Nelson v. Town of St. Johnsbury, LaMotte, Oddy, Ruggles, Rust, Timson and Town of St. Johnsbury

2015 VT 5

Nelson v. Town of St. Johnsbury,

LaMotte, Oddy, Ruggles, Rust, Timson (2013-386)

2015 VT 5

[Filed 16-Jan-2015]

NOTICE: This opinion is

subject to motions for reargument under V.R.A.P. 40 as well as formal revision

before publication in the Vermont Reports. Readers are requested to

notify the Reporter of Decisions by email at: JUD.Reporter@state.vt.us or by

mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont

05609-0801, of any errors in order that corrections may be made before this

opinion goes to press.

2015 VT 5

No. 2013-386

Ralph Nelson

Supreme Court

On Appeal from

v.

Superior Court, Caledonia Unit,

Civil Division

Town of St. Johnsbury, Rodney

LaMotte,

Kevin W. Oddy, Alan Ruggles, James L. Rust,

Bernard Timson and Town of St. Johnsbury

March Term, 2014

Mary

Miles Teachout, J.

Richard T. Cassidy of Hoff Curtis, Burlington, for Plaintiff-Appellant.

John T. Leddy and Kevin J. Coyle of McNeil, Leddy &

Sheahan, Burlington, for

Defendants-Appellees.

PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and

Crawford, JJ. [1]

¶ 1.

DOOLEY, J. Plaintiff Ralph Nelson, the former town

manager of St. Johnsbury, appeals from a trial court decision granting partial

summary judgment to defendants, the Town of St. Johnsbury and its individual

selectboard members (collectively “the Town”), on his claims of wrongful

termination; violation of procedural due process under the Civil Rights Act, 42

U.S.C. § 1983 ; violation of Chapter I, Article 4 of the Vermont

Constitution; and promissory estoppel. We reverse and remand on the trial

court’s dismissal of the wrongful termination, Civil Rights Act, and state

constitutional claims. We affirm the court’s dismissal of the promissory

estoppel claim and its grant of summary judgment on the qualified immunity

defense.

¶ 2.

In September 2010, the selectboard formally hired plaintiff as town

manager after he served briefly on an interim basis. There is no evidence

that the parties negotiated or agreed upon any specific contract terms for

plaintiff’s employment. According to plaintiff, the Town’s attorney

advised him on three separate occasions that he could be removed only for

serious misconduct, which the attorney assured was “an extremely high bar.”

¶ 3.

As town manager, plaintiff undertook a major project to renovate and

lease the Town’s Pomerleau Building. He apparently gained voter approval

on a renovation budget and negotiated a lease with a potential tenant.

The selectboard contends that plaintiff made certain misrepresentations about

the proposed lease, which plaintiff denies. On March 16, 2012,

selectboard chair, James Rust, informed plaintiff that the board had concerns

about his performance and gave him a letter stating that the board would be

conducting an inquiry and that “[r]efusing to answer, answering incompletely,

or answering untruthfully, questions relating to work is considered misconduct

for which an employee may be disciplined up to and including dismissal.”

The letter never stated the nature of the inquiry, only that plaintiff was

obligated to cooperate.

¶ 4.

Selectboard member Kevin Oddy conducted the inquiry into plaintiff’s

performance and drafted a list of concerns, including allegations that

plaintiff sexually harassed employees, created a hostile work environment,

attempted to influence a school board member, and lied. No details were

provided in the list, and there is no evidence the list was disclosed to

plaintiff. On April 2, 2012, Rust informed plaintiff that the inquiry had

turned up “something” and that the selectboard would be holding a meeting to

discuss plaintiff’s job. Rust would not tell plaintiff what had turned

up. He requested that plaintiff hand in his keys and laptop computer [2] and go home, and plaintiff complied.

¶ 5.

On April 3, 2012, Rust called plaintiff and notified him that the

selectboard would be meeting that evening but that plaintiff was not obligated

to attend. Plaintiff nonetheless attended. When the meeting

convened that evening, the selectboard immediately recessed to executive

session. After forty-five minutes, the board asked plaintiff to join

them, at which time they discussed the proposed lease. According to the

selectboard members, they also questioned plaintiff about the other allegations

concerning his job performance, but plaintiff denies this. The

selectboard asked plaintiff if he wanted to resign, and he declined.

Consequently, the board returned to public session and passed a vote of “no

confidence.” According to plaintiff, he did not understand until that

time that the selectboard was terminating his employment.

¶ 6.

On April 4, 2012, the Town issued a press release announcing plaintiff’s

termination, stating that “[t]he Manager holds office at the will of the Board”

and “the Town terminated . . . [plaintiff] for certain

actions . . . that went directly against the will of the

Board and were misrepresented by . . . [plaintiff] to the

Board.” Rust calculated that the proposed lease would have resulted in a

substantial loss for the Town, and the Town eventually negotiated a more

favorable lease.

¶ 7.

Plaintiff filed suit against the selectboard and its individual members,

claiming: (1) wrongful termination; (2) deprivation of due process of law in

violation of the Civil Rights Act, 42 U.S.C. § 1983 ; (3) violation of

Chapter I, Article 4 of the Vermont Constitution; and (4) promissory

estoppel. Plaintiff sought a preliminary injunction reinstating him as

town manager; compensatory and punitive damages; and attorney’s fees and costs.

After a hearing, the trial court refused to grant a preliminary injunction on

the ground that plaintiff had an adequate remedy at law and was not entitled to

equitable relief. The Town filed a motion for partial summary judgment on

the counts of plaintiff’s complaint for which he sought reinstatement or

damages for his termination, and the trial court granted this motion. The

court held that plaintiff has no legal interest in his employment because his

employment was at will; the selectboard members are entitled to qualified

immunity for their alleged violation of the Civil Rights Act, 42 U.S.C.

§ 1983 ; plaintiff has no private right of action for a violation of

Chapter I, Article 4 of the Vermont Constitution; and plaintiff failed to

satisfy all the required elements of promissory estoppel. [3] This appeal followed.

¶ 8.

“We review summary judgment decisions de novo, using the same standard

as the trial court.” Demag v. Better Power Equip., Inc. , 2014 VT

78, ¶ 9 , ___ Vt. ___, 102 A.3d 1101 . Summary judgment will be

granted when, viewing the evidence in the light most favorable to the nonmoving

party, “there exist no genuine issues of material fact and the moving party is

entitled to judgment as a matter of law.” Id . (quotation omitted);

see V.R.C.P. 56(a).

¶ 9.

Before we turn to the specific claims, we stress that the lynchpin of

this appeal is whether plaintiff could be terminated for any reason or only for

cause. This question is controlled by 24 V.S.A. § 1233, the statute

providing for termination of a town manager in the absence of a contract

between the manager and the town. On this central question, plaintiff

claims that the statute allows removal only for cause and that the Town lacked

cause for his termination. He further argues that because he could be

removed only for cause, he was entitled as a matter of due process to notice of

the alleged cause for removal and a hearing at which he could contest the

presence of cause, and that he did not receive these procedural

protections. The Town, in turn, argues that plaintiff’s employment as

town manager was terminable at will under § 1233 and that, because it was

terminable at will, plaintiff had no property interest in his job and no right

to due process. These positions frame the central issue in this appeal.

¶ 10.

The Town raised additional grounds on which it asserts it should prevail

even if it loses on the lynchpin issue. With the exception of qualified

immunity, these grounds were not considered by the trial court. For the

reasons discussed below, we conclude that the summary judgment record is too

limited to consider these additional grounds. We do consider whether the

selectboard members are entitled to qualified immunity, but leave the

consequence of such a holding to the trial court.

I.

Wrongful Termination

¶ 11.

With this background in mind, we turn first to plaintiff’s wrongful

termination claim. Plaintiff claims that he could be removed only for cause

but that he was terminated for no cause and is entitled to relief. The

resolution of this issue depends upon the interpretation of 24 V.S.A.

§ 1233, which provides, in relevant part, that the town manager “shall be

subject to the direction and supervision and shall hold office at the will of

such selectmen, who, by majority vote, may remove him at any time for

cause.” We are confronted with a statutory provision that appears

internally inconsistent, both stating that the town manager serves at the will

of the selectboard and requiring cause for removal. The trial court

attempted to reconcile the conflicting terms, concluding that a town manager

may be hired either at will pursuant to the statute or under a contract that

modifies the statutory provision by providing for a specific employment

duration. It then reasoned that if the town manager is hired at will, the

selectboard may terminate that person at any time for any reason—with or

without cause—but if the town manager has negotiated a contract for a fixed

term, the selectboard can remove that person only for just cause. Because

the court found no contract here, it concluded that plaintiff’s employment was

at will.

¶ 12.

We start with the plain language of the statute and will enforce it according

to its terms if the language is clear and unambiguous. In re Porter ,

2012 VT 97, ¶ 10 , 192 Vt. 601 , 70 A.3d 915 . Although both parties

assert that the language of § 1233 is clear, we cannot agree that a

statute with contradictory terms is unambiguous. We therefore must look

beyond the plain language to determine the legislative intent, either probing

into the legislative history or resorting to canons of statutory

construction. Id . In this process, we are dealing with a

statute that was enacted in 1917, see 1917 No. 104, §§ 2, 6; was codified

in 1918, see 1918 G.L. § 4055; and has not been amended since. We

have no direct evidence of the intent of the 1917 Legislature.

Accordingly, we must determine the intent from the context of the statute in

its entirety, Brownington Ctr. Church v. Town of Irasburg , 2013 VT 99 ,

¶ 9, 195 Vt. 196 , 87 A.3d 502 , as it existed when drafted and as it exists

today.

¶ 13.

Part of the statute’s context is the meaning of the words and phrases

used at the time of its enactment in relation to the meaning of those words and

phrases today. Many of our modern terms-of-art likely would be foreign to

the nineteenth- and early-twentieth-century drafters. The terms “at the

will of” or “at will” as used today clearly connote employment that is

terminable at any time for any reason. See, e.g., Handverger v. City

of Winooski , 2011 VT 130, ¶ 2 , 191 Vt. 556 , 38 A.3d 1153 (mem.)

(defining at-will employee as one who may be dismissed at any time without

cause). The term, as it relates to employment, [4] is not used in Vermont’s statutes at

least through the 1940s [5]

and received only brief mention in our early case law. See Mullaney v.

C.H. Goss Co. , 97 Vt. 82, 87 , 122 A. 430, 432 (1923) (discussing at-will

presumption for employment contract with indefinite duration); Rutter v.

Burke , 89 Vt. 14, 26 , 93 A. 842, 848 (1915) (stating that “an authority to

remove for cause excludes the power to remove at will”).

¶ 14.

Although the “at will” terminology may not have been employed widely by

the Court or the Legislature, the concept of at-will employment was

recognized in a number of early statutes. The Legislature, however, used

the terms “at the pleasure of” or “during the pleasure of” to signify at-will

employment. See, e.g., 1933 P.L. § 396 (“The

governor . . . shall appoint an executive clerk and an

executive messenger for the term of two years to serve him when the general

assembly is in session and may remove them at pleasure.”); 1906 P.S. § 347

(“Said [state fair] commission may appoint and remove at pleasure a

superintendent . . . and may prescribe their duties and fix

their compensation.”); 1894 V.S. § 4001 (“[The] board of directors [of the

bank] shall have the general management of the affairs of the

association . . . and may appoint a cashier and such other

officers and agents as their business requires, and remove them at pleasure.”);

1840 R.S. ch. 68, § 1 (“There shall be an inspector general of beef and

pork, to be appointed by the governor, and to be by him removed at pleasure.”);

see also First Nat’l Bank v. Briggs’ Assignees , 69 Vt. 12, 19-20 , 37 A.

231 , 233 (1894) (discussing authority of appointing power to remove appointee

who is terminable at pleasure). But, prior to at least 1947, the town

manager statute was the only Vermont statute to use the phrase “at the will

of.” On the other hand, “pleasure” was used liberally both before and

after 1917. In fact, § 1233 remains the only statutory provision to

use the term “at the will of” with respect to employment. The failure of

the Legislature to use the traditional language to describe the power to

terminate employment without cause, and the lack of any precedent for the

terminology used, suggests that the Legislature may have viewed the language as

having a different meaning from what it means today.

¶ 15.

While the “at will” terminology is virtually absent in Vermont’s early

laws, the term “for cause” appears quite frequently, including alongside the

town manager statute in the codification of laws regulating town

officers. See 1917 G.L. § 3992 (“[T]he overseer of the poor shall be

under the control and direction of the selectmen, and may, for cause, be

removed by them.”). And the term was recognized by the courts as placing

a limit on the discretion of employers to terminate employment at will.

See Rutter , 89 Vt. at 26 , 93 A. at 848 (stating that under city charter

that requires cause for removal “there must be something which in law amounts

to incapacity, negligence or bad conduct, to sustain the removal”). The

Legislature continues to use the term “for cause” as a limit on an employer’s

removal power, even absent use of the word “only.” See, e.g., Turnley

v. Town of Vernon , 2013 VT 42, ¶¶ 13-19 , 194 Vt. 42 , 71 A.3d 1246

(recognizing that 24 V.S.A. § 1931(a), which states that officers “shall

hold office during good behavior, unless sooner removed for cause,” authorizes

town to remove police chief only for cause). Clearly the Legislature

was cognizant of the term “for cause” and its import and must have been aware

of the force it would have when incorporated into the removal provision of the

town manager statute. We believe this word choice fairly signals the

Legislature’s intent to limit the selectboard’s removal power. C.f. Longe

v. Boise Cascade Corp. , 171 Vt. 214, 223 , 762 A.2d 1248, 1256 (2000)

(concluding that legislative intent was clear because Legislature knows how to

impose duties on employers and create equitable tolling provisions but chose

not to with respect to workers’ compensation statute).

¶ 16.

The dissent rebuts our reasoning that the “at the will of” terminology

may have held a different meaning to the Vermont Legislature a century ago by

detailing the history of the at-will employment doctrine and citing to a number

of out-of-state cases that recognize this doctrine. Post ,

¶¶ 70-83. We do not dispute the dissent’s conclusion that the

doctrine was well-established nationally, nor do we contest that other states

used the at-will terminology more freely. Rather, we merely observe that,

in light of our own research into early Vermont laws, the term as used in the

town manager statute had a different meaning to the Legislature than it likely

would if the statute was enacted today.

¶ 17.

The organizational structure of the town manager act, entitled “An Act

to Authorize the Employment of General Town or Municipal Mangers,” also

supports this analysis. 1917, No. 104. The 1917 Act was

comprehensive and contained thirteen sections. Id . The

statutory language before us today was separated into two parts and located in

different sections of the Act. Section 2 provided, in pertinent part:

Said manager shall, in all matters be

subject to the direction and supervision and shall hold office at the will

of the selectmen, and shall be selected with special reference to his

education, training and experience to perform the duties of such office, and

shall be appointed without reference to his political belief; and said

appointee may or may not be a resident of the town, for which he is appointed.

Id . § 2 (emphasis

added). Section 6 provided: “The selectmen may, by majority vote, remove

the general manager at any time for cause .” Id . § 6

(emphasis added). The placement of the terms “at the will of” and “for

cause” in separate sections suggests that the Legislature believed they

addressed distinct subjects and that § 2 did not deal with termination of

the town manager. Indeed, the Town’s argument requires us to accept that

the Legislature included a separate section that was superfluous and

unnecessary.

¶ 18.

The Legislature authorized a new codification of Vermont laws in 1917. [6] That codification merged the language

from § 2 together with the language from § 6 in one sentence,

creating the apparent conflict and ambiguity before us. We presume that a

codification does not intend to change the substance of the law “unless the

contrary clearly appears.” Town of Cambridge v. Town of Underhill ,

124 Vt. 237, 240 , 204 A.2d 155, 157 (1964); see also Weale v. Lund , 2006

VT 66, ¶ 8 , 180 Vt. 551 , 904 A.2d 1191 (mem.) (same); State v. Brennan ,

172 Vt. 277, 282 , 775 A.2d 919, 923 (2001) (same). The contrary does not

appear in this case.

¶ 19.

On this point, we note one final piece of support. Numerous

statutes enacted across the country in the nineteenth and early twentieth

centuries contained, in various contexts, a general statement that a particular

official holds office and employment “at the will of” or “at the pleasure of”

the appointing officer and also contained some limitation on the ability of the

appointing officer to terminate without cause. See, e.g., Colo. Rev.

Stat. Ann. § 31-4-210 (“The city manager shall be appointed for an

indefinite term, but he may be removed at the pleasure of the city council for

cause.”); N.H. Rev. Stat. Ann. § 37:3 (virtually same language as 24

V.S.A. § 1233); Mich. Comp. Laws Ann. § 791.203 (“[The director of

corrections] shall hold office at the pleasure of the commission except that he

may be removed for cause and only after a public hearing before the

commission.”); R.I. Gen. Laws Ann. § 45-4-1(c) (“[T]he town council [is

entitled] to appoint a tax collector who shall serve at the pleasure of the

town council and who may be removed for cause

shown . . . .”). We think it unlikely that so many

legislatures would have overlooked these internal inconsistencies unless, in

their view, the terms held a different meaning.

¶ 20.

We also consider whether an interpretation requiring cause for removal

is reasonable in light of other canons of statutory construction.

Particularly, we are concerned with whether requiring cause for removal renders

the term “at the will of” mere surplusage. See In re Beliveau NOV ,

2013 VT 41, ¶ 13 , 194 Vt. 1 , 72 A.3d 918 (“Generally, we do not construe a

statute in a way that renders a significant part of it pure surplusage.”

(quotation omitted)). We think not. As discussed above, evidence

suggests “at the will of” was not meant in the modern conventional sense.

We think this term reasonably can be read to indicate that it is the

selectboard— and no other authority —that may remove the town manager and

that the selectboard has the discretion to initiate termination. We note

that, in support of this construction, the statute established no process for

termination, but the requirement for cause is still a limitation on the

discretion of the selectboard. This reading is consistent with that

statute’s limitation on the selectboard’s discretion in selecting a town

manager. See 1917, No. 104, § 2 (requiring selectboard to consider

education, training, and experience when selecting town manager and prohibiting

selectboard from considering town manager’s political belief).

¶ 21.

Adopting the Town’s reading of the statute, however, would render the

term “for cause” superfluous. The at-will employment doctrine inherently

allows the employer to terminate employment either with or without cause.

There would be no reason to further specify that an employee with an at-will

contract may be terminated for cause.

¶ 22.

We also consider whether our interpretation adds implied conditions to

§ 1233. See Brennan v. Town of Colchester , 169 Vt. 175, 177 ,

730 A.2d 601, 603 (1999) (“We will not read an implied condition into a statute

unless it is necessary in order to make the statute effective.”

(quotation omitted)). Again, we think not. The Town argues that

plaintiff’s reading requires that the word “only” be read into the phrase

requiring cause. Nowhere in our statutory or common law do we find

precedent to support the contention that the term “for cause” must be qualified

by the term “only” to have any legal force.

¶ 23.

In its brief, the Town provided us with a litany of cases in support of

its construction, none of which we find availing. None of the statutory

provisions at issue in those cases presented the internal inconsistency we find

in § 1233, and the courts in those decisions found ample additional

evidence of legislative intent to authorize at-will termination. We

choose to discuss one of these cases from our own Court that provides support

for our holding here.

¶ 24.

In Brennan , we looked at 24 V.S.A. § 4323(a), which stated

that “[t]he term of each member [of the planning commission] shall be for four

years . . . [and a]ny member may be removed at any time by

unanimous vote of the legislative body.” 169 Vt. at 176 , 730 A.2d at

603 . The commission members argued that because the statute specified a

fixed term, they could be terminated only for cause. We disagreed and

concluded that the phrase “any time by unanimous vote” meant that the

commission members could be removed for any reason, with or without

cause. Id . at 178, 730 A.2d at 604 . We supported that

interpretation with evidence from other provisions of the Planning and

Development Act that required removal “for cause,” noting that the Legislature

understood the distinction between removing municipal officers without cause

and for cause. Id . In Brennan , unlike here, the magic

words—“for cause”—were not present in the statute. Although there is a

presumption that contracts for definite terms require cause for removal, id .

at 177, 730 A.2d at 604 , it is merely a presumption and nothing more.

This presumption was overcome by other evidence within both the individual

provision and the entire statutory scheme. Id . at 177-78, 730 A.2d

at 604 .

¶ 25.

In Brennan , we rejected the planning commission members’ argument

that “the threat of [removal without cause] would interfere with the impartial

and independent exercise of their duties” on the ground that the Legislature

has made clear its intent to authorize at-will termination. Id . at

179, 730 A.2d at 604 . Plaintiff similarly asserts that removal without

cause would interfere with the town manager’s ability to exercise his

“independent authority to run the day-to-day affairs of the town” and that

therefore we cannot interpret the statute to permit at-will termination.

We decline to go that far, and we stand by our statement in Brennan .

¶ 26.

Finally, on this issue, we address the trial court’s construction of the

statute. The court attempted to reconcile the phrases of the statutory

sentence at issue. While we support the court’s approach in reconciling

seemingly conflicting language, we cannot agree with its conclusion that the

basic employment relationship defined by the statute is one of at-will

employment. Thus, we have not adopted the court’s decision.

¶ 27.

The dissent offers one method of reconciling the contradictory

terminology that it claims is more faithful to the language used by the

drafters. In the dissent’s view, “for cause” as used in § 1233

requires only that the selectboard furnish the former town manager with a

statement of its grounds for removal, but not a hearing or other due process

protections. Post , ¶ 83. According to the dissent, this

approach “preserves the efficiency of the at-will doctrine in municipal

employment while also providing at least a basis for the town manager—and

ultimately the public—to judge the wisdom and merits of the decision.” Post ,

¶ 83.

¶ 28.

In support of its proposition, the dissent cites three Massachusetts

cases, post , ¶¶ 79-82, none of which we find applicable. The

Massachusetts Supreme Judicial Court contemplated two statutes that employ the

language “for such cause as [the board] may deem sufficient,” O’Dowd

v. City of Boston , 21 N.E. 949, 949 (Mass. 1889); Ray v. Mayor of

Everett , 103 N.E.2d 269, 271 (Mass. 1952), and concluded that this language

vests broad removal authority in the board to remove at its pleasure.

Essentially, the court created a qualified at-will removal power—qualified only

by the requirement that the board state the reason for removal. The

Appeals Court of Massachusetts addressed a more modern statute in Fabrizio

v. City of Quincy , 404 N.E.2d 675 (Mass. App. Ct. 1980), which authorized

the mayor to “remove the head of a department or member of a board by filing a

written statement with the city clerk setting forth in detail the specific

reasons therefor.” Id . at 676 (quotation omitted). The court

reached the same conclusion as in O’Dowd and Ray , noting that the

reasons provided in the statement need not be true but merely “reasons for

which removal may lawfully be made.” Fabrizio , 404 N.E.2d at

677 . The only “hearing” afforded to the former employee is within the

court of “public opinion.” Fabrizio , 404 N.E.2d at 677 ; O’Dowd ,

21 N.E. at 950 .

¶ 29.

We find the application of these cases to our own statute

unpersuasive. First, the language and structure of the Massachusetts

statutes are distinguishable from § 1233. The dissent points out

that the statutes differ but opines that “they nevertheless suggest a useful

general approach to reconciling the latter’s seemingly conflicting

terms.” Post , ¶ 83. One may argue that the logic of the

courts’ interpretation of the Massachusetts statutes is applicable here; the

“at the will of” language may be read to embody the same limiting principles as

the “deem sufficient” language. This reading, however, fails to account

for the pre-codification structure of § 1233, which placed the terms “at

the will of” and “for cause” in separate and distinct paragraphs dealing with

different subject matters. The language “for any reason [the board] may

deem sufficient” in the Massachusetts statutes clearly modifies the term “for

cause,” thereby limiting its effect. The conflicting terms in § 1233

are not so related, and our historical research suggests they were not intended

to be.

¶ 30.

Furthermore, the dissent cites no Vermont case that allows for such a

constrained reading of “for cause.” In fact, Rutter , 89 Vt. at 26 ,

93 A. at 848 , which was decided contemporaneously with the passage of

§ 1233, cites another Massachusetts case, Ayers v. Hatch , 56 N.E.

612 (Mass. 1900), that considers the same “deem sufficient” language as the

aforementioned statutes. We cited to Ayers for the concept that

removal for cause “repelled the idea of removal at pleasure.” Rutter ,

89 Vt. at 26 , 93 A. at 848 (citing Ayers , 56 N.E. at 613 ). Ayers

goes on to hold that the statute at issue did not require notice and hearing

but only that there be “good ground” for removal. Ayers , 56 N.E.

at 613 . Contrary to the Ayers construction, we acknowledged in Rutter ,

in the face of a charter provision with very similar language—“shall seem

sufficient”—that “[i]nquiries involving removal for cause being of a judicial

nature, the person charged is entitled to notice, and an opportunity to be

heard, and a reasonable time to prepare his defense.” Rutter , 89

Vt. at 28 , 98 A. at 849. While the dissent would have us adopt the

constrained reading of the Massachusetts statutes, we did not adopt that

reading in Rutter or elsewhere, even when confronted with similar

language. Rather, Rutter highlights the force that the “for cause”

language had in Vermont law at the time § 1233 was enacted.

¶ 31.

Finally, we are not convinced that the court of “public opinion” is an

adequate forum for adjudicating a town manager’s wrongful termination

claim. We think this interpretation nullifies the purpose of the for

cause requirement and the legal force the term has had over the last

century. Whether a cause for removal is placed on the record or not, the

actions of a municipal board are always subject to public scrutiny. We

fail to see how this method encourages proper termination. More importantly,

public opposition that results in not reelecting a selectboard member does not

provide any remedy for a wrongfully terminated town manager. We therefore

conclude that § 1233 requires a town manager be removed only for cause.

¶ 32.

Having determined that § 1233 allows termination of a town manager

only for cause, we address the Town’s argument that cause existed in this

case. Because the trial court found that plaintiff was an at-will

employee, it did not address the Town’s position. The statement of the

selectboard following the meeting in which plaintiff was terminated was: “The

Town terminated Mr. Nelson for certain actions performed by Mr. Nelson that

were directly against the will of the Board and were misrepresented to the Board.”

The actions that were “against the will of the Board” and “misrepresented to

the Board” were not specified. Plaintiff testified at the hearing on the

preliminary injunction that the only issues raised in executive session prior

to the selectboard’s vote related to the Pomerleau Building and that the

selectboard exceeded its powers in second-guessing plaintiff’s actions with

respect to the Pomerleau Building. In their depositions, selectboard

members testified that other issues were discussed.

¶ 33.

Having held for the first time in this decision that cause is required

for termination under § 1233, it necessarily follows that we have not

defined what could be considered sufficient “cause” under § 1233.

Cf. Turnley , 194 Vt. at 50-53 , 71 A.3d at 1253-55 (determining what type

of conduct qualifies as unbecoming of police officer and justifies dismissal

for cause). Based on the record and the positions of the parties, we

conclude that, however cause may be defined, summary judgment would be inappropriate

because there exists a dispute of material facts with respect to the

circumstances under which plaintiff was dismissed. The official vote of

the selectboard was that it had no confidence in the town manager. Only

through the statement that it issued to the press do we understand that the

vote meant that it had terminated plaintiff’s employment. [7] The selectboard’s statement did not

specify what actions were against the will of the selectboard and were

misrepresented. On this record, we cannot determine what were the grounds

for plaintiff’s termination, if any, and whether the grounds existed.

¶ 34.

We reverse the trial court’s grant of summary judgment to the Town and

hold that § 1233 requires cause for removal of town managers. We

remand to the trial court to determine whether plaintiff was wrongfully

terminated under this standard.

II.

Civil Rights Act

¶ 35.

We turn next to plaintiff’s due process claim. Plaintiff claims

that the selectboard members deprived him of his right to due process of law

when they terminated his employment without cause and that this action violated

the Civil Rights Act, 42 U.S.C. § 1983 . He argues that § 1233

vested in him a property interest in his employment that could be terminated

only for cause with proper notice of the charges against him and an opportunity

to be heard. The Town’s primary argument was that the statute authorized

no-cause termination and therefore no process was due, and the trial court

accepted this argument. The Town, however, has made a number of

additional arguments that: (a) plaintiff received notice of the cause for his

discharge; (b) plaintiff received a pre-termination hearing consistent with due

process; (c) plaintiff waived any right to further process; and (d) the

availability of review in the trial court under Vermont Rule of Civil Procedure

75 met the requirement for post-termination due process. None of these

arguments were addressed by the trial court.

¶ 36.

To maintain a due process action, plaintiff must show that he has a

constitutionally protected right to employment as town manager. See Quinn

v. Grimes , 2004 VT 89, ¶ 8 , 177 Vt. 181 , 861 A.2d 1108 . We

previously have recognized that an employee has a constitutionally protected

property interest in employment when the employee “is entitled to a benefit

created and defined by a source independent of the Constitution, such as a

state law.” Id . (quotation omitted). Employees who are

statutorily entitled to employment unless removed for cause have a property

interest and “the government may not impinge this right without notice and an

adequate opportunity to be heard.” Herrera v. Union No. 39 Sch. Dist. ,

2006 VT 83 , ¶ 25, 181 Vt. 198 , 917 A.2d 923 ; see also Ohland v. City of

Montpelier , 467 F. Supp. 324, 339 (D. Vt. 1979) (“Because he could have

been discharged only for cause, plaintiff had a property interest in his

employment that was entitled to constitutional protection.”). As we held

above, § 1233 authorizes the selectboard to remove the town manager only

for cause, entitling plaintiff to notice of the charges against him and an

opportunity for a hearing.

¶ 37.

Once plaintiff has shown a constitutionally protected right to

employment, he must then demonstrate that the Town deprived him of that right

without adequate notice and opportunity to be heard. Quinn , 2004

VT 89, ¶ 8 . To meet his burden, plaintiff focuses primarily on the

pre-termination process, alleging that the selectboard never specified the

grounds for his termination and that he never had the opportunity to respond to

those grounds. The Town answers that plaintiff had multiple notices of

his deficiencies and had an opportunity to respond to them in the executive

session held immediately before the vote to terminate him. Plaintiff’s

pre-termination rights are explained in the United States Supreme Court case of

Cleveland Board of Education v. Loudermill , 470 U.S. 532 (1985), as

“oral or written notice of the charges against him, an explanation of the

employer’s evidence, and an opportunity to present his side of the

story.” Id . at 546.

¶ 38.

We have applied the requirements of Loudermill in both In re

Hurlburt , 2003 VT 2, ¶¶ 28-31 , 175 Vt. 40 , 820 A.2d 186 (determining whether

employee was terminated for reasons specified in dismissal letter, as required

under Loudermill ), and Quinn , 2004 VT 89, ¶ 24 . This

case is similar to Quinn , where the employer and employee had a meeting,

initiated by the employee, but gave very different accounts of what occurred in

the meeting. We held that the question of whether the employer complied

with the Loudermill requirements could not be decided on summary

judgment in view of the different accounts. Quinn , 2004 VT 89,

¶ 28 . We summarized that “[a]lthough we can provide some guidance on

these arguments, we believe it preferable that the superior court consider them

in the first instance, particularly because the record is so sparse and some

additional factual development will be necessary for a decision, by summary

judgment or otherwise.” Id . ¶ 21. We think that holding

also applies here.

¶ 39.

We reach a similar conclusion with respect to the Town’s claims about

the post-termination process—that plaintiff waived any right to further process

and that his rights were adequately protected by his ability to appeal to the

trial court under Rule 75. The summary judgment record is silent on what

occurred after the selectboard terminated plaintiff on April 3, 2012.

There is no indication that plaintiff had available any post-termination

process within the Town government, and there is no indication that he sought

any such process. We cannot decide on whether there was a waiver as a

matter of law on a silent record.

¶ 40.

We are also, on this record, unwilling to determine whether the trial

court review under Rule 75 provided an adequate remedy. The parties have

very different visions of how Rule 75 review would proceed, and those visions

are affected by the process provided or available from the Town and “the nature

of the process due prior to termination of employment.” Id .

¶ 20. The Town urges us to follow the decision of the United States

Court of Appeals for the Second Circuit in Connolly v. City of Rutland ,

No. 11-3953-cv, 2012 WL 5382215 (2d Cir. Nov. 5, 2012), in which the court held

that a pre-termination hearing followed by Rule 75 review complied with due

process. Id . at *1. Even if we were to conclude that Rule 75

review is in all cases an adequate post-termination hearing, Connolly

holds that such review is adequate only if there is a sufficient

pre-termination hearing. See also Quinn , 2004 VT 89, ¶ 29

(observing that “the nature of the process due prior to the termination of

employment is affected by the nature and availability of post-termination

process”). Because we cannot resolve whether there was an adequate

pre-termination hearing here, we cannot judge whether Rule 75 review would be

an adequate post-termination process.

¶ 41.

We reverse the trial court’s grant of summary judgment to the Town on

plaintiff’s Civil Rights Act claim based on a denial of due process and remand

for further factual development on whether plaintiff received the process he

was due and whether he waived the right to all or any of that process.

III.

Vermont Constitution

¶ 42.

We turn next to plaintiff’s claim under Chapter I, Article 4 of the

Vermont Constitution, which provides:

Every person within this state

ought to find a certain remedy, by having recourse to the laws, for all

injuries or wrongs which one may receive in person, property or character;

every person ought to obtain right and justice, freely, and without being

obliged to purchase it; completely and without any denial; promptly and without

delay; conformably to the laws.

Vt. Const., ch. I, art. 4.

Plaintiff claims that the Vermont Constitution provides him with the same due

process protections as the United States Constitution and that when the

selectboard allegedly deprived him of his employment without due process, that

deprivation offended the guarantees of Article 4. The Town contends that

Article 4 does not provide a private right of action. The trial court

agreed with the Town and granted its motion for summary judgment. We

disagree with the trial court and reverse the grant of summary judgment to the

Town.

¶ 43.

The trial court relied on Billado v. Parry , 937 F. Supp. 337 (D.

Vt. 1996), which states that “[t]he Vermont Supreme Court has held that no

private right of action is available to enforce Article[] 4.” Id .

at 345. The District Court of Vermont, in turn, cited Rowe v. Brown ,

157 Vt. 373 , 599 A.2d 333 (1991), for that proposition. This is a

fundamental misreading of Rowe . Actually, Rowe held that

Article 4 does not provide additional private tort remedies to a plaintiff

whose public right to open meetings has been violated. Id . at 379,

599 A.2d at 337 . The holding in Rowe merely defined the scope of

Article 4; it did not state that Article 4 can never be the basis of an action.

¶ 44.

We consistently have held that due process rights flow from Article

4. See, e.g., Quesnel v. Town of Middlebury , 167 Vt. 252, 258 , 706

A.2d 436, 439 (1997) (“We have considered Article 4 the equivalent to the

federal Due Process Clause. . . . It does not create

substantive rights, however; it merely provides access to the courts.”).

Where a substantive right—e.g., a property interest—already exists, conferred

by statute or common law, Article 4 can protect a plaintiff against deprivation

of that right without due process. See Handverger , 2011 VT 130,

¶ 12 (stating that Article 4 “require[s] adequate access to judicial

process to vindicate the interest for which due process protection is sought”

(quotation omitted)).

¶ 45.

The question of whether a private right of action can be based on a

provision of the Vermont Constitution may be bifurcated into two

questions. The first is whether the constitutional provision is

self-executing—that is, whether a plaintiff can bring an action for a violation

of the provision without implementing legislation. The second is whether

the remedy that a plaintiff seeks, typically damages, exists for the violation.

¶ 46.

As we articulated in Shields v. Gerhart , 163 Vt. 219 , 658 A.2d 924

(1995), a Vermont constitutional provision is self-executing “if it supplies a

sufficient rule by means of which the right given may be enjoyed and

protected, . . . and it is not self-executing when it

merely indicates principles, without laying down rules by means of which those

principles may be given force of law.” Id . at 224, 658 A.2d at 928

(quoting Davis v. Burke , 179 U.S. 399, 403 (1900)). We further

explained that “a self-executing provision should do more than express only

general principles; it may describe the right in detail, including the means

for its enjoyment and protection.” Id . In Shields , we

held that Article 1, which states that “all men are born equally free and

independent, and have certain natural, inherent, and unalienable rights,” is

not self-executing because it does not establish enforceable rights “but merely

lists [them] to flesh out philosophical truisms.” Id . at 224-25,

658 A.2d at 928 .

¶ 47.

On the other hand, we concluded that Article 13, which states that “people

have a right to freedom of speech,” is self-executing because it “unequivocally

expresses more than general principles alone. It sets forth a single,

specific right of the people to make themselves heard, a fundamental

characteristic of democratic government.” Id . at 226-27, 658 A.2d

at 929-30 . That, coupled with the absence of a legislative directive,

supported our conclusion that Article 13 is self-executing. Id .

¶ 48.

We reinforced this test for determining whether a provision is self-executing

in In re Town Highway No. 20 , 2012 VT 17 , 191 Vt. 231 , 45 A.3d 54 , where

we considered whether Article 7, which provides that the “government is, or

ought to be, instituted for the common benefit, protection, and security of the

people, nation, or community,” is self-executing. Id .

¶ 30. There, we concluded that Article 7, like Article 13,

“expresses a similarly fundamental right” and that right is “so certain and

definite in character as to form rules for judicial decisions.” Id .

¶ 32.

¶ 49.

We start with the recognition that Shields essentially decided

the question before us. In holding that Article 1 is not self-executing,

we interpreted it to state fundamental general principles, the terms of which

are stated elsewhere in the Vermont Constitution. Shields , 163 Vt.

at 224 , 658 A.2d at 928 . We identified one of those general principles as

due process, as defined in Article 4. Id . at 226, 658 A.2d at

929 . In essence, we held that the statement in Article 4 conferring due

process rights is self-executing.

¶ 50.

We recognize that we are dealing with a very broad concept, stated in

language from an earlier century. As we have stressed in its application,

Article 4 is about access to the judicial branch to enforce the law. See Holton

v. Dep’t of Emp’t & Training , 2005 VT 42, ¶ 27 , 178 Vt. 147 , 878

A.2d 1051 . We cannot believe that the drafters of Article 4 intended that

judicial access be denied by legislative inaction in creating an enforcement

mechanism. Indeed, denial of access to the courts is a violation of the

substantive requirements of the Article.

¶ 51.

The principles of due process have been developed and applied in

thousands of decisions from the state and federal courts. To say that the

language from which these principles are drawn is too vague and general to

enforce ignores the immense body of law. While that law did not exist

when the constitutional provisions were written, we believe that this growth

and development was intended by the drafters. In this way, we find

Article 4 no more broad or general than Article 7, which we held as

self-executing in Town Highway No. 20 .

¶ 52.

In support of our reasoning, we note that other state courts that have

considered the question generally have found that the due process provisions of

their state constitutions are enforceable by appropriate court action even

without implementing legislation. See, e.g., Katzberg v. Regents of

Univ. of Cal. , 58 P.3d 339, 342-43 (Cal. 2002) (holding that due process

clause is self-executing because “[i]t is clear

that . . . even without any effectuating legislation, all

branches of government are required to comply with its terms”); In re

Wretlind , 32 N.W.2d 161, 167 (Minn. 1948) (stating that “prohibitive

clauses of the constitution such as the due process clause are self-executing

and require no legislation for their enforcement”); Dorwart v. Caraway ,

2002 MT 240, ¶ 20 , 58 P.3d 128 (recognizing that plaintiff can bring

action under due process clause of state constitution). For example, in Spackman

v. Board of Education , 2007 UT 87 , 16 P.3d 533 , the Utah Supreme Court held

that the due process clause of its state constitution, which provides that

“[n]o person shall be deprived of life, liberty or property, without due

process of law,” is self-executing because its terminology is mandatory and

prohibitory. Id . ¶¶ 10-11. The court further explained

that “although the right to due process is expressed in relatively general

terms, it is both judicially definable and enforceable.” Id .

¶ 12. The Maryland Court of Appeals reached the same result in Widgeon

v. Eastern Shore Hospital Center , 479 A.2d 921 (Md. 1984), where it held

that a state constitutional provision similar to our Article 4—which states

“[t]hat no man ought to be . . . deprived of his life,

liberty or property, but by the judgment of his peers, or by the Law of the

land”—gives rise to a private right of action. Id . at 923 n.5,

930. We therefore hold that Chapter I, Article 4, of the Vermont

Constitution is self-executing and that plaintiff properly invoked the Article

in his complaint.

¶ 53.

We stress, however, what we have not decided. We have not

addressed the remedy plaintiff might receive if he proves a violation of the

provision. Second, we have not addressed the merits of plaintiff’s

claim. We have characterized Article 4 “as the Vermont equivalent of the

federal constitution’s Due Process Clause,” Holton , 2005 VT 42,

¶ 27 , and have interpreted it “as requiring adequate access to judicial

process.” Id . But we have almost no precedents in which

Article 4, rather than the Fourteenth Amendment to the United States

Constitution, is the primary basis for decision and none in which the party

invoking Article 4 is seeking relief within or because of an administrative

process. To the extent that Article 4 may become the primary basis for

relief in this case, the trial court will have to address how it meets the

claims and facts before it.

¶ 54.

We reverse the trial court’s grant of summary judgment to the Town and

hold that plaintiff is entitled to due process under Chapter I, Article 4 of

the Vermont Constitution. We remand to the trial court to decide if the

selectboard furnished plaintiff with adequate notice and hearing upon

termination.

IV.

Promissory Estoppel

¶ 55.

Finally, we address plaintiff’s promissory estoppel claim.

Plaintiff claims that the Town’s attorney informed him that he could be

terminated only “with cause” and essentially told him “that he would have to be

guilty of gross abuse of municipal funds and official discretion before

plaintiff could be fired.” Plaintiff also claims that he relied on those

statements to his detriment by accepting the town manager position and

purchasing a home. The Town does not dispute that its attorney made these

statements but argues that plaintiff did not otherwise establish the elements

of promissory estoppel. [8]

The Town argues that the attorney was not authorized to make promises on behalf

of the selectboard, that the promises were nothing more than vague oral

assurances, and that plaintiff was not justified in relying on those

statements. The trial court agreed with the Town, concluding that

plaintiff did not allege facts sufficient to demonstrate that he was entitled

to rely on the attorney’s statements or that his reliance was justifiable. [9] Although on different grounds, we

agree with the trial court and affirm the court’s grant of summary judgment to

the Town on plaintiff’s promissory estoppel claim.

¶ 56.

Promissory estoppel requires “[a] promise which the promisor should

reasonably expect to induce action or forbearance on the part of the promisee

or a third person and which does induce such action or forbearance” and that

“injustice can be avoided only by enforcement of the promise.” Woolaver

v. State , 2003 VT 71, ¶ 30 , 175 Vt. 397 , 833 A.2d 849 (quotation

omitted). We have adopted the elements of promissory estoppel as set out

in the Restatement (Second) of Contracts § 90(1) (1981). See Foote

v. Simmonds Precision Prods. Co. , 158 Vt. 566, 573 , 613 A.2d 1277, 1281

(1992). According to the Restatement, “[a] promise is a manifestation of

intention to act or refrain from acting in a specified way, so made as to

justify a promise in understanding that a commitment has been made.”

Restatement (Second) of Contracts § 2(1). The promise must be more

than “a mere expression of intention, hope, desire, or opinion, which shows no

real commitment.” Escribano v. Greater Hartford Acad. of Arts , 449

Fed. Appx. 39, 43 (2d Cir. 2011) (quotation omitted). “[P]romissory

estoppel may modify an at-will employment relationship and provide a remedy for

wrongful discharge,” Foote , 158 Vt. at 571 , 613 A.2d at 1280 , as long as

the promise made by the employer was “of a specific and definite nature,” Woolaver ,

2003 VT 71, ¶ 30 (quotation omitted), and not merely a “vague

assurance.” Dillon v. Champion Jogbra, Inc. , 175 Vt. 1, 10 , 819

A.2d 703, 710 (2002).

¶ 57.

Plaintiff has not shown the presence of a promise sufficient to avoid

summary judgment. See Brower v. Holmes Transp., Inc. , 140 Vt. 114,

117 , 435 A.2d 952, 954 (1981) (stating that promissory estoppel cannot apply

where there is no promise), overruled on other grounds by Soucy v.

Soucy Motors, Inc. , 143 Vt. 615 , 471 A.2d 224 (1983). At best, the

attorney was expressing his legal opinion. Under plaintiff’s allegations,

the attorney manifested no intention to act “in a specified way” except to

provide his legal opinion to the selectboard, as he had done in the past.

As the trial court found, the attorney never purported to speak on behalf of

the board, and thus his statements could not be attributed to the board.

The attorney never assured plaintiff that the selectboard held the same view

regarding the statute. We cannot conclude that the expression of a legal

opinion is a promise that the selectboard would act in a certain way.

¶ 58.

We therefore affirm the trial court’s grant of summary judgment to the

Town and hold that plaintiff failed to satisfy the requirements of a promissory

estoppel claim.

V.

Qualified Immunity

¶ 59.

The Town raised one remedy issue: whether selectboard members are

entitled to qualified immunity. The trial court ruled

affirmatively. We address that issue, but first place it in its proper

context.

¶ 60.

Based on our decisions above, plaintiff is left on remand with three

liability counts: wrongful discharge; violation of the Civil Rights Act, 42

U.S.C. § 1983 ; and violation of Article 4 of the Vermont

Constitution. Plaintiff essentially sought three remedies: reinstatement

to his position as town manager, compensatory damages, and punitive damages. [10] Each of the theories of liability

is subject to a different body of law specifying the availability of remedies

and could, for example, allow damages, or damages of a particular type, based

on some liability theories and not on others. In general, the trial court

did not reach issues of remedies because it found no liability on any theory.

¶ 61.

The Town raised qualified immunity in the summary judgment motion,

apparently viewing it as a complete defense to all liability theories against

the individual selectboard members and a ground for denial of all remedies. [11] We say “apparently” because the

consequence of a determination that qualified immunity applies is not stated

explicitly, but the trial court without explanation treated qualified immunity

as an alternative ground for dismissing the termination-related counts of the

complaint. While we accept that a finding of qualified immunity will

restrict at least some of the remedies for some of the theories of liability,

consistent with the context observation above we do not address which theories

or remedies are restricted and how. We particularly do not rule that

qualified immunity is a complete defense to all theories and all remedies.

¶ 62.

The Town argues that its selectboard members are entitled to qualified

immunity because they did not violate a clearly established right. The

trial court granted summary judgment to the Town, concluding that, because

§ 1233 does not require cause for removal, plaintiff had no right to his

employment as town manager. While we conclude that § 1233 does

require cause for removal, we cannot conclude that the law was clearly

established, and thus we hold that the selectboard members were entitled to

qualified immunity.

¶ 63.

Public officials are entitled to qualified immunity from 42 U.S.C.

§ 1983 liability when they are: “(1) acting during the course of their

employment and acting, or reasonably believing they are acting, within the

scope of their authority; (2) acting in good faith; and (3) performing

discretionary, as opposed to ministerial, acts.” Baptie v. Bruno ,

2013 VT 117, ¶ 11 , 195 Vt. 308 , 88 A.3d 1212 . As we noted in Baptie ,

we are guided by the doctrine’s purpose “to protect officials from exposure to

personal tort liability that could (1) hamper their ability to effectively

discharge their duties and (2) subject their discretionary determinations to

review by a judicial system ill-suited to assess the full scope of factors

involved in such determinations.” Id . ¶ 12.

¶ 64.

Plaintiff does not dispute the first and third prongs of the test,

but argues that the selectboard members were not acting in good faith.

Good faith “exists where an official’s acts did not violate clearly established

rights of which the official reasonably should have known.” Id .

¶ 11 (quotation omitted). We have adopted an objective standard of

good faith. Id .

¶ 65.

A right is clearly established when “[t]he contours of the right [are]

sufficiently clear that a reasonable official would understand that what he is

doing violates that right.” Anderson v. Creighton , 483 U.S. 635,

640 (1987). Clearly established rights are not limited to federal laws

but may also be found in state statutes. Sabia v. Neville , 165 Vt.

515, 522 , 687 A.2d 469, 474 (1996). “There is no need for a case on

point, but existing precedent must have placed the statutory or constitutional

question beyond debate.” Coollick v. Hughes , 699 F.3d 211, 220 (2d

Cir. 2012) (quotation omitted). Thus, a mistake can be one of law or a

mixed question of fact and law, Pearson v. Callahan , 555 U.S. 223, 231

(2009), and the doctrine “gives government officials breathing room to make

reasonable but mistaken judgments about open legal questions.” Ashcroft

v. al-Kidd , 131 S. Ct. 2074 , 2085 (2011). It “protects all but the

plainly incompetent or those who knowingly violate the law.” Id .

(quotation omitted).

¶ 66.

As we stated above, § 1233 on its face appears internally

inconsistent and its terms ambiguous, and we have no case on point or other

precedent that settles the issue. It certainly was not “beyond debate”

when the selectboard acted. We therefore conclude that the law was not

clearly established and the selectboard is entitled to qualified immunity.

On this point, we affirm the trial court’s grant of summary

judgment.

Reversed and remanded for

further proceedings consistent with this opinion as to the claims of wrongful

termination, violation of due process under 42 U.S.C. § 1983 , and

violation of Chapter I, Article 4 of the Vermont Constitution. Affirmed

as to the promissory estoppel claim and the qualified immunity defense .

FOR THE COURT:

Associate

Justice

¶ 67.

REIBER, C.J., dissenting. The majority’s solution to

the ambiguity inherent in 23 V.S.A. § 1233—which provides that a town

manager shall hold office “at the will of” the selectmen who “may remove him at

any time for cause”—is to conclude that “at the will of” does not mean what we

think it means. In the majority’s view, the phrase was not understood by

its drafters “in the modern conventional sense” of an employment terminable at

any time for any reason. Ante , ¶ 20. In support of this

proposition, the majority claims that the at-will concept was not widely

employed in Vermont law when the statute was enacted, and that “the Legislature

may have viewed the language as having a different meaning from what means

today.” Ante , ¶ 14. In contrast to the relative dearth

of Vermont law employing the “at will” language, the majority cites a number of

early Vermont cases and statutes using the alternative phrase “at the pleasure

of.”

¶ 68.

The majority thus concludes that the “at will” language of the statute,

enacted six years before Mullaney , was actually meant to convey

something altogether different, to wit, that “it is the selectboard— and no

other authority —that may remove the town manager and that the selectboard

has the discretion to initiate termination.” Ante ,

¶ 20. Thus, the majority holds that the “for cause” language of the

statute must control, and that—contrary to the conclusion of the trial court

here—plaintiff was terminable only for cause.

¶ 69.

With respect, the majority’s assertion that the phrase “at the will of”

is a “modern” construct that had an entirely different meaning in 1917 does not

withstand historical scrutiny. As explained below, the “at will” language

had precisely the same legal effect then as it does now—across the nation and

in Vermont in particular. Thus, its accepted and conventional meaning

must be harmonized with the rest of the statute—not read out of it—to serve a

more plausible legislative purpose, one in which the “for cause” language does

not supersede the at-will provision but appropriately qualifies

it.

¶ 70.

It is important to recognize, at the outset, that “at the will of” or

“at will” employment was a legal phrase and construct widely used in the United

States not only in the early decades of the twentieth century, when the statute

at issue here was enacted, but in the century preceding it. Indeed, in

the last half of the nineteenth and early years of the twentieth centuries,

courts throughout the country employed the phrase precisely as we do today, to

convey the idea of an employment terminable at any time for any reason as

opposed to one terminable only for cause. Although far too numerous to

cite in their entirety, these early decisions include Gibbs v. City of

Manchester , 61 A. 128, 129 (N.H. 1905) (holding that, under state law, “the

[police] commissioners are not authorized to remove police officers at will ,

but for good and sufficient cause , and after due hearing” (emphasis

added)); State ex rel. Fitzgerald v. Mayor of New Brunswick , 1 A. 496,

501 (N.J. 1885) (noting that the “power of removal” of police officers “may

exist in some cities at the will of some municipal officer or body of

officers” while in others the removal is only “ for cause ” (emphasis

added)); People ex rel. Wheeler v. Cooper , 57 How. Pr. 416 , ___ (N.Y.

1879) (holding that mayor’s “power . . . to remove is for

cause , after an opportunity to be heard,” and observing that not allowing a

hearing would render the “safeguard . . . a hollow device

and a sham; because a removal could actually be made at the will of the

removing power” (emphasis added)); Smith v. Bryan , 40 S.E. 652, 653-54

(Va. 1902) (observing that “the absolute power of removal” is “a tenure at

will ” as opposed to one “ for cause ” (emphasis added)). [12]

¶ 71.

Reflecting the nearly universal understanding of the at-will concept,

late nineteenth- and early-twentieth-century commentators on the law of municipal

corporations routinely utilized the phrase in its “modern” sense in

characterizing the tenure of municipal officers. See, e.g., 2 Dillon,

Commentaries on the Law of Municipal Corporations § 473, at 79 (5th ed.

1911) (“With respect to the tenure or duration of a public employment, the

general rule is that where the power of appointment is conferred in general

terms . . . the power of removal , in the discretion

and at the will of the appointing power and without notice or a hearing,

is implied . . . .” (second emphasis added)); 2

McQuillan, Municipal Corporations § 558, at 1229 (1911) (“Unless the law

otherwise provides, if the officer is appointed . . . and

no definite term is prescribed, he holds at the will or pleasure of his

superior or the appointing . . . authority . . . .”

(emphasis added)).

¶ 72.

Thus, as one more recent court—recounting the history of the at-will

employment concept—has concluded: “By the arrival of the twentieth century, the

at-will doctrine was well-established throughout the United States and served

to reinforce turn-of-the-century ideas concerning laissez-faire economics and

freedom to contract.” Berube v. Fashion Centre, Ltd. , 771 P.2d

1033, 1041 (Utah 1989); see also Bernard v. IMI Sys., Inc. , 618 A.2d

338, 343 (N.J. 1993) (noting that, by 1913, most jurisdictions had explicitly

adopted at-will employment rule).

¶ 73.

In light of the foregoing, it simply strains credibility to maintain

that an employment characterized as “at the will of” the appointing power

lacked the same legal meaning and effect in early-twentieth-century Vermont

that it had throughout the rest of the United States. We need not,

however, merely surmise how the phrase was understood here from its broad

acceptance elsewhere. For it was certainly in use in Vermont prior to the

enactment of the town manager statute in 1917, the majority’s claim to the

contrary notwithstanding.

¶ 74.

In Rutter v. Burke , 89 Vt. 14 , 93 A. 842 (1915), this Court

considered the Burlington city council’s authority to remove certain water

commissioners under a charter provision empowering the council to remove its

appointees “for such causes of incapacity, negligence or bad conduct as to it

shall seem sufficient.” Id . at 17, 93 A. at 844 . The City

claimed that the charter gave the council unfettered authority to remove

appointees “in its discretion, or at its pleasure.” Id . at 26, 93

A. at 848 . We rejected the claim, however, relying on the plain language

of the charter, which clearly limited the removal power to the enumerated

causes, as well as the “well established rule that an authority to remove

for cause excludes the power to remove at will .” Id. (emphasis

added). Rutter relied, in turn, on a number of out-of-state

decisions in support of this “well established” proposition; all were decided

decades earlier, and all employed the familiar “at will” terminology. Id .

at 26-27, 93 A. at 848 ; see Miles v. Stevenson , 30 A. 646, 648 (Md.

1894) (contrasting statute at issue, which expressly required cause for

removal, from others where “there is no limit fixed to the term of the office

and the appointee holds merely at the will of the appointing power”

(emphasis added)); Speed v. Common Council , 57 N.W. 406 , 410 (Mich.

1894) (noting that where provision provides that officers may be “removed for

cause” it “excludes the power to remove at will ” (emphasis added)); State

ex rel. Gallagher v. Brown , 57 Mo. App. 199 , 1894 WL 2191 , at *2 (Mo. Ct.

App. 1894) (noting that law generally provides for two ways of removing a

public officer, “for cause” and “without cause, at will ” (emphasis

added)).

¶ 75.

Thus, plaintiff’s argument, and the majority’s conclusion, that “at the

will of” as used in § 1233 did not mean the same thing in Vermont in 1917

as it does today is entirely unpersuasive. Equally futile is plaintiff’s

broader historical argument that, as part of the general “progressive” reform

movement of the early twentieth century, the town manager form of government was

designed to “insulate[]” the town manager from the shifting “political winds”

that might effect a change in local selectboards. This goal of

progressive municipal reform, plaintiff argues, lends general support to the

proposition that, in enacting § 1233, the General Assembly intended to

require good cause for removal rather than allow removal at the whim of the

current selectboard.

¶ 76.

Apart from the absence of any evidence showing that this was, in fact,

the driving ideal behind the statute, however, the argument—taken on its own

terms—is overly simplistic and unreliable. Historians have long noted the

underlying social, economic, and especially political complexities that

animated “progressivism” as a movement. See, e.g., D. Rogers, In Search

of Progressivism , 10 Revs. in Am. Hist. 113, 114 (1982) (noting “the

emergence of a pluralistic reading of progressive politics, in which the

fundamental fact of the era is not reform in any traditional sense of the term,

but the explosion of scores of aggressive, politically active pressure groups

into the space left by the recession of traditional political

loyalties”). Nowhere was this more true than in the area of municipal

reform, where scholars have shown that innovations such as the commission or

town manager form of city government were pushed through by economic and social

elites to wrest power from local ward bosses and centralize control in

professional “experts” and upper-class businessmen. See, e.g., S. Hays, The

Politics of Reform in Municipal Government in the Progressive Era , 55 Pac.

N.W. Q. 157, 159, 161-62, 167 (1964) (noting that business community was

“overwhelming force behind both commission and city-manager movements,” that

their objection to status quo was not to “corruption per se” but a system that

allowed lower-class and immigrant groups to dominate local politics, and that

they “hoped . . . reform would enable them to increase

their political power” and serve “as vehicles whereby business and professional

leaders moved directly into the inner circles of government”). Confronted

with growing numbers of enfranchised, lower-class urban immigrants, the goal of

progressive reformers was thus not to remove political influence from municipal

government, but to keep it in the right hands. See id . at 162

(concluding that municipal reform movements “constituted an attempt by

upper-class, advanced professional and large business groups to take formal

political power from the previously dominant lower- and middle-class elements

so that they might advance their own conceptions of desirable public policy”).

¶ 77.

It is hardly surprising, therefore, to find statutes authorizing cities

with a town manager form of government to remove the manager at will, or to

find courts upholding such provisions as consistent with that form of

governance. See, e.g., Curry v. City of Cambridge , 217 N.E.2d 740,

742 (Mass. 1966) (observing that “powers and duties of the city manager are so

closely coordinated with those of the city council in the general management of

the city’s affairs that the Legislature manifestly could not have intended that

its incumbent should be allowed to remain in office even for a very short

period of time against the city council’s wishes”); Note, City Government ,

38 B.U. L. Rev. 419 , 456, 463-64 (1958) (reviewing history of “city

manager form of government” in New England, discussing its statutory bases, and

noting that town managers are generally removable at pleasure of city council

under statutory provisions in Massachusetts, New Hampshire, and Connecticut).

¶ 78.

Thus, there is no historical basis to conclude that the legislative

purpose in enacting § 1233 was to insulate the town manager from local

politics by ensuring that his or her removal was not at the will of the

selectboard but solely for cause.

¶ 79.

We are thus squarely confronted with the need to reconcile two seemingly

contradictory concepts—removal “for cause” and “at will”—in one statute.

We are not, however, entirely without guidance in this regard. A series

of decisions construing equally venerable Massachusetts laws regulating the

removal of municipal appointees provide a useful starting point. In O’Dowd

v. City of Boston , 21 N.E. 949 (Mass. 1889), the high court of

Massachusetts was confronted with a statute authorizing a city board to remove

ferry workers “for such cause as they may deem sufficient, and shall assign in

their order for removal.” Id . at 949 (quotation omitted).

The plaintiff claimed that the statute required that removal be for cause,

while the City maintained that dismissal was purely at the pleasure of the

board.

¶ 80.

The Massachusetts court noted the potential ambiguity in the statute

that appeared to vest broad removal discretion in the board and require removal

for “cause.” Id . at 950. It resolved the issue by holding

“[t]he intention of the statute . . . to be to qualify

a removal at pleasure by requiring a record to be made of the

cause.” Id . (emphasis added). This construction, the court

observed, ensured both “the vigor and efficiency of [public] administration”

served by the at-will doctrine, while simultaneously discouraging—through the

requirement of public disclosure—removals against public policy, i.e., “for a

cause for which it could not lawfully be made.” Id . Armed

with at least a record of the reason for removal, the employee might ultimately

appeal to the “court” of public opinion. Id .

¶ 81.

The Massachusetts court reached the same result in applying a similar

municipal provision in Ray v. Mayor of Everett , 103 N.E.2d 269 (Mass.

1952). There, a city charter provided that officers appointed by the

mayor “may be removed by the mayor for such cause as he shall deem sufficient

and shall assign in his order of removal.” Id . at 271. The

court held that the mayor had complied with the statute by stating the “cause”

for removal in general terms, and was not required to bring specific charges or

afford the employee a hearing, leaving it instead to the “conscience and sound

judgment” of others, rather than the law, as to whether the cause was

sound. Id . at 272.

¶ 82.

In Fabrizio v. City of Quincy , 404 N.E.2d 675 (Mass. App. Ct.

1980), the same issue was revisited in a more modern statute to the same

effect, providing that a mayor may remove a department head “by filing a

written statement with the city clerk setting forth in detail the specific

reasons therefor.” Id . at 676 (quotation omitted). The court

held that the mayor had complied with the statute and that, contrary to the

plaintiff’s claim, he was not afforded a “property” interest under the statute

entitling him to a hearing and other due process protections. Id .

at 677.

¶ 83.

Although these provisions obviously differ from § 1233, they

nevertheless suggest a useful general approach to reconciling the latter’s

seemingly conflicting terms by qualifying the town manager’s “at-will” tenure

in office with a requirement that the selectboard state the “cause” for

removal. As suggested in O’Dowd , this approach preserves the

efficiency of the at-will doctrine in municipal employment while also providing

at least a basis for the town manager—and ultimately the public—to judge the

wisdom and merits of the decision. Thus understood, plaintiff here and

other town managers enjoy no “protectable property interest” in their

employment entitling them to any process other than a clear statement from the

selectboard as to the cause of their removal. Brennan v. Town of

Colchester , 169 Vt. 175, 179-80 , 730 A.2d 601, 605 (1999).

¶ 84.

Here, the record surrounding the selectboard’s removal decision and its

express statement that plaintiff’s termination was for actions that were

“directly against the will of the board” and further “misrepresented” by

plaintiff to the board, was sufficient to state the “cause” for his removal and

thereby satisfy the statute. Accordingly, I would affirm the summary

judgment of the trial court in favor of the Town.

¶ 85.

Although I find the majority’s reasoning to be unpersuasive, this is

clearly a challenging case. An ambiguous law, nearly a century after its

enactment, presents a unique problem for judicial construction. Contrary

to the conclusion of the majority, however, the difficulty is not understanding

the statute’s conflicting terms; it is understanding how they relate.

While we cannot hope to know precisely how the drafters would have answered

this question, we can—and must—at least attempt to harmonize the language they

actually used. Qualifying the Town’s otherwise absolute removal authority

under the “at will” provision of the statute by requiring that it set forth the

“cause” for removal offers, in my view, a workable resolution.

While it may or may not precisely mirror the drafters’ intent, it is at least

more faithful to their language. Accordingly, I respectfully

dissent.

Chief Justice

[1]

Justice Crawford was present for oral argument, but did not participate in this

decision.

[2]

The Town’s actions with respect to the laptop computer, which was owned by

plaintiff, are the subject of claims in plaintiff’s complaint. They are

not part of the Town’s motion for partial summary judgment and therefore are

not part of this appeal.

[3]

The counts dismissed were Counts I-V of plaintiff’s amended complaint.

Plaintiff had moved to amend the complaint to add the Town of St. Johnsbury and

omit the St. Johnsbury Selectboard, but not the individual selectboard

members.

[4]

Early Vermont statutes do address leases at will and estates at will but do not

use the term “at will” in the context of employment.

[5]

See, e.g., Vermont Statutes, Revision of 1947; Public Laws of Vermont, 1933;

General Laws of Vermont, 1917; Public Statutes of Vermont, 1906; Vermont

Statutes, 1894; Revised Laws of Vermont, 1880; General Statutes of the State of

Vermont, 1862; Compiled Statutes of the State of Vermont, 1851; Revised

Statutes of the State of Vermont, 1839; Laws of Vermont of a Public and

Permanent Nature, 1834; Laws of the State of Vermont, 1808.

To determine that these terms were absent in early

laws of Vermont, we conducted a keyword search in the HeinOnline Legal Research

Database, http://home.heinonline.org, which contains a searchable database of

Vermont laws and public acts from 1808 through 1947. Our search returned

no results relating to employment, with the exception of the 1917 town manager

statute.

[6]

The drafting was actually done by a commission appointed by the Governor and was

not prepared by the Legislature. See 1917, No. 255.

[7]

Count I of plaintiff’s complaint alleges that the no-confidence vote did not

terminate his employment and, as a result, he remains the town manager.

He has not raised that position here, and the trial court did not address

it. We take it that plaintiff has abandoned the position.

[8]

The Town argues that the attorney involved was not the Town attorney but only a

Town agent and that plaintiff did not show a material issue of fact with

respect to reliance. In view of our disposition, we do not consider these

issues.

[9]

Although the trial court defined the elements of promissory estoppel, it

analyzed plaintiff’s claim under the elements of equitable estoppel, a

different doctrine. Plaintiff’s claim is explicitly one of promissory

estoppel, and we have not analyzed it under equitable estoppel.

[10]

The complaint is titled as one for “Declaratory Judgment, Injunctive Relief and

Damages.” The declaratory judgment apparently is that sought in Count I,

which we have observed was essentially abandoned. See supra ,

¶ 7 n.3. The injunctive relief is for reinstatement. The

nature of the compensatory damages sought is not specified.

[11]

The motion for summary judgment and supporting memorandum were filed before

plaintiff moved to amend the complaint to join the Town of Saint Johnsbury and

drop the selectboard as a defendant. The motion addressed the liability

of individual selectboard members. It never included the Town on this

point.

As required under 24 V.S.A. § 901(a), an action

against an “appointed or elected municipal officer” must be brought instead

against the town. The Town here never raised this statute, although the

original complaint appeared to have violated it. We read the statute as

dictating which entity the plaintiff may sue but not restricting the theory of

liability or the defenses available. Thus, plaintiff can raise against

the Town the same theories of liability he can raise against the selectboard

members, and the Town is entitled to defenses that can be raised by members of

the selectboard, including qualified immunity. Cf. §§ 901a(b),

(c).

[12]

That the at-will employment language and concept have even earlier roots may be

seen in such cases as Avery v. Inhabitants of Tyringham , 3 Mass. 160 (Mass.

1807), where the court held, as to the local minister, that if “his office be at

will ” the parish “can remove him at their pleasure” rather than “for good

cause.” Id . at 178 (emphasis added).