MAINE SUPREME JUDICIAL COURT                                                     Reporter of Decisions
Decision: 2014 ME 100
Docket:   Ken-13-406
Argued:   May 13, 2014
Decided:  August 5, 2014

Panel:       ALEXANDER, SILVER, MEAD, GORMAN, and JABAR, JJ.


                                        REVA MERRILL

                                                  v.

              MAINE PUBLIC EMPLOYEES RETIREMENT SYSTEM

SILVER, J.

         [¶1] Reva Merrill appeals from a judgment entered in the Superior Court

(Kennebec County, Marden, J.) affirming a decision of the Board of Trustees for

the Maine Public Employees Retirement System denying her request for a waiver

of past-due life insurance premiums. Merrill contends that the Board erred in

interpreting 5 M.R.S. § 17103(6) (2008)1 to prohibit it from waiving past-due

payments for the non-mandatory Group Life Insurance Program, and that the

Board’s administrative procedures violated her right to due process. Because we

agree with Merrill that the Board has the authority to waive back premiums, we

vacate the Board’s decision and remand the case for the Board to decide finally

whether to waive Merrill’s required payments.

   1
     Title 5 M.R.S. § 17103(6) was amended in 2009 by the addition of the following sentence: “In these
instances of recovery of overpayments from members of the retirement system, the retirement system is
governed by section 17054, subsection 3.” P.L. 2009, ch. 322, § 2 (effective Sept. 12, 2009).
2

                                      I. BACKGROUND

A.       Factual Background

         [¶2] The facts established in the administrative record are undisputed. Reva

Merrill was a full-time public school teacher from 1978 until her retirement in

2007. As a teacher, she was eligible to participate in the Group Life Insurance

(GLI) program, 5 M.R.S. §§ 18051-18061 (2008)2, and elected to do so in 1978.

From 1978 to 1987, appropriate GLI premium payments were withheld from

Merrill’s paychecks. In September 1988, Merrill left her first position to teach at

Erskine Academy, a publicly funded private high school in China, Maine, and

again she authorized premium deductions for GLI coverage. Soon thereafter, in

October 1988, Merrill was hired to fill a vacancy in Maine School Administrative

District (MSAD) No. 9. At that point Merrill took no action to either continue or

terminate her GLI coverage, and MSAD No. 9 did not deduct her GLI premiums.3

As       a   result,   Merrill’s    last   GLI      premium       payment       was     made     on

September 30, 1988, and her GLI coverage lapsed for eighteen years.




     2
     Title 5 M.R.S. §§ 18051-18061 has been amended since 2008, but not in any way that affects this
case. See, e.g., P.L. 2009, ch. 213, § LL-2 (effective Sept. 12, 2009) (codified at 5 M.R.S. § 18056
(2013)).
     3
      Between October 1988 and March 1990, the amount that should have been withheld from each of
Merrill’s paychecks was $3.78. The amount to be withheld would have increased slightly each year
thereafter; beginning in April 2006, the amount that should have been withheld from each paycheck was
$11.60.
                                                                                                           3

        [¶3] In March 2006, the Maine Public Employees Retirement System, after

reviewing Merrill’s record, informed her by letter that her GLI status was listed as

“refused.” Merrill advised the System that she thought she was covered. The

System determined that the lapse in coverage was due to a payroll error by MSAD

No. 9, and informed Merrill that pursuant to its Rule 601 § 4(C)4 she had the option

to restore her GLI coverage by (1) paying $3241.44 of past-due premiums by

May 17, 2006; (2) filing evidence of insurability for coverage; or (3) waiting for

open enrollment, although no open enrollment period was anticipated in the near

future.

        [¶4] On May 30, 2006, Merrill paid the back GLI premium payments under

protest.     She also submitted evidence of insurability and an application for

coverage; however, the application was denied.                        Merrill subsequently sought

   4
     The version of Rule 601 § 4(C) that was in effect both in 1988 when the payroll error occurred and
in 2006 when the error was discovered provided:

        Whenever it is determined by the Executive Director that, through an error by Maine
        State Retirement System personnel or payroll personnel, deductions for insurance are not
        taken, the participant will be given the option to:

        (1) Pay back premiums from date of eligibility or date last payments were taken;

        (2) File evidence of insurability with coverage effective on the date approved by the
        insurance company from which the policy was purchased; or

        (3) Wait for an open enrollment.

12 C.M.R. 94-411 601 § 4(C) (effective Dec. 18, 1983). Rule 601 was amended in 2008 to eliminate the
option of waiting for open enrollment. See 12 C.M.R. 94-411 601 § 4(4) (effective Jan. 20, 2008).
“Because the current rule incorporates the former rule’s requirements for back payments or evidence of
insurability in order to gain coverage, our analysis of the former rule applies equally to the current rule.”
Goodrich v. Me. Pub. Emps. Ret. Sys., 2012 ME 95, ¶ 3 n.3, 48 A.3d 212.
4

administrative review to request the return of her past-due GLI premium payments.

Meanwhile, the current GLI premiums were deducted regularly from her

paychecks. By the time Merrill retired from MSAD No. 9 on July 1, 2007, she had

participated in the GLI Program for over ten years, and she therefore met the

statutory requirements to carry basic coverage into retirement at no cost, 5 M.R.S.

§ 18061(2)(A).

B.       Merrill’s Administrative Appeal

         [¶5] Starting in 2007 and continuing through the end of 2010, Merrill

pursued an administrative appeal within the System seeking the return of her

payment. On April 3, 2008, the executive director affirmed the System’s decision

requiring Merrill to pay past premiums. Merrill appealed this decision to the

Board of Trustees, and in May 2008, a testimonial hearing was held before a

Hearing Officer.5         In November 2008, the Hearing Officer issued a written

recommendation to the Board opining that “[t]he decision of the Executive

Director refusing to return [Merrill’s] payment may be sustained under strict

application of [Rule 601 § 4(C)], although the Board of Trustees has the discretion



     5
      Pursuant to Rule 702, an appeal from an executive director’s decision is assigned to a hearing
officer, who has the authority to conduct hearings and submit a recommendation to the Board of Trustees.
See 12 C.M.R. 94-411 702 §§ 8, 15 (2014). Pursuant to 5 M.R.S. § 17106-A(1) (2013), “[t]he board shall
accept the recommended decision of the hearing officer” unless certain limited exceptions apply.
See infra n.6.
                                                                                                      5

to waive all or part of her payment under Title 5, Section 17103(6).”6                               On

January 15, 2009, the Board convened for a regular meeting and heard

presentations by counsel for Merrill and for the System. The Board then voted

unanimously to grant Merrill’s request for a waiver.                             By a letter dated

January 21, 2009, the Board informed Merrill of its vote and stated that it expected

to issue a formal decision within four weeks.

         [¶6] The Board revisited the case at a meeting on February 12, 2009. The

Assistant Attorney General serving as Board Counsel, who was charged with

writing the Board’s final decision, requested guidance concerning the Board’s

rationale for applying section 17103(6), which authorizes the Board to waive back

payments resulting from an employer’s error, instead of Rule 601 § 4(C), which

requires either back pay or evidence of insurability. The Board voted to continue

Merrill’s case and to reconsider its preliminary decision to grant a waiver.



   6
       The version of 5 M.R.S. § 17103(6) in effect in 2008 provided:

                  6. Rights, credits and privileges; decisions. The board shall in all cases make
         the final and determining administrative decision in all matters affecting the rights,
         credits and privileges of all members of all programs of the retirement system whether in
         participating local districts or in the state service.

         Whenever the board finds that, because of an error or omission on the part of the
         employer of a member or retired member, a member or retired member is required to
         make a payment or payments to the retirement system, the board may waive payment of
         all or part of the amount due from the member or retired member.

See P.L. 2007, ch. 491, § 77 (effective June 30, 2008).
6

          [¶7] The Board took no further action on the case during the following

twenty-two months. Merrill’s counsel sent letters to the Board on June 7, 2010,

and November 8, 2010, requesting an official decision. On November 9, 2010,

Board Counsel Mann informed Merrill that a new statutory provision,

5 M.R.S. § 17106-A (2013),7 had become effective since the Board’s meeting in

February 2009, and that this provision required the Board to adopt the hearing

officer’s recommendation unless it contained errors of law or fact or constituted an

abuse of authority.

          [¶8] Finally, on December 9, 2010, the Board voted to adopt the decision of

the executive director requiring Merrill to pay $3241.44 in past-due GLI

premiums, and it issued a written decision to that effect on December 23, 2010.

The decision acknowledged that the Board had the discretion to waive payments

pursuant to section 17103(6) but did not address why this provision did not apply



    7
        Title 5 M.R.S. § 17106-A(1) (2013) provides:

                   1. Independent decision makers. All hearing officers are independent decision
          makers and are authorized to make recommended final decisions in regard to matters that
          come before them, consistent with applicable statutes and rules. A decision of the
          hearing officer must be based upon the record as a whole. The board shall accept the
          recommended decision of the hearing officer unless the recommended decision is not
          supported by the record as a whole, the retirement system is advised by the Attorney
          General that the hearing officer has made an error of law or the decision exceeds the
          authority or jurisdiction conferred upon the hearing officer. A decision of the board upon
          a recommended decision of the hearing officer constitutes final agency action. The board
          shall retain its decision-making authority in all retirement system policy areas.

See P.L. 2009, ch. 322, § 7 (effective Sept. 12, 2009).
                                                                                  7

or why the Board reversed its preliminary decision granting Merrill’s request for a

waiver.

C.    Merrill’s First Rule 80C Appeal to the Superior Court

      [¶9] Merrill sought judicial review of the Board’s decision pursuant to

M.R. Civ. P. 80C. On December 13, 2011, the Superior Court entered an order

vacating the Board’s decision and remanding the case for reconsideration on the

merits. The court found no error in the Board’s conclusion that Rule 601 § 4(C)

applies to Merrill’s case, but concluded that the Board had abused its discretion

and acted arbitrarily and capriciously when it failed to explain its reversal of its

preliminary decision granting Merrill’s request for a waiver:

      The Board’s failure to consider waiver is especially troublesome
      because it had previously decided to grant waiver in January 2009,
      and nothing changed factually between then and the final vote in
      December 2010. [The Board] is correct that the decision to waive
      payment under § 17103(6) is within the Board’s discretion; however,
      in a situation like this, where the Hearing Officer report specifically
      presents waiver as an option, and the Board had initially voted to
      waive payment, later reversing that decision with no substantial
      discussion on the issue, the Board has abused its discretion. Put
      differently, the failure to exercise any discretion in reaching its final
      decision was an abuse of discretion in itself.

The court further concluded that, contrary to the Board’s argument, the Board

could not have been bound by the Hearing Officer’s recommendation pursuant to

5 M.R.S. § 17106-A(1) because the Hearing Officer did not make a definitive

recommendation; rather, his report essentially presented the Board with the option
8

of following either Rule 601§ 4(C) or section 17103(6). The court also found that

the Board’s conduct was arbitrary and capricious because it took nearly two years

to render a final decision based on a purported conflict between Rule 601 § 4(C)

and section 17103(6), but did not resolve or even address that conflict in its final

decision. As to the purported conflict between the Rule and the statute, the court

noted, “[B]y all appearances, [section] 17103(6) is nothing more than an exception

to [Rule 601].”

      [¶10] On remand, the Board requested legal briefs from both sides and held

an additional hearing on May 10, 2012. The Board issued its second decision on

June 5, 2012, again denying Merrill’s request. This time, the Board concluded that

section 17103(6) did not apply to Merrill’s circumstances because the provision

applies only to mandatory programs such as retirement contributions, and not to

voluntary programs such as GLI:

      Pursuant to the statute, the Board has the sole discretion to waive
      payment in those circumstances where a member is “required” to
      make a payment to [the System]. The statute applies in those
      instances where the actions of the employer have created an
      unexpected monetary obligation, which is required from an employee.
      However, in Ms. Merrill’s case, the Board finds the GLI payments
      were not “required” as defined under the statute. GLI coverage is
      voluntary and because of this, many eligible employees seek coverage
      elsewhere or decline coverage altogether. Accordingly, section
      17103(6) does not apply.
                                                                                                        9

The Board further reasoned that, although it has the authority to demand

reimbursement for retirement contributions from employers pursuant to

5 M.R.S. § 17154(9) (2013), it lacks the authority to do so for the non-mandatory

GLI Program.8

         [¶11] The Board opined that, in any event, even if section 17103(6) did

apply, the fact that Merrill’s employer committed an error, standing alone, was

insufficient to justify granting a waiver. Rather, “[t]he facts in an eligible case

must demonstrate circumstances on the part of the employer and the employee,

which compel the Board to depart from the requirements set forth in Board Rule

ch. 601.”        The Board found that Merrill’s circumstances did not meet that

undefined standard.

D.       Merrill’s Second Rule 80C Appeal to the Superior Court

         [¶12]    Merrill again sought review of the Board’s decision pursuant to

M.R. Civ. P. 80C, contending that the Board erred as a matter of law in its

interpretation of section 17103(6) and that the Board had violated her due process

rights by, among other things, failing to provide notice of its interpretation of the

statute in advance of the hearing. On July 29, 2013, the Superior Court affirmed

     8
     Earlier in the litigation in the Superior Court, the System made a motion to join Merrill’s employer,
MSAD No. 9, as a necessary party. Merrill opposed the motion, contending that the court could grant
complete relief without MSAD No. 9 because it was the System that collected back premiums from
Merrill. The Superior Court dismissed the Board’s motion but later commented to the Board, “In spite of
inquiry, this Court does not understand why the premiums have not been paid by the employer
responsible for this situation.”
10

the Board’s decision. Citing the high standard for agency deference, the court

concluded that the Board’s interpretation of the statute was reasonable and did not

constitute an abuse of discretion or error of law. The court declined to address

Merrill’s due process claim because the Board’s decision was based solely upon

statutory interpretation and not on any factual disputes. Merrill timely appealed

from the court’s judgment.

                                 II. DISCUSSION

A.    Statutory Interpretation

      [¶13] When the Superior Court acts in an intermediate appellate capacity

pursuant to M.R. Civ. P. 80C, we “review the Board’s decision directly for errors

of law, abuse of discretion, or findings not supported by substantial evidence in the

record.” Goodrich v. Me. Pub. Emps. Ret. Sys., 2012 ME 95, ¶ 6, 48 A.3d 212.

“The party seeking to overturn the Board’s decision bears the burden of persuasion

on appeal.” Kennebec Cnty. v. Me. Pub. Emps. Ret. Sys., 2014 ME 26, ¶ 12,

86 A.3d 1204 (quotation marks omitted).            When reviewing an agency’s

interpretation of a statute that is administered by the agency and falls within the

agency’s expertise, we apply a two-part inquiry:

      Our first inquiry is to determine de novo whether the statute is
      ambiguous. An ambiguous statute has language that is reasonably
      susceptible of different interpretations. Second, we either review the
      agency’s construction of the ambiguous statute for reasonableness or
      plainly construe the unambiguous statute. We accord great deference
                                                                                   11

      to the agency’s interpretation if the statute is considered ambiguous,
      but will apply a different interpretation if the statute plainly compels a
      contrary result.

McClintock v. Me. Pub. Emps. Ret. Sys., 2010 ME 65, ¶ 8, 1 A.3d 431 (alterations

omitted) (quotation marks omitted). When construing a statute, we look “first to

the statute’s plain language to give effect to the Legislature’s intent, considering

the language in the context of the whole statutory scheme to avoid absurd,

illogical, or inconsistent results.”     Kennebec Cnty., 2014 ME 26, ¶ 20,

86 A.3d 1204 (quotation marks omitted).

      [¶14]    At the time of Merrill’s initial appeal to the Board, 5 M.R.S.

§ 17103(6) stated in its entirety:

      The board shall in all cases make the final and determining
      administrative decision in all matters affecting the rights, credits and
      privileges of all members of all programs of the retirement system
      whether in participating local districts or in the state service.

      Whenever the board finds that, because of an error or omission on the
      part of the employer of a member or retired member, a member or
      retired member is required to make a payment or payments to the
      retirement system, the board may waive payment of all or part of the
      amount due from the member or retired member.

      [¶15] The Board contends that its interpretation of the phrase “required to

make a payment” as meaning “required to make a payment that is legally

recoverable” is reasonable, and that we must therefore defer to it. However, we

discern no ambiguity in the word “required” or in any of the other language of
12

section 17103(6).          Accordingly, we do not consider whether the Board’s

interpretation is reasonable, but instead construe the statutory language according

to its plain meaning, seeking to avoid absurd, illogical, or inconsistent results.9 See

Kennebec Cnty., 2014 ME 26, ¶ 20, 86 A.3d 1204; McClintock, 2010 ME 65, ¶ 8,

1 A.3d 431; see also State v. Ray, 1999 ME 167, ¶ 7, 741 A.2d 455 (“Undefined

terms within a statute are given their everyday meaning, and that meaning must be

consistent with the overall statutory context and must be construed in the light of

the subject matter, the purpose of the statute and the consequences of a particular

interpretation.” (citations omitted) (quotation marks omitted)); Nat’l Indus.

Constructors, Inc. v. Superintendent of Ins., 655 A.2d 342, 345 (Me. 1995) (“The

plain meaning of a statute always controls over an inconsistent administrative

interpretation.”).

         [¶16]    Giving the phrase “required to make a payment” its everyday

meaning, we are not persuaded by the System’s contention that this language refers

only to payments that would be legally recoverable by the System, such as

payments to compensate for an overpayment of life insurance benefits. Such an

interpretation would be inconsistent with the first paragraph of section 17103(6),


     9
      Because the statutory language is unambiguous, we also do not consider the System’s argument that
the Legislature’s intent in enacting section 17103(6) was solely to address situations involving the
overpayment of benefits. See Jones v. Cost Mgmt., Inc., 2014 ME 41, ¶ 12, 88 A.3d 147 (“[O]nly if [a]
statute is ambiguous will we look to extrinsic indicia of legislative intent such as relevant legislative
history.” (quotation marks omitted)).
                                                                                  13

which provides that the Board shall make the final administrative decision in “all

matters affecting the rights, credits and privileges of all members of all programs

of the retirement system . . . .” (Emphasis added.) Further, we note that the word

“whenever” as used in section 17103(6) suggests a broad range of cases,

particularly because the provision contains no language that would limit its

application to circumstances involving the overpayment of insurance benefits.

      [¶17] The construction the Board urges us to accept would have absurd and

illogical results.   See Kennebec Cnty., 2014 ME 26, ¶ 20, 86 A.3d 1204.

According to the System’s interpretation of section 17103(6), the Board would

have the ability to waive payments that are legally required, yet it would have no

legal authority to waive payments that have become necessary by reason of an

employer’s error when those payments are associated with a “voluntary” program.

Contrary to the System’s argument, construing the word “required” to mean

something other than “legally required” will not render it surplusage. Placing the

term in its proper context, it is plain that section 17103(6) provides that the Board

has the authority to waive, or partially waive, any payment or payments a member

or retired member has been required to make “because of an error or omission on

the part of the employer of a member or retired member.” In other words, this

section applies where an error by an employer necessitates a payment to the

System by the employee.
14

      [¶18] We do not agree with the Board’s contention that Merrill was not

required to make a payment because of employer error. Here, Merrill had a

statutory “entitlement to unconditional, automatic basic life insurance” for which

she was not required to “demonstrate insurability or initially apply for coverage.”

Goodrich, 2012 ME 95, ¶ 7, 48 A.3d 212 (citing 5 M.R.S. § 18058(1) (2010)).

The only way for her to refuse coverage would have been to provide written notice

to her employer. 5 M.R.S. § 18058(2)(A). In order to maintain her statutory right

to have her insurance coverage extend into retirement at no cost, see 5 M.R.S.

§ 18661(2) (2013), she was required to make a payment to the System. Although it

is true, as the System points out, that many members elect not to participate in the

GLI Program and instead seek insurance elsewhere, Merrill did not make that

election. On these facts, it is misleading to suggest that she is only now choosing

to exercise her statutory right to participate in the GLI Program, and that her

payment of the back premiums was entirely voluntary.

      [¶19]   We are similarly unpersuaded by the System’s contention that

interpreting the statute in this manner will allow State employees to seek a waiver

for payments to any voluntary program.         A reading of the entire provision

undercuts this assertion; by the statute’s plain terms, the Board may consider a

waiver only when the payment is required because of employer error. Thus, giving

the language of the statute its everyday meaning, we conclude that the Board has
                                                                              15

the authority to waive any payment an employee is required to make as a result of

employer error regardless of whether the payment is to a voluntary program or

whether the payment would have been legally recoverable by the System.

B.    Due Process Analysis

      [¶20] We next consider whether, given the Board’s statutory authority to

waive the requirement that Merrill pay back premiums in order to maintain

coverage, due process requires that the Board establish criteria for determining

whether to grant such a waiver and to hold an evidentiary hearing before making

its decision.

      [¶21]     “Procedural due process imposes constraints on governmental

decisions which deprive individuals of liberty or property interests within the

meaning of the Due Process Clause of the Fifth or Fourteenth Amendment.”

Mathews v. Eldridge, 424 U.S. 319, 332 (1976) (quotation marks omitted). We

analyze procedural due process claims by utilizing a two-step inquiry: first, we

determine whether the government action has deprived the claimant of a protected

property interest, and second, if such a deprivation occurred, we must determine

what process is due pursuant to the Fourteenth Amendment. McNaughton v.

Kelsey, 1997 ME 182, ¶ 6, 698 A.2d 1049. “[The] dimensions [of a property

interest] are defined by existing rules or understandings that stem from an

independent source such as state law—rules or understandings that secure certain
16

benefits and that support claims of entitlement to those benefits.” Bd. of Regents of

State Colls. v. Roth, 408 U.S. 564, 577 (1972). Eligible public employees enjoy an

entitlement to automatic basic life insurance, even though the exercise of the right

to participate in the GLI Program necessarily entails the payment of premiums,

usually through payroll deductions. See Goodrich, 2012 ME 95, ¶¶ 7, 10, 12,

48 A.3d 212. Thus, the continued receipt of the benefit of participating in the GLI

Program is, for purposes of due process, a statutorily created property interest.

See Mathews, 424 U.S. at 332. Accordingly, we conclude that when the Board

determines whether a member or retired member is required to make back

payments of premiums for periods during which no coverage was in effect, certain

minimal procedural requirements must be met in order to satisfy the requirements

of due process. A determination whether to waive payments pursuant to section

17103(6) must necessarily be decided within the context of those procedural

safeguards as well.

      [¶22] “Due process is flexible and calls for such procedural protections as

the particular situation demands.” Mathews, 424 U.S. at 334 (quotation marks

omitted) (alterations omitted). In determining what process is due, we consider

three factors: (1) the private interest that will be affected by the State action; (2) the

risk of an erroneous deprivation of the property interest at issue; and (3) the

Government’s interest, including the function involved and the administrative
                                                                                                   17

burden that additional or substitute procedural requirements will entail. Balian v.

Bd. of Licensure in Med., 1999 ME 8, ¶ 10, 722 A.2d 364.

        [¶23] With respect to the first factor, although Merrill’s insurance coverage

has been reinstated and she has successfully carried her coverage into retirement,

contrary to the System’s contention, she is not seeking to obtain “free insurance”

by seeking the refund of her back premiums. Fortunately, System employees

discovered the school district’s failure to deduct premiums from Merrill’s

paychecks and alerted her that her coverage had lapsed. Nevertheless, during the

eighteen years during which her employer failed to properly make deductions from

her paycheck, Merrill was without insurance coverage. Requiring Merrill to pay

several thousand dollars for a product she never received in order to maintain

coverage going forward implicates an important property interest, regardless of the

System’s rules requiring such payment.10

        [¶24] With regard to the second factor, although the Board retains the

discretion to decide whether to waive payments pursuant to section 17103(6),

disclosing the standard that the Board will use in making that decision will permit

members and retired members like Merrill to intelligently present evidence

pertinent to the Board’s consideration, assist the Board in making its decision, and


   10
     We do not address whether Rule 601 § 4(C) is unconstitutional because Merrill has not raised that
argument on appeal.
18

enhance our ability to provide effective appellate review. See Balian, 1999 ME 8,

¶ 12, 722 A.2d 364.

          [¶25] Finally, with regard to the third factor, requiring the Board to provide

parties with notice of the criteria it will consider in making its decision concerning

waiver will not impose an unnecessarily heavy administrative burden on the Board.

In most cases, evidence and argument pertaining to the issue of waiver can be

presented during the same hearing at which issues of employer error are addressed.

          [¶26] We have said that the basic notice requirement of due process “is a

threshold constitutional requirement to assure that the government does not

appropriate private property interests without first taking reasonable steps to assure

that the property owner is aware of both the danger of the loss of his interest and of

the opportunity to avoid the forfeiture by performance of the acts necessary to that

end.” McNaughton, 1997 ME 182, ¶ 6, 698 A.2d 1049 (quotation marks omitted).

Thus, we conclude that due process requires that, when considering whether to

waive required payments pursuant to section 17103(6), the Board must do so by

reference to a standard or standards that are made known to the parties, enabling

them to present relevant evidence.11                Otherwise, the constitutional right to a



     11
      The Board has the ability to promulgate such standards by rule. See 5 M.R.S. § 8002(9)(A) (2013)
(defining “rule” as “the whole or any part of every regulation, standard, code, statement of policy, or
other agency guideline or statement of general applicability . . . that is or is intended to be judicially
enforceable and . . . describes the procedures or practices of the agency”). The Legislature may also
                                                                                                 19

hearing would be rendered meaningless. See Mathews, 424 U.S. at 333 (“The

fundamental requirement of due process is the opportunity to be heard at a

meaningful time and in a meaningful manner.” (quotation marks omitted)).

       [¶27] In this case, neither the hearing before the Hearing Officer nor the

submission of briefs and oral arguments before the Board afforded Merrill an

adequate opportunity to present evidence relevant to the Board’s criteria for

evaluating whether to grant a waiver. On remand, the Board must necessarily

consider the merits of Merrill’s request for a waiver in light of the standards it

promulgates. Due process requires that Merrill be afforded a hearing and notice of

the standards the Board will use in evaluating her request for a waiver. Thus,

although Merrill has already had a hearing in this case, in light of our holding

today she is entitled to a new hearing, including adequate notice of the substantive

standards that the Board will apply to her request, so that she may present evidence

relevant to the Board’s consideration of her request for a waiver.

       The entry is:

                       Judgment vacated.        Remanded for                further
                       proceedings consistent with this opinion.




delineate factors the Board must consider when deciding whether to waive payments members or retired
members are required to make as a result of employer error.
20


On the briefs:

       Donald F. Fontaine, Esq., Law Offices of Donald F. Fontaine,
       Portland, for appellant Reva Merrill

       Janet T. Mills, Attorney General, and Christopher L. Mann,
       Asst. Atty. Gen., Office of the Attorney General, Augusta, for
       appellee Maine Public Employees Retirement System


At oral argument:

       Donald F. Fontaine, Esq., for appellant Reva Merrill

       Christopher L. Mann, Asst. Atty. Gen., for appellee Maine
       Public Employees Retirement System



Kennebec County Superior Court docket numbers AP-2011-10 & AP-2012-32
FOR CLERK REFERENCE ONLY
