Brennan v. Town of Colchester

Annotate this Case
Brennan v. Town of Colchester (98-219); 169 Vt. 175; 730 A.2d 601

[Filed 9-Apr-1999]

  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, 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.

                                 No. 98-219

Patrick Brennan, et al.	                            Supreme Court

                                                    On Appeal from
     v.		                                    Chittenden Superior Court

Town of Colchester	                            January Term, 1999

Linda Levitt, J.

John L. Franco, Jr., Burlington, for Plaintiffs-Appellees.

Robert C. Roesler of Roesler, Whittlesey, Meekins & Amidon, Burlington, for 

PRESENT: Amestoy, C.J., Morse, Johnson and Skoglund, JJ., and Cashman, D.J., 
         Specially Assigned 

       AMESTOY, C.J.   Defendant Town of Colchester appeals the decision of
  the Chittenden  Superior Court granting a preliminary injunction to
  reinstate plaintiffs Patrick Brennan and  Gabriel Handy to their positions
  on the Colchester planning commission.  The Town appeals a  partial final
  judgment of the superior court, which held that the plaintiffs could only
  be removed  from the commission for cause and were entitled to procedural
  due process, including notice of  their proposed removal from the
  commission and a hearing.  We hold that 24 V.S.A. § 4323(a)  permits
  removal from the commission without cause and does not implicate procedural
  due  process.  Accordingly, we reverse.

       The facts of this case are uncontested.  Plaintiffs Patrick Brennan
  and Gabriel Handy


  were appointed to the Colchester planning commission for terms of four
  years, which expire on June  30, 2001, and June 30, 2000, respectively.  On
  February 3, 1998, the Colchester selectboard met  and unanimously passed a
  motion to disband the planning commission for purposes of  reorganization. 
  The following day, the chair of the Colchester selectboard sent a letter to
  each  member of the planning commission, including plaintiffs, stating that
  the commission had been  disbanded, and that the former members could
  reapply for their positions.

       Plaintiffs filed a complaint in the Chittenden Superior Court
  requesting declaratory and  injunctive relief.  They alleged that their
  removal from the planning commission was improper  because the selectboard
  failed to notify them of the proposed removal and the cause therefor, and 
  did not provide them a hearing on the matter.  Plaintiffs also alleged that
  their dismissal was void  because it exceeded the lawful authority of the
  selectboard.  Finally, plaintiffs alleged that the  selectboard's action
  violated their civil rights under 42 U.S.C. § 1983 by depriving them of due 

       Plaintiffs requested a temporary restraining order enjoining the
  selectboard from  appointing replacements for their unexpired positions and
  mandating that plaintiffs be reseated.  The court held that 24 V.S.A. §
  4323(a) requires a municipal legislative body to show cause and  provide
  procedural due process before removing members of a planning commission,
  and granted  plaintiffs' motion for injunctive relief.  Plaintiffs then
  moved for partial final judgment on Count  I of their complaint, alleging
  the selectboard exceeded its authority under state law, and Count II, 
  alleging violation of plaintiffs' civil rights.  The court granted the
  motion on both counts and this  appeal followed.  We review de novo the
  superior court's holding that 24 V.S.A. § 4323(a)  implies a right to
  procedural due process, including notice of a proposed removal and the
  bases  therefor, and the right to a hearing.  	

       The removal of members of a municipal planning commission is governed
  by the Vermont  Planning and Development Act, see 24 V.S.A. §§ 4301-4496. 
  The relevant subsection states in  pertinent part: 

          Members of a planning commission shall be appointed and any 
          vacancy filled by the legislative body of a municipality.  The term 
          of each member shall be for four years . . . .   Any member may be 
          removed at any time by unanimous vote of the legislative body.  
          Any appointment to fill a vacancy shall be for the unexpired term.

  Id. § 4323(a).

       In cases of statutory interpretation, our obligation is to effectuate
  the intent of the  Legislature.  See Spears v. Town of Enosburg, 153 Vt.
  259, 261, 571 A.2d 604, 605 (1989).  The  first step in determining the
  legislative intent "is to look at the language of the statute itself," and 
  to "presume the Legislature intended the plain, ordinary meaning of the
  language."  State v.  O'Neill, 165 Vt. 270, 275, 682 A.2d 943, 946 (1996). 
  We will not read an implied condition into  a statute "unless it is
  necessary in order to make the statute effective."  Id. (emphasis in

       Plaintiffs contend that the language of § 4323(a) does not expressly
  authorize removal of  the commissioners at will.  Rather, they assert that
  the phrase "at any time" is a temporal  reference to the fact that a
  commission member may be removed at any point in time during his  or her
  unexpired term.  Absent statutory authorization for removal of the
  commissioners at will,  plaintiffs assert that the commissioners -- as
  municipal officers appointed for a specified term -- may only be removed
  for cause.  See Rutter v. Burke, 89 Vt. 14, 27, 93 A. 842, 848 (1914) 
  (holding that officers appointed for a definite term may only be removed
  for cause, absent express  statutory authorization for removal at will).  

       The principle of statutory construction advanced by the plaintiffs is
  applied only when 


  the relevant statute is in fact silent on the authority to remove at
  will.  In State ex rel. Raslavsky  v. Bonvouloir, 355 A.2d 275 (Conn.
  1974), where a town charter set the term of years and  method for
  appointing officers but was "silent as to the power and method of removal,"
  the court  held that the authority to remove at will could not be implied
  and the officers could only be  removed for cause after notice and hearing. 
  See id. at 278.  See also 4 C. Keating & J. Reinholtz,  The Law of
  Municipal Corporations § 12.232 at 377 (1992) (stating that officers
  "appointed for  definite terms are subject to removal for cause only,"
  unless "the appointing power is authorized  to remove at pleasure");  67
  C.J.S. Officers § 120 (1978) ("In the absence of provisions to the 
  contrary, officers or employees appointed for a definite term . . . are
  removable for cause only."). 

       In this case, plaintiffs confront a statute that is neither silent as
  to the power and method  of removal, nor expressly requires cause.  Section
  4323(a) states that any planning commission  "member may be removed at any
  time by unanimous vote of the legislative body."  24 V.S.A. §  4323(a)
  (emphasis added).  This stands in contrast to Rutter, where a city charter
  authorized the  city council to remove appointees "for such causes of
  incapacity, negligence, or bad conduct as  to it shall seem sufficient." 
  89 Vt. at 17, 93 A.  at 848.  Plaintiffs construe the phrase "at any  time"
  not as a reference to the removal authority, but merely as an expression
  that a commission  member may be removed at any time during the term of
  office.  We decline to adopt plaintiffs'  statutory construction, as it is
  obvious that a commission member can only be removed while  holding office. 
  Plaintiffs' interpretation would render the phrase "at any time"
  surplusage.  See  State v. Stevens, 137 Vt. 473, 481-82, 408 A.2d 622, 627
  (1979) (when possible, every word,  clause, and sentence of a statute
  should be given effect, rather than treated as surplusage).  We  construe
  an unambiguous statute according to its terms and express meaning.  See
  Langle v. 


  Kurkul, 146 Vt. 513, 515, 510 A.2d 1301, 1302-03 (1986).  By its
  terms, § 4323(a) provides a  municipal legislature with the authority to
  remove commission members at will, qualified only by  the requirement that
  the decision to remove be made by unanimous vote.

       It is also apparent from other provisions in the Planning and
  Development Act, of which  § 4323(a) is a part, that the Legislature
  understood and intended the distinction between granting  a municipality
  the authority to remove a municipal officer at will and requiring the
  municipality  to remove for cause.  See Galkin v. Town of Chester, __ Vt.
  __, __, 716 A.2d 25, 29 (1998)  (explaining that specific sections of
  statutes are read in context and entire scheme read in pari  materia).  The
  legislature expressly provided to board of adjustment and development
  review  board members the statutory right to a showing of cause and an
  opportunity to be heard prior to  removal.  See 24 V.S.A. § 4461(b)
  (providing that members of either board "may be removed for  cause by the
  legislative body upon written charges and after public hearing."). 
  Finally, plaintiffs  have overlooked the import of § 4323(c), which
  provides municipalities with the option of  insulating planning commission
  members from removal at the will of local legislatures.  See id.  § 4323(c)
  ("As an alternative to appointment under subsection (a) of this section,
  municipalities  may choose to elect planning commissioners for terms of one
  to four years. . . (4) Elected  commissioners may not be removed by action
  of the legislative body.") (emphasis added).  The  Town of Colchester,
  having chosen to appoint planning commission members pursuant to § 
  4323(a), rather than to elect members pursuant to § 4323(c), is empowered
  to exercise the  statutory authority to remove planning commission members
  at any time, contingent only on a  unanimous vote of the legislative body.  

       Plaintiffs also argue that if a town selectboard is permitted to
  remove commission  members without cause, the threat of such removal would
  interfere with the impartial and 


  independent exercise of their duties, some of which, plaintiffs
  contend, are quasi-judicial in  nature.  Even assuming that plaintiffs have
  accurately characterized their duties, the Legislature  is not compelled to
  insulate planning commission members from removal by the appointing 
  authority.  We decline to impose additional requirements for removal where
  there is no indication  that the Legislature intended such requirements and
  it is not necessary to effectuate the statute.

       Plaintiffs next argue that the selectboard violated their procedural
  due process rights to  notice and hearing when it removed them from the
  planning commission.  They claim they were  deprived of protected interests
  in serving out the duration of their terms of office.  In order to 
  determine whether procedural due process requirements apply, we first
  consider the nature of the  claimed interest to determine if it is within
  the scope of the Fourteenth Amendment's protection  of liberty and
  property.  See Board of Regents of State Colleges v. Roth, 408 U.S. 564,
  571  (1972).  Property interests are not created by the Constitution, but
  rather are "created and their  dimensions are defined by existing rules or
  understandings that stem from an independent source,  such as state law --
  rules or understandings that secure certain benefits and that support
  claims of  entitlement to those benefits."  Id. at 577.  A property
  interest arises when a person has a  "legitimate claim of entitlement" to a
  governmental benefit, rather than a "unilateral expectation."  Id.  A
  legitimate claim of entitlement to government employment may arise where an
  implied  agreement or policy exists.  See Perry v. Sindermann, 408 U.S. 593, 602-03 (1972) (recognizing  that de facto tenure process at state
  school may create protectable property interest in  employment).

       Plaintiffs fail to satisfy the threshold criterion of showing a
  legitimate claim of entitlement  to the planning commission position. 
  Nothing in the language of the Act grants 


  planning commission members a right or entitlement to their positions
  on the board.  On the  contrary, § 4323(a) states that planning
  commissioners may be removed "at any time."  Plaintiffs,  however, have
  shown no more than a "unilateral expectation" that they would serve out
  their  entire terms.  Such an expectation, without more, does not rise to a
  protectable property interest.  See Roth, 408 U.S.  at 577 ("To have a
  property interest in a benefit, a person clearly must have  more than an
  abstract need or desire for it.").


                                   Chief Justice