The Lewiston-based Sun Journal reported Wednesday that Republican Gov. Paul R. LePage bullied Maine Department of Labor (DOL) staff during a March 21 meeting at the Blaine House.
The report, which relies entirely on anonymous hearsay from disgruntled state workers, is a stunning act of journalistic malpractice.
According to multiple sources in the Governor’s Office, the anonymous allegations contained in the report are false.
John Butera, senior economic adviser to the Governor, was present for the meeting at the Blaine House. He said LePage arranged the meeting in order to discuss whether federally-funded Department of Labor personnel were following state and federal laws regarding the administration of unemployment insurance (UI) hearings.
The meeting was prompted by constituent complaints – business owners who told the Governor that the unemployment system in Maine was unfairly hurting their bottom lines, said Butera. He said the Governor specifically chose the Blaine House to set a tone of goodwill for the meeting.
“There was no intimidation whatsoever. None,” said Butera. “There was a discussion about problems and solutions.”
Butera said the Governor made it absolutely clear during the meeting that he wanted to be fair to both employers and employees.
“The Governor said he had no sympathy for a business that does not document the unemployment process or follow the rules,” said Butera. “He said employers do not deserve to appeal or win an unemployment hearing if they don’t go through the process properly,” said Butera. “He made that very clear.”
According to the anonymous sources quoted in the Sun Journal report, LePage “scolded eight administrative hearing officers and their supervisors, complaining that too many case on appeal from the Bureau of Unemployment Compensation were being decided in favor of employees.” LePage, the anonymous sources said, told the group of DOL employees that they were “doing their jobs poorly.”
While there is no way of knowing if LePage actually said this, there are plenty of reasons to believe it’s the truth, according to a ten-page internal memo obtained by The MAINE WIRE pursuant to a Freedom of Access Act request.
The memo outlines problems with the Bureau of Unemployment Compensation’s (BUC) Division of Administrative Hearings (DAH). The memo, which was shared at the meeting, paints the picture of state bureaucrats playing by their own rules, ignoring state and federal laws, and conducting UI hearings on arbitrary whim. Internal analysis of DOL procedures and redacted excerpts from actual hearings show how hearing officers routinely decide against employers for reasons not clearly rooted in law.
The memo highlights the following problems with DAH’s administration of UI hearings:
- Problem: Hearing officers do not understand that reliable, relevant hearsay is admissible in evidence in Maine’s administrative unemployment proceedings. Hearing officers at times erroneously exclude relevant evidence (such as letters, warnings, investigative reports, photos, e-mails, videos), which were created by a reliable source on the grounds that the person who drafted or created said evidence is not available for cross-examination… Despite the rules, hearing officers often find the following: ‘Hearsay evidence is generally not the kind of evidence upon which reasonable persons rely in the conduct of serious affairs.”
- Problem: Employer’s (and claimants) often do not understand that the documents they provide to the Deputy at the fact finding are not automatically in evidence if there is an appeal to [Division of Administrative Hearings (DAH)] or to the [Maine Unemployment Insurance Commission (MUIC)].
- Problem: The [Hearing Officers (HOs)] often omit to provide a party with the opportunity to submit evidence after a party tells the hearing officer that they brought paperwork with them to the hearing. (This problem seems to be unintentional…)
- Problem: The hearing officers at times deny a party the opportunity to call witnesses on the grounds that the witnesses’ testimony is repetitive. The hearing officer will ask a party what the witness will testify to and then say, “I don’t think I need to hear that. It sounds like it will just repeat your testimony.” This can be an error of the law if the testimony would corroborate evidence which is in dispute… The rules do provide for a speedy hearing… However, speed should not come at the expense of due process.”
- Problem: Hearing officers at times exclude a document solely because the party did not provide it to DAH in advance of the hearing.
- Problem: The hearing officers routinely exclude from evidence as irrelevant any document or testimony which relates to events that occurred after the date of separation. Although this ruling is often correct, it can be an error, as occasionally something that happens after the separation corroborates the reason for the separation.
The memo examines specific instances where hearing officers made arbitrary decisions with nebulous grounding in current law, resulting in employers having to pay for additional unemployment compensation. The memo relates the following redacted excerpt from a DAH hearing:
Employer (ER): Is it possible for me to submit a document that hasn’t been faxed over?”
Hearing officer (HO): And what document would that be?
ER: Key performance tracking that logs all of the coaching sessions that [the claimant] received as well as verbal warnings.
HO: And who prepared this log?
ER: This is a log that is maintained by all of the supervisors on site; so she had a supervisor change a couple of times – there was [names of three supervisors]. So it’s a collective record of their notes.
HO: Yeah…no…I don’t think that, first of all it’s THEIR notes so there’s no way for us to cross examine those notes…um they’re not available to testify, so that I would not be allowing that document into the record even