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.