Lincoln woman wins Millinocket whistleblower case for 3rd time

Posted Sept. 08, 2011, at 1:12 p.m.
Last modified Sept. 08, 2011, at 4:15 p.m.

MILLINOCKET, Maine — A former Millinocket Recreation Department director has won for the third time a court decision affirming that town officials and Katahdin region entrepreneur Matthew Polstein fired her from her job in 2005 in violation of the state’s Whistleblower Protection Act.

The Maine Supreme Judicial Court said in a decision released Thursday that a Penobscot County judge and jury acted appropriately in 2009 when they ruled for the second time in 11 months that then Town Councilor Polstein and the town fired Mary Walsh of Lincoln for complaining about the unsafe manner in which Polstein had groomed snowmobile trails.

Polstein, who declined to seek re-election in 2008, and town officials have maintained that the consolidation of recreation departments was an attempt to improve efficiency and had nothing to do with Walsh. Her attorney, A.J. Greif, placed the total award Walsh and he will get from the town’s insurer in damages, court costs and attorney’s fees at between $220,000 and $225,000.

“I am mostly happy for a client who has waited more than six years for justice,” Greif said Thursday. “[State Supreme Court justices] decided that Justice [William] Anderson had it right that it was a jury issue as to whether the bad motives of Matt Polstein standing alone were enough.”

No further appeals are possible, said attorney Melissa Hewey, who represented the town and its insurer.

“We accept the ruling,” Hewey said Thursday.

Jurors found that Polstein cast a tie-breaking council vote — effectively cutting Walsh’s job in order to create a single recreation department for the three Katahdin region towns — because her complaints to Town Manager Eugene Conlogue and the Maine Department of Conservation about dangerous conditions on trails maintained by his businesses threatened state and municipal trail-grooming subsidies crucial to his businesses.

Polstein owns lodging, a restaurant and a snowmobile rental business — Twin Pines Camps, River Drivers restaurant and New England Outdoors Center — all just outside Millinocket in Township 1 Range 8.

Polstein declined to comment on Thursday. Town Manager Eugene Conlogue did not return telephone and email messages seeking comment. Through Greif, Walsh declined to comment except to say that she was ecstatic with the court’s latest decision.

The state supreme court heard arguments from both sides in June.

In her appeal, Hewey argued that the town cannot be held liable on Walsh’s claim because it was clear and undisputed that the majority of the seven-person council was not motivated by discriminatory animus when it voted to eliminate Walsh’s position.

Hewey also argued that Anderson instructed the jury improperly prior to its deliberations by not telling members that they had to decide whether “Walsh’s protected conduct was the substantial motivating factor for the votes of a majority of the Town Council,” the ruling states.

Greif argued that the majority’s will was irrelevant insofar as Polstein’s vote decided whether Walsh’s position was cut.

According to the supreme court’s ruling, Polstein, who was aware of Walsh’s contact with the Department of Conservation, emailed Walsh in February 2005 and warned her about comments she made in a local restaurant in which she said she would not fear “calling the state on anyone who wasn’t doing their job.”

“Mary, you should be careful about how loud you talk when you’re out on the town, talking town politics, i.e. eating at the [restaurant]! The walls always have ears in this town, as you should

know,” he wrote.

The following month, and at the same restaurant, Polstein blocked the car in which Walsh was sitting with his car and shouted at her, “Mary, what did I tell you about having lunch at [the restaurant]?” Polstein became “visibly angry” when Walsh said she had reported his trail maintenance problems to the state, the ruling says.

“As a result of these incidents, Walsh felt threatened and believed that her job was in jeopardy, given Polstein’s position as a Town Councilor,” the ruling states.

Greif, who called the actions of Polstein and the town insurer’s decision to appeal to the state’s top court foolish, estimated that the appeal cost the insurer another $35,000. He said he hoped that Walsh would receive her monetary award within 30 days.

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