Protect Maine hearing officers’ neutrality

What if you went to a court or hearing, and the person taking evidence and making a ruling had been told how the decision should go? Or perhaps she hadn’t been directed what to do about your case in particular but rather about people in the same category as you. Would that be fair?

Those questions show why a March 21 Blaine House meeting initiated by Gov. Paul LePage is potentially a big deal.

Unemployment insurance appeals officers say the governor pressured them to issue more rulings favoring employers.

Those hearings have consequences. Fewer claims granted translate into lower premiums for employers. Denying valid claims means former employees lose out.

Administration officials contend the governor wanted everyone treated fairly. Yet LePage’s senior economic advisor said, “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.”

LePage surely sincerely believes the system is biased, but an analysis of federal audits shows hearing officers perform well. In 2012, they earned a score of 95 out of 100. In the last 10 years, employers won 60-65 percent of appeals before hearing officers. The next stage of appeals “has heard 373 appeals of hearing officer decisions since Dec. 1. Only six of them were remanded for errors relating to evidence issues,” a 1.6 percent rate. These audits are systematic, with clear criteria, unlike a report produced by one of the governor’s appointees.

More broadly, if the governor pressured the officers to change decisions, this would undermine the appeals system and raises issues about executive power.

Our founders created a separate judiciary, meant to be independent from political pressure, whether from the public or elected officials. As Alexander Hamilton put it (quoting French philosopher Montesquieu), “There is no liberty, if the power of judging be not separated from the legislative and executive powers.”

In many parts of the world, people don’t trust judges. Courts are corrupt, with decisions made not on the law but on who knows who, who pays who, and pressures and biases. Allies and associates of the top political leadership get what they want. Others consistently lose.

Neutral judges are a critical part of political systems with “the rule of the law.” If law does not reign, decisions are not made according to the facts of the case and existing laws.

Rule of law is so essential that newly democratic countries in eastern Europe can’t join the European Union unless they have an independent judiciary and a demonstrated commitment to the rule of law.

Now, you may be thinking, well, those hearing officers are not judges.

While true, they are also different from intake workers who take paperwork from people applying for unemployment benefits who don’t decide between people with two conflicting stories. In contrast, an appeals hearing officer has to listen to challenges and reach judgments.

The appeal officers are more like a part of a little-known part of government – administrative law judges. They have ethics rules binding them and a professional association promoting independence and high standards.

Was the hearing officers’ independence threatened?

After LePage summoned the hearings officers to the governor’s official residence, some were quite bothered. In an email to the chief hearing officer, one wrote, “In the decades I’ve been doing this work, I’ve never seen anything like it, from either end of the political spectrum. For purposes (of) keeping political pressure/bias out of (a) quasi-judicial process within the Maine Department of Labor, these are dark times.”

Another wrote, “Despite the pressures that are being placed upon us, we still just have to do our jobs, self-insulating from the politics, doing what we think is right and doing that as expeditiously as possible . . . I know that in this climate it is hard not to second guess ourselves.”

The governor and his allies have alternately confirmed and challenged elements of the story, attacked those who talked to the press and tried to divert attention by announcing a Blue Ribbon commission to evaluate the state’s unemployment system.

The governor is responsible to the federal government for ensuring the hearings system is fair. He argues that is what he was doing.

Now the administration may have to deal with a federal investigation to determine if there was inappropriate political pressure.

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.