10-page memo weeks before the luncheon that went to Paquette, who passed it along to LePage.
In it, Duddy outlined problems she found with the way hearing officers were conducting hearings and took issue with their interpretations of rules governing the process that Duddy thought might have led to unfair hearings.
In the memo, she proposed possible solutions. Duddy also included in her memo two “problems” in Maine law that she was asked by Paquette to explore and research possible changes. One of those so-called “problems” was an interpretation by the Maine Supreme Judicial Court of a policy statement in Maine's Employment Security Law that said it “should be construed liberally in favor of the employee seeking benefits.” Her proposed solution: “We should consider reversing this policy statement.”
Duddy cited a couple of specific cases on appeal from the Division of Administrative Hearings in which, she wrote, the hearing officers committed errors.
Rogers-Tomer said in an email that she “believe('s) Jen's position is that her interpretation is the only acceptable one, so not sure where we go from here.”
In another email, the chief hearing officer describes a conversation with Duddy after the luncheon. Rogers-Tomer said she hadn't been aware until shortly before the luncheon that Duddy had a problem with decisions hearing officers make regarding the omission of certain types of evidence.
“I said that the standard was not a black and white one and that reasonable people could differ about how it should be applied,” Rogers-Tomer wrote.
“She disagreed that reasonable people could differ. I said that I thought she was a reasonable person and that I was a reasonable person, and that we differed. She said I was dead wrong about it, that (Assistant Attorney General Elizabeth) Wyman agreed that I was dead wrong about it, and that I was remiss in allowing my hearing officers to continue to not admit certain documents.”
She wrote that Duddy believed all evidence offered should be allowed and given equal weight, whether a business record or firsthand evidence.
“I fear that more than 20 years of jurisprudence it about to go flying out the window,” Rogers-Tomer wrote.
She quoted in an email from hearing examiner Wayne Reed, who wrote that he found the need to assume a defensive posture when writing decisions in an atmosphere of heightened political scrutiny.
“I will continue to call them as I see them, but in the near term, at least, I will find it hard to shake the feeling that extra caution will sometimes be required. It is a thief of time. Defensive decision-writing could prove to be the least significant downside to what appears to be a lack of appreciation by this administration for the importance of insulating hearing officers from public and political pressures.
“In the time I've been doing this work, I've never seen anything like it, from either end of the political spectrum. For purposes of keeping political pressures/bias out of quasi-judicial process within the Maine Department of Labor, these are dark times.”
The officer referred to the luncheon as a “group scolding.”
Sources in a Sun Journal investigation who said pressure to find more cases in favor of employers was applied to hearing officers beginning in 2011 after an employer complained following an unfavorable appeals hearing.