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DOL Finds Maine Governor and Staff Intervened in State Unemployment Appeals

Wednesday, March 5, 2014
By Adrianne Appel

March 3 --A Labor Department investigation has found that actions by Maine Gov. Paul LePage (R) could be perceived as attempts to intimidate state unemployment appeals hearing officers to rule in favor of employers, according to a Feb. 27 letter from DOL.

“Our fact-finding interviews suggest that the LePage administration officials have intervened in the unemployment compensation first-level appeals process,’’ the federal agency wrote. The letter from Holly O'Brien, regional DOL administrator in Boston, was addressed to Jeanne Paquette, commissioner of the Maine Department of Labor.

Under federal law, unemployment compensation hearings must be fair and impartial in fact and appearance, O'Brien said. She said the DOL will closely monitor Maine's appeals process in the future.

“The [LePage] administration must ensure hearing officers are free from actual or perceived intimidation. In particular, the administration must make clear no personal action will be taken against hearing officers over this matter,’’ O'Brien said.

Investigation of LePage Meeting With Officers
The DOL conducted a two-part investigation of Maine's first-level unemployment compensation appeal process after hearing from a group of Maine employment attorneys and Jennifer Duddy, chair of the Maine Unemployment Insurance Commission, about their concerns.

In an April 15 letter, the attorneys described their concern that LePage and his administration were trying to influence Maine's unemployment compensation appeals hearing officers. The attorneys pointed to a March 21, 2013, meeting between LePage and appeals hearing officers as an example of the governor's attempts to intimidate the officers into favoring employers (73 DLR A-6, 4/16/13).

DOL's Office of the Solicitor (OS) conducted the investigation into whether interventions by the LePage administration in the day-to-day operations of the appeals process may be perceived as an attempt to influence the outcome of hearings.

“We conclude hearing officers could have interpreted the expectations communicated by the governor on March 21 as pressure to be more sympathetic to employers,’’ O'Brien said.

“Evidence suggests that even before the governor's direct participation on March 21, political appointees in the Maine Department of Labor had intervened in the [appeals] operations and quasi-judicial decision-making with what could be perceived as a bias toward employers, endangering the fair hearings process,’’ O'Brien said.

The OS also found that LePage's intervention may have a lasting, negative impact on the ability of the Maine appeals process to operate efficiently. Following the March 21 meeting, some hearing officers began writing longer, more involved decisions in cases where the ruling favored a worker, to fend off any potential criticism that a decision was anti-employer, the OS said. Over time, this may slow down the appeals process, O'Brien said.

LePage Denied Intimidating Officers
LePage told DOL investigators that his concern was to ensure that hearing officers were following the law. He denied threatening or intimidating them, O'Brien said. In a Feb. 27 statement, LePage pointed to politics as the reason for the investigation.

“It is also no surprise that the Obama Administration's Department of Labor is speculating my administration somehow tried to influence the hearings process,” LePage said in a Feb. 27 statement.

“This issue has been politically motivated from the start, starting with Democratic activists in Maine and reaching all the way to the White House. The DOL review found no evidence of wrong-doing, but uses conjecture and supposition to come to a conclusion that has no basis in fact. The focus of my administration is to ensure the appeals process is fair and consistent for both Maine employees and employers,” LePage said.

No Evidence Outcomes Were Influenced
The DOL's Employment and Training Administration investigated whether the outcome of appeals hearings were influenced by LePage and biased toward employers. The DOL dispatched two employees in April and May 2013 who reviewed 40 case files that began after March 21, 2013. They examined the files to determine whether the hearing record supported the findings of the hearing officer, as an indication of bias.

The reviewers didn't find statistical evidence of pro-employer or pro-claimant bias in the appeals cases, O'Brien said. She cautioned that the DOL will continue to focus on Maine's unemployment appeals process, and conduct quarterly case reviews.

“To be clear, we will closely monitor Maine's performance based on an established federal standard for timeliness, case aging and quality,’’ she said.

In addition, the DOL will pay close attention to the rate of reversal for both claimant and employer appeals, and watch for any sudden deviation from the rate that's been the norm in Maine for about 10 years. The state's reversal rate for claimant appeals at the lower level for voluntary quit and misconduct combined is 31 percent and for employers it's 32 percent, she said.

Process Doesn't Conform With Guidelines
The OS found that some aspects of Maine's hearings process don't conform to federal law.

According to O'Brien, Maine often excludes reliable ''hearsay’’ evidence in appeals when it should be included. The ETA's “Guide to Unemployment Insurance Benefit Appeals, Principles and Procedures,” recommends including hearsay, she said.

In addition, hearing officers discourage or disallow evidence they believe is repetitive even if it corroborates other evidence or statements, O'Brien said. She added that the officers sometimes exclude documents simply because they weren't submitted prior to the hearing--even when the need for the document only arises during the hearing--which can result in exclusion of evidence.

O'Brien also said Maine doesn't consider its rulings in previous hearings as precedent, which leads to inconsistency in rulings.

She recommended that the state improve the appeals process so that it consistently complies with state law. O'Brien also advised that training be implemented for hearing officers to ensure that all relevant evidence is considered and hearings are consistent in the consideration of evidence.

Maine should also consider creating a manual identifying what evidence may be considered in hearings, O'Brien said.

By Adrianne Appel

To contact the reporter on this story: Adrianne Appel in Boston at aappel@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

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