Emails reveal friction, political pressure on unemployment hearing examiners

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.

cwilliams@sunjournal.com

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Comments

FRANK EARLEY's picture

Missing the point..............

I think a lot of folks are missing the real point in this. The system, as it is across the Country, is only as fair as the "Hearing Officers". That said, the hearing officers, deserve the right to be impartial in making their decisions. If they feel the evidence provided indicates a finding for the employee every time, that is the end of it. If it goes the other way, same thing.
As soon as one side or the other begins to complain, begins to show a distrust for the integrity of the system, maybe a review needs to be done. Not by the Governor of one State. You can not effectively change 1/50th of a system and expect it to be fair. If a review was indicated, it should have gone through the proper channels.
I just feel that if the job was done right, the Federal officials wouldn't be here investigating our Governors actions, but investigating the overall integrity of the Unemployment Compensation Bureau". I just feel that would have been the proper way for our illustrious Governor to have handled it................

P.S. I'm still a little pissed off for losing that unemployment appeal about twenty years ago, but Hey, I didn't make a Federal case out of it..........

Donald Irish's picture

Why can't ALL the evidence

Why can't ALL the evidence be shown? Is the employer always wrong, or is the employee always right? If all the evidence isn't shown someone is getting an unfair advantage. Looks like someone is not doing the job the right way. Someone has to look at both sides without preference.

RONALD RIML's picture

There are "Rules of Evidence"

As there are rules of hockey games, rules of engagement, etc, etc. These 'Rules' have been set up over many years for purposes of fairness. One simply doesn't throw them out.

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