Administrative hearing officers, whose salaries are federally funded, explained to the governor at the meeting that they’re required to adhere to federal guidelines in deciding cases, sources said.
Hearing officers, most of whom are lawyers, must send recorded copies of their administrative appeals hearings to the U.S. Department of Labor quarterly for federal review.
LePage was asked by someone at the luncheon meeting about the 30-day federal deadline for holding an appeals hearing and what to do if an employer were to argue that more time was needed to prepare a case. LePage, who is not a lawyer, said that if allowing additional time for employers meant missing the federal deadline,“so be it.”
Some of the agency’s workers said they felt abused, harassed and bullied by LePage’s tone and rhetoric, which they found intimidating and made them afraid they could lose their jobs if they didn’t skew the outcomes of their appeals cases in favor of employers, sources said.
No one is surprised that Gov. LePage would do something that, in his estimation, favors business over employees or the labor movement.
After all, this is the governor who removed the labor mural, changed workers’ compensation law, and supports “right to work” legislation.
LePage regularly talks about improving the business climate and argues his tax and regulatory policies will do so so. And, yes, he made the symbolic gesture of putting up an “Open for Business” sign.
Whether or not you agree with Gov. LePage’s approach, those are open, transparent and legitimate exercises of executive power. There were questions about whether he had the right to remove the labor mural, but courts have supported the action as a proper case of “government speech.”
But this raises other issues
The Governor is bound to carry out the laws. As Article V, section 12 of the Maine Constitution reads, “The Governor shall take care that the laws be faithfully executed.”
The governor’s job is to ensure a fair process, not to put a thumb on the scale.
There are four key questions to ask:
1. Did Gov. LePage try to get these hearing officers to come up with different outcomes in cases? His job is supposed to be focused on correct implementation of the law, not pushing for particular results.
2. Also, on what basis did Gov. LePage decide that “too many cases on appeal from the Bureau of Unemployment were being decided in favor of employees”? Did he have data that suggested this? If so, who compiled it? Or was it based on a complaint or possibly a hunch?
3. If there appear to be problems in how an agency is doing its job, the chief executive should improve training procedures to make sure they are following the correct protocols. Did Gov. LePage have administrators work on implementing best practices in training and on reviewing the appropriate regulations? If not, this implies more interest in achieving an outcome (more wins for employers and fewer for workers), not better implementation.
4. Furthermore, in this case, the hearing officers’ salaries are paid by the federal government and they work to implement a program for which they are accountable to the federal government.
Thus there could be an investigation launched by the federal government to determine if there was inappropriate political pressure, as well as advice to overlook federally-set deadlines. That, by itself, is a big deal.
Gov. LePage will surely say he was trying to ensure the law was being executed properly. His case will be stronger if he can establish he was using data showing problems in the agency and if he tried to implement rigorous training and review standards. His case will be weaker if he didn’t do those things but instead simply called for a different mix of decisions.
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