March 2004 - Practice

Board Grapples With Hearing Officer Reappointment Process

Two Law Court cases in this issue -- D'Amato v. S.D. Warren Company and Littleon v. Knowlton Machine Company--focus on the authority of hearing officers whose assigned cases continued after the officers' terms expired. The cases underscore a long debate within the Board about the appointment of hearing officers and the proper ending of their terms. Following is a brief chronology, culled from Board meeting minutes, depicting the events that led up to the cases.

The debate began in December 2002, when the Board moved to reappoint officers Julia Finn, Evelyn Knopf, and Jonathan Sprague for 3-year terms. It tabled the motion for officers Heidi Johnson and John McCurry, who was on supervisory probation. The labor and management sides of the Board engaged in a heated exchange over the reappointments.

At a subsequent meeting, there was a motion to reappoint McCurry and Johnson for 3-year terms, with a 6-month probationary period. Director Rodney Hiltz argued that nothing in their performance reviews showed their performances were "not acceptable," and thus, to not reappoint them would taint the approval process. The motion failed to pass.

At a January 2003 meeting, the Board said that the Act was unclear whether officers could be appointed or reappointed without a supermajority of the Board. Hearing officers McCurry and Johnson appeared with their own attorneys, who argued that the officers were at will employees who could not be ousted without a supermajority vote. The attorneys added that the officers had not been given their constitutional due process right to be heard, and that performance had never been an issue for either officer.

In February, the Board noted that as of January 1st--when the two officers effectively no longer held their positions- -Officer Johnson had 146 cases pending and Officer McCurry 151 cases. The Board decided that parties in these cases could object to the participation of either officer, as they had not been reappointed. Parties would also be told that a §314 arbitration could be held instead of a hearing. The Board also reassigned Johnson's and McCurry's cases to other officers, including one traveling down from Caribou, thus increasing the workloads of other officers.

By the spring, lawsuits had been filed based on the uncertain status of McCurry and Johnson. In March, Board member Anthony Monfiletto moved to reappoint McCurry and Johnson as of 1/1/03, noting the Board looks "very foolish to all parties in the system" as it could not decide on a tenable position against the lawsuits. Subsequently, the Board's general counsel was authorized to pay the officers' legal fees in the lawsuits.

In August, Board member Hiltz moved that the Board request the governor and Legislature to pass a special act to validate all decrees of John McCurry, both heard and entered, between 12/3/02 and 12/31/03, and commenced by 1/1/04 and decreed thereafter. The motion failed 3-4.

In October 2003, the Board sent letters to McCurry and Johnson, whose positions had never been filled, stating that their employment had ended as of 10/3/03, but the Board would contract with them to finish work on their pending cases. The Board also hired former mediators Timothy Collier and Michael Stovall as temporary hearing officers to help with the backlog created by the HO situation.

In November, a motion to reappoint Hearing Officer Elizabeth Elwin failed. The Board discussed the criteria for evaluating officers, and whether it had disregarded that criteria in failing to reappoint McCurry and Johnson, and whether the Board can develop objective criteria to remove the Board members' influence on reappointments.

The issue resurfaced in December, when the Board failed to achieve a supermajority to reappoint Elwin. The Board discussed that it needed to work on the criteria for the reappointment process, as the terms of four officers are due to expire on 12/31/04. The labor side of the Board suggested employing officers without term limits, especially to benefit from exceptional officers.

The COMP Journal will keep its readers apprised of concrete developments in this area in the coming months. For a discussion of the legal ramifications of the above actions, see D'Amato v. S.D. Warren Company and Littleton v. Knowlton Machine Company, page 7 of this issue.