ORDER ON RULE 80C APPEAL
MICHAELA MURPHY JUSTICE.
the Court is the Town of Searsport's 80C appeal of the
Maine Labor Relations Board's determination that the Town
of Searsport's Waste Water Treatment Chief
Operator/Superintendant and its Public Works Director are
employees pursuant to the Municipal Public Employees Labor
Relations Law. The Town of Searsport is represented by
Attorney John K. Hamer. The Maine Labor Relations Board is
represented by Attorney Lisa Copenhaver. Liuna Laborers'
Union 327 has not appeared. Oral argument was held on June 6,
April 7, 2016, the LIUNA Laborers' Local 327 filed a
petition for unit determination with the Maine Labor
Relations Board ("MLRB") seeking to create a
bargaining unit for employees working in the Town of
Searsport's (the "Town") Public Works
Department and at the Waste Water Treatment Plant
("WWTP"). The Town objected to the inclusion of the
WWTP Chief Operator/Superintendant and the Public Works
Director in the bargaining unit. The MLRB's Hearing
Examiner held an evidentiary hearing and issued a
determination on July 11, 2016. The Hearing Examiner's
decision held that both the WWTP Chief
Operator/Superintendant and the Public Works Director should
be included in the bargaining unit. The Town appealed the
determination to the full MLRB. The MLRB reviewed the record
before the Hearing Examiner and heard argument. On October
20, 2016, the MLRB issued a decision finding that the two
positions were not excluded from coverage by the Maine Public
Employees Labor Relations Law, 26 M.R.S. § 961 et seq
(the "Act"), but also finding that the two should
be placed in a separate supervisory bargaining unit. The Town
now appeals the determination of the MLRB.
Town of Searsport operates under the Town Manager Plan as set
out in Title 30-A, Chapter 123, Subchapter 2. The WWTP Chief
Operator/Superintendant has been appointed each year for the
last 9 years to a one year appointment. The Public Works
Director, Robert Seekins, was originally appointed to the
position of Highway Foreman, effective April 1, 1995. The
Minutes of the Board of Selectmen's (the
"Board") Meeting of March 21, 1995 states that the
Board approved the Town Manager's appointment of Robert
Seekins. Since 1995, when Mr. Seekins was first appointed as
Highway Foreman, his job title and job description have
changed. In 2002, his job title changed to Public Works
Director. At that time, the Board approved the job
description. The Selectmen did not take any further action to
reappoint or clarify the appointment of Mr. Seekins to this
new job title and job description.
the MLRB's determination, the Public Works Director
supervised three employees and the WWTP Chief
Operator/Superintendant supervised one employee. They are
both tasked with planning, scheduling, assigning, and
disciplining employees, if necessary. Both perform
administrative tasks, for example: the purchase of equipment
and supplies, record keeping, payroll, and the preparation of
their department's budget. Both are responsible for the
technical and mechanical operations of their respective
departments and both spend a large portion of their time
performing operational tasks.
Town of Searsport 2015 Policy Book, Section 2: Appointive
Authority, lists 24 officials appointed by the Board. Neither
the WWTP Chief Operator/Supervisor nor the Public Works
Director are on this list. The list of officials is followed
by the statement, "These appointments are made subject
to state statute and may be in the form of a contract."
The Policy goes on to state, "The Town Manager appoints
Department Heads, subject to confirmation by the Board of
Selectmen. The Town Manager also appoints all other employees
as authorized by the Board of Selectmen." R. 30.
Standard of Review
acting in an appellate capacity pursuant to Rule 80C and the
APA, the court reviews an agency's decision for errors of
law, abuse of discretion, or findings not supported by
substantial evidence in the record. Somerset Cnty. v.
Dep't of Corr., 2016 ME 33, ¶ 14, 133 A.3d
1006; 5 M.R.S.A. § 11007(4)(C)(1)-(6). The party seeking
to vacate an agency's decision bears the burden of
persuasion to demonstrate error. Rossignol v. Me. Pub.
Emples. Ret. Sys., 2016 ME 115, ¶ 6, 144 A.3d 1175,
Clark v. Hancock Cnty. Comm'rs, 2014 ME 33,
¶ 22, 87 A.3d 712; Forest Ecology Network v. Land
Use Regulation Comm'n, 2012 ME 36 ¶ 24, 39 A.3d
agency has the authority to determine the weight to be given
to the evidence. Rossignol 2016 ME 115, ¶ 6,
144 A.3d 1175; 5 M.R.S.A. § 11007(3). Findings of fact
will be affirmed if they are supported by any competent
evidence in the record, even if the record contains
inconsistent evidence or evidence contrary to the result
reached by the agency. Watts v. Bd. of Envtl. Prot,
2014 ME 91, ¶ 5, 97 A.3d 115, 118. The reviewing court
will vacate a determination that a party failed to meet that
burden their burden of proof only if the record compels such
a conclusion to the exclusion of any other inference.
Rossignol, 2016 ME 115, ¶ 6, 144 A.3d 1175.
of law are subject to de novo review. York Hosp. v.
HHS,2008 ME 165, ¶ 32, 959 A.2d 67. Deference is
generally given to an agency's interpretation of an
ambiguous regulation or statute that is within its area of
expertise, but an agency's interpretation will be
rejected if it is unreasonable or if the statute or
regulation plainly compels a contrary result. Cheney v.
Unemployment Ins. Comm 'n,2016 ME 105, ¶ 6,