Millinocket whistle-blower awarded $30,000 in retrial

By Dan MacLeod and Nick Sambides Jr., Special to the BDN
Posted Aug. 21, 2009, at 10:13 a.m.

BANGOR, Maine — A civil court jury on Thursday affirmed for the second time in 11 months that former Millinocket Town Councilor Matthew Polstein and the town violated the state’s Whistleblower Protection Act by firing a Recreation Department director and snowmobile trail inspector in 2005.

The nine-member jury found that Polstein cast a tie-breaking council vote — effectively cutting the job held by Mary Walsh of Lincoln in order to create a tri-town Recreation Department — because her complaints about dangerous conditions on trails maintained by Polstein’s businesses threatened state and town trail-grooming subsidies crucial to his finances.

On the advice of his lawyer, Polstein declined to comment on Thursday.

The town of Millinocket’s insurers likely will have to pay Walsh about $289,000. That includes $63,000 for lawyers’ fees, $32,000 in prejudgment interest, $56,000 in front pay (money the town would have to pay Walsh if officials refused to hire her back after a verdict in her favor), and $108,000 in back pay, said Walsh’s attorney, A.J. Greif of Bangor.

Greif was buoyant at having won Walsh’s case, which was heard at Penobscot County Superior Court, for a second time. A jury had awarded Walsh $25,000 last September, but a new trial was granted on appeal.

“Mary is a wonderful person who had a genuineness that very few of the town’s witnesses could display,” Greif said.

He added that during a pretrial judicial settlement meeting in June, the insurer refused to pay Walsh more than $100,000 because Greif “had been a magician to have won the first trial.”

“This magician has pulled another rabbit out of the Magic City’s hat,” Greif said.

Millinocket, which paid $500 to fly former Councilor David Nelson from Wisconsin to testify on Tuesday, plans to appeal, said Melissa Hewey, an attorney who represented the town.

“I’m obviously disappointed that I wasn’t able get the jury to understand what really happened here,” Hewey said. “When appropriate legal standards are applied, that day will come.”

In an e-mail message he sent to the council on Thursday, Millinocket Town Manager Eugene Conlogue called the loss disappointing.

“It was a tough case and, based on the first trial, we knew we were fighting an uphill battle,” he wrote.

An accounting of the town’s court costs and attorney’s fees wasn’t available on Thursday.

After about four hours of deliberations, which began Wednesday afternoon, the jury voted 7-2 to support Walsh’s claims and 8-1 to award her $30,000 in damages.

Under state law, the jury maximum award is $50,000, Greif said.

Justice William Anderson, who presided over the trials, approved the second trial by ruling that the jury could have benefited by hearing all councilors involved. Anderson likely will decide next month how much the town’s insurers will pay, Greif said.

Polstein owns lodging and snowmobile rental businesses, New England Outdoors Center and Twin Pines Camps, and River Drivers restaurant, all just outside Millinocket. Polstein also hopes to build a $65 million ecotourism development called Ktaadn Resorts, but has been stalled for a lack of financing.

Finances, and a confrontation outside a Chinese restaurant between Polstein and Walsh — which Greif said showed Polstein to be self-important, vengeful and overbearing — were key elements to Walsh’s wins, the attorney said.

Through 2½ days of testimony from former Councilors Wallace Paul and David Nelson, reproductions of Walsh’s desk blotter, 2005 weather reports and documents discussing the recreation consolidation effort, the town sought to undermine Walsh’s complaints about trail conditions and portray her as a disgruntled former employee.

The town’s position: Walsh supported consolidation with two neighboring towns, East Millinocket and Medway, until she learned it could or would cut her job. Then she teamed with Polstein’s political adversaries and used her position as a trail inspector to create a history of complaints to save her job.

Hewey produced weather reports showing too little snow to make snowmobiling possible when Walsh claimed to be inspecting trails and illustrated that the blotter, Walsh’s activity log, showed no specific notes on trail problems — despite Walsh’s testimony that she complained to Polstein 10 times.

The lack of documentation, and an e-mail from Walsh praising Polstein’s trail grooming, were aimed along with Polstein’s testimony that he had heard from Walsh only twice about trail problems that winter, to show that her complaints were bogus.

One complaint, that his trail groomer was seen passing a snowmobile at 30 mph, was impossible, Polstein said. Groomers can’t go that fast. Polstein, Paul and Nelson spoke of their support of consolidation, anticipated savings and program enrichment they believed it would create, and in her summary, Hewey suggested that consolidation, and Polstein’s vote for it, would have occurred regardless of any dispute with Walsh.

But Greif produced a Conlogue report showing consolidation would go at least two years without providing savings. He elicited testimony from Conlogue that Walsh’s department came in under budget $3,000 to $5,000 annually during her five-year tenure and that her replacements received a total of $17,000 in raises when their program began.

“It showed that the financial savings was really nothing more than an alibi,” Greif said Thursday.

Walsh testified that consolidation reduced Millinocket recreation services and Greif entered records showing that the council record on consolidation was inconsistent. Several previous attempts at consolidation failed.

And the confrontation between Walsh and Polstein in early March 2005 at a Chinese restaurant in Millinocket led to testimony from Polstein that he felt she was working to undermine him and destroy his political credibility, which Greif added to the portrait of Polstein as an overbearing autocrat.

A previous e-mail from Polstein, in which he told Walsh not to eat at the restaurant because “the walls have ears,” even Hewey characterized as a mistake, saying he probably should not have sent it. Paul and Nelson said they were unaware of the confrontation and Greif suggested that Polstein’s vote afterward was unethical.

Greif doubted Anderson would grant another retrial, but said he would welcome the challenge.

“If they appeal, I’ll pull out a third rabbit,” he said.

http://bangordailynews.com/2009/08/21/news/millinocket-whistleblower-awarded-30000-in-retrial-2/ printed on September 18, 2014