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Doe v. Department of Mental Health
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MAINE SUPREME JUDICIAL COURT    Reporter of Decisions
Decision:	1997 ME 195
Docket:	Ken-97-87
Argued:April 10, 1997
Decided:	August 29, 1997	

Panel:  WATHEN, C.J., and ROBERTS, GLASSMAN, CLIFFORD, RUDMAN, DANA, and LIPEZ,
JJ.
Majority: WATHEN, C.J., and RUDMAN, DANA, and LIPEZ, J.J. 
Dissent: ROBERTS, J., and GLASSMAN and CLIFFORD, J.J.




JANE DOE, et al. v. DEPARTMENT OF MENTAL HEALTH, MENTAL RETARDATION, AND SUBSTANCE ABUSE SERVICES, et al.



WATHEN, C.J.

	[¶1]  Plaintiffs Jane Doe and John Doe, unnamed state employees, and
the Maine State Employees' Association, appeal from the judgment entered
against them in the Superior Court (Kennebec County, Alexander, J.) and in
favor of defendants, the Department of Mental Health, Mental Retardation,
and Substance Abuse Services and the Department of Administrative and
Financial Services ("Departments").  Plaintiffs argue on appeal that the court
erred in requiring public disclosure of the contents of a written arbitration
decision invalidating disciplinary action.   Finding no error, we affirm the
judgment.
	[¶2]  The facts, as developed for the purposes of the summary
judgment, are as follows:  In April 1996, Wrendy Hayne was killed while a
patient at the Augusta Mental Health Institute ("AMHI").   In response to this
incident, the Commissioner of the Department of Mental Health and Mental
Retardation ordered an internal disciplinary investigation of the conduct of
the state employees at AMHI.  As a result of the investigation, plaintiffs and
others were disciplined.  
	[¶3]  As permitted by the collective bargaining agreement governing her
employment, Jane filed a grievance with respect to the imposition of
discipline.  The arbitrator concluded that discipline had been imposed
without just cause and ordered all reference to the discipline removed from
Jane's personnel file.  At that time, a request had been made to the
Department of Mental Health and Mental Retardation by the Joint Standing
Committee on Health and Human Services of the Maine Legislature for
"copies of all disciplinary actions taken" as a result of Hayne's death.  To
prevent the disclosure of the arbitrator's decision, plaintiffs filed a
complaint in the Superior Court requesting injunctive and declaratory relief. 
The court issued an order restraining defendants from releasing the
arbitration award relating to Jane Doe, as well as other awards to similarly
situated employees, pending further action in the case.  The arbitrator then
issued a decision concluding that the discipline imposed against John Doe
was also imposed without just cause.  He ordered all reference to the
discipline removed from John's file.  The complaint in the Superior Court
was then amended to include John as a plaintiff.  
	[¶4]  At the hearing on their motion for a preliminary injunction,
plaintiffs informed the court that they agreed to the release of the
arbitration awards, provided the names and addresses of the individual
employees were omitted.  The court preliminarily enjoined defendants from
disclosing the names but provided that the remainder of the awards, except
certain information protected as confidential by statute, could be released. 
Intervenor Guy Gannett Communications, d/b/a The Kennebec Journal,
subsequently requested that defendants release the arbitration awards and
redacted copies were released and their contents were widely reported by
media sources throughout the state.{1}
	[¶5]  After cross motions for summary judgment were filed by all
parties, the court granted summary judgment in favor of defendants and
intervenor.  It declared that defendants could disclose the contents of the
arbitrator's decisions provided that patient information protected by law was
first removed.  An appeal from the judgment was filed and the release of the
names was stayed pending the present appeal.
	[¶6]  The Maine Legislature has determined that public records are to
be "open to public inspection," 1 M.R.S.A. § 401 (1989), and, through the
enactment of the Freedom of Access Act, 1 M.R.S.A. §§ 401-410 (1989 &
Supp. 1996), has mandated that, "[e]xcept as otherwise provided by statute,
every person shall have the right to inspect and copy any public record
during the regular business hours of the custodian or location of such record
. . . ."  Id.  408.  Plaintiffs do not challenge the status of their arbitration
awards as "public records" within the meaning of the Freedom of Access
Act.{2}  The present case involves the construction of an exception to the Act
pertaining to records of state employees.  The exception in question
provides, in part:

The following records shall be confidential and not open to public
inspection, and shall not be "public records," as defined in Title 1,
section 402, subsection 3:
. . . .
2. Personal information.  Records containing the following, except
they may be examined by the employee to whom they relate when the
examination is permitted or required by law:
. . . . 
	E.  Except as provided in section 7070-A{3} complaints, charges
	or accusations of misconduct, replies to those complaints,
	charges or accusations and any other information or materials
	that may result in disciplinary action.  If disciplinary action is
	taken, the final written decision relating to that action is no
	longer confidential after the decision is completed.

5 M.R.S.A.  7070(2)(E) (Supp. 1996) (emphasis added).   

	[7]  Defendants contend that the meaning and application of the
statute is clear -- disciplinary action has been "taken" against plaintiffs and
the arbitration award is the "final written decision" relating to that action
and is not confidential.  Plaintiffs argue that the exception to the
confidentiality rule set out in section 7070(2)(E) should not apply when
discipline is ultimately found to have been unjustified.  They argue that an
underlying  purpose of the statute is to protect employees from the adverse
consequences of disclosing unfounded accusations.
	[8]  Statutory construction is a matter of law.   Thibeault v. Larson, 666
A.2d 112, 114 (Me. 1995).  "When construing a statute, we must give effect
to the Legislature's intent."  Town of Madison, Dept. of Elec. Works v. PUC,
682 A.2d 231, 234 (Me. 1996).  "Intent is ordinarily gleaned from the plain
language of the statute itself.  Such plain meaning will be applied so long as
it does not lead to an absurd, illogical, or inconsistent result."  Id.  In
addition, because the Freedom of Access Act mandates that its provisions
"shall be liberally construed," 1 M.R.S.A.  401, "we must interpret strictly
any statutory exceptions to its requirements."  Bangor Pub. Co. v. City of
Bangor, 544 A.2d 733, 736 (Me. 1988); see also Guy Gannett Pub. v.
University of Maine, 555 A.2d 470, 471 (Me. 1989) ("a corollary to such
liberal construction of the Act is necessarily a strict construction of any
exceptions to the required public disclosure") (quoting Moffett v. City of
Portland, 400 A.2d 340, 348 (Me. 1979)).  
	[9]  The Legislature has provided that the "final written decision
relating to" disciplinary action taken against a state employee is no longer
confidential after the decision has been completed.   In all cases where
administrative discipline proceeds to arbitration, the relevant "final written
decision" is the "final written decision of [the] neutral arbitrator."{4}  Final
arbitration decisions "relating to" disciplinary action necessarily include
those decisions rejecting discipline as well as those upholding it.{5} The
public's interest in an instance of improper discipline is no less apparent
than its interest in an instance of properly imposed discipline.  In the latter
case, the final decision reflects on the action of the employee.  In the former
case, in addition to vindicating the employee, it may also reflect on the
action of the supervisor.
	[10]  Plaintiffs were disciplined.  Although that decision was later
rejected by the arbitrator, plaintiffs were subjected to disciplinary action. 
Section 7070(2)(E) provides that "[I]f disciplinary action is taken, the final
written decision relating to that action is no longer confidential after the
decision is completed."
	The entry is:
Judgment affirmed.

        
ROBERTS, J., with whom GLASSMAN and CLIFFORD, JJ., join, dissenting. [11] I respectfully dissent because I disagree with the Court's interpretation of 5 M.R.S.A. 7070(2)(E). That provision is a part of chapter 372 of title 5, which establishes the State Civil Service System. In a subpart dealing with employee benefits, records, and training, section 7070 provides control of personnel records and states, "The following records shall be confidential and not open to public inspection, and shall not be 'public records,' as defined in Title 1, section 402, subsection 3." Section 7070(2) provides protection for personal information such as medical information, performance evaluations, creditworthiness, and personal and family history. Paragraph (E) of subsection (2) provides protection for personnel records of "complaints, charges or accusations of misconduct, replies to those complaints, charges or accusations and any other information or materials that may result in disciplinary action." [12] It is obvious that the Legislature intended to create a distinction between "complaints, charges or accusations" of misconduct and disciplinary action itself. The purpose of the distinction was to protect public employees against the disclosure of unfounded charges of misconduct. The provision goes on to specify that only in the event that "disciplinary action is taken" shall the final written decision relating to that action be made available to the public. [13] The key issue in this case is whether disciplinary action was taken against the plaintiffs. The Court takes the position that disciplinary action, as contemplated by the Legislature, includes even those instances when action taken against employees is unfounded. Such an interpretation is at odds with the statute's plain purpose of protecting employees against unfounded charges of misconduct. In this case, disciplinary action was never taken against the plaintiffs, they suffered no penalty, and the Department's actions were found to have been taken without just cause. [14] The Court's parsing of the second paragraph of section 7070(2)(E), which was added by P.L. 1991, ch. 229, 1, is not persuasive. The addition merely defines "final written decision" and addresses the consequence of a delay in the arbitration process that is not present in the record before us. The second sentence of the first paragraph remains the same, except for a minor grammatical change. That critical sentence permits the release of otherwise confidential personal information contained in personnel records. That sentence is preceded by the clause "[i]f disciplinary action is taken." The Court's interpretation of section 7070(2)(E) ignores this important point and disregards the Legislature's desire to protect employees against charges not proven to be true. See Jordan v. Sears, Roebuck & Co., 651 A.2d 358, 360 (Me. 1994) (in addition to examining the plain meaning of language to determine legislative intent, we also consider the whole statutory scheme of which the section at issue forms a part so that a harmonious result may be achieved). I would vacate the judgment.
Attorney for Plaintiffs: Timothy L. Belcher, Esq. (orally) Maine State Employees Association 65 State Street P. O. Box 1072 Augusta, ME 04332-1072 Attorneys for Defendants: Andrew Ketterer, Attorney General Christopher Leighton,Assistant Attorney General (orally) 6 State House Station Augusta, ME 04333-0006 Attorneys for Intervenor The Kennebec Journal: Charles J. Glasser, Jr., Esq. Jonathan S. Piper, Esq. Preti, Flaherty, Beliveau & Pachios 443 Congress Street Portland, ME 04104
FOOTNOTES******************************** {1} In addition to the legislative request for the awards and the request by The Kennebec Journal, Eric M. Mehnert, Esq., counsel to Don and Janice Burns, requested "all unredacted (except for patient confidentiality) Level III decisions concerning any individual who was disciplined for the care and treatment of Harold Pulsifer and/or Wendy Hayne." {2} Maine's Freedom of Access law defines a public record as: any written, printed or graphic matter or any mechanical or electronic data compilation from which information can be obtained, directly or after translation into a form susceptible of visual or aural comprehension, that is in the possession or custody of an agency or public official of this State or any of its political subdivisions, or is in the possession or custody of an association, the membership of which is composed exclusively of one or more of any of these entities, and has been received or prepared for use in connection with the transaction of public or governmental business or contains information relating to the transaction of public or governmental business, except: A. Records that have been designated confidential by statute. . . . . 1 M.R.S.A. § 402(3) (Supp. 1996). {3} 5 M.R.S.A. § 7070-A deals with personnel records concerning the use of force by a law enforcement officer and is irrelevant to the present case. {4} For the purposes of section 7070(2)(E), "final written decision" means: (1) The final written administrative decision that is not appealed pursuant to a grievance arbitration procedure; or (2) If the final written administrative decision is appealed to arbitration, the final written decision of a neutral arbitrator. A final written administrative decision that is appealed to arbitration is no longer confidential 120 days after a written request for the decision is made to the employer if the final written decision of the neutral arbitrator is not issued and released before the expiration of the 120 days . . . . 5 M.R.S.A. § 7070(2)(E) (Supp. 1996). {5} A decision "relates to" disciplinary action if it has "connection, relation, or reference" to it. Webster's II New Riverside University Dictionary (1988) (definition of "relate").