Tempesta v. Town of Benton

STATE OF MAINE SUPERIOR COURT
KENNEBEC, SS. CIVIL ACTION
DOCKET NO-AP-16-18

ALBERT TEMPESTA,
Plaintiff
ORDER ON MOTION FOR
PARTIAL SUMMARY JUDGMENT
V.

TOWN OF BENTON,
Defendant

INTRODUCTION AND PROCEDURAL HISTORY
Before the court for resolution is the Defendant's (Town of Benton)
motion for partial summary judgment as to Counts II and V of the First
Amended Complaint. This case arises out of the failure of the Town of Benton
to appoint the Plaintiff (Albert Tempesta) to the position of Code Enforcement
Officer (CEO) after his term of office to that position expired on March 15,
2016.
Tempesta commenced this action on April 14, 2016 with the filing of a
five-count complaint seeking relief on the following grounds: appeal of the
Town's action pursuant to M,R.Civ.P. 80B (Count I); violation of his
procedural due process rights to notice and a hearing pursuant to 42 U .S .C.
§ 1983; discrimination on the basis of age pursuant to 5 M.R.S. §§4572 et seq.
(Count III); whistleblower retaliation in violation of 5 M.R.S. §§831 et seq.
(Count IV), and; violation of 1 M.R.S. §407(2) of the Maine Freedom of
Access Act (FOAA) (Count V).
On or about May 5, 2016, the Town moved to dismiss the complaint on
the basis of M.R.Civ.P. 12(b)(6), for failure to state a claim upon which relief
may be granted. At the same time, the Town filed its answer and affirmative
defenses. Tempesta opposed the motion to dismiss on July 5, 2016. In its
reply of July 14, 2016, the Town clarified that its motion to dismiss did not
extend to the age discrimination and whistleblower retaliation claims.
In an Order dated November 29, 2016, the court (Mullen, J.) addressed
the Town's motion to dismiss but ultimately did not actually rule on it. This
appears to have been at the request of Tempesta, who wanted the court to stay
any action on the motion to dismiss pending resolution of his claim(s) before
the Maine Human Rights Commission (MHRC). The court granted the stay,
but set forth in its order the "factual history" of the case "with a summary of
the parties' respective arguments concerning the Motion to Dismiss."
On January 5, 2017, Tempesta moved for leave to file an amended
complaint, which was granted on February 4, 2017. The First Amended
Complaint is virtually identical to· the original complaint, with the exception
that it alleges that Tempesta received a notice of right to sue letter from the
MHRC on December 20, 2016. The court (Stokes, J .) held a status conference
with counsel for the parties on April 5, 2017. Following that conference, the
court issued an order denying the Town's motion to dismiss on the basis that
it appeared to the court that dismissal of Counts I, II and V was premature
without "[d]iscovery and further clarification of the facts." Subsequently, on
May 9, 2017, the court issued an order specifying the future course of
proceedings. Thereafter, the parties pursued discovery.
On April 19, 2018, the parties filed a stipulation of dismissal of Count
I (Rule 80B appeal). On October 31, 2018, the Town moved for summary

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judgment on Counts II and V of the First Amended Complaint. Tempesta
opposed the motion. Oral argument was held on April 25, 2019.
The following undisputed material facts are based on the summary
judgment record.
FACTUAL BACKGROUND
The Town initially appointed Tempesta as its CEO/Plumbing
Inspector/Health Officer in April 2012. The "certificate of appointment"
dated April 3, 2012, contained the following language: "Your term of office
is to expire on March 31, 2013 ." Tempesta was appointed again to the same
positions on March 11, 2013, and that certificate of appointment provided that
his term of office would expire on March 31, 2014. Likewise, in March 2014,
Tempesta was appointed again with an explicit expiration date of March 15,
2015. Finally, in March 2015, the municipal officers of the Town appointed
Tempesta to the same positions with an expiration date of March 15, 2016.
Tempesta does not dispute that each of his certificates of appointment
expressly provided that his term of office would expire on a specified date,
the last one being March 15, 2016. Nevertheless, he contends that "[e]ven
though his appointment as CEO was technically for a one-year term, no one
told [him] when he was hired that, after a year, he would be let go instead of
reappointed," and he expected "that he would remain employed as long as he
was doing his job." (PASMF, ~m 1 & 3).
On or about March 8, 2016, Tempesta was notified by a Town official
that he would not be appointed again when his term of office expired on March
15, 2016. The parties disagree as to what, precisely, was said to Tempesta as
to the reason the Town would not continue to appoint him as CEO, but they
do not disagree that he was told that no new appointment would be made.

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In a letter dated March 25, 2016, counsel for Tempesta wrote to the
Town alleging that it had engaged in age discrimination. Moreover, the letter
asserted that Tempesta "had a reasonable expectation that his employment
with the Town would continue." (PASMF, Exh. 5). Tempesta gave notice
that he was appealing "any decision not to reappoint him," and he requested
that he continue to serve as the Town's CEO and that the "purported
termination of his appointment be rescinded immediately." (Id') .
The parties agree that the Town's Personnel Policy contains and
provides for a Grievance Procedure (Article XIII), that generally requires the
filing of a written grievance with 5 working days of the "incident." They
further agree that Tempesta did not file a written grievance, but they disagree
as to whether the grievance procedure applied to Tempesta because, as he
alleges, he was never provided with a copy of the personnel policy. Moreover,
the parties disagree as to whether Tempesta orally requested the opportunity
to be heard on the decision not appoint him as CEO.
There is no evidence in the summary judgment record that the Town
made written findings of fact or otherwise set forth in the record the basis for
its decision not to appoint Tempesta to a new term of office as CEO.
SUMMARY JUDGMENT STANDARD
"The function of a summary judgment is to permit a court, prior to trial,
to determine whether there exists a triable issue of fact or whether the
question[s] before the court [are] solely ... of law." Bouchard v. American
Orthodontics, 661 A.2d 1143, 44 (Me. 1995). Summary judgment is
appropriate where there are no genuine issues of material fact and the moving
party is entitled to judgment as a matter of law. M.R. Civ. P. 56(c); see also
Levine v. R.B.K. Caly Corp., 2001 ME 77, ~ 4, 770 A.2d 653. A "material
fact" is one that can affect the outcome of the case, and a genuine issue exists

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when there is sufficient evidence for a fact finder to choose between
competing versions of the facts. Lougee Conservancy v. City-Mortgage, Inc.,
2012 ME 103, ~11, 48 A.3d 774.
DISCUSSION
A. Count II - Denial of Procedural Due Process - 42 U .S .C. §1983
In Count II of his First Amended Complaint, Tempesta alleges that the
Town's failure to appoint him as code enforcement officer for another term
violated his due process rights to notice and a hearing with the opportunity to
defend himself. In essence, Tempesta claims that he had a constitutionally
protected property interest in continued employment with the Town as its
CEO. The Town counters that Tempesta's employment as CEO was for a
specific and definite term of office that expired, by its very terms, on March
15, 2016. Accordingly, the Town argues that Tempesta had no protected
property interest in continued employment and, since he was not discharged
or removed from office during his term, he received all the process to which
he was due. Finally, the Town maintains that Tempesta failed to utilize the
grievance procedure available to him pursuant to the Town's Personnel Policy
and has, therefore, failed to exhaust his administrative remedies.
"To state a procedural due process claim under § 1983, the plaintiff must
allege facts which, if true, establish that the plaintiff (1) had a property interest
of constitutional magnitude and (2) was deprived of that property interest
without due process of law." Clukey v. Town of Camden, 717 F. 3d 52, 54-55
Cl" Cir. 2013). See also Perry v. Sindermann, 408 U.S. 593 (1972). "In Maine
a property interest in continued employment may be established by contract,
statute, or by proof of an objectively reasonable expectation of continued
employment." Krennerich v. Inhabitants of Town of Bristol, 943 F.Supp.
1345, 1352 (D. Me., 1996). As a general proposition, however, "a benefit is

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not a protected entitlement if government officials may grant or deny it in their
discretion." Town of Castle Rock v. Gonzales, 545 U.S. 748, 756 (2005).
The Maine Law Court has had several occasions to consider whether a
government employee had a constitutionally protected property interest in
continued employment. In Barber v. Fairfield, 460 A.2d 1001 (Me. 1983),
the police chief was appointed by the town manager to a one-year contract
until March 31, 1979. The police chief claimed that he had a justifiable
expectation of being reappointed after March 31, 1979. The Law Court held
that "[a] property interest may also be created if there are 'rules and mutually
explicit understandings' to support a claim of entitlement." Id at 1007 quoting
Lovejoy v. Grant, 434 A.2d 45, 50 (Me. 1981).
The Court observed that the absence of a tenure provision was not
determinative because a "written contract may be supplemented by an
agreement implied from the employer's 'policy and practices."' Id. The
Court in Barber I explained that the expectation of reappointment must be an
"objective" one, "not a mere subjective expectancy." Id. at 1008. The Law
Court remanded the case to the trial court for a factual determination of the
"narrow" issue of whether the policy and practices of the town provided the
plaintiff with a justifiable expectation of reappointment, which would be a
protected property interest.
On remand, the trial court noted that the police chief was originally
appointed "for the ensuing year." To put to rest the argument that the police
chief had an indefinite appointment, the town manager appointed the chief for
a specific term, i.e., until March 31, 1979. The court concluded that by virtue
of that specific term of office, it was not objectively reasonable or justifiable
to expect reappointment after that date. See Barber v. Fairfield, 1984 Me.
Super. LEXIS 68 (Bradford, J.) .

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On appeal, the Law Court affirmed the trial court's conclusion that
town officials had not created a property interest by providing the police chief
with an objective expectation of reappointment. Barber v. Fairfield, 486 A.2d
150, 153 (Me. 1985).
In Mercier v. Town ofFairfield, 628 A.2d 1053 (Me. 1993), the plaintiff
was appointed annually as town manager from 1984 through 1989, but was
not appointed in 1990. The evidence at trial included the testimony of former
town council members that it was the intention of the council at the time that
the plaintiff's employment would be for an indefinite period. Moreover, there
was evidence that the plaintiff was encouraged to purchase property and reside
in the town and that he informally committed to remain as town manager until
his children completed high school. The Law Court characterized the
evidence as supporting an unwritten contract for an indefinite term. There
was no evidence suggesting that the plaintiff's contract or term of office was
intended to be for a fixed and definite period of time. The Law Court affirmed
the jury's conclusion that the town's actions created a property interest in the
plaintiff because he had an objectively reasonable expectation of continued
employment. Id. at 1056.
There are some statutory provisions that should be considered. Title 38
M.R.S. §441 provides in pertinent part:
In every municipality, the municipal officers shall
annually by July pt appoint or reappoint a code enforcement
officer . . . . The municipal officers may remove a code
enforcement officer for cause, after notice and hearing. This
removal provision only applies to code enforcement officers who
have completed a reasonable period of probation as established
by the municipality .... If not reappointed by a municipality, a
code enforcement officer may continue to serve until a successor
has been appointed and sworn.

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Title 30-A M.R.S. §2601-A provides in part:
Municipal officers may appoint code enforcement officers
trained and certified in accordance with section 4451 to serve for
fixed terms of one year or more, and may remove those code
enforcement officers only for cause after notice and hearing.

Finally, Tempesta points to and relies upon certain provisions of the
Town's Personnel Policy. (See Exhibit E to Plaintiff's Opposition to
Summary Judgment). In particular, Tempesta refers to Article IV, which
describes the types of appointments applicable to the Town's employees.
Article IV provides as follows:
The following types of appointments may be made to the Town's
service in conformity with the rules established:

A. Full Time. A full time employee works full time (30 hours)
and on a continuing basis (indefinite). He/she is subject to all
personnel rules and regulations and receives all benefits and
rights as provided by these rules.

B. Regular Part-Time. An employee in this classification works
less than the normal work week, but on a continuing basis.
He/She [sic] is subject to all personnel rules and regulations.
Vacation and holiday benefits shall be in proportion to the
hours worked. This classification shall only be assigned at
the discretion of the Board of Selectmen. Additional benefits
may be granted by the Board of Selectmen.

C. Temporary Employees. Temporary employees work on a
non-permanent basis, usually within a limited time frame.
They are not entitled to benefits such as holiday pay, accrual
of vacation time, or seniority, and may be terminated for any
reason at any time.

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Tempesta acknowledges that he was not a "full time" employee.
Further, he argues that since he was clearly not a "temporary employee," he
must have been classified as a "regular part-time" employee who served "on
a continuing basis," namely, on an "indefinite" basis. Thus, Tempesta
maintains that according to the Town's own personnel policy he had a
protected property interest m continued, 1.e., indefinite
employment/appointment as the Town's code enforcement officer,
notwithstanding the fixed term of his appointment.
The Town counters by pointing out that Tempesta received no benefits
at all and, therefore, he did not fit within the definition of "regular part-time"
employee. Moreover, the Town contends that Tempesta was appointed for a
fixed and definite term of office and had no objectively reasonable or
justifiable expectation in a lifetime appointment as the Town's code
enforcement officer. Stated otherwise, the Town argues that all Tempesta has
shown is his mere personal and subjective belief that he would remain
Benton's code enforcement officer for life or for as long as he wanted to be.
Based on the summary judgment record, the court concludes that there
1s no genuine issue of material fact that Tempesta had an objectively
reasonable or justifiable expectation that he would be appointed and
reappointed indefinitely as the code enforcement officer for the Town for as
long as he wanted the job. At best, Tempesta assumed that he would be
reappointed unless there was just cause to remove him, but that was a
subjective assumption on his part and the Town did not do or say anything to
him to create a constitutionally protected property interest in continued
employment after his term of office expired. Based on this summary
judgment record, the court finds that the Town of Benton is entitled to
judgment as a matter of law on Count II of the First Amended Complaint.

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Tempesta's reliance on Article IV (B) of the Town's Personnel Policy
1s misplaced. Tempesta seeks to be classified as a "Regular Part-Time"
employee of the Town with employment "on a continuing basis." By being
employed "on a continuing basis," Tempesta concludes that he must have an
"indefinite" appointment, notwithstanding the explicit expiration dates in his
certificates of appointment. Even if Tempesta is more like a "Regular Part­
Time" employee than any other classification, however, the fact remains that
such a classification may be assigned only in the discretion of the Board of
Selectmen. In its discretion, the Town's Select Board appointed Tempesta to
a fixed and definite term of office. Indeed, this appears to be required by 30­
A M.R.S. §2601-A.
It is true that Tempesta was appointed a total of four times as Benton's
code enforcement officer. Each of those appointments, however, was for a
fixed and definite term of office and each certificate of appointment received
by Tempesta explicitly stated that his term of office expired on a date certain.
This case is significantly different than Mercier v. Town of Fairfield,
supra, where there was substantial evidence that the relationship and mutual
understandings of the parties supported a conclusion that Mercier's
employment was to be continuing and indefinite, unless he was removed for
cause. Here, the only thing Tempesta can point to is the fact that he was
reappointed three times without incident, that he had been told by a member
of the Select Board that he was doing a good job with no concerns about his
work performance, and that no one told him that he would not be reappointed.
In the court's view, this falls well short of generating a genuine issue of
material fact that Tempesta had an obj ectively reasonable and justifiable
expectation that he would be reappointed indefinitely. Rather, the summary
judgment record supports the conclusion that, by an objective standard,

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Tempesta could not justifiably expect to be reappointed beyond March 15,
2016. Stated otherwise, whether Tempesta was reappointed to a new term of
office after March 15, 2016 was a matter within the discretion of the Select
Board of the Town of-Benton. As such, Tempesta has failed to generate a
genuine issue of material fact that the policies, practices and mutual
understandings of the Town created a property interest in him of continuing
employment after his term of office expired. 1 In light of the court's
conclusion, it is not necessary to address the argument that Tempesta failed to
exhaust his administrative remedies by not utilizing the Town's grievance
procedure.
B. Count V - Freedom of Access Act Violation - 1 M.R.S. §407
Title 1 M.R.S. §407(2) provides in its entirety as follows:
Every agency shall make a written record of every
decision involving the dismissal or the refusal to renew the
contract of any public official, employee or appointee. The
agency shall, except in the case of probationary employees, set
forth in the record the reason or reasons for its decision and make
findings of fact, in writing, sufficient to apprise the individual
concerned and any interested member of the public of the basis
for the decision. A written record or a copy thereof must be kept
by the agency and made available to any interested member of
the public who may wish to review it.

' Tempesta also relies upon a legal memorandum prepared by the Maine
Municipal Association. See Exhibit 6 to Plaintiff's Opposition to Summary
Judgment. In particular, he points to the fact that his certificates of
appointment did not include "disclaimer" language similar to that suggested
on page 7 of the MMA memorandum. The MMA memorandum is not factual
evidence of anything in this case. Rather, it is a document prepared by MMA
to provide guidance and assistance to municipalities. While the suggested
disclaimer language may be helpful in avoiding litigation such as the present
case, it is not a legal requirement and its absence does not create a genuine
issue of material fact where one does not otherwise exist.

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There is no dispute that the Town did not create a written record of its
decision not to appoint Tempesta as its code enforcement officer for another
term of office. Nor is there any dispute that the Town made no written
findings of fact regarding its decision pertaining to Tempesta' s
reappointment. The Town contends that 1 M.R.S. §407(2) does not apply to
this situation because: (1) Tempesta' s term of office simply expired and
someone else was appointed and, accordingly, (2) there was no "refusal to
renew" his contract as contemplated by section 407(2). Tempesta, on the
other hand, maintains that he is entitled to judgment as a matter of law as to
Count V of his First Amended Complaint because 1 M.R.S. §407(2) plainly
applies to his situation.
As far as the court can determine, there has not been a Law Court case
that has addressed whether 1 M.R.S. §407(2) applies when a governmental
appointee's fixed term of office has expired but who has not been reappointed
to a new term. The literal language of section 407(2) is broad enough to
encompass employees, officers and appointees whose terms of office are
definite in some way, but who could be reappointed. See, e.g., 5 M.R.S. §2
(with certain exceptions, all civil officers "shall hold their offices for 4 years
and no longer, unless reappointed"); 5 M.R.S. § 196 (attorneys in Attorney
General's Office serve at pleasure of the Attorney General).
The cases from the Law Court that have considered the applicability of
section 407(2) all involved the removal or dismissal of an employee for cause
during their term of appointment, which is clearly covered by the statute. See,
e.g., Gorham v. Androscoggin County, 2011 ME 63, 21 A.3d 15 (corrections
officer); Quintal v. City of Hallowell, 2008 ME 155, 956 A.2d 88 (code
enforcement officer); Colby v. York County Comm'rs., 442 A.2d 544 (Me.

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1982) (deputy sheriff). What is also clear from the Colby decision is that
M.R.Civ.P. SOB (and presumably Rule SOC as well) may be used to compel
the preparation of the written record required by 1 M.R.S. §407(2). Id. at 547­
48.
In Count V of his First Amended Complaint, Tempesta is seeking to
recover a civil forfeiture of $500 "[f]or the Town of Benton's willful violation
of Maine's Freedom of Access Act." See~ 70, First Amended Complaint. It
does not appear to the court that Tempesta is seeking to have the court issue
an order directing the Town to make a written record, with findings of fact, in
support of its decision not to reappoint him as its code enforcement officer,
assuming 1 M.R.S. §407(2) applies in this factual situation. As noted earlier,
Tempesta has dismissed Count I of his First Amended Complaint brought
pursuant to Rule SOB.
Title 1 M.R.S. §410 provides:
For every willful violation of this subchapter, the state
government agency or local government entity whose officer or
employee committed the violation shall be liable for a civil
violation for which a forfeiture of not more than $500 may be
adjudged.

A penalty for a civil violation under the Maine Freedom of Access Act
is only enforceable by the Attorney General or some "other appropriate public
official." 17-A M.R.S. §4-B(l). See Lewiston Daily Sun v. School Admin.
Dist. No. 43, 1999 ME 143, ~ 11, 738 A.2d 1239; Scola v. Town of Sanford,
1997 ME 119, ~ 7,695 A.2d 1194.
The Town is entitled to judgment as a matter of law on Count V of the
First Amended Complaint
CONCLUSION

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The entry is:
The Defendant's Motion for Partial Summary Judgment is GRANTED.
Judgment for the Defendant Town of Benton against the Plaintiff Albert
Tempesta on Counts II and V of the First Amended Complaint.

The Clerk is directed to incorporate this Order by reference i
docket in accordance with M.R.Civ.P. 79(a).
'\
Dated: July 30, 2019

Justice, Maine Superior Court

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