LePage and the hearing officers: What we know now

After the story broke about Gov. LePage’s March 21 meeting with Unemployment Insurance appeals hearing officers, I introduced four reasons why this could be a big deal.

Here is some of what we know about those questions and issues:

1. Known: the meeting happened. Gov. LePage met with Unemployment Insurance appeals hearing officers at Blaine House and criticized them for how they were doing their jobs. No one has said this did not occur.

2. Source of disagreement: The governor’s complaints’ focus.

People disagree about whether the governor’s criticisms were valid, if the governor’s statements emphasized problems with fairness to both employers and employees or how employers treated, and whether the appeals hearing officers felt intimidated.

Since there’s no tape of the meeting, we are left with different accounts. The governor’s staff members give a version in which the governor was even-handed while the hearing officers interviewed by journalists report that Gov. LePage said they were too hard on employees.

As to how the hearing officers felt about being summoned to the governor’s official residence to meet with the governor and whether they felt intimidated by their meeting with him there, well, certainly only they can say.

However, more broadly:

The LePage administration has said the governor’s interest in reforming the hearing process stems from complaints from businesses and his own experience when he was the manager of Marden’s Surplus & Salvage. [Source]

Moreover, the Maine Wire, the on-line publication of the Maine Heritage Policy Center, while siding with LePage’s criticisms and labeling the hearing appeals officers “disgruntled employees,” writes:

The meeting was prompted by constituent complaints – business owners who told the Governor that the unemployment system in Maine was unfairly hurting their bottom lines, said [senior economic advisor to the governor] Butera…

3. Known: There is a paper trail. One memo, describing issues with the hearing process, has been released.

We now know that, at the meeting, the governor would have been able to draw from a report on hearing procedures.

This memo (link below) laid out issues and proposed regulatory and legal solutions.

It emphasizes, but is not limited to, issues affecting employers.

We know little about how this document came to be, but likely journalists’ requests (and leaks and perhaps discovery as part of legal proceedings) will lead to more documents being released. Those would fill in our currently sketchy understanding of the behind-the-scenes process.

Link to memo to Gov. LePage, with associated emails

In any case, nearly every proposed legal change in the memo would help employers.

For example, the four proposed changes in law discussed in detail would:

  • Change a policy statement because the current one is too pro-employee
  • Help employers understand and be able to establish their lack of responsibility for unemployment benefits outside their season of employment
  • Make it harder for employees to receive benefits if they are ill or injured because of reckless or intentional conduct
  • Change direct reimbursement laws so employees can recover overpaid funds more quickly

While these suggested changes in law look reasonable, it is striking that the only relevant internal document currently available largely corroborates initial reports that the administration viewed the system as insufficiently pro-employer.

Without having access to the records reviewed and without adequate expertise to evaluate them in terms of relevant law and regulations, it is impossible to say  if the findings about hearing processes were accurate or inaccurate.

4. Developing: A federal probe?

It is unknown at this point whether there will be a federal investigation and, of course, if there was one granted, what it would find.

But it is looking like one will be sought.

[David Webbert, president of the Maine Employment Lawyers Association] said he plans to ask the inspector general within the U.S. Department of Labor to determine if the LePage administration obstructed or tried to influence hearing officers’ adjudicatory proceedings, which are governed by federal and state guidelines.

The hearing officers are state employees in federally funded positions. The unemployment hearings and the distribution of benefits is overseen and audited by the U.S. Department of Labor. [Source]

This is a complicated situation. As part of it, the federal government has the responsibility for making sure the appeals processes are fair.
For instance, the Handbook for Measuring Unemployment Lower Authority Appeals Quality states:
The U.S. Department of Labor’s (USDOL) responsibility for the oversight of the quality of states’ unemployment compensation (UC) appellate processes is grounded in the Social Security Act (SSA). Under Section 302(a), SSA, the Secretary of Labor certifies states whose unemployment laws are approved under the criteria for certification under the Federal Unemployment Tax Act (FUTA) as eligible for an administrative grant for the “proper and efficient administration” of their UC law. Section 303(a)(1), SSA, requires states to have “such methods of administration…as are found by the Secretary of Labor to be reasonably calculated to ensure full payment of unemployment compensation when due.” Section 303(a)(3), SSA, conditions this certification on state law providing “an opportunity for a fair hearing, before an impartial tribunal, for all persons whose claims for UC have been denied. [Source]
Cutting through this legalistic language, the federal government has to ensure that states are using fair processes.
One element of the system is the part played by these hearings officers who are quasi-judicial, part of an administrative law system.
The Social Security Act, [attorney Rick] McHugh said, “says that you can’t deny a claim without a fair hearing before an impartial tribunal.” And, he said, what the U.S. Department of Labor defines as an impartial tribunal is a “civil servant who is protected from discharge or other types of sanctions” assigned to hear cases “to ensure that they decide the case based on the facts and the proper application of the law.” If someone exerts pressure during that process, he said, that destroys the tribunal’s impartiality. [Source]
Thus a claim that Gov. LePage undermined the fairness of the appeals system could be the basis for a request for an investigation.
Again, just asking for an investigation doesn’t mean one would be granted and it certainly doesn’t mean that Gov. LePage would be held at fault. The structure of the Unemployment Insurance system explains why one might be possible.
Plenty more may develop, as the governor and his allies argue that his actions were appropriate and, indeed, part of ensuring a fair system, and others argue they were inappropriate and likely to lead to unfair outcomes.
Amy Fried

About Amy Fried

Amy Fried loves Maine's sense of community and the wonderful mix of culture and outdoor recreation. She loves politics in three ways: as an analytical political scientist, a devoted political junkie and a citizen who believes politics matters for people's lives. Fried is Professor of Political Science at the University of Maine. Her views do not reflect those of her employer or any group to which she belongs.