Last time, we wandered into administrative-law country, which, as it turns out, is most of state government. Permits. Licenses. Benefits. Taxes. Utilities. Professional discipline. The pieces of paper that arrive in ordinary envelopes and somehow contain very serious words like denied, suspended, revoked, assessed, conditioned, or final.

Now we get to the next question.

What happens when somebody says, “No” to the State?

In civil litigation, the usual path is familiar enough. A complaint is filed. A summons is served. Then come answers, motions, discovery, mediation, trial, judgment, appeal, and the slow accumulation of binders nobody wants to move twice.

Administrative litigation is related, but it is not the same animal. Same family, perhaps. Different antlers.

A contested administrative case usually begins because an agency has already done something, or proposes to do something, that affects a legal right, duty, privilege, license, benefit, permit, rate, penalty, or condition. The “complaint” may look like a notice of charges, a denial letter, a proposed order, an administrative citation, a determination, a notice of deficiency, or a hearing request form. The first fight may not be “what happened?” It may be “did you request the hearing on time?”

That is the first practical difference. Administrative cases are often deadline machines. Miss the deadline and the merits may become an interesting historical question. Administrative law has many virtues. Forgiveness is not always one of them.

The second difference is formality. Civil litigation is governed by court rules. Administrative litigation is governed by the Vermont Administrative Procedure Act, the agency’s own statutes, the agency’s rules, and sometimes pieces of the civil rules borrowed for the occasion. A hearing officer may run the matter with a scheduling order, motions, exhibit deadlines, prefiled testimony, and post-hearing briefs. Or the matter may be a telephone hearing about whether a person received a notice, filed a form, or met an eligibility rule.

So yes, administrative litigation is often more informal than civil litigation. There may be no “courtroom”. The hearing may be remote. The decision-maker may be a board, a commissioner, a hearing officer, an administrative law officer, or a panel. The record may include agency files, documents, testimony, and official notice of matters within the agency’s specialized knowledge. Under 3 V.S.A. § 810, the Rules of Evidence are followed, but other reliable evidence may sometimes come in. Translation: hearsay is not magic, but neither is it always fatal.

Do not confuse informal with casual.

A contested case still requires notice. Parties still get the opportunity to present evidence and argument. Findings must be based on the evidence and matters officially noticed. A final adverse decision generally must be in writing and include findings of fact and conclusions of law. That is not a coffee chat. That is a record.

Now, who is hearing all of this?

Sometimes it is a board. The Human Services Board hears fair-hearing appeals involving many Agency of Human Services decisions. The Board may hear the case itself or use a hearing officer, who makes findings that the Board can adopt, modify, or reject depending on the statute and posture. In benefits cases, the stakes can be immediate. Medicaid, Reach Up, child care, food assistance, services, eligibility. These are kitchen-table disputes.

Professional licensing uses another model. At the Office of Professional Regulation, some professions have boards and some use advisor appointees. Disciplinary matters may be heard by a board, a hearing panel, or an administrative law officer. The State has the burden in disciplinary cases, and a State prosecuting attorney assigned by OPR prosecutes the case. The decision-maker is supposed to be impartial and walled off from the prosecution side. In a small state, walls matter.

The Board of Medical Practice has its own disciplinary world for physicians and certain related licensees. The Professional Responsibility Board has hearing panels for attorney discipline. Education cases may involve the Agency of Education, the State Board, independent hearing officers, or specialized processes depending on the statute. The Public Utility Commission has commissioners, hearing officers, formal dockets, discovery, prefiled testimony, public comment, and orders that can look more like complex litigation than a quick agency hearing. The Land Use Review Board and Act 250 District Commissions deal with party status, criteria, conditions, and appeals that can move into the Environmental Division. The Transportation Board hears certain appeals from Agency of Transportation decisions. The Department of Labor uses administrative law judges in unemployment cases. The names change. The basic question does not: who has authority to decide, and what record are they deciding on?

Discovery is where practitioners coming from court can get themselves turned around.

In civil court, discovery is a full season of life. Interrogatories. Requests to produce. Depositions. Expert disclosures. Motions to compel. Protective orders. The box under the conference table that seems to refill itself overnight.

Administrative discovery is usually narrower. Sometimes it is written requests and document production. Sometimes it is subpoenas. Sometimes it is prefiled testimony and exhibits, with cross-examination saved for hearing. Sometimes the “discovery” is really access to the agency file. In large PUC, Act 250, ANR, or professional discipline matters, discovery can be significant. In unemployment or benefits hearings, it may be more streamlined: documents exchanged, witnesses identified, and everyone expected to explain what happened in plain English.

The APA recognizes subpoenas and discovery orders, and it provides a way to enforce, modify, or vacate them in Superior Court. That is a helpful reminder that agencies have real process, but not unlimited process. A party usually must explain what is needed and why it matters. “Because I would like everything since 1987” is not usually the winning formulation.

Settlement is also different. In civil court, the parties may settle and dismiss. In administrative law, settlement often requires agency or board approval, because the case may involve public protection, statutory compliance, benefits, license conditions, environmental protection, utility rates, or taxpayer money. The APA expressly allows informal disposition by stipulation, agreed settlement, consent order, or default unless law prevents it. But the “deal” may need to be written as a consent order, assurance, stipulation, corrective action plan, memorandum of understanding, or withdrawal of appeal. A licensing board may want to review the sanction. ANR may want enforceable terms. A benefit case may resolve by recalculation. A PUC case may settle some issues while leaving others for hearing.

And then there are the lawyers.

The State may appear through Assistant Attorneys General, agency counsel, special counsel, or statutory prosecutors. In OPR cases, the prosecuting attorney prosecutes before a board or administrative law officer. In AHS fair hearings, an Assistant Attorney General or agency representative may defend the agency’s decision. In ANR matters, counsel may pursue enforcement or defend a permit decision. In PUC matters, agency lawyers, utility lawyers, public advocates, municipal lawyers, and private counsel may all appear in the same docket, which is how a hearing about poles, wires, rates, or solar panels can begin to resemble a regional planning exercise with exhibits.

There may also be counsel for the board or hearing officer. That lawyer is not the prosecutor. That lawyer helps the decision-maker with procedure and legal rulings. The separation matters because 3 V.S.A. § 813 limits ex parte communications in contested cases. Nobody should be slipping arguments into the side door while everyone else waits on the porch.

So what should a party expect?

Expect a notice. Read it. Expect a deadline. Calendar it twice. Expect the hearing officer to care about relevance. Expect documents to matter. Expect testimony to matter more if it is clear, specific, and tied to the rule being applied. Expect settlement to be possible, but not always private. Expect the agency to know its own regulations. Expect the record to follow you on appeal.

Most importantly, expect administrative litigation to be legal even when it does not feel like court. The room may be smaller. The process may be faster. The tone may be conversational. But the result can decide whether a person receives benefits, keeps a license, pays a penalty, obtains a permit, builds a project, drives a vehicle, or operates a business.

In other words, no robe does not mean no consequences.

In Part III of our series, appeals, records, standards of review, and why “I disagree” is not, by itself, an appellate argument.

Where it all begins!

There is a tendency, when we say “the law,” to picture a courtroom. Robes. Benches. Witness stands. A wooden gavel judges almost never use.

But for most Vermonters, most of the time, “the law” arrives in a less dramatic form. It comes as a notice from the Department of Taxes. A letter about unemployment benefits. A permit condition from ANR. A professional licensing complaint. A Medicaid appeal. A utility case. A DMV suspension. A school district decision. A sternly worded piece of paper informing you that something has been denied, assessed, suspended, revoked, approved-with-conditions, or “continued pending further review.”

That, friends, is administrative law.

At its most basic, administrative law is the law of agencies. The Legislature passes statutes. Courts decide cases. Agencies do the daily work of government. They write rules, issue licenses, review applications, inspect facilities, enforce statutes, impose penalties, distribute benefits, and hold hearings when someone says, “Hold on a minute. That is not right.”

It is not glamorous. It is not usually on the evening news. But it is where law touches real life. The administrative state is where a nurse keeps a license, a farmer responds to an enforcement action, a family challenges a benefits denial, a business disputes a tax assessment, a town argues about a permit, and a utility customer asks why the bill looks like it was calculated by a caffeinated squirrel. (Just saying the question may arise.)

In Vermont, the backbone is the Vermont Administrative Procedure Act, found in 3 V.S.A. chapter 25. The APA tells us what counts as an agency, what counts as a contested case, what a rule is, and what process must generally be provided before an agency can finally decide certain legal rights, duties, or privileges. “Contested case” is the key phrase. If a law requires an agency to decide someone’s rights after an opportunity for hearing, you are probably in contested-case land.

And contested-case land has rules. There must be reasonable notice. The notice must say what the hearing is about, the legal authority for it, the statutes and rules involved, and a short and plain statement of the issues. Parties must have an opportunity to respond and present evidence and argument. Final decisions generally need findings and conclusions. After that, the losing party may have a route to court, though the route is not always the same route. Administrative law loves a deadline.

So who plays in this sandbox?

The Agency of Human Services, through the Human Services Board, handles fair hearings for many benefit and service disputes. Think DCF, Medicaid/DVHA, Disabilities, Aging, and Independent Living, Mental Health, and WIC. If benefits are denied, delayed, reduced, or otherwise affected, a person may be able to request a hearing. The Board, or a hearing officer, hears evidence, makes written findings, and can affirm, modify, or reverse the Agency’s decision.

The Agency of Natural Resources is another major administrative-law world. ANR and the Department of Environmental Conservation issue permits, investigate violations, and bring enforcement actions. Some matters resolve by agreed order. Others proceed by administrative order or civil complaint. Appeals and enforcement matters often land in the Environmental Division, which also hears appeals from municipal panels, Act 250 decisions, ANR, and the Land Use Review Board.

The Office of Professional Regulation lives in the Secretary of State’s office and regulates many licensed professions. Complaints may become investigations. Investigations may become charges. Charges may be heard by a professional board or administrative law officer. Possible sanctions include warnings, reprimands, conditions, suspension, revocation, and administrative penalties. If your livelihood depends on a license, this is not a “just ignore it and see what happens” situation.

The Department of Labor has its own processes, especially in unemployment insurance and wage matters. A claims determination may be appealed to an appeals referee, who holds a hearing and issues a written decision. These cases are often less formal than court, but do not mistake “less formal” for “less important.” The difference between eligible and ineligible can be groceries.

The Department of Taxes handles assessments, denied refunds, penalties, and interest. A taxpayer who receives a notice of deficiency or refund denial generally has a short window to petition the Commissioner for a determination. The Commissioner grants a hearing and issues a written determination. Tax law is where “I meant to call them” meets “the deadline was last Thursday.” Guess which one wins.

The Department of Financial Regulation regulates banks, insurers, securities, and other financial actors. Its enforcement statutes often require notice of a proposed order, an opportunity to request a hearing, and final agency action if no hearing is requested. These cases can involve consumer protection, licensing, market conduct, securities violations, or safety-and-soundness issues. It is administrative law with spreadsheets.

The Public Utility Commission is its own special creature. It regulates public utilities, rates, service quality, energy siting, certificates of public good, and certain consumer complaints. The Commission has hearing officers, formal dockets, public participation, evidentiary hearings, and orders that can be appealed. If you have ever wondered how electricity, telecommunications, water, and energy infrastructure become legal questions, welcome to the PUC.

Education has administrative law too. The Agency of Education and State Board of Education handle certain appeals and disputes involving school districts and education statutes. Some matters are heard de novo by the State Board under the APA. Others follow different statutory routes. In Vermont school law, the first question is often not “who is right?” but “who has jurisdiction?”

The Agency of Transportation and Department of Motor Vehicles have processes for license suspensions, points, financial responsibility, permits, highway decisions, access disputes, and appeals to the Transportation Board. Here the administrative process can decide whether someone drives, builds, accesses, or pays. There are even transportation-related proceedings involving, yes, beaver impoundments. We are a small state. We contain multitudes.

The Agency of Agriculture, Food and Markets handles licensing, inspections, food safety, dairy, animal health, weights and measures, pesticides, water quality, and administrative penalties. The Secretary may appoint hearing officers and hold hearings under the APA when timely requested. A farm enforcement action, milk shipping question, or agricultural water-quality order may look practical and earthy, but the process is still legal.

This is only the first pass. Not every agency proceeding is identical. But administrative law is everywhere in Vermont government. It is the law of notices, hearings, rules, records, findings, deadlines, appeals, and the deceptively simple question: did the government follow the process before it acted?

When an agency sends a notice, do not just read the first paragraph. Read the deadline. Read the appeal language. Read who gets the request. Read whether it must be filed, mailed, emailed, uploaded, hand-delivered, notarized, or accompanied by three copies and a check. (Mostly kidding. Mostly.)

Administrative law may not be glamorous. But in Vermont, it is often where the whole ballgame is played.

This is Part I in an Vermont Administrative Law series!

Its been a while but I felt compelled to blog about the piece in Seven Days that came out yesterday regarding the relaxation of homeschooling requirements in Vermont – – ostensibly because the Agency of Education (AOE) doesn’t have the resources to monitor compliance. In my opinion, this reduction of oversight came as a particular shock, as I was directly involved (as a prosecutor) in the case that required the AOE to beef-up its homeschooling requirements in the first place. The case went to the Vermont Supreme Court and the coalition of homeschool parents involved were represented in part by the Home School Legal Defense Association. It’s the only time I can remember in my nearly 27 years of practice that I was heckled in Court by people observing. In this instance most of those observers were from the coalition of “faith-based” (on the right end of the political spectrum) and “alternative-life style” groups (on the left end of the spectrum) that underpinned the homeschool movement at the time. If you’re interested you can read the Court’s decision.

My sense is that in the last several years more and more families have experimented with homeschooling as Vermont’s public school system has become more and more mired in the fall-out from the pandemic and the turn away from hard subject material, to getting intwined (willingly or not) in the culture wars. The school systems nationally are struggling. Recent stories in the New York Times and in the Washington Post underscore this issue. VT Digger’s reporting in 2022 when the pandemic was ending, seems to confirm and support the national narrative.

Sometimes communal chair lifts are needed and sometimes a single does the trick.

I’ve been practicing Education Law in Vermont on and off for over 20 years. I used to represent School Districts. Now I am one of the only (and maybe the only) attorneys in the entire state, based in Vermont, who regularly represents parents and students in administrative proceedings against the School Districts. Since this is a pretty niche area of the law, Vermont just doesn’t have the population numbers (or the economics) to support anyone practicing parent/student side Education Law full time (there are however, two law firms – one that I previously worked for, who devote large portions of their practice representing School Districts throughout Vermont). And the School Districts need all the legal help they can get, because deciphering the byzantine labyrinth of State and Federal, laws and rules, is no easy task. But frankly it is a problem that Schools have become so hyper-legalized. I get anywhere from 5-10 calls a week from the Vermont Bar Association’s Lawyer Referral Service regarding school issues. The most common issues are (in no particular order): bullying and harassment; special education needs (VTDigger recently reported on this glaring special education hole in the educational landscape) I happened to litigate one of the few special education cases where the student prevailed over the school in the last decade; student discipline; student records; school board and public record/open meeting law violations; and cultural differences surrounding race and sexual orientation.

So this may not be news, but I am here to tell you that the public schools are not alright. The nation is becoming more polarized. Some are moving their kids out of the public school systems or home schooling them. Others are keeping their kids in, but supplementing their educations with enrichment or special education opportunities that not everyone can afford. But the upshot is that the more polarized the schools get, the more likely the polarization is going to continue and exacerbate as a nation once the students who are being educated now, reach adulthood.

What can we do as a matter of public policy? Well that is the subject for another blog post. What can you do as a parent with a kid in the system?

  1. Remain vigilant as to whether the needs of your child(ren) are being met.
  2. Don’t be afraid to be the “squeaky wheel.”
  3. Volunteer for your local school board and if you cannot do that, keep in regular, respectful communication with the members of your board.

It may take a Village under normal circumstances, but in this instance it is going to take the full attention and resources of the State if we are ever going to get back on track. And hopefully, some day soon, the sailing will become smoother.

Vermont South…..

To say that public service isn’t all sunshine and roses, would be – – well a bit of an understatement. Especially for one at the top of the so called food chain (like a President, Governor or Mayor) and the next level of subordinates (Secretaries, Commissioners, Directors and Department Heads) the media has always been unrelenting, even in the most milquetoast of administrations. Social media and the fragmentation of the press has only served to increase the scrutiny as both of these forces become more fractionalized and politicized. As always, this is not a political blog, it is a legal blog. If you want to check out my (now semi-retired) political pontifications, you can find them here.

You may have seen the recent press coverage regarding the Director of Aviation for Burlington Airport, Gene Richards.  Following an unspecified complaint, Mr. Richards was placed on paid administrative leave. At the conclusion of the investigation it was alleged that Director Richards had bullied and yelled at airport employees and he was asked by the Mayor to resign.  Director Richards refused and has vigorously defended himself in the press. Some City Councilors have shown their hands regarding how they are planning to vote on the upcoming termination vote, but of course nothing is set in stone until a vote actually happens.  The purpose of this posting then is to explore the strange and peculiar world of high-level political terminations.  And as much as you were hoping for some political play-by-play specific to the airport matter, the ongoing mechanizations of the Burlington political process will only serve as the canvas for our exploration of the termination process in Vermont.

We start with the United States Supreme Court’s decision in Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985).  If you really want, you can read the entire Loudermill  decision you can find it here.  The Cliffs Notes version is that the Court held that the Due Process Clause of the 14th Amendment (which prohibits States from depriving a person of “life, liberty or property, without due process of law”) requires that states (and by extension their component municipalities) afford public employees “due process” – – in the form of notice of the allegations against them and the right to “be heard” (also known as having a hearing or “trial”) on those allegations.  The termination hearing of a public employee is known in the trade as a “Loudermill Hearing.”

The Vermont Supreme Court has expounded upon the Loudermill decision, holding that in order to be afforded a hearing, the employee being terminated must have a “property interest” in their position created by rules, contracts, laws or some combination thereof.  See, Hallsmith v. Montpelier, 2015 VT 83, ¶ 11 (citing Loudermill). For the vast majority of the employees of the State and many municipal governments, termination is governed by the terms of union contracts, known as collective bargaining agreements (CBAs), that usually set very specific procedures for proceedings.  Even many higher ranking employees are afforded some kind of process.  So for example Town Managers “shall hold office at the will of such selectboard, who, by majority vote, may remove him or her at any time for cause.”  Confusing right? It sounds like the manager serves “at will” but really they can only be removed “for cause” after a majority of the selectboard votes to remove the manager.  Rank and file police officers may get the most process out of all municipal government, because they can opt to have their Loudermill hearing, heard by a judge of the Criminal Division of the Vermont Superior Court.  Note this is not a criminal proceeding, but an administrative one that is held in criminal court, because the statute creates that right.  There are numerous other examples. having various layers of “process”, in state and local government.

One of the few governmental positions that does not require any type of hearing, are the Gubernatorial appointments for agencies (secretaries) and departments (commissioners).  While state law requires the Senate to approve the initial appointments, of secretaries and commissioners, it vests full authority in the Governor to remove Gubernatorial appointments without any kind of process.  Note this doesn’t mean that a governor can terminate a secretary or commissioner for an illegal reason, such as one based on protected classification (including race, creed, color, national origin, marital status, sex, sexual orientation, gender identity, etc. of any person), but the governor can terminate a secretary or commissioner because they do not like the job they are doing or for some malfeasance, without any kind of hearing. Of course, most public servants at this level of government are usually given the opportunity to resign, often on their own terms, in lieu of being terminated.

To recap, the “property interest” that a public employee enjoys in their position, essentially depends on the amount of process that a rule, statute or contract guarantees the employee. And typically (but not always), higher level employees get less process then their subordinates. The policy reason being that the executive, needs to have greater control over the people who report directly to that executive and are political appointments, rather then part of the greater bureaucracy.

Which brings us to Burlington.  The Department Heads in Burlington are appointed pursuant to the Burlington City Charter which is a special state law, that only applies to Burlington.  The Charter requires that the Director of Aviation (Airport Director) along with a number of other director level positions, be appointed by the Mayor with “the approval of a majority of the whole number of the City Council.”  Note that the “whole number” language is a term of art. It means that at least half, plus one – of the entire body need to vote to approve an appointment, even if some some councilors are absent from a meeting.  Most Burlington Department Heads are initially appointed for a term of one year, but after the first two appointments, the Mayor has the ability to make a three year appointment. This term of appointment is the extent of the unilateral control that the Mayor has over Department Heads. Essentially if the Mayor is dissatisfied with the job that a Department Head is doing, then the Department Head does not get reappointed. No hearing or any other kind of due process is necessary in respect to not being reappointed.  City Department Heads were appointed/reappointed on June 3, 2021.

Now unlike the Governor’s secretaries and commissioners, the Mayor cannot terminate a Department Head, without the concurrence of the City Council.  Essentially the Department Head has a form of a contract, for the one year that they are appointed and that contract cannot be terminated without due process (notice and hearing). In this case the Burlington City Charter says that “the City Council may, on the initiative of the Mayor, by an affirmative vote of at least two-thirds of its entire number, remove at any time at its pleasure any City officer or department head it should determine is no longer effectively serving the City.”  There is that “entire number” language (which is the same as “whole number”) again. In respect to the 12 member Council, that means that no matter how many councilors are in attendance at a termination hearing, at least 8 need to vote to remove a Department Head.

But wait, there’s more!  Since a Department Head cannot unilaterally be removed, they are not really an “at will” employee, during the one year of term of their employment.  They are essentially a “for cause” employee and before being terminated, they have the right to “notice” (of the allegations against them, almost always presented to the employee in written format) and the right to be heard (have a hearing or mini-trial). In order to determine what that hearing looks like, we need to take a look at the Vermont Supreme Court’s decision in Hallsmith referenced above.  Loudermill hearings can take on many forms. The “safest” form (that offers the most process) for a government actor is to have a full “hearing” complete with the presentation of evidence, right to counsel, right to present evidence, and the right to call and cross-examine witnesses. Basically a quasi-judicial trial, where (in this instance) the City Council would sit as judge and jury. There can be less “process” offered, but where the process is not well defined in the rule or law, the entity (in this case Burlington) offers less process at its own risk. The risk being that the case ultimately gets appealed to the Vermont Supreme Court like Hallsmith and the Court determines that the process offered was not enough and undoes the decision of the Council. Thus when the process needed is unclear, municipal employers will often offer more process, rather than less.

But wait, there’s still more. And here’s where things get really interesting. Regular readers of this Blog (OK I know the Blog is not regularly published) may well be familiar with Vermont’s Open Meeting Law (OML). Simply stated, with some exceptions, members of the public (that means you and everyone else) have the right to attend meetings of public entities. It just so happens that one of those exceptions to the OML states that “A public body may not hold an executive session except to consider one or more of the following….a disciplinary or dismissal action against a public officer or employee; but nothing in this subsection shall be construed to impair the right of such officer or employee to a public hearing if formal charges are brought.”  3 V.S.A. § 313(a)(4). Which essentially means that the municipal entity must hold a termination hearing in executive session (closed to the public) unless the employee wants to open up the meeting to the public. Of course the media and the public typically want the meeting to be open, most employees do not. Most employees also just want to keep their jobs or want some kind of “golden parachute” for their exit (or at least the public sector equivalent).

I have no idea what the allegations are against Director Richards and it would be irresponsible for me to weigh-in on the merits of the case. Having done a number of these cases throughout Vermont, I will say that if there is a public hearing in this matter, with the full protections of due process afforded, nobody will really “win” no matter what the outcome. Will it make for spectacular public theater? Maybe. Will it result in benefit to the people of Burlington or anyone involved in the matter? Almost certainly not.

 

 

It’s been a while.  No blogging since the pandemic started (other then my last piece offering to assist licensed professions with pro bono help during COVID).  It occurs to me that I haven’t been blogging in this strange new world of public meetings being held on Zoom and similar platforms. It was the last special meeting of the Burlington City Council on September 8, 2020 that has awoken me from this slumber.  To be clear, only a court may determine if there has been a violation of Vermont’s Open Meeting Law (OML), but the public body itself can preemptively acknowledge a violation in order to mitigate the damage that the violation has caused and avoid potential criminal charges, attorney’s fees and other litigation costs.

If you live in Vermont, you have by now no doubt heard about the protests going on in Burlington, centered on racial justice, with the singular demand that three Burlington police officers should be terminated because of the way they handled certain incidents.  I was even afforded the opportunity to give a long-form interview on WCAX’s “You Can Quote Me” about the legalities of the different actions that the protestors are engaging in and the 77 page Collective Bargaining Agreement (fancy legal term for employment contract) between the Police Union and the City. I could write for hours on those topics, but today I want to explore Vermont’s OML.

While in the past I’ve devoted a number of posts to discussing the Vermont Public Record’s Act (PRA also often called by its Federal analogue FOIA), only one previous post was devoted exclusively to the OLM.  As I’ve previously opined in this VPR Commentary, the OML is rooted in the Vermont Constitution.  Specifically the Vermont Constitution provides at Chapter I, Article VI “That all power being originally inherent in and consequently derived from the people, therefore, all officers of government, whether legislative or executive, are their trustees and servants; and at all times, in a legal way, accountable to them.” The OML, 1 V.S.A. § 311(a) makes this provision of the Vermont Constitution applicable to all Vermont municipalities and their bodies and subparts.  And hence we come to explore the rabbit hole that the Burlington City Council jumped down on September 8th.

Old Bald Guy Jumping Off Cliff Instead of Rabbit Hole.

The most recent OML kerfuffle was brought into focus by Seven Days Burlington beat reporter Courtney Lamdin and Seven Days Deputy Editor Sacha Goldstein, who filed a OML complaint with the City. At the September 8th meeting, Councilor Jack Hanson sought to invite protestors into a so called “executive session” of the Council meeting. Under the OML, executive sessions are private sessions that are only allowed in very limited circumstances.  That is to say that the public at-large is excluded from executive sessions, so therefore the exceptions are narrow.  On the particular evening in question, a majority (but not all) of the Council voted to go into executive session under exception 1 V.S.A. § 313(a)(3) to discuss “the appointment or employment or evaluation of a public officer or employee, provided that the public body shall make a final decision to hire or appoint a public officer or employee in an open meeting and shall explain its reasons for its final decision during the open meeting.”  (Emphasis mine).  This exception of the OML is often refereed to as going to executive session to discuss “personnel issues.”  In particular to discuss the sole constant demand of the protestors, termination of the three Burlington police officers. This type of exception to the OML requires the public body to make a finding that they need to meet in private because otherwise “premature general public knowledge would clearly place the public body or a person involved at a substantial disadvantage…”

Councilor Hanson began by stating  “if possible it would be really beneficial to invite” the protestors into the executive session.  Councilor Hanson went on to claim that “I think the reason to have that conversation [with the protestors] in executive session is because we are talking about those personnel issues and we are kind of heeding that advice and input [of the protestors]…in terms of what direction we might want to go.”  This is not a valid reason to invite in members of the public to an executive session.

Councilor Hanson then asked to hear from the protestors (who were only identified by their first names, also a possible violation of the OML) in terms of whether or not they are “looking to be included in executive session.”  That is absolutely not relevant to the determination of whether a person should be excluded in executive session. It is fair to say that most people, given the opportunity, would rather speak in private, than in public… which is exactly what the OLM prohibits. The rationale Councilor Hanson offered for hearing from the protestors in executive session was that they could offer information that would be persuasive to the final determination of the Council regarding how the personnel issues with the officers are handled. Also not relevant to the determination of whether the protestors could join an executive session.

Inviting members of the public into an executive session, without reason is sure to cause controversy.  Councilor Chip Mason (an attorney) summed it up when he pointed out the fact that “my phone is blowing up from members of the public that are quite upset that this [the discussion with the protestors] is not going to be done in public.”

Now dear readers is where we take a moment to pause and reflect. In their debate on this issue (which seemed to go on for quite a while), the Council was focused on whether inviting the protestors into the executive session would negate the attorney-client privilege of the legal advice given by the City Attorney. The solution to this issue they thought, would be the bifurcation of the executive session and allowing the protestors to come in, say their piece, and then leave before any legal advice was rendered.  In this instance, the Council was so focused on the trees, that they failed to see the forest.  The trees being the attorney-client privilege, the forest being the purpose of the OLM…to keep meetings open and the public informed.

Councilor Joan Shannon (who has been on the Council for so long (18 years?) she could probably sit for the bar and qualify as an attorney) encapsulated the issue best, questioning “I don’t understand on what basis we are able to go into executive session to hear from members of the public.”  The councilors who voted to go into executive session with the protestors (spoiler) also failed to heed the legal advice of City Attorney Eileen Blackwood that they needed to determine “is there information that you need from them [the protestors] that can’t be given in public session… you are kind of going to need to make a finding to that extent.”

Councilor Franklin Paulino (also an attorney) stated “it is an unprecedented action to just invite someone you want to consult with [into executive session] unless they have special knowledge about the private information … [that is relevant] to executive session.”  Councilors Mason, Shannon and Paulino were the only ones who voted against both the protestors from joining the executive session and when that failed, voting against the executive session itself.

Wonderland was reached when Councilor Shannon asked the protestors “if they have information that they wanted to give us that they could only give in executive session.”  The response from the protestors spokesperson was all telling. “Yes.  I think there is a lot happening here that I think due to the lack of public statement has been misconstrued.” (Emphasis added). Now Friend, I do not know what the spokesperson was thinking, but I do know that we have reached the very crux of the issue.  As has been noted in various news reports (including the WCAX piece referenced above), the protestors have refused to speak to the media. That is of course their right.  But here is the issue, it appears that the protestors were arguing, they they needed to speak to the Council, in public session, because their message was being misconstrued, by the media, because the protestors refused to speak to the media, and thus the protestors could only correct that misconstruction, by having a private meeting with the Council, and shut out the media and the public. Read that a few times and let it sink in. Orwellian.

A quick aside.  I know it was late and people were tired. I also know that most people (even elected officials) don’t like to act as “prosecutors” by asking a lot of pointed questions. Often they stop after the first question is answered, but that is often just the tip of the iceberg. But sometimes it’s necessary to dig deeper. In this instance, Councilor Shannon should have asked WHY the protestors could not share their information in executive session. The answer almost certainly would have demonstrated exactly why inviting the protestors in to public session was problematic from the start.On top of all of that, as far as I could determine, the three protestors that wanted to go into the executive session, specifically stated during an early part of the meeting, when they had a dialogue with the Council, that they couldn’t speak for all the protesters, just give their personal opinions. So when they went into executive session, they were just offering their opinion as three members of the public not on behalf of a group. Put succinctly, they had no basis at all to be in the executive session either as representatives of a group and certainly not as individuals.

Ultimately the protestors reasoned “we believe that we would be able to have a very different conversation if we were in private with the Council and the decision makers…. you need to understand where we stand on this and that is best done in a private dialogue.” (Emphasis mine).  No doubt it would be a very different conversation, the very type of conversation that the OML prohibits, excluding the public and the traditional media (an organ that much of the public still relies on to disseminate public information in digestible format).

Most of the Council (those who voted to invite the protestors into the executive session) almost certainly violated the OML. Under the OML penalties and enforcement section the Council now has 10 days from September 10th to respond (the date this complaint letter was received from Seven Days Associate Editor Sasha Goldstein):

If the Council admits that that there was a violation of the OML, they need to acknowledge “the violation of this subchapter and stating an intent to cure the violation within 14 calendar days.” 1 V.S.A. § 314(b)(2).  An acknowledged violation may be cured pursuant to 1 V.S.A. § 314(b)(4) by: (A) either ratifying, or declaring as void, any action take at or resulting from: (ii) a meeting that a person or the public was wrongfully excluded from attending…. (B) adopting specific measures that actually prevent future violations.”

The Council meets again on September 14, 2020 so the thrilling conclusion of this latest episode of Days of Our City Councilor Lives, is as they say, to be continued……

 

 

Governor Phil Scott of Vermont just issued this call for volunteers for folks from a wide range of health care professions to volunteer their services during this time of need.  I’m not a health care professional, but I’ve worked with health care professionals for most of my legal career on licensure issues.  I am offering my services, pro bono, to any Vermont health care professional or health care professional coming to Vermont to offer their services who needs assistance navigating licensing or other regulations during this time of national need.  Feel free to email me eadrian@msdvt.com if you need assistance.  And thank you for your service.

A few weeks ago the Vermont Secretary of State, Jim Condos, made a mistake.  He posted… and then deleted an “offer” regarding a $75 coupon from Costco…. that turned out to be a scam.

Fellow blogger John Walters covered the story but from more of a political bent.  As I’ve explained in the past, this blog is focused on legal issues, my (somewhat anemic) political blog can be found here.  What are the legal issues raised by this post and subsequent deletion you ask?  Thanks for asking, they are myriad.

First, Secretary Condos has been extremely “conservative” in is reading of how the Vermont Open Meeting and Vermont Public Records laws should be interpreted.  Here’s a Twitter exchange I had with his office several years ago (not ironically underscoring the importance of preserving public records).

 

What are the lessons that we learn from this advice?  1) Err on the side of transparency. 2) Beware of meeting in cyberspace. 3) That the Open Meetings Law was written well before social media and never contemplated how do deal with it. I don’t disagree with any of that in principal, but everything can be taken too far.  This series of tweets from @VermontSOS was in response to my inquiry about Secretary Condo’s position in his  2016 Guide to Open Meetings where in he admonished public bodies as follows:

A literal reading of this “advice” means that if a quorum of a public body is “on” Facebook or Front Porch Forum, and one of them discusses public business, then that can be construed as an illegal meeting of the body public.  Such a reading is not conservative, it strains reason and goes well beyond the plain meaning of the Open Meeting Law, ultimately leading to absurd and irrational consequences.

As part of that conversation I inquired as to how Secretary Condos’s office curated and archived their own tweets and here is the exchange.

That was three years ago, and as far as I can tell, since it is still proffered on the Secretary’s website,  there has been no revision to Secretary Condos’s “A Matter of Public Record: A Guide to Vermont’s Public Records Laws” since it was last published in 2014.

Circling back around, brings us back to the present kerfuffle regarding the Costco coupon post.  Walter’s interview with the Secretary’s Chief of Staff Eric Covey revealed the following – “So wait. In so doing, did Condos destroy a public record? No, because the post was on his personal page, not his official one. In addition, it had nothing to do with his day job. “Had it been related to his official business, we would have preserved it regardless,” explained Covey.”

Lets break down that statement a little further.  “It was on his personal page, not his official one.” OK great. That’s exactly the same logic President Trump used when he tried to block people from his “personal” Twitter account.  Hogwash (that’s a legal term) the U.S. Court of Appeals for the Second Circuit said in the matter of Knight First Amendment Institute at Columbia University et. al. v. Donald J. Trump, 302 F.Supp.3d 541 (2nd Cir. 2018).  The 2nd Circuit indicated in that instance, President Trump could not block Twitter users pursuant to the 1st Amendment, in part, because even though the President claimed it was his “personal” account it was used by Trump “on almost a daily basis ‘as a channel for communicating and interacting with the public about his administration.'”  Id. at 236 (citations omitted).  The 2nd Circuit recognized that “[o]f course, not every social media account operated by a public official is a government account.  Whether the First Amendment concerns are triggered when a public official uses his account in ways that differs from those presented on [sic] this appeal will in most instances be a fact specific inquiry.”  Id. at 236.

In the present instance, Secretary Condos clearly uses his “personal” Facebook account to communicate and interact with the public about his administration, public policy related to his position and politics.  In a twist of fate, it even has a “tagged” post about the recent dispute between the Vermont Attorney General and the Secretary of State and Governor on a public records issue.

The first issue raised by Mr. Covey related to a “personal” Facebook account is thus dispelled.  What about the statement that it was not related to the Secretary’s day job?  That argument does not seem to carry the day.  Cybersecurity is paramount to the duties of the Vermont Secretary of State’s Office.  He controls databases with some of the most personal and sensitive information possible in the Office of Professional Regulation licensee database and the voter registration database. One need to go no further then the sumer of 2019 where the Secretary delivered the “keynote address on cybersecurity at Route Fifty’s “Building a New Cyber Security Paradigm” summit in Boston, Massachusetts on Thursday, June 6th.”  Thus the Secretary is also holding himself out to the public as an expert in cybersecurity.  That position does not mesh with posting a scam for Costco without checking its veracity through a simple Google search or looking at Snopes (an excellent resource for quickly debunking scams).  The very existence of the Costco Facebook post raises valid questions about cybersecurity capabilities.

That brings us back to the Secretary’s position that in relation to the Open Meetings Law (and presumably the Public Records Act) the government should “err on the side of transparency.”  While that might be a great talking point and presumably an easy one to defend, as set forth above, the issue is far more complex then a first glance suggests.

The Secretary deleted a post, from what can clearly be argued is government Facebook account, about a topic that holds a central and fundamental position within the core duties of the Secretary of State’s Office.  It certainly passes the straight face test to argue that the Secretary intentionally deleted a public record.

All of this is by way of saying, that the Secretary should be held not only to the very highest standards, but should certainly be held to his own standards in respect to Open Meetings and Public Records.  As for the ordinary citizens that compose our legislature and municipal bodies?  Well the legislature has exempted itself and its component parts from the public records act.  And those public servants, who serve with no or little pay on the Selectboards, DRBs, Planning Commissions etc. of our municipalities?  Just remember the above scenario and think about cutting them a little slack if they make a public records mistake.

After all, if you are looking for a rainbow unicorn, sometimes the best your gonna get is ice cream and sprinkles.

Most of my readership is in Vermont (at least according to Google Analytics) but even those of you outside Vermont, even outside of the U.S. may have heard about the most recent news coming from our little corner of the world. No I’m not talking about Bernie Sanders or Howard Dean, but rather the Burlington High School Girls Soccer Team, the Seahorses.  On Friday the 18th of October, the Seahorses were “yellow carded” after midfielder Helen Worden (my neighbor by the way) scored a goal in the last regular season game.  Four of the team members then took off their jerseys to reveal #EqualPay t-shirts, developed in coordination with Change the Story Vermont a local advocacy group focused in part on eliminating the gap in pay between men and women. (Disclosure, I am involved with the Change the Story, subcommittee “Champs for Change” in my capacity as a Commissioner on the Vermont Commission on Women).  The Seahorses’ story has been told over and over again first on Good Morning America, and later catching fire and featured on /in the local Vermont news including VPR, VTDigger, The Burlington Free Press, and Seven Days.  Regional media such as NECN and the New York Daily News.  National media including NPR, People Magazine, NBC, CNN, CBS, The Hill, USA Today, The Today Show and even Fox News. International coverage at The Daily Mail; a Twitter Campaign by Secret Deodorant; Luna Bar; and shout-outs from Billie Jean King and U.S. Women’s Player Brandi Chastain. I’m not going to attempt to rehash the story that so many other sources have done so well.  But I did want to take a moment to look at things from a legal perspective.

Many non-lawyers may not know this, but there is a whole field of “school law” out there.  In Vermont there are only a handful of law firms that practice this type of law regularly on behalf of the school districts.  I used to work for one of them. Now I typically represent parents and students in matters involving school districts in respect to the Federal Individuals with Disabilities Education Act (IDEA); the Family Educational Rights and Privacy Act (FERPA); the Vermont Public Records Act; and disciplinary matters pursuant to Vermont statutes and regulations.  What I’ve yet to handle is a matter pursuant to School Sports Law (which must be a sub-speciality for someone in a larger state).

The Vermont Principals’ Association (VPA) is the regulatory body charged with the oversight of school sports in Vermont.  The VPA has adopted the 2019 Girls and Boys Soccer Guide (Soccer Guide).  The Soccer Guide is only four pages, but Section II(A) states “the current issue of the National Federation Soccer Rules shall be the official playing rules for the interscholastic soccer among member schools in the State of Vermont, except as varied by the Vermont Soccer Guide.”

Curious, I of course went looking for the National Federation [of State High School Association] Soccer Rules (NFHS Rule Book) only to find that they cost $6.95 (plus tax), which is kind of disappointing because you would think that rules governing public schools would be, well, public, but I guess everyone needs to make a buck.  So I purchased the NFHS Rule Book here.  The NFHS Rules are a bit longer then the VPA Soccer Guide and clock in at 320 pages. Yes 320. And here’s what I found out.  Rule 4.1.2h of the NFHS Soccer Rules Book, states “only those names, patches, emblems, logos or insignias referencing the school are permitted on the team jersey and/or shorts, as well as visible undergarments and goalkeeper pants, except as in 4.1.1e. The player’s name may also appear on the team uniform.” Rule 4.1.1e provides that “One manufacturer’s logo/trademark or reference is permitted on the outside of each item which may not exceed 2 1/4 square inches and may not exceed 21/4 square inches and may not exceed 2 1/4 inches in any dimension. (Subject to the provisions in 4.1.1d).” Rule 4.1.1d provides “if visible apparel is worn under the jersey and/or shorts, it shall be of a similar length for an individual and a solid-like color for the team.” To recap, international branding is allowed, local messaging, no matter how worthy the cause is not. Likely because then a school district would need to be the final arbiter of what constitutes a “worthy cause” and that’s likely an area that schools would prefer not to wade into.

The reports indicate that the Seahorses were yellow carded based on excessive celebration.  Rule 12.8.1(c) Situation B states that “[d]uring the match, [a player] after scoring a goal, [the player] celebrates excessively.  RULING: “caution [player] for unsporting conduct.”  Rule 18, Article 1(c) states that a cautioned player is “[a] player notified by an official that his/her activities are not in the best interests of the contest. Such player must be shown a yellow card and shall leave the field and may be replaced.”  (Emphasis added). In the ensuing confusion, the four players were evidently all removed from the field and the other team scored. Here’s where the over legalization of things like high school sports gets complicated. One could easily argue that based on the message, the intent of the players, and the referee’s later actions (set forth below), the players’ actions WERE in the best interests of the contest and the referee’s decision should be overturned (I haven’t looked into appeals of decisions yet, but suspect that they are decided by the VPA). I haven’t seen that argument made as of yet.  But then of course, it would have been unlikely that any of this would have made the national and international news.

The Seahorses engaged in an act of civil disobedience, which was recently described by Deputy Burlington Police Chief Jon Murad … “John Rawls will tell us that civil disobedience is really only possible in a near-just state, and it has to be done in a place where there is actually enough justice to have a situation that can be corrected by that act of civil disobedience….” In this instance, justice prevailed. The referee that carded the Seahorses, according to reports, congratulated them and even said he was going to buy a shirt (which you too can purchase right here for the low, low price of $25-$35).

Hopefully we will achieve equal pay here in Vermont and the U.S., sooner rather then later. Hopefully Martin Luther King was correct when he postulated that “the arc of the moral universe is long, but it bends toward justice.” Hopefully justice will be achieved soon.

And those seahorses, the ones that you know, live in the actual sea?  What about them? Well they are one of the few species where the male “births” and cares for the young, thereby sharing in the responsibilities with the female seahorse.  And isn’t that the perfect metaphor for equal pay and equality in general?

 

We last left off after a review of the Grey Areas of Professional Licensing in Vermont and the Burden of Proof in Professional Licensing cases. In part three of this series, we will be reviewing who has the authority to “charge” unprofessional conduct. In Vermont, as previously discussed, we have four separate entities that regulate professional discipline. The Vermont Agency of Education regulates teachers.  The Vermont Board of Medical Practice (under the umbrella of the Department of Health, Agency of Human Services) regulates medical doctors and a handful of associated professions. The Vermont Professional Responsibility Board (under the umbrella of the Vermont Judiciary) regulates attorneys. And approximately 50 boards and advisors (more on this in another post) regulate the other professions (under the umbrella of the Vermont Secretary of State’s, Office of Professional Regulation “OPR”).

The Agency of Education stands apart from other regulatory agencies in a few notable aspects. First, as is evident from the structures set forth above, the other regulatory agencies are part of several layers of state bureaucratic (this is just a fact, not a criticism) umbrella organizations.  The physicians (note osteopaths are regulated by OPR) and attorneys each have a stand alone board that regulates them, but is ultimately connected to a higher entity. And the 50 or so professions regulated by OPR essentially pool their resources to pay for a regulatory infrastructure. Educators stand alone in that they are directly regulated by the Agency of Education.

Another thing that separates educators from the other professions, is that in all other instances: attorneys, physicians, and the OPR professions, the charging entity is an attorney. In other words, when the so called “charges” are filed by the “state” (i.e. the prosecuting authority), an attorney signs off on the charges.  The Assistant Attorney Generals (AAGs appointed by the Attorney General) are in charge of prosecuting physicians. Disciplinary Counsel (appointed by the Judiciary) is in charge of prosecuting attorneys. And State Prosecuting Attorneys (appointed by the Secretary of State) are in charge of prosecuting the OPR professions.

Not so with the Agency of Education. 16 V.S.A. § 1701(b) provides in part that “[i]f the Secretary determines a formal charge is warranted, the Secretary shall prepare a formal charge, file it with the hearing panel administrative officer, and cause a copy to be served upon the licensee charged together with a notice of hearing and procedural rights, as provided in this chapter.”

This configuration is somewhat unique and may have the effect of politicizing unprofessional conduct charges. It’s almost certainly the case that the Secretary of Education does not actually draft the charges, but rather an attorney drafts them and the Secretary signs them. The paradigm of the Agency Secretary signing charges is readily apparent in the present matter pending against the Burlington High School guidance counselor.

In the next installment, we will be reviewing the pre-hearing process for the various professions.

 

Yesterday I received a notice from the Vermont Secretary of State’s Office, Office of Professional Regulation (OPR), informing me (and presumably every other person who is registered as a public notary in Vermont) that there is a new sheriff in town involved in the oversight and regulation of notaries public. Here’s a copy of the notice. All notary registrations are now going to go through OPR and treated just like all the other professions regulated by OPR. That includes registering though the OPR online portal (that will not be live until mid-December).  According to the OPR website, the notary registration process is going to be far, far more complex then what it used to be. The entire notary registration process used to consist of a single page form, submitted to the local county clerk, found at the county courthouse.

This new process comes as the result of a massive legislative change, presumably to provide greater oversight to how notaries are “licensed” and monitored. On its face, modernizing the notary process is a good thing. Attorneys have been hearing reports for years about the impact of poor notary practices on their clients. What is less clear is whether notaries need to be monitored as closely and as aggressively as what we think of as traditional professions, such as dentists, psychologists and nurses.  This is the guidance from the OPR Website:

That’s far, far more information what was previously requested as part of the single page form referenced above.  Even more perplexing, is that notaries will now be subject  to disciplinary action, based on both the unique facets of notary practice, as well as, general disciplinary proceedings that apply to all professions.  For example, notaries are now required to obtain and utilize a physical stamping device (whereas previously a signature was adequate). 26 V.S.A. § 5370(b) provides that “[i]f a notary public’s stamping device is lost or stolen, the notary public or the notary public’s personal representative or guardian shall notify promptly the Office [OPR] on discovering the device is lost or stolen.”  Failure to promptly report constitutes “unprofessional conduct” and may subject the notary to prosecution pursuant to 26 V.S.A. § 5342(a)(5).

However, that’s not the only thing considered “unprofessional conduct.” The new law at 26 V.S.A. § 5342(a)(9) also incorporates 3 V.S.A. § 129a(a) that lists unprofessional conduct applicable to all professions.  This means that notaries who do not inform OPR of a new address in 30 days (3 V.S.A. § 129a(a)(14)) have committed unprofessional conduct and are subject to prosecution. It also means that if a notary is convicted of any criminal offense (this includes things such as DUIs and certain Fish and Game violations), they must report this conviction to OPR within 30 days (3 V.S.A. § 129a(a)(11)) or they have engaged in unprofessional conduct.  Note that this reporting requirement is different from actually being convicted of a crime related to being a notary (such as a fraud) or being convicted of a felony, both of which constitute a separate prosecutable offense (3 V.S.A. § 129a(a)(10)).

The new licensure for notaries will also include exam and continuing education requirements for most notaries, with some exceptions (notably attorneys).  The list of exemptions and exceptions for exams, continuing education and fees can be found at the OPR website here.

Needless to say, I am not sure that the legislature fully contemplated the impact of this legislation given the current state of affairs.  There will also be a set of rules promulgated by OPR, but those are not available as of yet.  And there will be “advisors” appointed by the Secretary of State to oversee and advise OPR on the notary regulatory process, but those advisors have apparently not been appointed yet.

All of this is by way of saying that there are a tremendous amount of changes coming for notaries, who have likely been practicing the same way for decades, if not centuries. The best offense, is a strong defense. When signing up to be a notary, it is important to know what you are getting into. Notaries beware!