Russell v. State, KEN AP-03-51

• Decision Date: 22 March 2004
• Docket Number: KEN AP-03-51
• Parties: CHRISTOPHER RUSSELL, Petitioner v. STATE OF MAINE, UNEMPLOYMENT INSURANCE COMMISSION, Respondent
• Court: Superior Court of Maine

CHRISTOPHER RUSSELL, Petitioner v. STATE OF MAINE, UNEMPLOYMENT INSURANCE COMMISSION, Respondent

No. KEN AP-03-51

Superior Court of Maine, Kennebec.

March 22, 2004

SUPERIOR COURT CIVIL ACTION

DECISION AND ORDER

This matter is before the court on petition in accordance with M.R. Civ. P. 80C. Christopher Russell, previously the husband of Linda Labbe, worked at the family roofing company (Dow Roofing) of his ex-father-in-law Michael Labbe. According to averments of petitioner, his father-in-law suffered from early onset Alzheimer's disease and petitioner previously an employee of Dow Roofing, was prevailed upon by his then-wife to become the President of the corporation while being told that his duties would not change. Christopher Russell was listed as the President, Treasurer and one of the two Directors of Dow Roofing on the 2001 Annual Report submitted to the State of Maine.

Based on the 2001 Annual Report, the Maine Tax Division of the Bureau of Unemployment Compensation ("the Bureau") sent petitioner an Assessment of Personal Responsibility amounting to $14,642.78 for the payment of unemployment contributions of Dow Roofing. This Assessment was sent via certified and registered mail^[1] to his last known address^[2] on October 8, 2002. A person named Edward W. Russell signed the certified mail receipt on October 21, 2002.

A notice of Tax Lien for the $14,642.78 naming petitioner was filed on November 21, 2002. A "twelve day notice" (final Notice for Demand and payment) was sent to petitioner's last known address and to Dow Roofing on January 2, 2003.^[3] On April 28, 2003, a disclosure subpoena and a copy of a warrant issued on March 4, 2003 were sent to petitioner's last known address and Dow Roofing.

Petitioner admits to receiving this last mailing and reacted by requesting reconsideration by the Bureau averring that he was merely an employee of Dow Roofing and had never been an employer as defined by the relevant statute. On April 29 2003, petitioner appealed the assessment levied on him on October 8, 2002. In a decision dated June 6, 2003, respondent Bureau found that Christopher Russell's appeal was not timely and that a determination in this matter had been final as of November 7, 2002.

In a letter dated June 10, 2003, and received by the Bureau on June 11, 2003, petitioner requested reconsideration of the June 6, 2003 decision. This request was denied on August 1 2003. Petitioner timely filed for review of the August 1 2003 denial with this court.

The administrative Record was filed with this court on September 25, 2003. Respondent's brief, due within forty days of this filing pursuant to M.R. Civ. P. 80C(g) and the Notice and Briefing Schedule dated September 29, 2003, was filed on December 8, 2003.^[4]

When the decision of an administrative agency is appealed pursuant to M.R. Civ.P. 80C, this Court reviews the agency's decision directly for abuse of discretion, errors of law, or findings not supported by the evidence. Centamore v. Dep't of Human Services, 664 A.2d 369, 370 (Me. 1995). "An administrative decision will be sustained if, on the basis of the entire record before it, the agency could have fairly and reasonably found the facts as it did." Seider v. Board of Exam'r of Psychologists, 2000 ME 206 ¶9, 762 A.2d 551, 555 (Me. 2000) (citing CWCO, Inc. v. Superintendent of Ins., 1997 ME 226, ¶6, 703 A.2d 1258, 1261 (Me. 1997)). In reviewing the decisions of an administrative agency, the Court should "not attempt to second-guess the agency on matters falling within its realm of expertise" and the Court's review is limited to "determining whether the agency's conclusions are unreasonable, unjust or unlawful in light of the record." Imagineering v. Superintendent of Ins., 593 A.2d 1050, 1053 (Me. 1991). The focus on appeal is not whether the Court would have reached the same conclusion as the agency, but whether the record contains competent and substantial evidence that supports the result reached by the agency. CWCO, Inc. v. Superintendent of Ins., 703 A.2d 1258, 1261. "Inconsistent evidence will not render an agency decision unsupported." Seider, 762 A.2d 551 (citations omitted). The burden of proof rests with the party seeking to overturn the agency's decision, and that party must prove that no competent evidence supports the Board's decision. Id.

Factual determinations must be sustained unless shown to be clearly erroneous. Imagineering, 593 A.2d at 1053 (noting that the Court recognizes no distinction between the clearly erroneous and substantial evidence in the record standards of review for factual determinations made by administrative agencies). "A party seeking review of an agency's findings must prove they are unsupported by any competent evidence." Maine Bankers Ass'n v. Bureau, 684 A.2d 1304, 1306 (Me. 1996) (emphasis added).

"When the dispute involves an agency's interpretation of a statute administered by it, the agency's interpretation, although not conclusive on the Court, is accorded great deference and will be upheld unless the statute plainly compels a contrary result." Maine Bankers Ass'n, 684 A.2d at 1306 (citing Centamore v. Department of Human Services, 664 A.2d 369, 370 (Me. 1995)).

Petitioner's central argument is that he was never an "employer" under Maine law despite being listed as the record President, Treasurer and an officer of Dow Roofing. This averment goes to both strands of the argument he offers in this court.

As a matter of fairness and equity he asserts that holding him responsible for unemployment compensation taxes is unjust as he served as President, etc. only as a family duty and his role was barely that of a figurehead. Petitioner asserts that the methods used to give him notice of the Bureau's assessment were only applicable to an "employer" and not applicable to a person accused of being a mere "responsible individual."

Respondent defends the correctness of its refusal to grant petitioner's appeal and especially the correctness of its decision not to reconsider petitioner's appeal citing the strict time limits set forth for perfecting an appeal in the Employment Security Law:

1. APPEAL TO THE COMMISSION.

A. An employer may appeal determinations by the commissioner or the commissioner's designated representatives made under sections 1221, 1222 and 1225, or an assessment made under section 1225, to the commission by filing an appeal, in accordance with regulations that the commission prescribes within 30 days after notification is mailed

to the employer's last known address as it appears in the records of the bureau or, in the absence of such mailing, within 30 days after the notification is delivered. If the employer fails to perfect this appeal, the assessment or

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