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.