Ruling Sheds Light on Meaning of “Public Employee” under Maine’s Municipal Labor Law

Thursday, September 7, 2017

Maine’s Superior Court recently affirmed a decision from the Maine Labor Relations Board (MLRB) finding that two municipal supervisory employees were “public employees” with the right to collectively bargain under Maine’s Municipal Public Employees Labor Relations law (MPELR). The decision is noteworthy because it sheds light on two exceptions to the definition of “public employee” under the MPELR and, perhaps more important for municipalities, what is required for an employee to fall within those exceptions.

The issue in Town of Searsport v. State of Maine and LIUNA Laborers’ Local 327 arose from a union’s petition with the MLRB seeking to create a bargaining unit for employees in the town’s Waste Water Treatment Plant (WWTP) and Public Works Department. After the town objected to including the WWTP Superintendent and the Public Works Director in the unit, an examiner for the MLRB held an evidentiary hearing and concluded that both the Superintendent and the Public Works Director should be included in the unit and should not be excluded from coverage by the MPELR. This decision was affirmed by the full MLRB.

Affirming the MLRB’s decision on appeal, the Superior Court found that the Superintendent and Public Works Director did not fall within two exceptions to the MPELR’s definition of “public employee.” Turning to the Superintendent first, the court found this position did not fall within an exception that applies to employees who are appointed to “office” pursuant to statute, ordinance or resolution for a specified term by the executive head or body of a public employer. Although the Superintendent had been appointed to his position for a number of one-year terms by the Town Manager, the court found the meaning of “office” was ambiguous because it could refer either to a specific official position or to employment in general. The court therefore deferred to the MLRB’s interpretation of the term, which limited the exception to public employees appointed to official positions. In this case, the town had a policy that identified 24 officials over which the town had appointive authority, but neither the Superintendent nor the Public Works Director were on the list. Given the absence of evidence demonstrating that the Superintendent held an official position specifically established by statute, ordinance or resolution, the court found the position did not fall within the exception.

As for the Public Works Director, the court found this position did not fall within a second exception that applies to a “department head or division head” appointed to office pursuant to statute, ordinance or resolution for an unspecified term by the executive head or body of a public employer. Here, the court found no ambiguity in the exception, but found there was no evidence showing that the director was “properly appointed” to a department head position. The director had originally been appointed to the position of Highway Foreman, but his job title and job description were changed to Public Works Director several years later. Although the Board of Selectmen approved the change in job description, it did not take any further action to reappoint or clarify the director’s appointment from Highway Foreman to Public Works Director. As a result, regardless of whether the Public Works Director was a department head position, the court found that the director was never properly appointed to that position by the town.

For municipalities, the Superior Court’s ruling is important because it highlights the importance of procedure when appointing individuals to positions within a town. The ruling makes clear that, for an individual to fall within one of these two exceptions to the definition of “public employee,” the individual must not only be appointed to a position covered by the exceptions, the individual must also be appointed following a proper appointive process.