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