Public employment. Post-termination judicial remedy, alone, is not sufficient due process.

Hallsmith v. City of Montpelier, 2015 VT 83 (19-Jun-2015)

ROBINSON, J. This appeal calls upon us to determine whether a post-termination judicial remedy, in the form of a breach-of-contract action or a Vermont Rule of Civil Procedure 75 petition, is sufficient to satisfy the due-process rights of an employee whose employment is protected by a “for cause” requirement and who is terminated by a municipal employer following pre-termination proceedings that do not by themselves satisfy due process. Appellee petitioned for Rule 75 relief, arguing that the City of Montpelier failed to provide her sufficient due-process protections in terminating her employment. The trial court agreed and ordered the City to provide a new post-termination grievance hearing that fully satisfies her due-process rights. the City urges us to hold that recourse to the courts alone provides sufficient post-termination due-process protections in a case like this. We affirm.

We conclude that the availability of post-termination judicial remedies, as opposed to an administrative remedy, does not satisfy due process in a case in which a full administrative hearing does not occur pre-termination. We reach this conclusion for several reasons. First, post-termination judicial review would effectively shift the burden of proof from the City to the terminated employee. Second, post-termination judicial review often provides less timely relief than administrative proceedings. Post-termination judicial review would also risk transforming “our [trial] courts [into] hearing officers for municipalities.” In the context of a tenured municipal employee protected by a “justifiable cause” provision, We hold post-termination administrative proceedings are required to satisfy due process where pre-termination proceedings do not include a full hearing but instead meet only the minimum pre-termination requirements of Loudermill. In the absence of post-termination administrative proceedings, neither a Rule 75 appeal nor a breach-of-contract action filed in the trial court provide sufficient post-termination process to satisfy the Due Process Clause.

Employment. Town not liable for tortious iterference with Town treasurer’s contract.

 Stone v. Irasburg, Town of 2014 VT 43 (25-Apr-2014)

CRAWFORD, J. Plaintiff Linda Stone sued the Town of Irasburg alleging tortious interference with office. The trial court granted the Town summary judgment. Plaintiff appealed. We affirm.

Tortious interference generally refers to interference with performance of an existing contract or a prospective contractual relationship. See Restatement (Second) of Torts § 766 (2013). Under this tort, a person is liable if he “intentionally and improperly interferes with the performance of a contract . . . between another and a third person by inducing or otherwise causing the third person not to perform the contract.” Id.

While plaintiff styles her claim as one for “tortious interference with performance of office,” there is no such enumerated tort in our case law, or in the law of other jurisdictions. The closest analogy, although imperfect, is tortious interference in the employment context, which has been recognized in some states. While the elements are described by courts in various ways, under any definition of this tort, the interference with the contract or prospective advantage must come from a third party.

Here, to the extent that we can apply tortious interference with an employment relationship to plaintiff’s allegation of tortious interference with performance of her office, we conclude that plaintiff has failed to meet the elements of that tort. Plaintiff alleges that selectboard members interfered with plaintiff’s performance of her duties as treasurer. Because the selectboard members are agents of the Town and not third parties, plaintiff has failed to allege interference by a third party, and has not pled a prima facie case for tortious interference.

Therefore, the court was correct to grant judgment to the Town on this count.

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Note: Vermont precedent not cited in this opnion says the tort of interference with contract is applicable in limited situations against other employees or officers of the plaintiff's employer who act outside the scope of their employment to further their own interests. Murray v. St. Michael's College, 667 A.2d 294, 164 Vt. 205 (1995) (summary judgment in favor of supervisor appropriate in the absence of any allegation by plaintiff that supervisor acted outside the scope of his employment or in his own personal interest in dealing with plaintiff); Lyon v. Bennington College Corp., 137 Vt. 135, 138-39, 400 A.2d 1010, 1012-13 (1979) (claim against officers of college for inducing college to break its contract with plaintiff presented viable tort claim because the gravamen of the complaint was that the individual defendants acted in their individual capacities, and was not an attempt to impose liability for good faith acts within the scope of corporate duties). See generally Annotation, Liability of Corporate Director, Officer, or Employee for Tortious Interference with Corporation's Contract with Another, 72 A.L.R. 4th 492 (1989) (stating circumstances in which courts have allowed plaintiffs to bring contractual interference suits against other employees of plaintiffs' employer); Restatement (Second) of Torts § 767 (1979) (stating circumstances in which courts have allowed plaintiffs to bring contractual interference suits against other employees of plaintiffs' employer); Restatement (Second) of Torts § 767 (1979) (stating factors for court's consideration in determining whether defendants' actions are "improper" so as to make defendants liable under contractual interference claim); e.g. Shea v. Emmanuel College, 425 Mass. 761, 682 N.E.2d 1348 (1997), (court properly granted summary judgment against terminated college employee's interference of contract action against her former supervisor because employee failed to create genuine issue of material fact as to whether former supervisor had acted with actual malice in arranging for her discharge); Hickman v. Winston County Hosp. Bd., 508 So.2d 237 (Ala.1987), (courts have held that claim of tortious interference with former employee's contract of employment cannot be maintained against officers or employees of a corporation unless those persons were acting outside their scope of employment and were acting with actual malice); Murray v. Bridgeport Hosp., 40 Conn.Supp. 56, 480 A.2d 610 (1984),(although an agent acting legitimately within the scope of agent's authority cannot be held liable for interfering with or inducing principal to breach a contract between principal and a third party, an agent can be held liable for such interference or inducement if agent did not act legitimately within the agent's scope of duty but used the corporate power improperly for personal gain); Holloway v. Skinner, 898 S.W.2d 793 (Tex.1995), (on an interference with contract claim a plaintiff must show that the officer of a corporation defendant acted in a fashion so contrary to the corporation's best interests that the officer's actions could only have been motivated by personal interests).

Rule 75 review of termination of retirement benefits not precluded by “final say” provision of ordinance.

Preston v. Burlington City Reitrement System, 2013 VT 56 (12-Jul-2013)

BURGESS, J. Defendant City of Burlington Retirement System appeals from a superior court judgment reversing the City’s decision to terminate the disability retirement of plaintiff, a former City firefighter. The City contends  the trial court lacked subject matter jurisdiction. We affirm.

Plaintiff appealed the decision to the superior court under Vermont Rule of Civil Procedure 75(a), which provides for review of government action not otherwise expressly appealable by statute under Rule 74, “if such review is otherwise available by law.” The City moved for summary judgment, asserting that the court lacked subject matter jurisdiction, citin a provision in the City’s retirement ordinance to the effect that “[t]he retirement board shall have the final say as to all decisions required to be made pursuant to the provisions of this section.” Burlington Code of Ordinances § 24-23(j) (emphasis added). The court rejected the City’s jurisdictional argument.  The court acknowledged our holding in Mason v. Thetford School Board that a statute may preclude judicial review of an administrative decision by providing that the decision “shall be final.” 142 Vt. 495, 498, 457 A.2d 647, 649 (1983). The court relied, however, on our subsequent ruling in Campbell v. Manchester Board of School Directors, which reaffirmed the principle that “an otherwise final decision may be amenable to review by writ of certiorari . . . where the decision was made by one acting in a judicial or quasi-judicial position.” 152 Vt. 643, 644, 565 A.2d 1318, 1318 (1989) (mem.). Because the Board’s decision was quasi-judicial in nature subject to review under the traditional writ of certiorari, the court concluded it was subject to appeal under Rule 75. We agree there was jurisdiction for different reasons.

Our Constitution generally affords “[e]very person within this state . . . a certain remedy, by having recourse to the laws,” Vt. Const. ch. I, art. 4. We thus have cautioned that courts should be “hesitant to interpret arguably ambiguous legislation as foreclosing judicial review of administrative agency decisions.” Vincent v. Vt. State Ret. Bd., 148 Vt. 531, 534 n.2, (1987), We have acknowledged, to be sure, that judicial review of government agency actions may be precluded where a statute or ordinance unequivocally bars review. See, e.g., Handverger v. City of Winooski, 2011 VT 130, ¶¶ 4, 13, ­191 Vt. 556, 38 A.3d 1153 (mem.) (upholding dismissal of Rule 75 complaint by former city manager under charter provision specifically providing that city council’s “action . . . in suspending or removing the manager shall not be subject to review by any court or agency”). No such explicit expression of intent to preclude judicial review is evident here. Although “final” may have broader meaning in other contexts, in this context it is reasonable to expect that, had the City actually intended to deprive its employees of the same opportunity for judicial review enjoyed by other public-sector employees in Vermont, it would have expressed that intent in clear and unmistakable terms. We thus hold that the trial court correctly construed the City’s ordinance to mean that the Board’s decision shall constitute final administrative action, and correctly concluded that it had jurisdiction under Rule 75 to review the Board’s decision terminating plaintiff’s disability retirement.

Municipal attorney did not owe a professional or other fiduciary duty to municipal employee.

Handverger v. City of Winooski, 2011 VT 134 (Burgess, J. )

Plaintiff, the former city manager of Winooski, appeals from the trial court’s summary judgment in favor of the Winooski city attorney.  Plaintiff sued the city attorney, individually, for breach of fiduciary duty in the course of municipal infighting over plaintiff’s performance as manager and the city’s decision to dismiss him.  Plaintiff’s complaint is that the city attorney breached a duty of loyalty by threatening cross-examination at a municipal hearing and by signing a disparaging letter and press release calling for his resignation.   The trial court determined that the city attorney owed plaintiff no fiduciary duty beyond the attorney’s duty to the city.  We affirm.

There was no evidence or finding that the city attorney, implicitly or explicitly, represented plaintiff individually or in any capacity other than as city manager.   Lacking any lawyer-client relationship the city attorney did not owe plaintiff a duty of faithful conduct for the personal benefit of plaintiff.

Nor did a fiduciary duty exist by operation of law due to the parties’ dealings. In Bovee v. Gravel, 174 Vt. 486, 811 A.2d 137 (2002) (mem.), we acknowledged some jurisdictions relax the strict attorney-client privity basis for legal malpractice where injured third parties could show the “client’s purpose in retaining the attorney was to directly benefit a third party.”  174 Vt. at 488, 811 A.2d at 140.  Plaintiff presents nothing approaching such a relationship of privity between himself and the city attorney.  There is no evidence that the attorney was appointed or retained to serve plaintiff’s personal interests.  Nor is there evidence of surrounding circumstances, or interaction between the parties, suggesting a blurring of municipal objectives with plaintiff’s own.