The Law Court entered a decision on April 11, 2019, which took the rare step of granting summary judgment in favor of the Town of Denmark in a case that an employee brought against the Town. The underlying facts were that the employee worked from 2003 to 2014 under a written employment contract with the Town to serve as a part-time Code Enforcement Officer (CEO). The contract stated that he was to “perform all duties as specified by the law and ordinance and to perform such other proper duties . . . as assigned by the Board of Selectmen.” In September 2014, the Town’s new Town Manager advised the CEO to report directly to him rather than the Board of Selectmen. The employee complained to the Manager and the Board that the directive was an illegal violation of his employment contract with the Town because he interpreted the contract to require that he report to the Board, not the Town Manager. Shortly thereafter, the Board of Selectmen approved a new job description for the CEO position and offered it to the employee. He objected to the new job description, asserting that it breached his contract and stated “that because it changed the CEO job description, the Town would need to form a Charter Commission and then call a public meeting to call a special election.” The following month, the employee was placed on paid administrative leave because of an allegation that he had been falsifying pay records. After investigation, it was determined that he had not falsified pay records and the Board voted unanimously to rescind his suspension. The Town Manager resigned his position.
Under these facts, the Superior Court granted summary judgment and the Law Court affirmed. It closely analyzed the requirements of the Whistleblower Protection Act, 26 MRS §§ 831, et seq., to determine whether the employee reported to his employer what he had reasonable cause to believe was the employer’s unlawful activity. The Court found that the reasonable cause requirement required that the employee present evidence showing he had both a subjective belief that the employer engaged in illegal activity and, also, that the belief was objectively reasonable such that a reasonable person might believe illegal activity occurred. The employee argued three sections of statute—30-A MRS §§ 2601, 2601-A and 4451—plus the CEO job description demonstrated that the change was illegal. The Court rejected this argument and stated that an employee must report something other than a standard breach of an employment contract to put himself within the provisions of the Whistleblower Protection Act. Further, the Court held that even if the employee subjectively believed that the Town’s actions violated Maine law or the Town’s charter, that his subjective belief alone was insufficient to meet the reasonable cause requirement because neither the law nor the charter by any reasonable reading made the Town’s actions unlawful.
Because these cases are generally very difficult to win on summary judgment, this narrower interpretation of the Whistleblower Protection Act is good news for municipalities and employers in general.
(2019 ME 54 Michael A. Lee v. Town of Denmark)
