trial of the facts on count I of petitioner Sandra
Sacco's amended complaint against respondent Town of New
Gloucester was held on December 2 and 3, 2015. Briefs were
filed by March 18, 2016. Subject to respondent's motion
in limine, the issues presented by petitioner are
1. whether respondent improperly used the executive session
function under 1 M.R.S. § 405;
2. whether respondent improperly failed to notify petitioner
of her right to be present at the executive session resulting
in the reduction of hours and failure to provide her with an
opportunity to be heard;
3. whether respondent improperly failed to reinstate
petitioner to the bookkeeper position on December 2, 2013;
4. whether respondent improperly failed to reinstate
petitioner to the bookkeeper position on December 26, 2013.
(Pet.'s Opp'n Mot. Limine 4; Resp.'s Mot. Limine
1-2.) For the following reasons, the court concludes
respondent did not violate section 405 on November 4, 2013.
Respondent's failure to reinstate petitioner on December
2, 2013 and on December 26, 2013 is affirmed.
February 7, 2014, petitioner filed her complaint against
respondent. She alleged five causes of action: count I, Rule
80B review of respondent's actions; count II, violation
of due process under 42 U.S.C. § 1983; count III,
equitable estoppel; count IV, promissory estoppel; and count
V, interference with prospective economic advantage. On March
13, 2014, the court granted petitioner's motion to join
the independent claims with the Rule 80B action.
filed a motion to dismiss on March 20, 2014. On April 15,
2014, petitioner filed an opposition to the motion to dismiss
as to counts I through IV and agreed to dismiss count V. On
the same day, petitioner filed a motion to amend the
complaint and an amended complaint, in which she added the
Town's former Town Manager, Sumner Field, as a
respondent. She reasserted count I, Rule 80B review, against
respondent Town; asserted count II, violation of due process
under 42 U.S.C. § 1983; count III, equitable estoppel;
and count IV, promissory estoppel, against both respondents;
asserted count V, interference with prospective economic
advantage, against respondent Field; and added count VI,
intentional infliction of emotional distress; and count VII,
negligent misrepresentation, against both respondents. On
April 22, 2014, petitioner filed a motion for a trial of the
facts. M.R. Civ. P. 80B(d).
October 1, 2014, the court granted petitioner's motion
for a trial of the facts and motion to amend the complaint.
The court granted respondents' motion to dismiss the
complaint in part and dismissed counts III, IV, V, and VII of
the amended complaint.
15, 2015, respondent Town moved for summary judgment. On
August 31, 2015, the parties stipulated to dismissal with
prejudice of count VI as to both respondents and dismissal of
count II as to respondent Field only. The remaining counts in
the amended complaint were counts I and II against respondent
Town only. On September 1, 2015, petitioner filed an
opposition to respondent's motion for summary judgment.
On September 11, 2015, respondent filed a reply to
petitioner's statement of additional facts and moved to
strike lay opinion testimony in petitioner's opposition.
On November 12, 2015, the court denied respondent's
motion for summary judgment as to count I and granted the
motion as to count II. The court also granted
respondent's motion to strike lay opinion testimony.
November 30, 2015, respondent filed a motion in limine
seeking to limit the trial to the issue of whether respondent
improperly refused to consider petitioner's application.
Respondent argued that petitioner's claims under the
Freedom of Access Act (FAA) were untimely because she did not
bring them within 30 days of discovering the alleged
trial was held on December 2 and 3, 2015. The motion in
limine was argued on December 2. The court determined that
during trial, the court would consider the four issues listed
by petitioner in her memorandum in opposition to the motion
in limine. The court took respondent's motion in limine
is age 56 and since September 2015 has resided in Sebastian,
Florida. She worked for respondent for nearly 26 years,
originally as deputy clerk and tax collector and, since 2007,
as deputy treasurer and bookkeeper. Her duties included
processing payroll for respondent's employees,
bookkeeping, reconciling accounts, and the budget. Respondent
has 25 employees and eight employees work at the Town office.
to November 4, 2013, petitioner had not been disciplined by
respondent. She worked closely with Mr. Field. When he became
manager, she discussed her concerns about her job and Mr.
Field told her he had no issues with her or the job. This
relationship continued until November 2013. She knew that Mr.
Field had submitted his resignation and would no longer be
working after January 2, 2014.
her employment with respondent, she was not required to
attend Board meetings. She did not attend the November 4,
2013 meeting because she did not know the bookkeeper position
would be discussed or changes would be made to the position.
She knew the agenda included an executive session with regard
to "employment, assignment and duties of
employees." (Pet.'s Ex. 4.)
worked the week of November 4. On November 5, 2013, at 3:00
p.m., Mr. Field said he needed to speak to petitioner. He
told her the bookkeeper position's hours would be
decreased to 24 hours per week and benefits would be
eliminated. He said he did not know any further details other
than a motion was made at the November 4 meeting and it
passed effective January 2, 2014 by a three to two vote.
testified she asked what she could do to retain her full-time
position and continue to receive benefits. She testified Mr.
Field said he would work with her and figure something out.
requested to speak to the Board. Mr. Field stated she could
not and could speak only to the Chair of the Board, Steven
Libby. Petitioner asked if she could set up a meeting and Mr.
Field said he would do that. She assumed he did that because
on November 5, Mr. Field said Mr. Libby would contact
petitioner. On November 6, petitioner asked Mr. Field if he
had contacted Mr. Libby and asked again if she could meet
with him. Mr. Field responded that Mr. Libby had not gotten
back to Mr. Field and he did not know. She requested to
perform other tasks and Mr. Field said he would look into
that. She did not know he thought he needed an administrative
assistant and they did not discuss that. As far as she knew,
she performed administrative duties.
not receive any further response from Mr. Libby. Mr. Field
left at noon on November 8 without speaking with petitioner.
She described herself as "a mess" and called her
primary care physician on November 11, who felt petitioner
should remain out of work for two weeks, which she did
because of stress and anxiety. Petitioner put the
doctor's note on Mr. Field's desk on November 12.
the following two weeks she was on medical leave. With the
news that her hours were reduced and with everything that was
going on, she was an "emotional mess." Her
interaction with Mr. Field during her medical leave was by
email only. Petitioner never met with the Board or Mr. Libby.
did not attend the November 18 meeting. (Pet.'s Ex. 7.)
She saw the agenda. She knew people were upset with the
events of November 4 because New Gloucester citizens had
called and sent notes to her. The Lewiston Sun also
carried a story about the events.
watched the November 18 meeting on television. She was very
grateful that Selectmen Joshua McHenry and Mark Stevens tried
to have the bookkeeper position reinstated to 40 hours and
benefits. Their effort failed. (Pet.'s Ex. 7 2.)
on leave, petitioner was aware there was a concern about
banking information because of a change in banks. The
relevant information was on petitioner's desk but she
could not respond further until she returned to work from
returned to work on November 25. Mr. Field stated that the
amounts paid to the school districts were not correct. Mr.
Field said the school payments were off by $28, 000.00. She
responded that she had concluded the school payments were not
correct and she had resolved the issue with the financial
person at the school district. Everything had been resolved
before her medical leave. Petitioner was shocked regarding
issues about Cumberland County dispatch payments. She had a
full schedule of the payments made and knew she was not
wrong. She later learned that Mr. Field said he was wrong and
that he learned the problems had been resolved.
November 25, Mr. Field asked petitioner to go to his office.
There, he gave her a memo in which he stated she had made
errors with the school payments and the Cumberland County
dispatch payments. (Pet.'s Ex. 6.) The memo provided that
petitioner was on probation for 60 days, which could result
in termination. (Pet.'s Ex. 6.)
had never had anything like this happen in her career. She
felt Mr. Field had suspended her for two weeks and she left
that day at 9:00 or 9:30 a.m. She spoke to her husband, who
informed her she was on probation, not suspended, and should
be at work. Petitioner called Mr. Field and stated she had
misconstrued what was being done, she was going to take a
sick day, and would be back at work the following day. She
continued to read the memo from Mr. Field, however, and felt
she was being pushed out. She denied having a negative
attitude, as stated in the memo, and enjoyed her work. She
believed that what happened had nothing to do with
reorganization and respondent wanted her out of there.
she went to work on November 25, she had no intention of
resigning. Petitioner decided to resign after being
confronted with Mr. Field's allegations regarding
accounting errors and because of the way Mr. Field treated
her on November 25. She submitted her resignation.
(Pet.'s Ex. 8.) She felt Mr. Field had lied in the memo
and she was being pushed out. She was newly married and
depended on her income.
could turn back the clock, petitioner would not have
resigned. The resignation was a rash decision that she
regretted. She knew reinstatement of the bookkeeper position
would be revisited at the December 2 meeting but resigned
anyway. At trial, she testified her resignation resulted from
a combination of everything, including the November 4 action
and what Mr. Field said to her. She did not know what to do.
intended to work until age 60. She and her husband then
intended to retire and live in Florida. She would not have
resigned if the November 4 decision had not been made but she
could not see herself continuing to work there under those
followed the personnel handbook policy and gave two weeks
notice on November 25; she intended to work the two weeks.
(Pet.'s Ex. 15 ¶ 16.) The Town Manager may make an
exception to the notice requirement. Mr. Field accepted her
resignation and told her there was no reason for her to work
the two weeks and she would be paid for the weeks.
(Pet.'s Ex. 8.) From November 25 to December 6, she did
not go to the office on a regular basis to work because Mr.
Field said it was unnecessary. She continued to receive
paychecks. She dropped off her keys on December 6 when she
received her last paycheck. Petitioner never rescinded her
attended the December 2 Board meeting. People spoke about the
executive session and in support of petitioner's
reinstatement. (Pet.'s Ex. 9 1.) A motion was made to
reconsider the November 4 motion. The motion passed and, in
response to a question, Mr. Libby stated he understood that
the action returned things back to before the November 4
meeting. (Pet.'s Ex. 9 2.)
did not say anything at the December 2 meeting because she
was too emotionally unstable because of what had happened. It
did not occur to her that the Board should have said she was
to return to work on Monday. She did not rescind her
resignation between December 2 and December 6. When asked
whether she considered she had her job back after the
December 2 vote, she testified she did not think of it at
all. She was quite confused. She did not return to work.
consulted an attorney a week after the December 2 meeting to
learn her legal rights and responsibilities under the rules.
Between December 2 and December 26, respondent posted the
bookkeeper position on its website. (Pet.'s Ex. 10.)
Petitioner was aware of the posting. A special meeting of the
Board was held on December 26. The offering to petitioner of
severance pay and salary was listed on the agenda.
December 26 meeting, petitioner asked the Board to rehire
her. (Pet.'s Ex. 111.) The Board stated it was not the
Board's decision and the Town Manager hires and manages
the position. (Pet.'s Ex. 111.) She knew she had to
reapply for the bookkeeper position and she testified at her
deposition that she knew she had to reapply for the
bookkeeper position. (Pet.'s Ex. 20 143.) She submitted
by email a letter, drafted by her attorney, in which she
requested reinstatement. (Pet.'s Ex. 12.) When asked at
trial whether she reapplied because she did not think she had
a job, she testified that was how it was made to look because
the job was posted.
December 26 meeting ended just after 4:00 p.m., when the Town
office closes. Petitioner submitted her application several
hours later. (Pet.'s Ex. 12.)
she received no response from Mr. Field to her December 26
email, she sent another email to him. (Pet.'s Ex. 13.)
Mr. Field responded by letter dated Sunday, January 6, 2014,
which petitioner received on January 7, 2014. (Pet.'s Ex.
14.) She was told her application had been submitted after
the deadline and would not be considered.
personnel policy and procedures provide for discipline,
discharge, and suspension. (Pet.'s Ex. 15 ¶ 18.)
Petitioner was aware of the grievance procedure and she was
aware a grievance must be submitted in writing. (Pet.'s
Ex. 15 ¶ 17.) A grievance must be commenced no later
than ten days after the event that gives rise to the
grievance. (Pet.'s Ex. 15 ¶ 17.) She did not file a
written grievance. Petitioner said a grievance was not in the
forefront of her thoughts. She felt the meeting with Mr.
Field was enough and she considered her request to speak to
Mr. Libby a grievance.
December 6, 2013, she has worked for temporary services and
for a number of employers, including the Town of North
Yarmouth. She resigned from that job. She has applied for
positions similar to the one she had with respondent.
and her husband, who retired from employment with respondent,
sold their home, and moved to Florida in September 2015. They
now own a house in Sebastian, ...