Sprague v. University of Vermont, Civ. A. No. 86-308.

• Decision Date: 09 June 1987
• Docket Number: Civ. A. No. 86-308.
• Court: U.S. District Court — District of Vermont
• Parties: Ruth Marie SPRAGUE v. The UNIVERSITY OF VERMONT and Gerald P. Francis, Individually and as Interim Academic Vice-President.

661 F. Supp. 1132

Ruth Marie SPRAGUE v. The UNIVERSITY OF VERMONT and Gerald P. Francis, Individually and as Interim Academic Vice-President.

Civ. A. No. 86-308.

United States District Court, D. Vermont.

June 9, 1987.

Edwin L. Hobson, Linton & Linton, Burlington, Vt., for plaintiff.

Ritchie E. Berger, Dinse, Erdmann & Clapp, Lee B. Liggett, Gen. Counsel, President's Office, University of Vermont, Burlington, Vt., for defendants.

OPINION AND ORDER

BILLINGS, District Judge.

On March 24, 1987, defendants filed with this Court a motion for partial summary judgment as to Counts III, IV, V, and VI of plaintiff's amended complaint. Plaintiff opposed the motion. On June 1, 1987, this Court held oral argument on the motion. For the reasons outlined below, the motion is GRANTED as to Count III and DENIED as to Counts IV, V, and VI.

Background

Plaintiff has been employed by defendant University of Vermont for approximately 23 years. She is currently a lecturer in histology and anatomy at the Medical School. Approximately six years ago, relations between plaintiff and the chair of her department, Dr. Rodney L. Parsons, became strained, allegedly because plaintiff filed employment discrimination charges against the University for certain actions taken by Dr. Parsons.

From 1983 until the present plaintiff has taught the first-year required course in Histology along with Dr. Jerome F. Fiekers and Dr. Carson Cornbrooks. Apparently some friction between Dr. Sprague and Drs. Fiekers and Cornbrooks has occurred during that time. In March 1986, Dr. Parsons summoned plaintiff to his office and charged her with forging a number of end-of-the-course student evaluations. These evaluations had been brought to his attention by Drs. Fiekers and Cornbrooks in the fall of 1985. Plaintiff denied the allegations and refused to resign. On August 19 and 20, 1986, the University held a hearing pursuant to section 226 of the University of Vermont Officer's Handbook to evaluate whether Dr. Sprague should be terminated for cause. The hearing committee delayed decision pending additional handwriting analysis. Finally, on March 30, 1987, the committee (of which defendant Francis is the chair) handed down its recommendation to the president of the University that Dr. Sprague be terminated for cause.

Plaintiff filed this action on December 1, 1986, alleging procedural irregularities and discriminatory retaliation for her earlier charges of sex discrimination. Counts I and II recite federal and state constitutional claims which are not the subject of this summary judgment motion. Count III alleges a violation of the Vermont Administrative Procedures Act, 3 V.S.A. § 801 et seq.; Count IV claims a violation of the Vermont Open Meeting Law, 1 V.S.A. §§ 311-12; Count V pertains to an alleged violation of the Vermont Access to Public Records Law, 1 V.S.A. §§ 319, 320; and Count VI asserts a violation of the Vermont Fair Employment Practices Act, 21 V.S.A. § 495(a). Defendants seek summary judgment on all four of these state statutory claims.

DISCUSSION

I. The Administrative Procedures Act (Count III)

The Vermont Administrative Procedures Act (APA), 3 V.S.A. § 801 et seq., provides procedures to be followed by state administrative agencies in conducting the business of the State of Vermont. An "agency" is defined by the statute as "a state board, commission, department, agency, or other entity or officer of state government, other than the legislature, the courts, the Commander in Chief and the Military Department, authorized by law to make rules or to determine contested cases." 3 V.S.A. § 801(b)(1). Defendants assert that the University is not an agency within this definition and therefore is not subject to the APA. According to defendants, the APA was established to provide procedures for the state administrative departments specifically listed in Chapter 9, 3 V.S.A. § 212, and the five state administrative agencies.¹ It is undisputed that UVM is not a part of or connected with any of these departments or agencies. Instead, Defendants assert that UVM is a public corporation governed by an independent Board of Trustees for a non-profit educational purpose and as such is not covered by the APA.

Plaintiff maintains that the APA governs the procedures of all state entities not covered by other specific statutory rules. The procedures are minimal, plaintiff asserts, and would not interfere with UVM's independence while providing important protections for aggrieved members of the University community.

The question before us, then, is whether UVM is an "agency" within the definition of "agency" in the APA and within the contemplation of the legislature at the time the APA was enacted.² This question is one of first impression in this Court, has never been decided by the Vermont Supreme Court, and, as far as we can determine, has been addressed only once by a state superior court.³ Analysis of this question requires evaluation of three areas: first, an examination of the 1955 Act incorporating UVM to determine the legislature's intent at that time; second, a comparison of UVM's characteristics as an institution to those of the state agencies that are undeniably covered by the APA; and finally, a consideration of the opinions and decisions of the state officers and courts who have addressed the issue.

The University of Vermont and State Agricultural College was incorporated in 1955 to "be recognized and utilized as an instrumentality of the state for providing public higher education." Act No. 66, 1955 Vt. Laws 57. "Instrumentality" is generally defined as a synonym for "agency." See Webster's Ninth New Collegiate Dictionary 627 (1985); Webster's Third New International Dictionary 1172 (1981). Notably, however, the Act does not use the precise word "agency" that is later used in the APA and other statutes. The use of the word "instrumentality" demonstrates that the legislature intended UVM to be closely connected to the state, but to conclude that because "instrumentality" and "agency" are synonyms the legislature intended UVM to be treated identically with all other state agencies is unsound. Further, the mere fact that "instrumentality" means the same as "agency" does not mean that the legislature intended UVM to be within the APA's definition of "agency." Even if UVM is a state agency for some purposes, it may not be a state agency for purposes of applying the APA. To subject the University to the APA's requirements, we must find that UVM comes under the APA's definition of "agency", not just our general understanding of the word.

The 1955 Act incorporating UVM provides that "nothing in this act shall be construed to bring the University of Vermont and State Agricultural College within the provisions of Chapters 27, 28, 31, 188, 440 and 446 of the Vermont Statutes, Revision of 1947, as amended." 1955 Vt.Laws 59. Chapter 27 of the 1947 statutes is entitled "Administrative Departments." It creates certain administrative departments and describes their duties and limitations. 1947 Vt.Laws 157. Chapter 28 is entitled "Classification of State Personnel" and addresses issues concerning the personnel of state government. 1947 Vt.Laws 159.⁴ The legislature's exemption of UVM from these chapters indicates that the legislature did not intend UVM to be treated as an administrative agency. No later statute has altered that intent. The 1967 legislature that created the APA clearly contemplated that its provisions should apply to the state's administrative departments and agencies, yet, at that time, the 1955 Act had already unambiguously stated that UVM was not to be identified with those administrative agencies. Therefore, had the 1967 legislature intended to bind UVM to the APA, it could have been expected to have expressly mentioned the University. The 1955 Act's exemption of UVM from the provisions governing administrative departments and the APA's failure to definitely overturn that policy by including UVM in its scope suggest that the legislature did not intend to apply the APA to UVM. Failure to include UVM in the statute is not conclusive of legislative intent, however, as the APA's definition of "agency" does not specifically list every public body it includes.

As examination of the legislative intent is inconclusive, the next area for consideration in determining whether the APA applies to UVM is a comparison of UVM's characteristics as an institution to those of the agencies more obviously covered by the APA. First, the financial aspect: The 1955 Act provides that "the general assembly of the State of Vermont shall, from time to time, appropriate such sums as it deems necessary for the support and maintenance of said corporation." 1955 Vt.Laws 57. In 1986 the legislature appropriated approximately $22 million for UVM, see Plaintiff's Reply to Defendants' Motion for Partial Summary Judgment at 11, but this sum accounts for only approximately 14% of UVM's total budget, see Affidavit of Ben R. Forsyth, attached to Defendants' Supplemental Memorandum In Support of Defendants' Motion for Summary Judgment. Because of that state support, UVM is audited by the state Auditor of Accounts, 16 V.S.A. § 2281(a). From these facts we conclude that the University's finances are tied to the State, but that at the same time UVM is primarily financially independent.

In the decision-making arena we find that UVM is run by a Board of Trustees. The Board of Trustees consists of the governor ex officio, UVM's president ex officio, three members appointed by the governor, nine members elected by the legislature, nine self-perpetuating members, and two students. Disregarding the two ex officio members, twelve trustees are selected by the State, and eleven independently. Thus, the state-selected members outnumber the independent ones, but not by a significant margin. The Board of Trustees has "the entire management and control of its property and affairs," incl...