Sunday, June 19, 2016

Assistant Aggravation

Burlington Admins’ Assoc. v. Burlington Bd. of School Comm'rs, 2016 VT 35

By Amy E. Davis

The issue in this case centers around whether an arbitrator acted in “manifest disregard of the law” when it concluded that Nicolas Molander, acting as interim assistant principal, was not entitled to contractual and statutory protections applicable to “regular” assistant principals. Molander and the Burlington Administrators’ Association (“the Association”) challenge the trial court’s conclusion that it had no authority to review the merits of an arbitrator’s ruling.

The undisputed facts include the following: the Assistant Principal at Burlington High School (BHS), served as Interim Principal for different schools in the district from 2010 to 2013. While the Assistant Principal was gone, BHS teacher Molander served as Interim Assistant Principal. Each school year produced a new contract for Molander to that effect. In April 2013, the Assistant Principal left his position for a new permanent position at a different school.

The school district started hiring to fill the vacancy, as well as a second assistant principal position that became open due to a retirement. The search committee interviewed five candidates, including Molander, and recommended that Molander receive one of the appointments. In May 2013, the superintendent stopped the process due to some community concerns about a lack of diversity with the candidates. Molander took another one-year contract as Interim Assistant Principal at BHS for 2013 to 2014. The selection process started again in 2014 with a larger pool of candidates. Molander received high marks and the Superintendent recommended him for a position. The Director of Diversity, Equity, and Employee Relations made a contrary recommendation. The committee ultimately did not hire Molander.

Saturday, June 18, 2016


SynEcology Partners, L3C v. Business RunTime, Inc., 2016 VT 29

By Elizabeth Kruska

The best word in this opinion is “animadversion,” which I looked up, and which the nice people at Merriam-Webster define as “a critical and usually censorious remark” or an “adverse criticism.” Pretty strong language, but that’s what happens sometimes when the court gets irritated. Irritated enough, in fact, to dismiss a case as a discovery sanction.

This was a little hard to follow. SynEcology was a software company founded by Grossman and Conde. They then sold the assets of the company to Kinney, who, I guess, continued to run the company as SynEcology. Grossman and Conde formed a new software company called Business RunTime.

In August of 2011, SynEcology sued RunTime, Conde, Grossman, and two former SynEcology employees for various claims, including fraud, theft of intellectual property, industrial sabotage, and several others. Discovery went on for two and a half years. Finally, RunTime filed a motion for contempt, sanctions, attorney fees. The trial court’s response was to dismiss SynEcology’s complaint. SynEcology appealed, and SCOV affirms.

Sunday, June 12, 2016

Equine Equality?

Deveneau v. Wielt, 2016 VT 21

By Andrew Delaney

As a horse owner whose horses just so happen to be summering in my neighbor’s field at this very moment, this case is close to home. In fact, after I post this, I'm headed over to move a fence.

Mr. Deveneau was injured when he drove into a horse that was standing in the road. He sued Ms. Wielt (the horse’s owner) and Mr. Toomey (the landowner whose land the horse escaped from).

Several years ago, Ms. Wielt leased a house and land from Mr. Toomey. Mr. Toomey allowed Ms. Wielt to keep and pasture two horses there. He also allowed Ms. Wielt to pasture the horses next door on a lot he also owned, on the condition that she take all responsibility for the care and fence maintenance. So she kept the horses on both lots, alternating for grazing purposes. 

You Gotta Know The Territory

In re K.A., 2016 VT 52

By Elizabeth Kruska

My favorite class in college was Forest Ecology. The professor was a white-haired bundle of energy in his 70s who ate apples by the bushel and could outrun 20-year olds through just about any forest. He taught the class partly through song. The first song he sang to the class was from the train scene from The Music Man, with emphasis on the line “you gotta know the territory.” The reason, of course, is that if you know where you are, you can figure out what’s going on around you.

What does this have to do with juvenile court? Whether you’re in a forest or in Vermont’s criminal code, you’ve got to know where you are to figure out what’s going on around you. As it turns out, in this case, as in The Music Man, “it ain’t what it was, but you gotta know the territory.” When you’re reading statutes, it’s known as reading them in pari materia. Statutes on the same subject are read together to resolve inconsistencies. You have to be able to see the forest for the trees, and vice versa.

Jump in the wayback machine to the early 1900s to when the Vermont Legislature wrote Vermont’s statutes on prostitution. They outlawed prostitution. They also defined lewdness as “open and gross lewdness.” Because that’s clear.

Monday, June 6, 2016

Because I Said So, That’s Why

In re Taylor, 2015 VT 95

By Christopher A. Davis

The SCOV never misses an opportunity to gently remind lower courts and state agencies that they need to use their words. This case presents another such opportunity.

The factual backdrop of this case reads like an episode of Nurse Jackie. Things did not go well for Dr. Stephanie Taylor, M.D., in the early-to-mid ‘90s, resulting in a suspension of her medical license by the Vermont Medical License Board in 1995 after Dr. Taylor lost her hospital privileges at Copley Hospital. Dr. Taylor subsequently entered into a stipulation and consent order in November of 1996 in which she admitted that she had engaged in unprofessional conduct in the form of a “chemical addiction” that posed a “threat to the health, safety, and welfare” of her patients; a “mental impairment” that affected her ability to competently practice medicine; and a “disregard for the fundamental principles of doctor-patient boundaries as they must exist within the psychiatric therapeutic setting” (quotes from the stipulation). Dr. Taylor agreed to the indefinite suspension of her medical license, subject to a whole bunch of conditions for reinstatement.

It got better, for a while. In 2000, the Board entered a new amended consent order upon request by Dr. Taylor that granted her a conditional license to practice medicine in Massachusetts specifically for purposes of a family-practice residency program. Another consent order followed in 2003 after she completed her residency which granted her a conditional license to practice in Vermont subject to many of the conditions in the original 1996 order. 

Sunday, June 5, 2016

Let's Talk About Personal Liability . . .

Osier v. Burlington Telecom, 2016 VT 34

By Andrew Delaney

When is a public official personally liable for cost overruns? Let’s find out.

Burlington Telecom (BT) is a city-owned telecommunications project. It’s had some issues, arguably the most significant one of which is a $16.9-million-dollar cost overrun. A couple taxpayers sued the City and the City’s former chief administrative officer (CAO) to reimburse the city’s general fund for that overrun.

In a nutshell, the City’s charter allows for the City to fund BT but BT has to be able to pay it back in the short term (60 days) according to a specific condition in BT’s certificate of public good (CPG). By January 2008, BT was in violation of that condition. This continued until 2012 at which point there was a $16.9M deficit.

Friday, May 13, 2016

Alimony, Short For “All The Money”

Zink v. Zink, 2016 VT 46

By Amy E. Davis

Who doesn’t love a good discussion of alimony, or, as we in Vermont call it, “spousal maintenance”? Spousal maintenance is money you pay your ex-spouse so she (or he) can continue on in the lifestyle to which they’ve become accustomed. It’s a hot topic for us divorce attorneys, and is the focus of this case as well.

Husband and Wife divorced in 2007 and agreed that Husband would pay Wife $1800 per month permanently (that means forever). In January 2015, Wife filed a motion for contempt because Husband had not paid her and said he was no longer going to pay her. Husband opposed the motion and filed his own to modify his monthly obligation claiming that he could no longer pay the court-ordered amount of $1800, and that since the final divorce, the parties had agreed to reduce the payments. Husband also argued that both parties’ finances had changed since the divorce.

The lower court found the following: Husband is a self-employed truck driver, and when the parties’ divorced, he lived in his truck and had minimal expenses. Husband remarried and moved in with his new wife. Husband and his new wife, with their combined incomes, can meet their basic needs and have about $250.00 left over each week. Husband also told the court that he did not understand what “permanent” mean, and he thought he was just trying to keep Wife, who was unemployed at the time of the divorce, in their condominium. Since the divorce, Wife sold the condominium, got a job with the University of Vermont, receives retirement funds monthly, and money from Social Security Income monthly.

Sunday, May 8, 2016

Coerced or Compliant?

State v. Reynolds, 2016 VT 43

By Andrew Delaney

This is an interlocutory appeal. An interlocutory appeal happens when there’s a trial court ruling that will have a big impact on a case and it’s a big enough question for the SCOV to weigh in during the middle of things. That’s grossly oversimplified, but, hey, that’s kinda what we do here.

Mr. Reynolds “is charged with four felony counts of lewd and lascivious conduct with a child and one felony count of aggravated sexual assault on a victim younger than thirteen.” At the time of the charged conduct, defendant was sixty seven; the alleged victim, his neighbor Z.Z., was seven.

Defendant filed a motion to suppress his statements made to the police, arguing that they “were the product of police coercion and thus taken in violation of his constitutional rights.” The trial court granted the motion after a hearing. 

Sunday, May 1, 2016

Park Permitting Pushback

In re Waterfront Park, 2016 VT 39

By Andrew Delaney

Burlington sought to amend its Act 250 permit for the Waterfront Park on Lake Champlain. Neighbor challenged Burlington’s right to do so. The Environmental Division granted summary judgment and ruled the Burlington was entitled to seek to amend its permit. Let's take a quick look back.

In 1990, Burlington got a land-use permit for the Waterfront Park. Events were held. In ’93, Burlington sought to amend its permit, and attempted to delegate “timing, duration, and frequency of events and sound levels,” to the Parks and Recreation Commission (I hear there’s a sitcom about this). At any rate, the district commission granted the amendment and imposed 26 conditions, which related to, among other things, maximum sound levels and how to measure them, as well as timing and frequency of events at the park.

In 2008, neighbor bought her property, which is right next door. She researched before she bought and relied on the timing-and-frequency-and-maximum-sound-levels provisions in the permit. She knew there would be festivals and events, but also knew they’d be limited by the conditions. She’s significantly impacted by the events at the Park—“loud noise for extended periods of time, significant vehicular and pedestrian traffic congestion, and limits on her ability to sleep, spend time outdoors, open her windows, and enjoy her property.”

Thursday, April 28, 2016

Challenging the Reliability of the Government’s Say-so

State v. Taylor2015 VT 104

By Andrew Higley

Nobody likes to lose his or her license. That’s why there are DUI attorneys. The facts here are pretty common of the typical DUI case in Vermont. Defendant was driving through the town of Lyndonville; the police stopped her on suspicion of drunk driving; she submitted to a “preliminary” breath test, and she was then transported to the St. Johnsbury police barracks. There, the officer asked her to submit to another breath test. The test at the police station was conducted on what’s called a DataMaster device. That name always sounded like something out of the Terminator movies. For that reason, I think I’ll refer to it as the “Machine.” The Machine is supposed to be more scientific and reliable than the simple roadside test. At the station, the Defendant blew a 0.158, which is just about twice over the so-called “legal limit.”

Sidenote: for purely criminal DUI purposes, proving a blood alcohol concentration of 0.08 is not necessarily required. Instead, the State needs to prove a person was operating a vehicle under the influence of intoxicating liquor (is there a non-intoxicating liquor?). Hence the reason the above quotation marks. But, this case is only an appeal of a civil license suspension. Here, the State is only required to show your blood-alcohol concentration was above .08. The other key difference is the burden of proof. Because the sanction is non-criminal—a license suspension—the State’s burden is only by a preponderance of the evidence, which is roughly only 51%. So the State doesn’t even need a passing grade.