In re Election Petitions

• Decision Date: 08 January 2016
• Docket Number: No. 14–432.,14–432.
• Citation: 136 A.3d 213,2016 VT 7
• Court: Vermont Supreme Court
• Parties: In re ELECTION PETITIONS.

136 A.3d 213

2016 VT 7

In re ELECTION PETITIONS.

No. 14–432.

Supreme Court of Vermont.

Jan. 8, 2016.

Alfred Gordon O'Connell of Pyle Rome Ehrenberg PC, Boston, MA, and Timothy Belcher and Justin St. James, Vermont State Employees' Association, Montpelier, for Appellants.

Joseph A. Farnham and Andrew Bolduc of McNeil, Leddy & Sheahan, P.C., Burlington, for Appellees State's Attorneys of Franklin, Orange, Windsor, Addison and Windham Counties.

John L. Franco, Jr., Burlington, for Appellee Chittenden County State's Attorney's Office.

Present: REIBER, C.J.,¹ DOOLEY, SKOGLUND, ROBINSON and EATON, JJ.

SKOGLUND, J.

¶ 1. The Vermont State Employees' Association (VSEA) filed eight petitions with the Vermont Labor Relations Board to elect collective bargaining representatives under the Vermont Municipal Employee Relations Act (MERA). VSEA thereby sought to represent the employees within the State's Attorney's Offices (SAOs)—including deputy state's attorneys, victim advocates, and secretaries—in the counties of Chittenden, Essex, Franklin, Orange, Rutland, Windsor, Addison, and Windham. The Board ultimately denied all eight petitions. We reverse the Board's decision, and remand the matter for the Board to proceed with the certification process.

¶ 2. Some historical background is helpful in understanding how these petitions arose. As more fully explained below, the petitioned-for employees do not fall neatly within any of the state's labor relations acts; as a result, they have not previously been part of a collective bargaining unit. See 21 V.S.A. § 1724(a) (setting forth procedure for filing petition to form bargaining unit).

¶ 3. The question on appeal is whether the employees covered by VSEA's eight petitions fall under MERA. More specifically, the issue is whether either the individual state's attorneys or the legislatively created Vermont Department of State's Attorneys and Sheriffs, or some combination thereof, are municipal employers.

¶ 4. Only municipal employers and their employees may bargain collectively under MERA. See 21 V.S.A. § 1721 (stating, in relevant part, that MERA's purpose is “to prescribe the legitimate rights of both municipal employees and municipal employers in their relations with each other”); see also id. § 1725 (outlining collective bargaining procedure). MERA defines “[m]unicipal employee” as “any employee of a municipal employer, including a professional employee” with exceptions not relevant here. Id. § 1722(12). “ ‘Municipal employer’ means a city, town, village, fire district, lighting district, consolidated water district, housing authority, union municipal district, or any of the political subdivisions of the State of Vermont which employs five or more employees as defined in this section.” Id. § 1722(13). Because neither the state's attorneys nor the Department are enumerated, they must qualify as political subdivisions of the state for MERA to apply. The term “political subdivision” is not defined anywhere in MERA.

¶ 5. Thus, an analysis of the definition of “municipal employer” raises two distinct sub-issues: (1) whether the individual state's attorneys, the Department, or a combination of the two, “employ” the petitioned-for employees; and (2) if so, whether such employers may be considered political subdivisions of the state for purposes of MERA. For the reasons explained below, we conclude that each individual state's attorney that employs five or more employees is a municipal employer for purposes of MERA.

¶ 6. As noted, the employees within the SAOs have never had collective bargaining representation. The SAOs, their various types of employees, and the Department defy simple classification for purposes of labor relations. Yet, untangling the web of constitutional mandates, statutory provisions, and actual practices that define their labor relationships is essential to deciding this appeal.

¶ 7. The voters of each county in Vermont elect a single state's attorney, as required by Chapter II, Section 50 of the Vermont Constitution. Each state's attorney, in turn, has the sole authority to hire deputy state's attorneys, victim advocates, and secretaries,² all of whom serve at the pleasure of the state's attorney. See 13 V.S.A. § 5306 (victim advocates); 24 V.S.A. § 363 (deputies); 32 V.S.A. § 1185(b) (secretaries). Each type of SAO employee has different rights and oversight, as defined by various statutory provisions, which we discuss below.

¶ 8. The Department, established under 24 V.S.A. § 367(a), consists of the fourteen state's attorneys and fourteen county sheriffs. The statute requires the state's attorneys to elect an Executive Committee composed of five of the state's attorneys. That committee, along with the Executive Committee of the Vermont Sheriff's Association, appoints an Executive Director—an exempt employee who serves at the pleasure of the committees. Id. § 367(a) –(b). As described below, the Executive Director is tasked with, among other things, preparing and submitting “all budgetary and financial materials ... with respect to all State funds appropriated for all of the Vermont State's Attorneys and sheriffs.” Id. § 367(c).

¶ 9. State's attorneys may consult with the Executive Director regarding potential dismissals of employees within their offices, but they retain the ultimate authority whether to discharge employees. Further, state's attorneys may change the caseloads, assignments, and other working conditions of deputy state's attorneys working in their office. Although 24 V.S.A. § 363 permits state's attorneys to “fix the[ ] pay” of their deputy state's attorneys “with the approval of the Governor,” in practice, the Executive Committee's adoption of the State of Vermont Attorney Pay Plan currently establishes the pay. The attorneys, as well as the victim advocates and secretaries in the SAOs, are eligible to receive health insurance benefits through the State of Vermont health plans. They also receive retirement benefits from the state through the defined benefit or the defined contribution plans.

¶ 10. Secretaries provide administrative support to the state's attorneys, 32 V.S.A. § 1185(a), who have authority to adjust the secretaries' hours and other conditions of employment. The state's attorneys do not establish the secretaries' wages or benefits, however. Secretaries are categorized expressly by statute as state employees whose salaries are determined by the Commissioner of Human Resources and who receive the same benefits as state-classified employees, but who are not subject to the state classification system. Id. § 1185(b).

¶ 11. Victim advocates are supervised by the state's attorney of the office to which they are assigned. They are paid through funding by the Center for Crime Victim Services, which includes some federal funds. State's attorneys do not establish the wages of victim advocates, who are treated like classified state employees for purposes of pay and generally receive wage increases provided for in the state-VSEA collective bargaining agreement, though they are not covered by the agreement. State's attorneys control the victim advocates' hours and other conditions of employment.

¶ 12. As indicated, the Executive Director of the Department oversees the administration, budget, information technology, and many human resource services for the SAOs, and also oversees the budget and many human resource services for the sheriffs' offices. 24 V.S.A. § 367(c). The Executive Director drafts a proposed budget that includes wages and benefits for the deputy state's attorneys, victim advocates, and secretaries working in the SAOs and covers operating expenses for the SAOs.³ The Director presents this proposed budget for the Governor's approval through the Department of Finance and Management. The budget is then presented to the Legislature as part of the entire state government budget. The Executive Director may challenge the Governor's budget determinations, however, and seek funding for the SAOs and sheriff's offices' own priorities directly from the Legislature, with or without the Governor's approval. Once approved by the Legislature, the budget is provided to the Department as a lump sum, which is then divided among the counties. Additional expenses must be approved by the Executive Director, but the Director's denial of funds may be overturned by the Executive Committee. Id. § 367(d)(1). For example, if a deputy state's attorney wishes to retain and pay an expert witness for a case, the expense of the expert witness must be approved by the Executive Director.

¶ 13. The Executive Director is also involved in the legislative process: monitoring and providing input on legislation, testifying on legislation, and generally acting as an advocate for the SAOs and sheriffs' offices. Further, the Executive Director administers the annual training program for SAO employees and has authority to adopt personnel regulations applicable to those employees.

¶ 14. With regard to the instant petitions, different state's attorneys responded differently. The state's attorneys of Franklin, Orange, Windsor, Addison, and Windham counties opposed the petitions. These state's attorneys took the position that the employees proposed by VSEA to be included in the bargaining units in their respective counties are not employees covered by MERA. The Essex County State's Attorney responded that he would voluntarily recognize VSEA as the representative of the Essex County employees, but he did not indicate his position on whether the employees were covered by MERA. The Rutland County State's Attorney deferred the question of MERA coverage to the Board. Finally, the Chittenden County State's Attorney responded that he agreed to Chittenden County employees voting in a consent election under MERA to decide whether they wished to be represented by VSEA.

¶ 15. The Board consolidated the eight petitions and invited briefing prior to an evidentiary hearing, which was held before a hearing...