Deference is not absolute


Yesterday the Maine SJC issued a rare decision that reversed an agency on its factual determination,  Lippitt v. Board of Certification for Geologists and Soil Scientists, 2014 ME 42,

There, a geologist appealed a decision by the Board of Certification for Geologists and Soil Scientists, that concluded that he had provided a professional opinion “without being as thoroughly informed as might be reasonably expected,” in violation of an applicable Code of Ethics, 6 C.M.R. 02 070 003-3 § 2(D) [].  The SJC agreed with the geologist that, looking at the record, the Board hadn't really found that he hadn't informed himself, but rather had disgreed with his findings and conclusions in a matter, while expressly not finding him grossly negligent. 

There aren't a lot of decisions to cite in which the Court rejects an agency finding, so keep this one in your back pocket when you pursue an 80C petition based on a lack of substantial evidence or abuse of discretion.

Lately the SJC has been flipping agencies and boards on their statutory interpretations, too – see Houlton Water Co. v. PUC, 2014 ME 38, and Kennebec County v. Maine Public Employees Retirement System, 2014 ME 26,

Is this a trend?  Who knows.  But again for the practitioner in this area, it shows that the deferential standard of review applied to state agencies' decisions and interpretations is not absolute.  The ultimate touchstone is legislative intent, and even if you are confronted with ambiguous statutory language, you might still be able to argue  that, looking at the statutory scheme as a whole and the law's objectives, the agency's interpretation is unreasonable.

Good luck!