Smith v. Southern Maine Community College

:; , L;L "' - It STATE OF MAINE ?!ifi";BERLAND, S$ SUPERIOR COURT :Al"f_

CUMBERLAND, ss LLERKDsGFFJCE CIVIL ACTION DOCKET NO. la1 FEB - b A 9: 3b7E-L C A P - C ' , AP-OY ' -- 7 C /

ROBERT SMITH,

Petitioner

v. DECISION AND ORDER AFTER REMAND SOUTHERN MAINE COMM CONIMUNITY COLLEGE, ET AL., DONALD L. GARBRT-C'Y1 [AW LlBRARv

Respondents MAY 1 5 2007

This matter is before the court, after remand, on petitioner Robert Smith's ("Petitioner") Rule 80B appeal of his termination from employment by respondent Southern Maine Community College ("SMCC"). Also before the court is the motion of each party to strike the other's affidavit submitted in purported compliance with the court's earlier remand order.

BACKGROUND

Petitioner claimed that he was terminated from his employment in violation of his freedom of speech and due process rights under the Maine and Federal Constitutions. When the court first considered the merits of Petitioner's appeal, his free speech argument was rejected. However, the court found that Petitioner had established a reasonable expectation of continued employment that amounted to a protected property interest to which due process protections were applicable. Then, turning to the question of whether Petitioner had been given the process due him, the court concluded that the record on that issue was inadequate and the case was remanded for fbrther findings regarding the process afforded Petitioner. In ordering the remand, this court determined that, even though it was Petitioner's burden to produce a record sufficient for judicial review, he could not do so with respect to the due process issue. Subsequently, each party submitted an affidavit purportedly directed to the "findings" requirement of the remand order.

The court now concludes after further review that the case should not have been remanded. More specifically, it is clear that Petitioner failed to meet his obligation to produce a record sufficient for judicial review of the due process issue, and the court's prior determination that Petitioner could not have done so was erroneous. Petitioner never requested a trial of the facts on this issue, as he could have done pursuant to M.R. Civ. P. 80B(d), and the court's remand order was tantamount to asking SMCC to create a factual record that had not existed at the time of the appeal.'

Although Petitioner did not seek a trial of the facts to introduce evidence regarding the due process issue, he did file a motion to join his 8OB appeal with independent claims for constitutional violations (42 U.S.C. § 1983), defamation, intentional misrepresentation, and breach of contract. The court denied the motion, as untimely, and dismissed those independent claims.

As the court noted in its prior decision, when necessary findings are not implicit in the agency's decision or are not otherwise apparent from the record, "the party aggrieved by the [I decision should request findings of fact and conclusions of law before asserting the insufficiency of findings as a ground for judicial review in an action brought pursuant to M.R. Civ. P. 80B." Id. Petitioner did ask for a written enumeration of the reasons for his termination and received a reply from SMCC's counsel. See Letter of Attorney Langhauser at Rec. Tab 92 However, he did not ask for or provide to the court evidence regarding the sufficiency of either the school's notice to him or his opportunity to be heard. We only know from the existing record - counsel's letter -that he had an opportunity to be heard and, from that, we may reasonably conclude that he had prior notice. Stated another way, it is reasonably implicit from the record evidence of Petitioner's opportunity to respond that he had some prior notice of the place where and the time when the opportunity was to be given.

Based upon the foregoing, the court concludes that it should not have remanded the case and that the decision of SMCC should be affirmed.

Mr. Langhauser's letter recites that "The College reviewed the events and found that the account provided by the students was not denied by Mr. Smith, who was offered the opportunity to present his side." Id.

After remand, SMCC submitted the affidavit of Janet M. Sorter, Ed.D., Vice President and Dean of Academic Affairs of SMCC, describing the procedure afforded to Petitioner prior to his termination, and Petitioner submitted his own affidavit.' Neither affidavit constitutes "findings".' Even if they did, they do not of themselves establish that Petitioner was given-or not given-the process due him. They only establish that some process was accorded Petitioner. He was called into a meeting with the Dean of Academic Affairs and the Dean of Students, he was informed of the complaints against him, and he was given an opportunity to respond prior to being discharged.

Decisions of the United States Supreme Court discussing the process due to government employees in connection with their employment right establish, first, that governments have broad powers in the selection and discharge of their employees and, second, that the scope of any right to continued employment asserted by a government employee is defined by existing law, rules and standards securing the employment right. See Arnett v. Kennedy, 4 16 U.S. 134, 15 1 (1974); Board of Regents v. Roth, 408 U.S. 564, 577 (1972); Slochower v. Board of Higher Education of New York City,

Petitioner's affidavit offers a competing version of the process he was given by SMCC. Petitioner would only properly have been able to present the material in this affidavit in a trial of the facts, which he did not request.

In this connection, the Court grants each party's motion to strike the other's affidavit. 350 U.S. 5 5 1, 559 (1956). The only principle that government employment rules and legislation must honor in every instance is that someprocess, including, minimally, an inquiry on the part of the government and a hearing providing the employee an opportunity to defend himself, must be given. See Roth, 408 U.S. at 577, Slochower, 350 U.S. at 559. SMCC met this minimum .constitutional standard with the process it provided Petitioner. See id. What Petitioner has failed to establish is that this process violated any applicable law or SMCC7sown rules regarding the termination of its employees.

SMCC is a part of the Maine Technical College System, governed by 20-A M.R.S.A. $5 12701 et seq. 20-A M.R.S.A. Section 12712(5) establishes that the presidents of the colleges governed by this statute have the responsibility to evaluate the performance of the faculty and staff of the colleges under policies and standards developed by the board of trustees. This is apparently the only statutory authority in Maine governing SMCC7s actions with regard to Petitioner. Petitioner has not shown how, if at all, this or any other statutory authority has been violated by SMCC.

Turning to the impact of any applicable school rules, according to the SMCC Faculty Resource Handbook, disciplinary action to be taken against an employee of SMCC must utilize procedures established by the applicable collective bargaining agreement. See Rec. Tab 4, unpaginated. However, the applicable agreement is not part of the record in this case. Therefore, the court cannot determine whether SMCC's treatment of Petitioner does or does not meet the requirements of the agreement. Accordingly, Petitioner has failed to meet his burden of establishing that he was not given the process due him. To be clear, the Court's earlier charge on remand to SMCC to supplement the record should not be misconstrued as placing any burden on SMCC to provide the collective bargaining agreement. Petitioner, as the moving party in this 80B appeal, had the burden of preparing and submitting the record for review. M.R. Civ. P. 80B(e).

DECISION

Pursuant to M.R. Civ. P. 79(a), the Clerk is directed to enter this Decision and Order After Remand on the Civil Docket by a notation incorporating it by reference and the entry is

The Decision of Southern Maine Community College to terminate Petitioner's employment is AFFIRMED.

Date: February 5, 2007 -

Justice, sup;rior Court

C D~~~~ i l ~10-08-2003 d Cumberland - Docket No. AP-03-62 County

Action - 80B _ Appeal _ _ _ - _

ROBERT SMITH SOUTHERN MAINE COMMUNITY COLLEGE WILLIAM BERTUN JANET SORTOR

VS.

Plaintiff's Attorney (Co-Counsel) Defendant's Attorney Howard T . Reben, Esq. Adrian Hansen, Esq. C h a r l e s Harvey E s q . ( a l l d e f e n d a n t s ) Reben, Benjamin and March Two C i t y C e n t e r 97 I n d i a S t r e e t P.O. Box 126 P.O. Box 7060 P o r t l a n d , Maine 04112-0126 P o r t l a n d , ME 04112 ( 2 0 7 ) 775-1300 ( 2 0 7 ) 874-4771 GEOFFREY STONE, ESQ ( p r o hac v i c e I

Date of Entry i