Politics

April 17, 2013

Documents: Hearing officer felt pressured by LePage

These are 'dark times' for those who prefer keeping political pressure and bias out of quasi-judicial processes, the officer wrote.

By Steve Mistler smistler@pressherald.com
State House Bureau

AUGUSTA — A state employee who adjudicates unemployment benefit hearings described the meeting that he and some colleagues had with Gov. Paul LePage on March 21 as a "group scolding."

The hearing officer also wrote that the LePage administration did not appreciate the importance of insulating quasi-judicial hearing officers from "public and political pressures."

"In the decades I've been doing this work, I've never seen anything like it, from either end of the political spectrum," wrote Wayne Reed. "For purposes (of) keeping political pressure/bias out of (a) quasi-judicial process within the Maine Department of Labor, these are dark times."

Reed sent the email to the chief hearing officer on March 22, the day after he and at least seven colleagues were called to the Blaine House for a mandatory meeting with LePage to discuss the administration's concerns with the process that settles unemployment claim disputes between businesses and workers. 

Reed's email was in more than 200 pages of documents obtained by the Portland Press Herald through a Freedom of Access Act request. The documents contain email correspondence between the administration, hearing officers and their supervisors before and after the meeting.

The documents show that the administration did not want the hearing officers to "feel anxiety" about meeting with LePage. But they show that hearing officers and their supervisors were concerned before and after the meeting, which may prompt a federal inquiry into allegations that the administration tried to influence an appeals process that's governed by state and federal guidelines.

The documents also show that Reed and others felt the governor and Jennifer Duddy, LePage's lone appointee to the state's Unemployment Compensation Commission, were forcing the officers into "defensive decision writing."

Reed's supervisor, Linda Rogers-Tomer, wrote that she felt "blindsided" by comments made by Duddy during the meeting.

After phoning Duddy the next day to discuss the meeting, Rogers-Tomer emailed Laura Boyett, director of the state Bureau of Unemployment Compensation, to say the phone call with Duddy was "unsettling."

"I expressed my angst about (Duddy's) remarks at the (meeting), mostly about it not being the proper forum for that kind of discussion and (that it) blindsided us," Rogers-Tomer wrote. "(Duddy) was sorry if anyone felt badly about what she said, but that she had no regrets about saying it or saying it in that forum. I am extremely upset right now, so can't really talk."

Earlier on March 22, Rogers-Tomer responded to Reed's email about a ruling he had made on a recent case, in which he said he had been forced into "defensive decision writing."

"Despite the pressures that are being placed upon us, we still just have to do our jobs, self-insulating from the politics, doing what we think is right and doing that as expeditiously as possible," Rogers-Tomer wrote. "I know that in this climate it is hard not to second guess ourselves."

Duddy, a former staffer for U.S. Sen. Susan Collins, R-Maine, was appointed to the Unemployment Compensation Commission by LePage in 2011. The three-member commission offers the Labor Department its final chance to weigh in on unemployment appeals decisions. It can overturn decisions by the hearing officers but has no direct oversight over them. 

Duddy was the only commission member who attended the meeting at the Blaine House. Her presence was requested by LePage, according to a pre-meeting email from John Butera, the governor's senior economic adviser.  

Adrienne Bennett, LePage's spokeswoman, said Tuesday that she did not know if other commissioners were invited to the lunch meeting.

The appeals decisions determine whether unemployed workers receive benefits, which average $281 per week. The outcomes affect rates that businesses pay into the trust that funds the unemployment benefit program. The more unemployment claims or appeal rulings there are against an employer, the more the employer pays into the fund.

The LePage administration has acknowledged that businesses have expressed concerns that the appeals decisions skew toward workers, but it has denied allegations that it has pressured hearing officers to rule in favor of businesses. 

The documents partially support the administration's claims.

In one email, Duddy listed a series of cases in which she believed hearing officers didn't allow evidence. She noted a dispute involving a business that claimed a worker quit voluntarily so didn't qualify for benefits. Duddy wrote that the hearing officer didn't allow a witness to testify about hearing the business owner express happiness that the worker had been fired -- meaning unemployment benefits were warranted.

Also in the documents were decisions by the commission that overturned hearing officers' rulings. Those decisions cited errors by the officers.

Hearing officers have discretion to disallow evidence, including testimony that could be deemed hearsay.

The administration says Le-Page wants fair hearings for employees and businesses. But some hearing officers are getting a different message.

Rogers-Tomer apparently sensed that a conflict was coming in an email on March 12 organizing the meeting.

"Saw the email about the meeting ... trouble?" she wrote to Boyett, the bureau's director.

"Potentially, it has been tense, but I'm hoping that this event will turn out to be an opportunity for increased understanding of what we do and the whys behind our work," Boyett responded.

On March 22, Rogers-Tomer wrote of a different experience. She thanked Reed for sending her a decision on an appeal for her review. 

"I wholly agree with your result, but also imagine that the employer may be unhappy enough about it to contact (Labor Commissioner Jeanne Paquette) or (LePage), so good to know about it ahead of time," Rogers-Tomer wrote.

Not all of the emails show concern among the hearing officers. Reed appeared to feel the most pressure from the administration.

In an email response to the Press Herald's records request, he told his supervisors that his written comments reflect "ongoing concerns about political pressures," but if made public, should prove that "hearing officers are not caving to political pressures on behalf of any favored constituency."

The documents could play a role in a federal inquiry into the controversy.  

On Monday, a coalition of lawyers who represent workers in unemployment benefits cases formally requested a federal investigation. 

A spokeswoman for the administration would not say whether investigators with the Office of the Inspector General in the U.S. Department of Labor had contacted the governor's office or the Maine Department of Labor. 

David Webbert, president of the Maine Employment Lawyers Association, which filed the complaint, said Tuesday that he had received a detailed response from the inspector general acknowledging his request for an inquiry. Webbert said federal investigators will find it "irresistible to pursue the allegations," considering the information that already has been made public.

 

Steve Mistler can be contacted at 620-7016 or at:

smistler@pressherald.com

twitter.com/stevemistler

 

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