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Farley v. Town of Washburn
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MAINE SUPREME JUDICIAL COURT				Reporter of Decisions
Decision:		1997 ME 218
Docket:		Aro-96-818
Submitted 
On Briefs:		September 19, 1997
Decided :		November 10, 1997

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



RUSSELL FARLEY v. THE TOWN OF WASHBURN



CLIFFORD, J.

	[¶1] Russell Farley appeals from a judgment entered in the Superior
Court (Aroostook County, Pierson, J.) affirming his discharge as an employee
of the Town of Washburn.  He contends on appeal that his status as an
employee of the Town entitled him to protection from discharge without
sufficient cause and without procedural safeguards, and that his firing was
without cause and without sufficient due process.  We are unpersuaded by
Farley's contentions and affirm the judgment. 
	[¶2]  Farley was fired by the Town Manager from his position as a
highway maintenance worker in February of 1995.{1}  Pursuant to the Town's
personnel policy, Farley requested and was granted a hearing before the
Town Council.  Farley's appeal of his discharge to the Council was
unsuccessful, and after the hearing his discharge was confirmed by the
Town Manager in a letter.  Farley appealed his dismissal to the Superior
Court pursuant to M.R. Civ. P. 80B.  The Superior Court affirmed the Town
Council's action and this appeal followed.
	[¶3]  Farley relies on statutory provisions set out in 30-A M.R.S.A. to
argue that he has a property interest in his employment and that he could
not be discharged without cause.{2}  The only statutory argument advanced by
Farley before the Superior Court is that he is protected pursuant to 30-A
M.R.S.A. § 2601(1).
	30-A M.R.S.A. § 2601(1) provides in part:

1. Appointment of Officials and Employees  Except when
specifically provided by law, charter or ordinance, the
municipal officers shall appoint all municipal officials and
employees required by general law, charter or ordinance and
may remove those officials and employees for cause, after
notice and hearing. 

(emphasis added).  The Superior Court correctly concluded that section
2601 applied only to those municipal positions required to be filled by
statute, by town charter or by ordinance, and that Farley's position as a
highway maintenance worker was not required by "general law, charter or
ordinance."  Accordingly, because the court correctly determined that the
provisions of section 2601 do not apply to Farley's position, he cannot rely
on that section as the source of a property right entitling him to due process
and protection from termination without cause.
	[¶4]  For the first time, on appeal, Farley contends that he was one of
the "other officials, subordinates [or] assistants," pursuant to 30-A M.R.S.A.
§ 2636(6), that he was appointed by the Town Manager, and that pursuant
to section 2636(14) he could be removed only by the Town Manager and
only for cause after notice and hearing.{3} 
	[¶5]  Because it was not raised before the Superior Court, the Town
contends that Farley's claim based on section 2636 has not been preserved. 
We decline to review an issue if the trial court lacked the opportunity to
make a final disposition of that issue.  See Harrington v. Town of Garland,
381 A.2d 639, 643 (Me. 1978).  See also Balkan v. Johnston, 561 A.2d 177,
178 (Me. 1989) (plaintiff's failure to raise issue at trial precludes appellate
review).  Issues must be raised at the trial court level to ensure that the
focus of legal issues be narrowed through fact finding and to insure that all
factual disputes be resolved prior to appeal.{4}   See Hale v. Petit, 438 A.2d
226, 232-33 (Me. 1981); Reville v. Reville, 289 A.2d 695, 697-98 (Me.
1972).  Although we will consider an issue raised and preserved if there is
sufficient basis in the record to alert the court and any opposing party to the
existence of that issue,  see Chasse v. Mazerolle, 580 A.2d 155, 156 (Me.
1990), the only consideration by the Superior Court given to the Town
Manager's removal power was Farley's argument that the Town Manager
could not remove him.  To that court, Farley argued against the position he
now asserts, relying on 30 M.R.S.A. § 2601(1) to contend that the Town
Council, and not the Town Manager, had exclusive authority to appoint and
remove him.  Farley's presentation before this court of the exact opposite
theory presented to the trial court requires a wholly different statutory
analysis.  Farley has failed to preserve his claim based on section 2636(6)
and (14) and we decline to address its merits.
	[¶6]  Farley also contends that the Town's Personnel Policy limits the
ability of the Town to discharge him without cause.  We disagree.  Because
the personnel policy does not set out a method of discharging employees,
but only provides for a method of resolving work-related grievances in
general, Farley's claim is without merit.  Taliento v. Portland West
Neighborhood Planning Council,  1997 ME 194, ¶ 10-11, ____ A.2d ____. 
Libby v. Calais Reg'l Hosp., 554 A.2d 1181, 1183 (Me. 1989). 
The entry is:
			Judgment affirmed.

Attorney for plaintiff: Norman G. Trask, Esq. Currier & Trask, P.A. 505 Main Street Presque Isle, Me 04769-2393 Attorneys for defendent: John J. Wall, III, Esq. Thomas F. Monaghan, Esq. Monaghan, Leahy, Hochadel & Libby P O Box 7046 Portland, ME 04112-7046
FOOTNOTES******************************** {1} Although Farley asserts that he was fired by his immediate supervisor, the record supports the Superior Court's determination that it was the Town Manager's decision to discharge him. {2} Farley claims his termination deprived him of a property interest in continued employment with the Town which gives rise to due process protection. "The requirement of procedural due process applies to deprivations of liberty or property interests." Barber v. Town of Fairfield, 460 A.2d 1001, 1005 (Me. 1983) (citing U.S. Const., amend. 14; Me. Const., art. I §- A). These property interests flow not from the Constitution, but "from an independent source such as state law." Lovejoy v. Grant, 434 A.2d 45, 50 (Me. 1981) (quoting Board of Regents v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 2709 (1972). "A property interest in public employment can be created by a statute or ordinance that restricts the grounds on which an employee may be discharged." Lovejoy, 434 A.2d at 50. Cf. Hammond v. Temporary Compensation Review Bd., 473 A.2d 1267, 1272 (Me. 1984) (employee must show "existing law or rules, or mutual understandings, wherein his claims of entitlement are secured and may be supported"); Krennerich v. Town of Bristol, 943 F. Supp. 1345, 1352-53 (D.Me. 1996) ("[A] public employee has no property interest sufficient to invoke the Fourteenth Amendment's due process guarantees unless the applicable statute or employment contract requires that employment may be terminated only on a showing of 'cause')." {3} Title 30-A M.R.S.A. § 2636 provides in part: The town manager: ...6. Appoint town officials. Unless otherwise provided by town ordinance, shall appoint, supervise and control all town officials whom the municipal officers are required by law to appoint, except members of boards, commissions, committees and single assessors; and appoint, supervise and control all other officials, subordinates and assistants, except that the town manger may delegate this authority to a department head and report all appointments to the board of selectmen. ...14. Remove appointments. Has exclusive authority to remove for cause, after notice and hearing, all persons whom the manager is authorized to appoint and report all removals to the board of selectmen. (Emphasis added). {4} Farley's appeal was pursuant to M.R. Civ. P. 80B. Rule 80B(d) provides the court with authority to hold a trial to determine factual issues.