Ritchie v. Town of Hampden, No. 83-15, 6 NPER 20-14032 (July 18, 1983); aff'd and enf'd, sub nom., Town of Hampden v. Maine Labor Relations Board, Nos. CV-82-407 and CV-83-353 (Me. Super. Ct., Pen. Cty., Jan. 17, 1984 Opinion and Order, Sept. 14, 1984 Order); appeal to Law Court docketed but dismissed by stipulation of the parties, Town of Hampden v. Ritchie, Law Docket No. Pen-84-410 (Jan. 22, 1985); Interim Supplemental Order, No. 83-15 (Dec. 8, 1989), Order of Dismissal (Jan. 22, 1990). STATE OF MAINE S U P E R I 0 R C 0 U R T PENOBSCOT, ss: Civil Action, Docket No. CV-82-407 & CV-83-353 (Consolidated) * * * * * * * * * * * * * * * * * RUSSELL B. RITCHIE * * Plaintiff * * v . * * TOWN OF HAMPDEN * R. LEWIS BONE * ROLAND L. HUSTON * OPINION AND ORDER MAINE LABOR RELATIONS BOARD * * Defendants * * * * * * * * * * * * * * * * * * TOWN OF HAMPDEN * * Plaintiff * * v. * * MAINE LABOR RELATIONS BOARD * RUSSELL B. RITCHIE * * Defendants * * * * * * * * * * * * * * * * * * The above matters arise from a series of interactions between Russell B. Ritchie (Ritchie), a Hampden Police Officer and union activis; R. Lewis Bone, (Bone), Town Manager of Hampdem; Roland L. Huston (Huston), Chief of Police of Hampden; and the Maine Labor Relations Board (M.L.R.B.). Presently before the Court are 1. Ritchie's Motion to Amend his complaint in Ritchie v. Town of Hampden, et als, CV-82-407; 2. Ritchie's Motion to Consolidate Ritchie v. Town of Hampden, et als, CV-82-407, with Town of Hampden v. M.L.R.B., CV-83-353; 3. Ritchie's Motion to Intervene in Town of Hampden v. M.L.R.B., CV-83-353; -1- 4. Ritchie's Motion to Specify Future Course of Proceedings in Ritchie v. Town of Hampden, et als, CV-82-407; 5. The Town of Hampden's Motion to Stay the Order of the M.L.R.B. in Town of Hampden v. M.L.R.B., CV-83-353; and 6. The Town of Hampden's Motion for a Trial of the Facts in Town of Hampden v. M.L.R.B., CV-83-353. Also to be resolved is Ritchie's Motion for Enlargement of Time in Ritchie v. Town of Hampden, et als, CV-82-407, dated November 9, 1982. FACTS Russell Ritchie was hired as a full-time police officer by the Town of Hampden (Town) in 1977, having worked part-time for the Town as a Special Officer for the previous two years. From 1977 to 1982, Ritchie acted as President and chief negotiator of the Hampden Public Safety Employees Association (HPSEA), an organization established in 1974 representing a bargaining unit of police officers, firefighters, and dispatchers. From 1977 through 1981, Ritchie received fair evaluations of his performance as a police officer, the sole criticism being that he did not maintain as many traffic stops as other police officers. In late 1981 and early 1992, the two other police officcrs of NPSEA left the organization for other jobs. On February 23, 1982, Ritchie was suspended for five days without pay by Chief Huston for an alleged improper and unauthorized use of the Police Department telephone. Ritchie, Huston, and Town Manager Bone met -2- on February 26 and March 4 to discuss the suspension, at which times comments were made about the "damn Association." Ritchie filed a grievance on his suspension that was heard in August 1982 by the Hampden Personnel Appeals Board (Board). The Board issued findings in September 1982 that Ritchie had not been accorded a fair hearing before the Town Manager and that although Ritchie neglectfully failed to maintain an accurate telephone log, the discipline imposed by Huston was too severe. It was ordered that Ritchie be compensated for the five days and that the Board's findings be included in Ritchie's file. To this date, the Town has not complied with the order. On April 21, 1982, Chief Huston issued a written reprimand to Ritchie for being below the departmental average for the number of traffic stops made in January, February and March, 1982. An alleged quota system for the number of traffic stops has evidently been a long-standing bone of contention between Chief Huston and Ritchie. On June 23, 1992, a hearing was held concerning Ritchie's failure to make sufficient traffic stops. After the hearing on June 23, Chief Huston suspended Ritchie for ten working days without pay (from June 22 through July 3). On June 18, Ritchie was notified that he was being inves- tigated for filing falsified traffic stop reports. Ritchie met with Chief Huston on June 29 at which time Ritchie admitted filing two false reports. The false reports did not harm any member of the public. Ritchie stated that he filed the false -3- reports as a symbolic protest against the alleged quota system. On July 26, 1982, Chief Huston recommended to Town Manager Bone that Ritchie be discharged for filing false traffic stop reports. On July 28, Bone discharged Ritchie as of July 31, 1982. PROCEDURAL POSTURE On August 20, 1982, Ritchie filed a Prohibited Practice Complaint with the M.L.R.B. which was amended on December 4, 1982. On August 30, 1982, Ritchie filed a complaint in Superior Court, Ritchie v. Town of Hampden, et als, CV-82-407, which involved two counts. The first is an appeal pursuant to M.R.C.P. 80B requesting review of Town Manager Bone's decision to dis- charge Ritchie as being arbitrary capricious, based upon imper- missible and improper factors, and in contravention to statute. He further alleges that the investigations, proceedings and action taken were in violation of his procedural and substantive due process rights. The second count pleads a violation of 42 U.S.C. 1983. In September 1982, the Hampden Personnel Appeals board found that the five days suspension without pay for alleged misuse of the telephone was too severe and ordered that the Town pay Ritchie for the suspension period and include their report in his file. (See statement of facts, pp. 2-3). Neither party appealed or contested the Personnel Appeals Board's findings or conclusions. -4- On January 20, 1983, this Court stayed Ritchie v. Town of Hampden, et als, CV-82-407, thereby allowing the M.L.R.B. to come to a decision. On July 18, 1983, the M.L.R.B. issued a decision and order finding, inter alia, that the TLown was participating in unfair labor practices and ordering, inter alia, the Town to reinstate Ritchie and pay back pay as of August 31, 1982. The effect of this order is that Ritchie is not made whole for his 10-day suspension in June 1982 or for the month of August (August 1 - August 30), a total suspension of forty days without pay for falsifying traffic reports. It is from this decision that the Town appeals, pursuant to 26 M.R.S.A. 968(5)(F) and M.R.C.P. 8OB. On August 1, 1983, Ritchie moved to amend his complaint in Ritchie v. Town of Hampden, et als, CV-82-407, seeking to add a third and a fourth count. The third count seeks enforcement of the September 1982 decision of the Hampden Personnel Appeals Board. The fourth count seeks judicial review of a decision of the M.L.R.B. which, for statute of limitations reasons, dismissed charges #1, #2, #3 and #4 of Ritchie's prohibited practices complaint and refused to hear, in connection with charges #3 and #4, allegations that the Town committed a prohibited practice by using a quota system as a basis for discipline without bargaining over its effects. -5- DISCUSSION 1. Ritchie's Motion to Amend Complaint in Ritchie v. Town of Hampden, et als, CV-82-407. Ritchie's proposed amendments involve issues that have arisen just recently. None of the parties will suffer prejudice from allowing the amendments. Therefore, according to the standards in M.R.C.P. 15, Ritchie's motion is granted. 2. Ritchie's Motion to Consolidate Ritchie v. Town of Hampden, et als, CV-82-407, with Town of Hampden v. M.L.R.B., CV-83-353. The sole count of Ritchie's amended complaint in CV-82-407 that will be consolidated with CV-83-353 is Count IV, an appeal pursuant to 26 M.R.S.A. 968(5)(F) and M.R.C.P. 8OB requesting review of the July 18, 1983 ruling of the M.L.R.B. To that extent, Ritchie's motion is granted. As to all other counts, the motion is denied. 3. Ritchie's Motion to Intervene in Town of Hampden v. M.L.R.B., CV-83-353. As the party who brought the prohibited practice complaint before the M.L.R.B., Ritchie has an interest in the subject of the action in Town of Hampden v. M.L.R.B., CV-83-353. He is therefore allowed to intervene as of right pursuant to M.R.C.P. 24(a). 4. Ritchie's Motion to Specify Further Course of Proceedings in Ritchie v. Town of Hampden, et als, CV-82-407. There remain three counts in Ritchie's amended complaint in CV-82-407 that were not consolidated with Town of Hampden v. M.L.R.B., CV-83-353. Pursuant to M.R.C.P. 80B(i), this Court -6- may specify the further course of proceedings for all counts. Any action on Count I requesting review of the Town Manager's discharge of Ritchie from his position as Police Officer of the Town of Hampden is hereby stayed until this Court issues a final ruling which disposes of Town of Hampden v. M.L.R.B., CV-83-353. Action on Counts II and III shall proceed under the Maine Rules of Civil Procedure. Count III of the Amended Complaint yet requires an answer from the Defendants which is due twenty days from docketing of this Order. 5. Town of Hampden's Motion to Stay the Order of the M.L.R.B. in Town of Hampden v. M.L.R.B., CV-83-353. The Maine Public Employees Labor Relations Law (MPELRL), 26 M.R.S.A. 961 et seq. provides in pertinent part that " . . . the [M.L.R.B.'s] decision shall not be stayed except where it is clearly shown to the satisfaction of the court that substantial and irreparable injury shall be sustained or that there is a substantial risk of danger to the public health or safety." 26 M.R.S.A. 968(5)(F). This is the only standard this Court must follow since the MPELRL is a comprehensive, self- contained, and integrated set of statutes. Sanford Highway Unit, et als v. Town of Sanford, 411 A.2d 1010, 1014 (Me. 1980). None of Ritchie's past actions are such that effectuation of the remedy ordered by the M.L.R.B. would result in irreparable harm or -7- risk of danger to the public health or safety. Accordingly, the Town's motion must be denied. 6. Town of Hampden's Motion for a Trial of the Facts in Town of Hampden v. M.L.R.B., CV-83-353. The Town of Hampden has made an offer of proof pursuant to M.R.C.P. 8OB(d) offering six areas of evidence which it proposes to present via three witnesses. After careful examination of the offer of proof, this Court finds that it would not be in the interest of judicial economy to allow a trial of the facts. The Town proposed to call three witnesses, two of whom have already testified; these two witnesses would testify to five of the six proposed areas of evidence. The M.L.R.B. allowed the Town full opportunity to litigate the issue of whether Ritchie would have been dismissed for submitting false traffic reports regardless of his involvement with the union, along with all other relevant issues. The evidence the Town wants to present is either already developed in the record or irrelevant. The MPELRL provides that the findings of the Board on ques- tions of fact shall be final unless shown to be clearly erroneous. 26 M.R.S.A. 968(5)(F). This provision provides a standard of review but is not necessarily inconsistent with M.R.C.P. 8OB(c) providing for a trial of the facts. In the present case, however, adequate relevant evidence exists in the record as a whole to enable this Court to review the M.L.R.B.'s findings. Accordingly, the Town's motion for a trial of the facts is denied. -8- 7. Ritchie's Motion for Enlargement of Time in which to file briefs in Ritchie v. Town of Hampden, et als, CV-82-407. This motion refers only to Count I of Ritchie's presently amended complaint. Because any action vis a vis Count I is governed by this Order (see discussion on Ritchie's Motion to Specify Further Course of Proceedings, p. 6-7 of this Order), this motion, dated November 9, 1982, is denied. The entry must be: 1. Ritchie's Motion to Amend his com- plaint in CV-82-407 is-GRANTED. 2. Ritchie's Motion to Consolidate CV-82-407 with CV-83-353 is GRANTED as to Count IV of Ritchie's Amended Complaint in CV-82-407. As to all other counts, the motion is DENIED. 3. Ritchie's Motion to Intervene in CV-83-353 is GRANTED. It is hereby ORDERED that Ritchie intervene as a party Defendant. 4. Ritchie's Motion to Specify Further Course of Proceedings in CV-82-407 is GRANTED. It is hereby ORDERED that Count I be stayed until final dis- position of CV-83-353. Counts II and III shall proceed under the Maine Rules of Civil Procedure, an answer being due on Count III in twenty days. 5. The Town of Hampden's motion to Stay the Order of the M.L.R.B. in CV-83-353 is DENIED. 6. The Town of Hampden's motion for a Trial of the Facts in CV-83-353 is DENIED. 7. Ritchie's Motion for Enlargement of Time in which to file briefs in CV-82-407 is DENIED in light of prior rulings in this Order. s in DATED: Jan. 17, 1984 /s/________________________________ Robert L. Browne Justice, Superior Court -9- STATE OF MAINE SUPERIOR COURT PENOBSCOT, ss: Civil Action Docket No. CV-83-353 * * * * * * * * * * * * * * * * * TOWN OF HAMPDEN, a body politic * and corporate of the County of * Penobscot, and State of Maine, * * Plaintiff * * v. * * MAINE LABOR RELATIONS BOARD * 0 R D E R * and * * RUSSELL B. RITCHIE * * Defendants * ________________________________* * RUSSELL B. RITCHIE, of Hampden, * Docket No. CV-82-407 County of Penobscot, State of * Maine, * * Plaintiff * * v. * * TOWN OF HAMPDEN, a body politic * and corporate, R. LEWIS BONE of * Hampden, County of Penobscot, * State of Maine, individually * and in his capacity as Town * Manager of the Town of Hampden, * ROLAND L. HUSTON, of Hampden, * County of Penobscot, State of * Maine, individually and in his * capacity as Chief of Police of * the Town of Hampden * * and * * MAINE LABOR RELATIONS BOARD, * an agency of the State of Maine,* created by law, of Augusta, * County of Kennebec, State of * Maine, * * Defendants * * * * * * * * * * * * * * * * * * -1- .. ............ A consolidated hearing was held on August 27, 1984 on the Plaintiff's Complaint in CV-83-353 and on Count IV of the Plaintiff's Complaint in CV-82-407. Plaintiff's Complaint in CV-83-353 was against the Maine Labor Relations Board pursuant to Rule 80B of the Maine Rules of Civil Procedure. This appeal was brought pursuant to 26 M.R.S.A. 968(5)(F) and Rule 80B to review a decision made by the Maine Labor Relations Board in the matter of Russell B. Ritchie v. Town of Hampden, Maine Labor Relations Board Case No. 83-15, Decision and Order dated July 18, 1983. Upon a motion to intervene Russell B. Ritchie had been added as a party Defendant. Count IV of the Plaintiff's Amended Complaint in CV-82- 407 sought a judicial review of a Decision and Order made by the Maine Labor Relations Board in the matter of Russell B. Ritchie v. Town of Hampden, Maine Labor Relations Board Case No. 83- 15, dated July 18, 1983. Said Count IV was brought pursuant to 26 M.R.S.A. 968(5). After examination of the record and after giving due consid- eration to the Briefs filed, this Court finds that there was substantial evidence in the record to support the findings made by the Maine Labor Relations Board in their Decision and Order in the matter of Russell B. Ritchie v. Town of Hampden, Maine Labor Relations Board Case No. 83-15, dated July 18, 1983 and this Court finds that there were no errors of law in said Decision and Order. It is hereby ORDERED that the 80B appeal in Plaintiff, Town of Hampden's Complaint in CV-83-353 is DENIED and the Complaint is DISMISSED. It is hereby ORDERED that the 80B appeal in Count IV in Plaintiff Russell B. Ritchie's Complaint in CV-82-407 is DENIED and Count IV of Complaint CV-82-407 is DISMISSED. It is further ORDERED that the Decision and Order of the Maine Labor Relations Board in the matter of Russell B. Ritchie v. Town of Hampden, Maine Labor Relations Board Case No. 83- 15, dated July 18, 1983 shall be enforced in its entirety. DATED: Sept. 14, 1984 /s/____[Ian MacInnis]____ Justice, Superior Court