Durrell v. Franklin County Commissioners

CLIFFORD, Justice. The defendants, the County Commissioners of Franklin County, appeal from a declaratory judgment of the Superior Court, Franklin County, in favor of the plaintiff, Ronald Durrell, the Sheriff of Franklin County. The Superior Court held that attorney fees incurred by Durrell in [147] seeking judicial review in the Superior Court under M.R.Civ.P. 80B from an adverse decision of the Commissioners following an investigation under 30 M.R.S.A. § 64-A(3)1 were necessary incidental expenses justly and properly incurred in the performance of his duties as sheriff under 30 M.R.S.A. § 908 (1978). Because we determine that Durrell had no right to judicial review of the section 64-A(3) determination by the Commissioners, and consequently his attorney fees were neither necessary nor properly incurred under section 908, we vacate the judgment of the Superior Court. On June 1, 1984, Durrell dismissed Harold 0. Small from his position of deputy sheriff. Small invoked 30 M.R.S.A. § 64-A(3) and requested the Commissioners to investigate the dismissal and to reinstate him to his position. The Commissioners held a hearing on the matter, at which Small was represented and Durrell represented himself. The Assistant District Attorney acted as a moderator at the hearing.2 The Commissioners determined that the charges against Small were unwarranted and ordered Small reinstated as a deputy sheriff. When notified of the Commissioners’ decision, Durrell requested of the Commissioners the services of an attorney to aid in prosecuting an appeal. No action was taken on that request. Durrell then brought two separate actions in Superior Court. Under M.R.Civ.P. 80B, Durrell sought review of the administrative action of the Commissioners in reinstating Small. Dur-rell also sued the Commissioners under the Uniform Declaratory Judgments Act, 14 M.R.S.A. §§ 5951-5963 (1980), in which he sought attorney fees for bringing the Rule 80B appeal as well as the action for declaratory judgment. Although the cases were never formally consolidated, the Superior Court heard them together. In the Rule 80B case, the Superior Court determined that the record supported the Commissioners’ decision to reinstate Small and affirmed their decision. However, in the declaratory judgment action the Superior Court ruled Durrell was entitled to attorney fees incurred in prosecuting the appeal and entered judgment in his favor. A sheriff is a constitutionally elected officer having responsibilities of law enforcement and administration of the sheriff’s department.3 30 M.R.S.A. § 1001 (1978 & Supp.1986)4; State v. Lewisohn, 379 A.2d 1192, 1203 (Me.1977). However, [148] the administrative power of the sheriff is restricted to those actions “authorized by the county budget,” section 1001(1), is shared with the county commissioners,5 and in relation to hiring and firing of personnel is particularly restricted. The sheriffs appointments of deputy sheriffs are subject to the approval of the county commissioners, or a personnel board. 30 M.R. S.A. §§ 951, 64-A(l).6 Dismissals of sheriff department employees are subject to the provisions of section 64~A(3), and the commissioners are authorized by the statute to order the reinstatement of the employee when they find the charges against the employee unwarranted, as they did here. Section 64-A does not by its own language specifically provide for appeal from the decision of the commissioners. In order to effectuate the purpose of the statute to protect county employees from dismissal without cause, we have allowed employees to appeal an adverse decision of the commissioners under section 64-A(3). See Bolduc v. Androscoggin County Commissioners, 485 A.2d 655, 657-58 (Me.1984); Haskell v. Phinney, 460 A.2d 1354, 1357 (Me.1983). Because the statutes vest the commissioners with such significant supervisory and review power over the administration and operation of the sheriffs department, there is no basis for us to infer that the sheriff has the right to appeal from a commission decision reinstating an employee in the absence of express statutory language providing for such an appeal. Title 30 M.R.S.A. § 908 requires the county commissioners to pay to the sheriff from county funds “necessary and incidental expenses as are just and proper, incurred in the performance of [the sheriffs] public duties.” Because Durrell had no right to bring the appeal to review the Commissioners’ reinstatement of Small, any attorney fees incurred in the prosecution of that action are not necessary and incidental expenses, nor have they been incurred in the performance of his duties under section 908. The entry is: Judgment of the Superior Court is vacated. Remanded to the Superior Court for entry of judgment for the defendants. McKUSICK, C.J., and NICHOLS, WATHEN and GLASSMAN, JJ., concurring. Footnotes [1] In 1984, 30 M.R.S.A. § 64-A(3) read as follows: Dismissal, suspension, discipline. A county officer or department head may dismiss, suspend or otherwise discipline an employee in his department only for cause, except that county employees may be laid off or dismissed, with the approval of the county commissioners or personnel board, to meet the requirements of budget reductions or governmental reorganization. In every case of dismissal, suspension or other disciplinary action, at the request of the employee, the county commissioners or personnel board shall investigate the circumstances and fairness of the action and, if they find the charges unwarranted, shall order the reinstatement of the employee to his former position with no loss of pay, rights or benefits resulting from the dismissal, suspension or disciplinary action. Cause for dismissal, suspension or disciplinary action shall be a just, reasonable, appropriate and substantial reason for the action taken that relates to or affects the ability, performance of duties, authority or actions of the employee or the public’s rights or interests. P.L.1981, ch. 394, § 2. This subsection was repealed and replaced by P.L.1985, ch. 292, which is the current version. See 30 M.R.S.A. § 64-A(3) (Supp.1986). [2] Title 30 M.R.S.A. § 501 (1978) provides that the District Attorney represent the county in all civil proceedings under the direction of the county commissioners. [3] The dissent substantially relies on the fact that the sheriff is a constitutional officer. Article IX, section 10 of the Maine Constitution speaks to the election and removal of sheriffs, but refers to no duties except those "imposed upon [the sheriff] by law,” a recognition that the legislature is free to provide what those duties are to be. [4] Section 1001(1) provides: Sheriffs duties. The sheriff shall act as the chief county law enforcement officer and shall be responsible for administering and directing the sheriffs department as authorized by the county budget. The sheriff shall inform the county commissioners of sheriffs department activities on a regular basis and shall meet with the commissioners as required under subsection 3. [5] Section 1001(2) provides: County Commissioners’ duties. The county commissioners shall regularly review the sheriffs operations and shall insure that the law enforcement functions required under the budget are being adequately performed. The county commissioners shall not give orders directly to any deputies or other subordinates of the sheriff, either publicly or privately. [6] Section 64-A(l) provides: Employment. All county officers or department heads shall submit to the county commissioners or the County Personnel Board, if one has been established under subchapter VII, the name of any person the county officer or department head proposes to employ or the names of more than one person from which the county commissioners or personnel board are to select a person for employment. The county commissioners or the County Personnel Board may approve the employment of the person or select a person for employment or, if approval is withheld or a selection is not made, shall, within 14 days after the name or names have been submitted, notify the county officer or department head of the reasons for their disapproval or failure to make a selection.