May 31, 2020
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Millinocket whistle-blower awarded $61,232 back pay

MILLINOCKET, Maine — Besides $30,000 in damages awarded to her in August, wrongfully fired Recreation Department Director Mary Walsh will get $61,232 in back pay for lost wages, a judge ruled in a decision released this week.

She won’t get her job back, however.

Bangor Superior Court Justice William Anderson declined to order the town to reinstate Walsh because the town eliminated her job when it consolidated its recreation department with those of East Millinocket and Medway in July 2005. That arrangement continues, Anderson wrote.

“Although it would be possible to order reinstatement at the expiration of the present contract, the court will not do so because it is probable that the employer-employee relationship in this small workplace will remain hostile,” Anderson wrote.

A civil court jury on Aug. 20 affirmed for the second time in 11 months that former Town Councilor Matthew Polstein and the town violated the state’s Whistleblower Protection Act by firing Walsh.

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

Polstein owns lodging, a restaurant and a snowmobile rental businesses — New England Outdoors Center, Twin Pines Camps, and River Drivers restaurant — all just outside Millinocket.

Polstein and town officials said the consolidation was an attempt to improve efficiency and had nothing to do with Walsh.

The financial threat to Polstein, a lack of monetary savings from consolidation, and a confrontation outside a Chinese restaurant between Polstein and Walsh — which her attorney, A.J. Greif of Bangor, said showed Polstein to be vengeful and overbearing — were key elements to Walsh’s wins, Greif has said.

Anderson’s decision is dated Feb. 10 and was entered into court records Monday.

Town Manager Eugene Conlogue said that the damages would not be awarded until the decision is completed. That won’t happen until town officials and the town’s attorney, Melissa Hewey of Drummond Woodsum & MacMahon of Portland, decide whether to appeal. That decision won’t come at least until Greif submits an application for attorney’s fees to the court, Greif said.

Greif has 60 days to submit his application for attorney’s fees and plans to do it in 30, he said Friday. He predicted they would exceed $70,000.

“But clearly the sum the judge awarded is well below what the plaintiffs thought they were going to receive,” Conlogue said Friday. “Our attorney is reviewing the matter for possible appeal.”

At the time of the verdict, Greif estimated that the town likely would have to pay Walsh $289,000. That includes $63,000 for lawyers’ fees, $32,000 in prejudgment interest, $108,000 in back pay, and $56,000 in front pay. Front pay is awarded for lost wages during the period between judgment and reinstatement, or if reinstatement is not feasible, instead of reinstatement.

In his ruling, Anderson wrote that the back pay he awarded also addressed front-pay concerns. He also faulted Walsh for failing to make adequate attempts to find new work in 2008 after finding another, lesser-paying job in 2006 and then resigning in 2007 because it required 600 miles of commuting a week.

On Friday, Greif set the case’s ultimate value at about $185,000. He said the $61,232 carries another $23,000 in interest. As to the disparity between his predictions, Greif said his first estimate was a best-case scenario.

“I have also given up criticizing judges’ [rulings] for Lent,” Greif said.

He said Walsh’s award might not be received for several months, longer if the town appeals.

“The only person who has been paid by the town’s insurer thus far is the town’s defense counsel,” Greif said. “We and Mary haven’t seen a dime, but our payday, if they don’t appeal, is rapidly approaching.”

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