OGUNQUIT, Maine — The Maine Superior Court has granted an appeal by Ogunquit’s former public works director of his 2010 termination, finding that the basis for that termination was flawed.
Jon Webber was terminated by Town Manager Tom Fortier in 2010 for violating the town’s personnel policy, which states an employee must notify a department head or the town manager “immediately (within 24 hours) in the event a driver’s license is suspended or revoked for any reason.” Webber’s driver’s license had been suspended on May 18, 2010 after an OUI charge. Fortier informed Webber by letter on May 21, 2010 that he was being terminated because Webber did not meet the immediate notification requirement.
Webber later had a hearing with the Board of Selectmen on the matter. The board upheld the termination in September 2010.
In its recent decision, the court states Webber had not violated a town personnel ordinance and that the Board of Selectmen failed to properly conduct its post-termination hearings on that matter. As a result, the court reversed the Board of Selectmen’s decision to uphold the termination and remanded the matter back to the town for further proceedings.
As for what happens now, Ogunquit town attorney Michael E. Saucier of Thompson & Bowie, citing that the matter was an active litigation, said “the court has remanded the case to the town and the Board of Selectmen will be required to consider its next steps.”
Fortier said the current Board of Selectmen would meet Feb. 10 to discuss the matter and determine a course of action.
“This is true vindication for Jon Webber,” his attorney, Susan Driscoll of Bergen & Parkinson, said.
Webber, a 34-year employee of the town, challenged his 2010 termination, arguing he had not received a pre-termination hearing. After its hearing, the Board of Selectmen upheld the termination.
Webber then filed an appeal in Superior Court as well as independent due process claims that the May 21 letter from Fortier came without a pre-termination hearing and that the termination decision and subsequent hearings by the Board of Selectmen lacked impartiality and denied him due process.
The town argued that the due process claims were duplicative of the appeal and that “Webber’s sole remedy for any due process deficiencies be limited to it,” according to the court order.
Webber’s Attorney Susan Driscoll, of Bergen & Parkinson, indicated that the independent due process claims were filed because they trigger procedures and remedies that may not be available under the appeal, including attorney’s fees and other damages. The court found that “Webber is entitled to maintain his independent due process claim for damages” in addition to the appeal.
In its decision, the court noted that “Webber plainly failed to receive any pre-termination process. The May 21 letter clearly stated ‘this letter is your notice of termination, effective immediately’ and that he was thus entitled to ‘summary judgment on this aspect of his due process claim.’” The court also ruled that “because Webber acknowledged the suspension at least as early as May 18, within 24 hours of the suspension going into effect,” he did not violate the town’s policy.
Regarding Webber’s claim of a lack of impartiality, the court noted that, “as a matter of law, Webber may pursue his bias claim under Section 1983 [of Maine law]” and that “there are disputed issues of material fact as to whether bias tainted the process Webber received that preclude entry of summary judgment for either party.”
The court also held that, given the finding that Webber had not violated the personnel rule, the “board’s finding to the contrary was legal error.” Further, the court ruled that the board’s decision “improperly applied the relevant rule, improperly deferred to the town manager and was unsupported by competent evidence. The decision must therefore be vacated and remanded for further proceedings.”