Tuesday, December 13, 2011

The Branch Will Not Break


Handverger v. City of Winooski, 2011 VT 130 (mem.).

Not every illness has a cure.  Not every wrong receives a right.  All dogs do not get their day. 

In the law, we are deceived to believe that if we fight hard enough, file quickly, and raise enough evidence that a hearing concerning our clients’ rights will follow in due course.  If the hearing goes badly, we file an appeal, brief the arguments and aim for a second shot.  But as the SCOV has recently instructed, a brief, flawed hearing may be the only process due.  With today’s case, the SCOV goes a little further and suggests that even this is a privilege, which may be abridged without consequence.


Let’s start at the beginning.  Plaintiff was hired by Defendant to serve as city manager.  For the first year of his employment, Plaintiff agreed to serve as an “at will” employee.  That meant his right to come to work each day was “at the will” of the City and himself.  After the first year, Plaintiff’s employment vested, and he could only be removed “for good cause.” 

In other words, both the City and Plaintiff had the right to terminate Plaintiff’s employment at any time during the first year of his employment for any reason whatsoever, including no reason at all.  But on the 366th day, the standard shifted, and the City could only terminate Plaintiff for “good cause,” which usually means proving that the employee violated one or more of the written employment terms, conditions, or expectations.  The difference between the two standards is the difference between a simple, straightforward pink slip and a full-on administrative hearing. 

Things, as you might have guessed, did not go well.  Ten days before Plaintiff’s first anniversary of employment, the City Council voted to terminate his employment.  Plaintiff responded by demanding a public hearing as allowed for under the City’s Charter.  City replied that it would be happy to hold a public hearing on the issue, but the hearing would occur in two days (just prior to Plaintiff’s anniversary date) and was offered only out of the goodness of the City’s heart because the Charter provisions cited by Plaintiff did not apply to “at will” employees. 

Plaintiff—who was out of town for a religious holiday—stated that the proposed date was too soon.  He asked the City to postpone the hearing, let him enjoy the high holidays, and give him time to prepare his defense.  City said it would be happy to delay the hearing if and only if Plaintiff agreed to waive any arguments that a hearing after the anniversary entitled him to additional due process or the higher termination standard.  Plaintiff refused, and the City went ahead without him.  The termination vote was brought before the Council again, who accepted and finalized it. 

Plaintiff sued in state court seeking to overturn the City’s termination decision.  He asked for double wages for the period of his termination and for damages stemming from the harm to his civil rights.  The City sought and obtained removal to federal court for the latter set of claims, which remain, as of this date, active and unresolved.

For the trial court, the sole issue revolved around Rule 75.  Did Plaintiff have a right to ask the Court to review his termination?  Rule 75, as you may remember from the SCOV’s previous decisions, here, here, and here, is the standard that governs the trial court’s review of an administrative action where the statute allows for judicial review but does not provide for an appeal as a matter of right.  Rule 75 is a limited right.  It is not interested in the merits of the Council’s decision, but merely whether the Council followed the right procedure and standards. 

Plaintiff’s argument to both the trial court and later the SCOV is that the City failed to give him the process that he was due.  Notwithstanding the terms of his employment contract, he was in essence a city manager and was entitled to the statutory process granted within the City’s charter to all city managers—notice of reasons for termination, a public hearing, and time to prepare. 

The problem, and it is a big one, is that the City’s Charter also contains the following provision:  “The action of the council in suspending or removing the manager shall not be subject to review by any court or agency.”

So before Plaintiff can argue to the trial court or the SCOV that he was, in fact, due a higher level of process, he has to find away around the statutory language that in fairly plain language appears to terminate his right to any judicial review or Rule 75 relief from the City’s action.  Plaintiff has two arguments for this dilemma, but the SCOV finds neither persuasive. 

Plaintiff first argues that what the Council did was jurisdictional rather than substantive.  By this he appears to mean that the Council approached his termination in such an improper manner that the question is not whether it made the wrong decision or followed the wrong process but whether it incorrectly took control of the entire case.  The SCOV rejects this issue on the grounds that Plaintiff raises it for the first time on appeal and effectively waived it before the trial court.  While this ducks the substance of Plaintiff’s argument, the SCOV’s language indicates that the distinction Plaintiff seeks might capture more of the imagination than reason. 

Plaintiff’s second argument is rooted in the Vermont Constitution, which states that all Vermont citizens shall have remedy and recourse at law for all injuries or wrongs they may suffer.  This prompts a tough love response from the SCOV, which points out that the Constitution does not guarantee appellate review of all disputes and only promises adequate process and court access.  In this case, the SCOV notes that the legislature has balanced out Plaintiff’s interest in continued and extensive hearings with the City and the public’s interest in finality.  The balance certainly circumscribes Plaintiff’s ability to challenge the City’s decisions in a separate court of law.  The benefit, though, is an overall savings in time, costs, and resources to the public and a sense of finality to the process. 

The SCOV defers, in this case, to the legislature’s decision as to the balance.  It notes that the legislature is fully empowered, short of a specific constitutional mandate to the contrary, to limit review of administrative decisions, and the charter provision is both constitutional and controlling. 

Therefore, there is no room for even a Rule 75 review of the hearing below.  In fact, it is moot.  It does not mater what process the SCOV might think that the City was obliged to follow.  The decision is unreviewable, and the action is dismissed. 

So Plaintiff strikes out in state court and moves to federal court where there is likely a motion to dismiss awaiting him.  No doubt he is feeling that the system has failed and left him without remedy or recourse.  But to Plaintiff or anyone else left dissatisfied with the outcome generated by Winooski’s unique charter provisions and the SCOV’s recent jurisprudence, which indicates a trend toward limiting judicial review of administrative decisions, we offer the words of poet James Wright:

In a pine tree,
A few yards away from my window sill,
A brilliant blue jay is springing up and down, up and down,
On a branch.
I laugh, as I see him abandon himself
To entire delight, for he knows as well as I do
That the branch will not break.

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