STATE OF MAINE SUPERIOR COURT

KENNEBEC, ss. CIVIL ACTION
DOCKET NO.

ALBERT TEMPESTA, 

Plaintiff 

V. COMPLAINT

(IVER. Civ. 803 and Independent Claims)

TOWN OF BENTON, MAINE, 

Defendant 

Plaintiff Albert Teinpesta, by and through his undersigned counsel, hereby complains
against the Defendant Town of Benton as follows:
INTRODUCTION AND PARTIES
1. This 80B appeal challenges the Town of Benton?s arbitrary, capricious and
discriminatory termination of Plaintiff Albert Tempesta?s employment as the Town?s Code
Enforcement Of?cer Without warning, notice, or an opportunity to be heard, in violation of
Federal and State law.

1. In addition to the 80B appeal and the claim under 42 U.S.C. 1983 for
deprivation of procedural due process, this case challenges the Defendant Town of Benton?s: (A),
age discrimination against Plaintiff in Violation of the Maine Human Rights Act 5
M.R.S. 4571 et seq; (B) retaliation against Plaintiff in Violation of the Maine Whistleblower
Protection Act 26 MRS. 831 et seq; and (C) violation of Maine?s Freedom of
Access Act, 1 MRS. 407.

2. Plaintiff Albert Tempesta Tempesta?) is an 111.3 i. 

of Dexter, County of Penobscot, and State of Maine. g;   

3. Defendant Town of Benton (?the Town,? ?Town of Benton,? or ?Benton?) is a
niunicipality organized under the laws of the State of Maine and located in the County of
Kennebec and State of Maine.

BACKGROUND FACTS

4. The Town of Benton, Maine ?rst appointed Mr. Tempesta as a part?time Code
Enforcement Of?cer in or about the year 2013.

5. Mr. Tempesta took roughly between 5 and 20 calls per week as the CEO for
Benton and earned a salary of $15,900.00 per year.

6. At all times herein relevant, Mr. Tempesta also worked as the CEO for a number
of other towns located in Penobscot and Somerset counties.

7. Mr. Tempesta has 15 years of experience as a CEO, prior to which he served as
the chair of the planning board in Dexter, Maine for 17 years.

8. At the time the Town terminated Mr. Tempesta?s appointment, he was 60 years
old.

9. Throughout his tenure as CEO in Benton, Mr. Tempesta never received criticism
about his perfonnance except for one call from a resident who was angry about the fact that a
property within the Town was located within the ?ood zone.

10. Every year, the Town of Benton automatically renewed Mr. Teinpesta?s
appointment as CEO without discussion.

11. The Town of Benton?s Personnel Policy describes ?regular part~time?
employment as working ?less than the normal work week, but on a continuing basis.?

12. Under the Town?s Personnel Policy, a regular part?time employee is ?subject to

all personnel rules and regulations.?

13. The Town?s Personnel Policy also describes employment on a ?continuing basis?
as ?inde?nite.?

14. Based on these personnel policies and the automatic renewal of his ?inde?nite?
position with the Town, it was reasonable for Mr. Tempesta to expect that he would be re?
employed and reappointed as the CEO in 2016.

15. Mr. Teinpesta did in fact expect that he would be automatically reappointed to the
position of CEO on or about March 15, 2016, as he had for the prior couple of years.

16. Because Mr. Tempesta had a reasonable expectation of continued employment, he
had a property interest in his position as the CEO of Benton under Maine law.

17. Under Maine law, a CEO cannot be terminated from his position without just
cause.

18. In or around July of 2015, Mr. Tempesta wrote a letter to the Board of Selectmen
for the Town of Benton (?the Board of Selectmen?) and asked to meet with them in executive
session. Mr. Tempesta?s July 21, 2015 letter, which he asked to have placed in his personnel
?le, read as follows:

On July 14, 2015, the planning board had a meeting concerning a
proposed call tower on Benton Ave. road. When the meeting got over, I
looked up the office and set the alarm about 9:15, walked out of the
building and found Leo Caron, Roger Averill, Kathe Bolster and Scott
Cyrway outside the building having a discussion of the earlier meeting and
how to turn down this application. I reminded Scott Cyrway that he
should know better than to have a meeting with 3 Planning Board
members and to discuss what they were discussing. Kathe Bolster
responded that there was always a squealer in the bunch.

This is a cover your butt letter.

Al Tempesta

19. Mr. Tenipesta wrote the above-referenced letter because he was concerned that
the Town would get sued by US. Cellular, which had submitted a completed application for the
cell tower but was receiving signi?cant Opposition and delay in approving the cell tower from
the Town Planning Board.

20. Mr. Tempesta explained his concerns to the Board of Selectmen, including the
fact that the Planning Board was discussing ways to derail the cell tower project, unbeknownst to
the applicant US. Cellular.

21. Mr. Tempesta speci?cally told the Board of Selectmen, think you?re going to
get sued before this deal is done.?

22. Soon after Mr. Tempesta engaged in the aforementioned whistleblowing, the
Town sought out advice from the Maine Municipal Association about terminating Mr.
Teinpesta, stating that Plaintiff was ?trying to be ?red.?

23. Ms. Patterson?s email to the MMA cited ?several complaints? about Mr.
Tempesta?s behavior, but she never raised these issues with Mr. Teinpesta.

24. In response to Ms. Patterson?s inquiry, the MMA explained that any complaints
about Mr. Teinpesta from residents should be put in writing or the Board should at least ?hear the
complaint and the side of things as well in an impartial manner.?

25. The MMA also advised the Town that a CEO ?would be entitled to ?just cause?,?
meaning Mr. Teinpesta should not be terminated without making a determinatiOn of whether
there was just cause to support the termination.

26. On Tuesday, March 8, 2016, Mr. Tempesta slipped on some ice while working for

the Town of Dexter and hit his head.

27. While Mr. Tempesta was home recovering from his injury on March 8th, the head
Selectman for the Town of Benton, Dan Chamberlain, called and said Plaintiff would not be
reappointed to the position of CEO.

28. In disbelief, Mr. Tempesta asked why he was not being reappointed, to which Mr.
Chamberlain responded: ?We found someone younger who we think will be a better fit.?

29. Mr. Chamberlain mentioned on more than one occasion that Mr. Tempesta?s
replacement was ?younger.?

30. Mr. Tempesta was completely shocked to learn that he would not be reappointed
to the position of CEO.

31. Mr. Chamberlain also indicated the decision not to reappoint Mr. Tempesta had
occurred after the Board of Selectmen interviewed the ?younger? replacement for Plaintiff
?about a week ago.?

32. MI. Tempesta asked Mr. Chamberlain, ?don?t you think you should have told me
before you interviewed someone else for my job?? and Mr. Chamberlain replied, ?Maybe we
should have, but we didn?t.?

33. Mr. Chamberlain also told Mr. Tempesta not to attend the upcoming Board of
Selectman meeting at which the new CEO would be appointed, because ?there?s nothing you can
do.?

34. The Town failed to afford Mr. Tempesta any notice of this decision or opportunity
to be heard.

35. The minutes of the Town?s annual meeting on March 12, 2016 make no mention
of Mr. Tempesta?s appointment or replacement, or a specific date when his employment would

terminate.

36. The reappointment process followed by the municipal of?cials of the Town of
Benton was flawed to the point of nonexistence, in that Mr. Tempesta was afforded no process
whatsoever.

37. Given Melissa Patterson?s email accusing Mr. Tempesta of ?trying to be fired,?
and citing specious ?complaints? from residents, the Board relied on inadequate and unsupported
evidence in reaching the decision not to reappoint Mr. Teinpesta.

38. Just cause did not exist to deprive Mr. Tempesta of his reappointment to the
position of CEO.

COUNT I
(Appeal Pursuant to MR. Civ. P. SOB)

39. Plaintiff repeats the allegations contained in Paragraph 1 through 38 of his
Complaint as if fully set forth herein.

40. The Board?s decision not to reappoint Mr. Tempesta to the position of CEO was
arbitrary, capricious, unlawful, and motivated by discriminatory, age?related bias.

41. Mr. Tempesta made a request by letter dated March 25, 2016 to have the decision
not to reappoint him rescinded, but the Town made no substantive response.

WHEREFORE, Plaintiff Albert Tempesta asks that the Court enter judgment in his favor
on his Rule 8013 appeal; that the Court vacate the decision of the Board not to reappoint him as
arbitrary, capricious, unlawful and unsupported by substantial evidence; that the Court order Mr.
Teinpesta reinstated with back pay and restoration of his bene?ts; that the Court order an award
of reasonable attomey?s fees, costs, interest and any further relief as this Court deems

appropriate and just.

CGUNT ii
(42 U.S.C. 1983)
Viciation of Procedural Due Process

42. Plaintiff repeats the allegations contained in Paragraph 1 through 41 of his
Complaint as if fully set forth herein.

43. Mr. Tempesta had a legitimate property interest in continued employment as the
CEO of the Town of Benton.

44. The Town of Benton, operating under color of statute, ordinance, regulation,
custom or usage, caused Mr. Tempesta to be deprived of certain rights secured to him by the
United States Constitution including, Without limitation, those rights secured to him by the Due
Process Clause of the Fourteenth Amendment.

45. The Town of Benton, by and through its duly elected municipal of?cials, and
pursuant to of?cial municipal policy and custom, gave Mr. Tempesta no warning, notice or any
opportunity to be heard prior to the decision to terminate him in violation of his due process
rights.

46. The Town of Benton acted in an arbitrary, capricious, discriminatory, and
unconstitutional manner toward Mr. Tempesta when it admittedly decided not to reappoint him
in favor of someone ?younger? who would be ?a better 

47. Mr. Tempesta was deprived of any opportunity to defend himself against or even
learn about any purported complaints that in part motivated the Board?s decision to terminate his
employment as CEO.

48. A deprivation of Mr. Tempesta?s federally protected rights secured under the
United States and Maine Constitution has occurred within the meaning of 42 U.S.C. 1983.

49. An award of attorney?s fees is permitted pursuant to ?1988.

WHEREFORE, Plaintiff Albert Tempesta asks the Court to enter judgment in his favor
on Count II and ?nd that the Town of Benton, acting under color of state law, deprived Mr.
Teinpesta of his constitutional rights; that Mr. Tempesta be reinstated with back pay and full
restoration of bene?ts; that attorney?s fees be awarded pursuant to 42 USC ?l988; and award
such other and ?irther relief as this Court deems appropriate and just.


(5 MRS. 4572 et seq.)
Age Discrimination

50. . Plaintiff repeats the allegations contained in lfaragraph 1 through 49 of his

Complaint as if fully set forth herein.

51. The Town of Benton discriminated against Mr. Tempesta and failed to reappoint

him to the position of CEO because of his age.

52. Direct evidence of age discrimination exists in this case.
53. The Town of Benton showed discriminatory bias toward younger workers in its
hiring practices.

54. Mr. Tempesta has begun the process of exhausting his administrative remedies by
preparing a charge of discrimination to be ?led with the Maine Human Rights Commission.

WHEREFORE, upon exhaustion of his administrative remedies, Plaintiff Albert
Tempesta asks the Court to enter judgment in his favor on Count 111 and award him economic
and compensatory damages for age discrimination, civil penal damages, punitive damages,
attorney?s fees and costs, interest, and such other and further relief as this Court deems

appropriate and just.

COUNT IV
(26 MRS. 831 et seq.)
Whistleblower Retaliation

55. Plaintiff repeats the allegations contained in Paragraph 1 through 54 of his
Complaint as if fully set forth herein.

56. Mr. Tempesta engaged in protected activity within the meaning of the Maine
Whistleblower Protection Act by making a complaint of illegal practices by the Town Planning
Board, which he believed could subject the Town to liability.

57. Mr. Tempesta had a reasonable basis for believing that the conduct of the
Planning Board in surreptitiously discussing ways to derail the cell tower application described
above, without the knowledge of the applicant, was illegal and/or could subject the Town to a
civil lawsuit.

58. Mr. Teinpesta engaged in the aforementioned protected activity in good faith.

59. The aforementioned instance of protected conduct bears a causal relationship to
the adverse employment action(s) alleged herein.

60. As a result of the Town of Benton?s whistleblower retaliation, Mr. Tempesta has
suffered and is entitled to damages, including but not limited to: lost wages and bene?ts, front
pay, compensatory damages including emotional pain and suffering and lost enjoyment of life,
civil penal damages, attorney?s fees, costs and expenses.

WHEREFORE, Plaintiff Albert Tempesta requests that the Court award hirn damages in
the form of lost back pay, front pay, compensatory damages, civil penal damages, punitive

damages, attorney?s fees, costs and expenses, equitable and injunctive relief, and all other relief

afforded to him by law.

COUNT 
(1 MRS. 407)
Vioiation of Maine?s Freedom of Access Act

61. Plaintiff repeats the allegations contained in Paragraphs 1 through 60 of his
Complaint as if fully stated herein.

62. In response to a request for Mr. Tempesta?s personnel file under 26 M.R.S. 631,
the Town of Benton produced no written record of its decision not to reappoint Mr. Tempesta to
the position of CEO.

63. The Town of Benton knowingly and willfully failed to make any written record of
its decision not to reappoint Mr. Teinpesta to the position of CEO, in Violation of the Maine
Freedom of Access Act.

64. The record contains no reasons or ?ndings of fact in support of the Town?s
decision not to reappoint Mr. Teinpesta that would be suf?cient to apprise Plaintiff or any other
interested party of the basis for the decision.

65. For the Town of Benton?s willful Violation of Maine?s Freedom of Access Act,
the Town is subject to civil forfeiture damages up to $500.00.

WHEREFORE, Plaintiff Albert Tempesta requests that the Court award him civil

forfeiture damages in the amount of $500.00, attorney?s fees, costs and expenses, equitable and

injunctive relief, and all other relief afforded to him by law.

10

Dated at Kennebunk, Maine this 12th day of April, 2016.

11

0% LAW

Liam/a H. White, Bar No. 4025 
ArtomeyforAlbert empesra

BERGEN PARKINSON, LLC

62 Portland Road, Suite 25

Kemebunk, ME 04043

(207) 985?7000
lwhife@bergenparkinson. com