Town Prevails on Whistleblower Protection Act Case

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)

Are Notices of “No Violation” Appealable in Maine?

If a code enforcement officer (CEO) issues a written decision finding “no violation” of a land use ordinance, is that decision appealable? Recently, Maine’s Law Court tackled this very question and answered “yes”—but only so long as the ordinance does not say otherwise.

In Raposa v. Town of York, an abutter became concerned about how a neighbor was using property. The abutter contacted the CEO, who responded to the abutter with an email explaining that no violations were warranted based on the neighbor’s use of the property. The CEO’s email included a notice advising the abutter that the Board of Appeals could hear an appeal from “any order, requirement, decision, or determination” made by the CEO or any other person charged with administering the ordinance. Heeding that advice, the abutter appealed the CEO’s “no violation” determination to the Board of Appeals and then to the Superior Court, where the Town of York moved to dismiss the appeal for lack of jurisdiction. The Superior Court granted the Town’s motion, finding that the Board’s review of the CEO’s decision was advisory and therefore unreviewable.

Reversing the Superior Court, the Law Court explained that Notices of Violation (NOVs) have been generally appealable since 2013—when the Legislature amended the statute governing appeals from municipal boards—except where an ordinance expressly provides that certain decisions are only advisory and may not be appealed. Although the Law Court noted that the plain language of the amended statute does not explicitly address “no violation” notices, the Court also noted that its previous decisions have “expressed the understanding that such ‘no violation’ actions are similarly appealable” because of their potential impact on property uses. In Raposa, the Law Court took the opportunity to make its previous expressions more concrete, holding conclusively that “a CEO’s written decision interpreting a land use ordinance is appealable to the Board and in turn to the Superior Court—whether the CEO finds that there is or is not a violation—so long as the ordinance does not expressly preclude appeal.” Because the Town of York’s ordinance did not have a provision that expressly precluded appeal, the Law Court found that the abutter’s appeal was not subject to dismissal by the Superior Court. 

In light of Raposa, municipalities should review the appeal provisions in their land use ordinances and update them accordingly.

Know Your Ordinance: Enforcement Orders Subject to Appeal

One thing we always look for when reviewing a land use ordinance is whether it inadvertently allows for appeal of enforcement orders issued by the code enforcement officer (CEO). We prefer not to have such orders be appealable, because a notice of violation is only a preliminary determination and will always be reviewed by a court before any penalties are assessed. Further, notices of violation are often an important first step in encouraging negotiation and resolution of violations. If a property owner can appeal a decision, he or she will usually take that step instead of trying to work things out with the CEO.

The Legislature recently highlighted this issue when it added language to the Board of Appeals statute, 30-A M.R.S. § 2691, which reads as follows:

Absent an express provision in a charter or ordinance that certain decisions of its code enforcement officer or board of appeals are only advisory or may not be appealed, a notice of violation or an enforcement order by a code enforcement officer under a land use ordinance is reviewable on appeal by the board of appeals and in turn by the Superior Court under the Maine Rules of Civil Procedure, Rule 80B.

It is now clear that by default, enforcement orders may be appealed. If that is not your municipality’s intention, ordinances should be amended ASAP to clearly state that there is no jurisdiction to allow such appeals.

One positive thing to note is that at least one court has refused to read the new language so broadly as to allow appeal of a CEO’s failure to find a violation. In Rappos v. Town of York, AP-16-34, abutters submitted a complaint against their neighbor and then appealed the CEO’s decision not to take action on that complaint. The Court held that neither the Zoning Board of Appeals nor the Court had jurisdiction to issue a binding order on the appeal.

Code Enforcement Officer’s Right to Enter Property to Inspect for Code Violations Challenged

Title 30-A § 4452 allows code enforcement officers (CEOs) and other local officials who are specifically tasked with enforcing local ordinances the right to go on a potential violator’s property to determine if violations exist. The statute requires permission from the property owner if a local official wishes to inspect inside a building, but specifically states that such an entry onto property under the authority of the statute is not a trespass. Pursuant to the Fourth Amendment, however, there is a question about inspecting the curtilage, being the area directly around someone’s home. Although there is no Maine case law directly on point, a local official should not enter onto property closely in the vicinity of the home without permission.

The bigger question is what should happen when permission to enter property is refused by the property owner even though the local official has the right to go onto the property under the law.

In a recent case that we handled for a Central Maine town, there was a dispute between the local official and the property owner as to whether the CEO was allowed to enter onto the property, although not in the vicinity of a home. When the CEO and the Town Manager arrived for a previously noticed inspection, the property owner called the police and then kept repeatedly jumping in front of the town vehicle when the officials tried to leave. After consultation with the District Attorney, the Maine State Police served criminal trespass orders on the CEO and the Town Manager.

Additionally, by failing to state in his pleadings that the parties allegedly harassing him were town officials, who were at his property on official town business, the property owner was able to obtain a Protection from Harassment Order in District Court against the town officials. 

As the town attorneys, we were able to convince the District Attorney to drop the criminal trespass orders with the agreement that the town would not go back onto that particular piece of property without an administrative consent warrant. The District Attorney was unaware of the statute and thought that the right thing was being done to prevent violence. It was necessary to file motions to dissolve the temporary orders and dismiss the harassment cases in District Court. The cases were dismissed without hearing.

The caveat to broad inspection authority under the statute is that, while town officials have the right to enter onto property to inspect for violations, they should be cautious about exercising this right, and would be wise not to insist on entrance onto property if the property owner objects.

Maine Court Reiterates That Private Persons Do Not Have Standing to Enforce Land Use Ordinances

The Maine Superior Court recently issued a decision reiterating that only municipalities have the authority to enforce land use regulations. The decision is a reminder that private persons are not entitled to sue for enforcement of a land use ordinance and that, if they do, any such action may be dismissed.

At issue in Emanuel v. Town of Bristol was the use of a refrigerated trailer at a lobster wharf, which several nearby residents objected to because the trailer was loud and ran at unpredictable intervals. After the wharf owner did not respond to the residents’ concerns, the residents contacted the town with their objections, claiming that the trailer was being used without prior review or approval by the Town’s planning board or code enforcement officer (CEO). The residents requested that the Town require the wharf to obtain a planning board permit. In response, the Town’s CEO explained the trailer was not a “structure” requiring a permit and that, because there was no consequent violation of the shoreland zoning ordinance (SZO), the Town would not issue a notice of violation. The residents appealed the Town’s decision to the Superior Court.

On appeal, the Superior Court pointed to two previous decisions from Maine’s Law Court, both of which found that private persons did not have standing to initiate enforcement proceedings against their neighbors. Based on these decisions, as well as the language of the SZO, the Superior Court found that it is the duty of the CEO, not private persons, to enforce the SZO and to investigate complaints of alleged violations. And, if the CEO’s actions do not result in an abatement of the violation, then it is the municipal officers of the Town who have the authority to initiate legal action – not private persons.