McVeigh v. Vt. Sch. Bds. Ass'n

• Decision Date: 05 November 2021
• Docket Number: 2020-270
• Citation: 2021 VT 86
• Court: Vermont Supreme Court
• Parties: Christopher McVeigh v. Vermont School Boards Association

2021 VT 86

Christopher McVeigh v. Vermont School Boards Association

No. 2020-270

Supreme Court of Vermont

November 5, 2021

On Appeal from Superior Court, Washington Unit, Civil Division

Robert R. Bent, J. Christopher McVeigh of McVeigh ♦ Skiff LLP, Burlington, for Plaintiff-Appellant.

Bernard D. Lambek of Zalinger Cameron & Lambek Montpelier, for Defendant-Appellee.

John H. Klesch of Stitzel, Page & Fletcher, P.C., Burlington and Francisco M. Negrón, Jr., Chief Legal Officer, Alexandria, Virginia, for Amicus Curiae National School Boards Association.

PRESENT: Reiber, C.J., Robinson, ^[*] Eaton, Carroll and Cohen, JJ.

COHEN J.

¶ 1. Plaintiff Christopher McVeigh filed a complaint in the civil division of the superior court seeking a declaratory judgment that defendant, the Vermont School Boards Association (VSBA), is the functional equivalent of a public agency for purposes of the Vermont Public Records Act (PRA), and therefore must comply with plaintiffs request for copies of its records. The civil division concluded that the VSBA was not a public agency subject to the PRA and granted summary judgment in favor of the VSBA. We affirm.

¶ 2. In June 2019, plaintiff sent a letter to the VSBA requesting copies of any emails between the VSBA's executive director and the director of the Vermont Principals Association and the Vermont Superintendents Association from January 1, 2016, to June 18, 2019. The VSBA refused to comply, replying that it was a private nonprofit corporation and was not subject to public records requests. Plaintiff then filed this action in the civil division seeking a declaration that the VSBA was the functional equivalent of a public agency and that its records were open to public inspection and copying under the PRA. After limited discovery, the parties filed cross-motions for summary judgment.

¶ 3. The following facts were undisputed for purposes of summary judgment. The VSBA was incorporated in 1963 as a private Vermont nonprofit corporation. It is a membership organization made up of Vermont supervisory union boards, supervisory district boards, and private school boards. Any school board in Vermont has the option to join the VSBA, but membership is not required by state law. Membership and voting rights are open to both public and private school board members.

¶ 4. The VSBA has an executive director and a board of directors. The board is responsible for the oversight of the organization and provides guidance to the executive director concerning public policy. Currently, all members of the board of directors are from public school boards and are therefore publicly elected officials.

¶ 5. The VSBA's bylaws set forth the mission of the organization as follows: "The VSBA exists to achieve our vision for public education by supporting all school boards to serve as effective trustees for education on behalf of their communities and by providing a strong collective voice toward enhancing the cause of public education in Vermont." Under the heading "Goals," the bylaws state:

VSBA will support local school boards by:

1. advocating for high quality public education at the state and national levels;

2. providing education and training to prepare and assist board members to carry out their roles effectively;

3. researching issues, collecting and disseminating information[;]

4. providing legal and policy services[;]

5. providing a number of customized services to support boards in carrying out their roles.

¶ 6. Member school boards pay dues to the VSBA in accordance with Article IV of the bylaws. The VSBA also receives funding from fees for services to school districts, publications, grants from nongovernment sources, and service agreements with other education-related organizations. In fiscal year 2020, the VSBA budget anticipated that 53% of its income would come from membership dues, 12% from fees for services to school districts, and 31% from service agreements with other educational organizations, primarily the Vermont School Boards Insurance Trust. The remaining funds would come from publications sold by the organization.

¶ 7. The VSBA has four full-time employees. These employees advocate the VSBA's position to the Legislature and participate in policy development with the Agency of Education, the State Board of Education, and other educational organizations. The VSBA employees also provide training, support, and information updates for school board members; consulting services for member boards to assist with superintendent searches and evaluations, strategic planning, governance transitions, and policy governance; and consultation regarding legal questions, legal training, and general collective bargaining supports for school boards and superintendents. The VSBA publishes model policies and provides policy audits for members.

¶ 8. The VSBA is mentioned in several Vermont statutes. In 2018, the Legislature created the Commission on Public School Employee Health Benefits to determine premiums and employee expenses for health benefits on a statewide basis. 16 V.S.A. § 2102(a). The Act provides that five of the ten members of the commission are representatives of school employers and "shall be appointed by the organization representing the majority of the public school boards in this State." Id. § 2102(b)(1)(B). The VSBA made these appointments and pays the administrative and staff costs for the five employer representatives. The Commission otherwise acts independently of the VSBA. Id. §§ 2102(e), 2103.

¶ 9. In 2018, the Legislature also empowered the VSBA to appoint three of the six members of the governing board of a "health benefit association," established to offer health benefit plans to all Vermont school employers for coverage of their employees. 24 V.S.A. § 4947(d)(1). The VSBA made these appointments to the health benefit association, and provides some staff support to the board members. The health benefit association otherwise acts independently of the VSBA.

¶ 10. In 2017, the Legislature directed the VSBA and the Vermont Superintendents Association to develop recommendations for legislation in connection with school district mergers under Act 46. 2017, No. 49, § 8. The VSBA and the Vermont Superintendents Association reviewed the question, determined that no statutory changes were needed, and advised the House and Senate Education Committees to that effect.

¶ 11. Several other statutes empower the VSBA to appoint members to state boards or to provide advice to executive agencies. See 3 V.S.A. § 522(a), (a)(8) (creating nine-member Vermont Pension Investment Commission, to include one VSBA-appointed member appointed); 16 V.S.A. § 570(d)(2) (directing Secretary of Education to establish Advisory Council on harassment, hazing, and bullying that includes executive director of VSBA); 16 V.S.A. § 1693(b) (requiring Governor to consult with VSBA and other entities before appointing member of Vermont Standards Board for Professional Educators); 16 V.S.A. § 2903a(b)(1)(D) (creating sixteen-member Advisory Council on Literacy, to include executive director of VSBA); 24 V.S.A. § 5062(a)(1)(D) (creating five-member Retirement Board, including one Governor-appointed employer representative chosen from list of three nominations jointly submitted by VSBA and Vermont League of Cities and Towns); 32 V.S.A. § 163(11)(A)(i) (directing state auditor of accounts to consult with VSBA and other entities to develop "a document designed to determine the internal financial controls in place to ensure proper use of all public funds" for use by counties, municipalities, supervisory unions, and supervisory districts); 33 V.S.A. § 4602(a)(10) (creating twenty-three-member Building Bright Futures Council, to include one at-large member of school board recommended by VSBA).

¶ 12. The VSBA itself does not manage or operate supervisory unions, school districts, and schools, or provide education to students. Beyond the statutory functions listed above, the VSBA has no decision-making authority over issues faced by its member school boards. The member school boards themselves generally do not engage in the types of activities that the VSBA does, such as lobbying, consulting, training, or the creation of model policies.

¶ 13. The VSBA argued in its motion for summary judgment that it did not meet the definition of a public agency set forth in the PRA, that the plain language of the PRA did not include a functional-equivalency test, and that even if such a test applied, the above facts showed that the VSBA was not the functional equivalent of a public agency. Plaintiff argued in opposition and in his cross-motion for summary judgment that the VSBA was the equivalent of a public agency because it was engaged in public education, a central governmental function; its board members were publicly elected officials; and it received the majority of its funding from public sources.

¶ 14. The civil division reasoned that it was unnecessary to determine whether a functional-equivalency test applied under the PRA because the undisputed facts showed that VSBA would not satisfy such a test. The court explained that although the VSBA was involved in education, a largely public function, it did not actually carry out that function. Furthermore, although the VSBA was mentioned in statutes, it was not so entangled in public business that it ought to be subject to the PRA. The court therefore granted summary judgment to the VSBA. This appeal followed.

¶ 15. We review a decision granting summary judgment de novo. Progressive N. Ins. Co. v. Muller, 2020 VT 76 ¶ 8, __ Vt. __, 249 A.3d 24. We will affirm if there are no genuine disputes of material fact and the moving party is entitled to judgment as a matter of...