Clean Up This Mess: Jennifer Duddy Should Resign

Jennifer Duddy should resign (pic)There are few principles more basic to our legal system than the right to a fair hearing in front of an impartial judge.  That’s why we say “justice is blind.”  Indeed, the very symbol of our American system of justice is a blindfolded woman holding a set of scales. 

Which is why the allegations last spring that Governor LePage had held a private meeting on March 21 with Maine unemployment appeals hearing officers at the Blaine House created such a stir.  According to news accounts, some of the hearing officers who attended the mandatory meeting with the Governor called by Jennifer Duddy, the Chairperson of the Unemployment Insurance Commission, felt that the Governor had not so subtly told them that they were making too many decisions in favor of employees.  The Department of Labor launched an investigation and the Governor himself felt compelled to appoint an independent commission to review case-handling at the unemployment office.

It’s old news now that last week the DOL concluded that Governor LePage had in fact improperly tried to put his thumb on the scales of justice.  The DOL Report concluded that “the Governor’s direct intervention” in decision-making “could be interpreted as an attempt to intimidate or direct hearing officers to view employers more sympathetically.”  The Report finds that “hearing officers could have interpreted the expectations communicated by the Governor on March 21 as pressure to be more sympathetic to employers.”

While news accounts mostly focused on the Blaine House meeting, the Report also noted that even before then, “LePage administration officials” had intervened in hearing officers’ decision-making “with what could be perceived as a bias toward employers, endangering the fair hearings process.”  That routine intervention “could be perceived as an attempt to influence the appeals decision making process in favor of employers.”  So we now know that it wasn’t just a single meeting, but a concerted campaign by LePage officials to undermine the integrity of the unemployment hearing process.

Unemployment insurance was enacted during the New Deal to assist workers in their time of need.  Workers who unexpectedly lose their jobs still need to eat, pay the rent, keep the lights and heat on, put gas in their cars to look for work. Unemployment benefits, meager though they are, are designed to make sure that workers and their families can survive periods like the recent prolonged recession. 

Although one would like to think that our Governor should not need to be told that “justice is blind,” perhaps he can be excused for not understanding that it was wrong for him to attempt to pressure unemployment hearing officers to render decisions favoring what he and his Republican friends like to call the “job creators.”  But what is inexcusable is that Jennifer Duddy, the political appointee and lawyer who heads the Unemployment Commission, apparently lacked any such basic understanding.  Her appointment apparently not only blinded her to the inappropriateness of the meeting, but she herself took the occasion to complain that the hearing officers were misinterpreting the law

Almost equally disturbing is the defense of the Governor mounted by Rep. Ken Fredette, also a lawyer and the Republican House Minority Leader.  Fredette accused Democrats as “quick to politicize a report from the Obama administration criticizing the Governor for his hands-on approach.”  No one appears to have noticed that before he was elected to the House, Rep. Fredette sat as a commissioner of the Maine Human Rights Commission.    

Like the Unemployment Commission, the MHRC employs investigators.  In over 80% of those cases, the investigators recommend that employers be cleared of complaints of discrimination.  As a lawyer and former Commissioner, Rep. Fredette certainly would know that it would have been equally improper if Gov. Baldacci (who appointed him to the Commission) had met with the investigators and complained that they were making too many decisions in favor of employers.

What happened in Augusta last spring is a scandal.  It is time to hold someone accountable for this mess.  That person is Jennifer Duddy.  Ultimately, the buck at the Commission stops with her.  She should have the decency to resign. 

If you believe your rights have been violated, contact us.

When Justice Ain’t So Blind

When Justice Ain't So Blind (pic)Last April a firestorm erupted when it was disclosed that Governor LePage had met privately at the Blaine House with hearing officers who decide whether unemployed Mainers are entitled to receive weekly benefits.  According to news accounts, the Governor told the hearing officers that they were deciding too many cases in favor of employees.  Afterwards, some of the hearing officers anonymously indicated that they felt that they had been bullied by the Governor.

Following the reports of the meeting, in what apparently was an unprecedented action, a lawyer and auditors from the federal Department of Labor (which pays the salaries of the hearing officers) descended upon Maine in May to investigate the controversy.  To date, the Labor Department has not taken any further action, at least publicly.

Now the smoldering controversy appears ready to reignite.  On Thursday, September 12, a blue ribbon panel appointed by the Governor, including former Maine Supreme Court Chief Justice Dan Wathen, and two representatives each from the employee and employer community, are slated to hear testimony from noon to 7 PM at the Cross Office Building.  Although the Governor claims that he received “hundreds and hundreds” of complaints about the unemployment hearing process, in fact a freedom of information act (FOIA) request disclosed only 30 such complaints.  Which raises the question, is there a problem here, or is this a solution in search of a problem? 

No doubt this Thursday the Blue Ribbon panel will hear from many business owners complaining about the process.  There probably won’t be many employees testifying (although I encourage them to do so).  Employees tend (hopefully) to be one-time consumers of benefits, while employers who layoff or terminate employees are far more likely to be repeat customers.  And of course, employees who are working aren’t likely to have the time to travel to Augusta.

Perhaps there are real procedural problems with the unemployment benefits process; if so, those problems need to be heard and if appropriate, fixed.  But the Governor’s fixation on the fact that too many employees are prevailing on unemployment claims is NOT one of those problems.  The unemployment system was created in 1935 together with Social Security as part of the social safety net to protect workers who lose their jobs through no fault of their own.  Accordingly, the Act is designed to be remedial in nature and FAVOR the prompt granting of benefits to workers so they can avoid the devastating consequences of unemployment.  During the most recent recession, there was a huge increase in claims here and nationally; the prompt grant of benefits protected workers against hunger and homelessness like that which occurred in the Great Depression when no such program existed.  For that reason, employees are supposed to and do in fact win most claims initially.

But when employers challenge the grant of unemployment benefits, the story becomes much different.  When review is requested by a hearing officer, last year employers won 35% of the time; employees won 29% of the time.  For the last 10+ years, employers and employees have won at about equal rates.  During that same period of time, employers who appealed to the three-member Unemployment Board have won far more often than not. 

While the numbers would suggest that, in fact, the process is not so tilted in favor of employees as the Governor believes, the real question isn’t who is winning and who is losing; the question is whether the process is fair and whether the law as written is being applied properly.  And here, the Governor’s thinly-veiled attempt to put his thumb on the scales of justice is what is really wrong. 

There’s a reason the symbol for the American justice system is of Lady Justice blindfolded.  Because when justice ain’t blind, there can be no justice at all.  

If you believe your rights have been violated, contact us.