BANGOR, Maine — Maine supreme court justices on Tuesday heard arguments in the town of Millinocket’s appeal from a verdict that it retaliated against Mary Walsh when it eliminated her position as director of the Department of Recreation.
The town’s attorney, Melissa Hewey of Portland, argued that because defense attorney A.J. Greif of Bangor stipulated that just one of the four town councilors who voted to eliminate the position had “animus” toward Walsh, the town should not be held liable for her whistle-blower claim.
“Millinocket’s argument is that politicians are above the law,” Greif said after oral arguments at the Penobscot Judicial Center. “If a police officer negligently crashes his car into Mary Walsh’s vehicle, the town is liable. If a Millinocket supervisor sexually harasses an employee, the town is liable. Why should Millinocket get a pass when Matt Polstein put an end to Mary Walsh’s whistle-blowing by casting the deciding vote to get rid of her job?”
Hewey declined to comment after oral arguments.
A Penobscot County jury on Aug. 20, 2009, affirmed for the second time in 11 months that former Town Councilor Matthew Polstein and the town violated the state’s Whistleblower Protection Act by firing Walsh, who now lives in Lincoln, from her job as town recreation department director in 2005, according to previously published reports.
The jury awarded Walsh $30,000 in damages, with state law capping awards on lawsuits against municipalities of Millinocket’s size at $50,000.
Jurors found that Polstein cast a tie-breaking council vote — effectively cutting Walsh’s job in order to create a single recreation department for the three Katahdin region towns — because her complaints about dangerous conditions on trails maintained by his businesses threatened state and town trail-grooming subsidies crucial to his finances.
Polstein owns lodging, a restaurant and a snowmobile rental business — Twin Pines Camps, River Drivers restaurant and New England Outdoors Center — all just outside Millinocket.
Polstein and town officials have maintained that the consolidation of recreation departments was an attempt to improve efficiency and had nothing to do with Walsh. Polstein opted not to seek re-election in the fall of 2008.
Hewey told justices that throughout both trials, Greif orally stipulated that Polstein was the only councilor who had a problem with Walsh. She said that for a municipal body to engage in an action, such as discrimination, it had to be taken by the majority, not one person.
“The jury still had to believe this one person had significant influence on the body,” Justice Joseph Jabar noted.
“The point,” Hewey replied, “is not if it had a significant effect on the whole, but that the animus did not impact the whole.”
Greif told the justices that “one vote is enough if it is the deciding vote.”
Walsh’s attorney also argued that his client should have received more in back pay and been awarded front pay, the amount she would have been paid if her position had not been eliminated.
Greif placed the judgment’s value at $91,232 in the verdict and back pay award; $25,368 in prejudgment interest; $71,864 in attorney’s fees; $791.23 in attorney’s expenses; and $2,634 in court costs. He estimated that the case’s cost would increase to about $250,000.
The town’s insurer would pay for adverse verdicts.
There is no timetable under which the court must issue a decision.
Justices will hear oral arguments Wednesday morning during their final session this week in Bangor.
BDN writer Nick Sambides Jr. contributed to this report.