Berlickij v. Town of Castleton
| Citation | 248 F.Supp.2d 335 |
| Decision Date | 24 February 2003 |
| Docket Number | No. 2:00-CV-465.,2:00-CV-465. |
| Parties | Patricia Ryan BERLICKIJ, Plaintiff, v. THE TOWN OF CASTLETON, Patrick Eagan, Charles Brown, Scott Lobdell, William Doran, Elizabeth Shepard, William Gilbert, Holly Hitchcock, Susan Steen, and Robert Marcille, Defendants. |
| Court | U.S. District Court — District of Vermont |
James Allan Dumont, Dumont & Lee, P.C., Middlebury, VT, for Plaintiff.
Joseph Andrews Farnham, McNeil, Leddy & Sheahan, P.C., Burlington, VT, for Defendant.
A former town zoning administrator and assessor has brought suit against her town and members of its Planning Commission and its Selectboard, alleging violations of federal and state constitutions and statutes in connection with the termination of her employment. All Defendants have moved for summary judgment on all counts of the complaint as amended. For the reasons that follow, the motion (Doc. 95) is granted in part and denied in part.
The following facts are either undisputed or presented in the light most favorable to the non-moving party. Plaintiff Patricia Ryan Berlickij was appointed to the position of town zoning administrator by the Selectboard of the Town of Castleton, Vermont, upon the recommendation of the town's Planning Commission. Defendants Patrick Eagan, Charles Brown, Scott Lobdell, William Doran and Elizabeth Shepard were, at the times relevant to this action, members of the Selectboard. Defendants William Gilbert, Holly Hitchcock, Susan Steen and Robert Marcille were, at the times relevant to this action, members of Castleton's Planning Commission.
The zoning administrator is appointed by the Selectboard to a three year term.1 Berlickij's fourth three year term as zoning administrator commenced March 24, 1997.
In August 1999, Spectrum Youth Services ("Spectrum") communicated with Berlickij about a house it planned to purchase in Castleton for use as a group home for young women with psychiatric disorders that qualify as disabilities under federal and state law. Berlickij stated that in her opinion Spectrum would not be required to obtain a zoning permit. Berlickij claims that many town residents as well as members of the Selectboard were upset that a group home for troubled teenagers would be located in their town. At least one anti-Spectrum meeting was held, and according to a Spectrum representative, a member of the Planning Commission attempted to intimidate the organization into abandoning its plans to purchase the house.
In September 1999 the Town attorney wrote to Spectrum, stating that the zoning administrator had no authority to issue an advisory opinion in the absence of a formal permit application, and that the Town would not provide a specific opinion about the proposed use until Spectrum actually submitted a permit application. At the same time the Town attorney wrote to the Town employees' union, the American Federation of State, County and Municipal Employees ("AFSCME"),2 advising it that the Selectboard was considering having the town manager assume the zoning administrator's duties. The Defendants concede, for purposes of this motion, that there was a causal connection between Berlickij's actions as zoning administrator with regard to the group home, and the decision not to reappoint her.
The Selectboard and the Planning Commission met in a joint session on March 9, 2000. In executive session during that meeting members of the two bodies discussed appointing the town manager to handle the zoning administrator's duties. The Selectboard minutes for March 9 indicate that the joint executive session ended with no action taken.
On March 14, 2000, the Selectboard chair, Patrick Eagan, forwarded a letter to Berlickij advising her that the Selectboard had made a request to the Planning Commission that it appoint the town manager as zoning administrator at the end of Berlickij's term. The letter informed Berlickij that the Planning Commission would consider the matter at its meeting on March 15, 2000.
The Planning Commission met on March 15. Berlickij was present. The issue of whether to consolidate the zoning administrator position with the town manager position was publicly discussed. Members of the community were permitted to speak to the issue. Berlickij spoke on her own behalf. Eventually, the chair of the Planning Commission, Delbert Beebe, made a motion to reappoint Berlickij to the zoning administrator's position. The motion failed for lack of a second. The Planning Commission then voted to hold a second meeting with the Selectboard to discuss the issue.
On March 22, 2000 the Planning Commission met again. The zoning administrator appointment was again discussed at length, publicly, and with some rancor. Chairman Beebe again moved that the Planning Commission recommend that Berlickij be reappointed, and again the motion failed for lack of a second. Defendant Hitchcock then moved that the Planning Commission recommend that the town manager be appointed to the position of zoning administrator. The motion was seconded and carried, by a vote of three to one, with one abstention.
Prior to a meeting of the Selectboard on March 27, 2000, two handbills were circulated within the town, urging citizen participation on the issue of Berlickij's nonreappointment. At the March 27 meeting, the Selectboard publicly discussed its March 9 request to the Planning Commission that it recommend the appointment of the town manager to the additional position of zoning administrator, and the Planning Commission's subsequent recommendation to the Selectboard that the town manager take on the post. Chairman Eagan stated that the March 14 letter to Berlickij was based on a unanimous decision of the Selectboard.3 Mins. of Mar. 27, 2000 Mtg. at 8 (Doc. 97, Ex. 11). He stressed that the recommendation was based on the board's desire to reduce the size of the town government. Id. at 9. The minutes of the March 27 meeting reflect that there was substantial public displeasure with the proposal to eliminate Berlickij's position.
Berlickij had also served as the town's assessor since 1988. In March 1999 the voters of Castleton approved a ballot item to recommend to the Selectboard the elimination of the position of assessor. More than a year later, on March 17, 2000, Chairman Eagan sent Berlickij a letter advising her that the board intended to consider and act upon the voters' recommendation to eliminate the position of assessor at its March 27, 2000 meeting. It intended to eliminate the position effective March 31, 2000, and to transfer the duties of the assessor to the town listers. Because the issue was not warned, the Selectboard decided to take up the issue at its next meeting, on March 29. At the March 29 meeting, after public discussion, the Selectboard voted to eliminate the assessor's position. Again, the reason given for eliminating the position was to "downsize the government." Mins. of Mar. 29, 2000 Mtg. at 3 (Doc. 97, Ex. 18).
Berlickij filed a grievance concerning Castleton's actions with regard to the zoning administrator and assessor positions by presenting the town manager with an AFSCME Official Grievance Form on April 3, 2000. Castleton and AFSCME agreed to arbitrate the arbitrability of the grievance. On September 23, 2001 the Arbitrator held that the issue of Berlickij's reappointment to the zoning administrator position after the expiration of her statutory three-year term was not arbitrable. Ruling on Mot. to Dismiss at 8 (Doc. 97, Ex. 21). The Arbitrator also held that because the town had a right, under its collective bargaining agreement, to eliminate the position of assessor, he lacked the authority to review the town's decision. Id at 10, 11.4 The September 23 ruling did not dispose of all of the claims asserted by AFSCME, however.
Castleton and AFSCME eventually executed a Stipulation to Dismissal with Prejudice and Final Award, in which AFSCME stated that it did not wish to arbitrate the issues that were not disposed of by the Interim Award, and the parties agreed that the Arbitrator could issue a Final Award dismissing the remaining issues with prejudice. Stipulation at 2-3 (Doc. 97, Ex. 23).
Berlickij filed suit in the Superior Court of Rutland County, Vermont; the Defendants removed the suit to this court on December 14, 2000 on the basis of federal question jurisdiction. 28 U.S.C. § 1441(c). Berlickij's amended complaint contains eight counts: (1) that the Town and the individual defendants violated her First Amendment rights of association, to petition for redress of grievances, and to free speech by holding secret meetings; (2) that the Town and the individual defendants violated these same rights also guaranteed by Article 13 of the Vermont Constitution;5 (3) that the Town and the individual defendants discharged her in retaliation for her exercise of free speech rights protected by the First Amendment; (4) that the Town and the individual defendants discharged her in retaliation for speech protected by Article 13 of the Vermont Constitution; (5) that the Town and the individual defendants retaliated against her in violation of the Fair Housing Act, 42 U.S.C.A. § 3601 et seq.; (6) that the town and the individual defendants retaliated against her in violation of Vermont's Public Accommodations law, Vt. Stat. Ann. tit. 9, §§ 4500-4507 (1993 & Supp.2002); (7) that the town and the individual defendants violated Berlickij's rights under Vermont's Open Meeting law, Vt. Stat. Ann. tit. 1, §§ 310-314 (1995 & Supp.2002), rendering null and void any decision to eliminate her positions or to terminate her employment; and (8) that the town and the individual defendants, in depriving Berlickij of her rights under the Open Meeting law, violated the Vermont Constitution's guarantee of due process contained in Article 10.6
Summary judgment is warranted only if there is no genuine issue as to any...
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