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Jones v. Town of Warren, corrected 10-9-97
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision: 	1997 ME 200
Docket: 	Kno-96-749
Submitted
on Briefs:	September 19, 1997
Decided:	October 7, 1997	

PANEL:	WATHEN, C.J., and ROBERTS, CLIFFORD, RUDMAN, DANA, and LIPEZ, JJ.


HELEN JONES v. TOWN OF WARREN
RUDMAN, J.

	[¶1]  Helen Jones appeals from the judgment entered in the Superior
Court (Knox County, Atwood, J.) denying her appeal from her termination as
an employee of the Town of Warren.  Jones contends that, contrary to the
determination by the Board of Selectmen, she was employed as an office
clerk in the Town's office at the time her term of office as Town Clerk
expired and that the Superior Court erred when it held that the Board of
Selectmen's determination was supported by substantial evidence contained
in the record.  We disagree and affirm the judgment.
	[¶2]  Helen Jones was hired by the Town of Warren in September
1989 as an office clerk.  In March 1993, Avis Luce was elected Town Clerk
of the Town of Warren but passed away prior to assuming that position.  The
Town's Board of Selectmen appointed Jones as Town Clerk on March 18,
1993, for a term of three years.  A few months after Jones was appointed
Town Clerk, the Town hired Sherry Howard as office clerk.  Jones did not,
in any way, challenge the employment of a new office clerk.  When Jones's
term as Town Clerk expired, she was not reappointed.  She then sought to
continue her employment by the Town as an office clerk, a position she
maintained she never surrendered when she assumed the position of Town
Clerk.  The Town Manager refused to place her in that position, reasoning
that she had surrendered that position on becoming Town Clerk.  Jones
appealed the decision of the Town Manager to the Town's Board of
Selectmen and the Board of Selectmen denied her appeal.  She then
appealed to the Superior Court which found the Board's determination was
supported by substantial evidence and thus affirmed the determination.{1} 
	[¶3]  When the Superior Court acts in an intermediate appellate
capacity in reviewing the action of a town, we directly and independently
examine the record as developed before the Board to determine whether
the Board abused its discretion, committed an error of law, or made findings
not supported by substantial evidence in the record.  Sherwood v. Town of
Kennebunkport, 589 A.2d 453, 454-55 (Me. 1991).  The issue before us is
not whether we would reach the same conclusion as the Town, but whether
the record contains competent and substantial evidence which supports the
result reached by the Town.  See In re Maine Clean Fuels, Inc., 310 A.2d
736, 741 (Me. 1973)  Substantial evidence is such relevant evidence as a
reasonable mind might accept as adequate to support the conclusion. 
Hrouda v. Town of Hollis, 568 A.2d 824, 826 (Me. 1990).  That the evidence
supports two inconsistent conclusions does not prevent an administrative
agency's finding from being supported by substantial evidence.  Maine Clean
Fuels, 310 A.2d at 741.  An administrative board's finding will not be
disturbed if supported by substantial evidence.  Palesky v. Town of Topsham,
614 A.2d 1307, 1309 (Me. 1992) (Town's determination regarding
terminated employee will not be disturbed by the Court when supported by
substantial evidence in the record).
	[¶4]  The Town's determination that Jones held only the position of
Town Clerk when her term as Town Clerk expired is supported by
substantial evidence.  Perhaps the most compelling and dispositive evidence
that substantiates the Town's determination is that an office clerk was hired
months after Jones accepted the appointment as Town Clerk.  Whatever
expectations Jones might have held that she continued to occupy the
position of office clerk must have ceased at that point.
	The entry is:
						Judgment affirmed.

Attorney for plaintiff: James W. Strong, Esq. P O Box 56 Thomaston, ME 04861 Attorney for defendant: Thomas F. Monaghan, Esq. Monaghan, Leahy, Hochadel & Libby P O Box 7046 Portland, ME 04112-7046
FOOTNOTES******************************** {1} Jones's appeal to the Superior Court was brought, inter alia, pursuant to M.R. Civ. P. 80B. In her complaint, she alleges that the Town's Board of Selectmen unlawfully discussed issues regarding her employment in an executive session without her presence. Although this issue was raised in her complaint, it was not argued before the Superior Court. See Kelly v. University of Maine, 623 A.2d 169, 171 (Me. 1993) (issue not preserved on appeal when not raised in the Superior Court and when the Superior Court decided the case on an entirely different issue); Cyr v. Cyr, 432 A.2d 793, 797 (Me. 1981) ("No principle is better settled than that a party who raises an issue for the first time on appeal will be deemed to have waived the issue.").