May 28, 2018
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Judge dismisses appeals by Washington County sheriff in unemployment disputes

Mario Moretto | BDN
Mario Moretto | BDN
Washington County Sheriff Donnie Smith
By Tim Cox, BDN Staff

MACHIAS, Maine — A Washington County Superior Court judge Wednesday granted motions to dismiss appeals brought by Sheriff Donnie Smith in disputes with two former employees of the county jail over unemployment benefits.

An attorney for one of the employees and an assistant attorney general argued during the hearing and in their motions to dismiss that Smith did not have the authority to appeal.

Machias attorney Jeff Davidson, representing former jail clerk Karina Richardson, also is requesting that Smith be required to pay his client’s legal fees.

The issue of whether the sheriff was authorized to appeal the cases still remains to be ironed out, although Smith, his attorney, and the chairman of the Washington County Commission said he was granted that authority.

Justice Daniel Billings made the ruling at the end of a status conference in the cases involving Richardson and Robert Gross, who were awarded unemployment benefits by the state Department of Labor in May 2013.

Richardson was fired by the county commissioners after an investigation into alleged misappropriation of an inmate benefits account; the county commissioners said she misused the funds for personal gain. Gross, the former jail administrator, who Smith also said misused funds, resigned before the commissioners could decide whether to fire him.

Alexander F. Cuprak, a hearing officer for the state Department of Labor, ruled, however, that Richardson was merely following “prevailing practice” in her use of the inmate funds and thus was due unemployment benefits “on the grounds that she was discharged, but not for misconduct connected with her work.”

Billings on Wednesday convened a conference in his chambers to consider motions by Davidson and Assistant Attorney General Nancy Macirowski, who represented the state Unemployment Commission, to dismiss the appeals.

Davidson was present with Richardson while Macirowski and Smith’s lawyer, Brewer attorney Don Brown, participated via conference call in a proceeding that lasted about an hour and 15 minutes.

Smith lacked legal standing to bring the appeals, Macirowski argued in her motions and during the conference.

“The sheriff has some input into these discussions,” she said, but the county commissioners have the “final authority” to appeal. That authority belongs to the county commissioners because they approve hirings and dismissals of county personnel, Macirowski argued in her motion.

Because of the wording of the appeal, filed as “Washington County, through its Sheriff, Donald Smith,” Macirowski said it was “never clear to me” who was taking the legal action until she recently obtained an affidavit from County Manager Betsy Fitzgerald.

In her affidavits dated July 24, Fitzgerald referred to a June 23 meeting of the county commissioners at which they discussed both appeals, voted not to proceed with them, and directed Brown to withdraw from the cases in a letter dated July 9.

Chris Gardner, chairman of the county commissioners, told the BDN later Wednesday that the commissioners had met previously with Smith and had authorized him to appeal the disputes.

“We deferred to the sheriff,” he said, because of other pending legal matters at the time.

However, the commissioners decided later in June to halt the appeal.

“It doesn’t make good sense for the commissioners to throw good money after bad,” Gardner said. “It’s time to stop.”

“We just can’t see him proceeding any further,” added Gardner, who said the commissioners were unaware the appeal had reached Superior Court.

Brown offered no objections to the motions to dismiss, but he argued that Smith had acted properly and referred to the meeting during which he said the commissioners had given the sheriff permission to appeal.

“The dust has settled,” Brown said. “The Washington County commissioners have … rescinded their agreement” with the sheriff.

“The sheriff acted with absolute proper authority from the commissioners,” added Brown.

During Wednesday’s hearing with the judge, Davidson questioned Brown’s version of events, contending that there is no record that the commissioners voted to authorize Smith to pursue appeals.

“We believe the sheriff pursued this matter on his own,” said Davidson, and did so “maliciously.”

Smith’s appeal did not name Richardson, a failing that Billings gently criticized Brown for, and she was never formally notified of any of the proceedings, said Davidson. Conceivably, Smith could have won the appeal and Richardson could have been ordered to repay unemployment benefits without her ever having had the opportunity to defend herself, noted Davidson.

Brown offered no explanation for why Richard was not named a party to the appeal or notified.

“I don’t know,” he said.

“I’m not sure why she wasn’t notified. … It wasn’t for some cynical reason,” added Brown.

Billings noted that Richardson was not copied on various documents that Brown had filed in pursuing the appeal. He was “troubled by the fact that” the proper legal process “has not been followed here,” said Billings, who referred to Brown as an “experienced practitioner” who “should have known.”

“It’s clear to me that … Mr. Brown did not meet his obligations to the court,” Billings said.

Davidson also is seeking sanctions against Smith to include his client’s legal fees. However, Billings noted that the failings of Brown likely saved Richardson more costly legal fees.

If she had been properly named in the appeal and notified, she probably would have retained Davidson to defend her in the lengthy process. Brown’s failure “likely saved” Richardson money, Billings said.

Billings indicated an evidentiary hearing on Davidson’s motion for sanctions would be appropriate in the future, although he noted that if the commissioners duly authorized Smith to make appeals and later reversed their decision, sanctions “would not be appropriate.”

The issue of whether the county commissioners authorized Smith to appeal could be cleared up by affidavits from county officials supporting Brown’s version of the events, indicated Billings, which would void the need for a hearing.

Smith, contacted Wednesday, also said that he and Brown had met with the county commissioners, and that they had authorized him to proceed with the appeals.

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