Vermont State Employees' Ass'n, Inc. v. Vermont Criminal Justice Training Council

• Decision Date: 24 October 1997
• Docket Number: No. 96-576,96-576
• Citation: 167 Vt. 191,704 A.2d 769
• Parties: , 157 L.R.R.M. (BNA) 2309, 65 A.L.R.5th 675 VERMONT STATE EMPLOYEES' ASSOCIATION, INC., et al. v. VERMONT CRIMINAL JUSTICE TRAINING COUNCIL.
• Court: Vermont Supreme Court

Page 769

704 A.2d 769

167 Vt. 191, 157 L.R.R.M. (BNA) 2309,

65 A.L.R.5th 675

VERMONT STATE EMPLOYEES' ASSOCIATION, INC., et al. v. VERMONT CRIMINAL JUSTICE TRAINING COUNCIL.

No. 96-576.

Supreme Court of Vermont.

Oct. 24, 1997.

Samuel C. Palmisano, VSEA Legal Counsel, and Mark Heyman, Assistant Legal Counsel, Montpelier, for plaintiffs-appellants.

Jeffrey L. Amestoy, Attorney General, and David K. Herlihy, Assistant Attorney General, Montpelier, for defendant-appellee.

Before GIBSON, DOOLEY, MORSE and JOHNSON, JJ., and ALLEN, C.J. (Ret.), Specially Assigned.

GIBSON, Justice.

The Vermont State Employees' Association, Inc. (VSEA) and five former state employees appeal the superior court's dismissal of their suit claiming that the Vermont Criminal Justice Training Council violated the state classification plan and its merits system principles by laying off the five employees and contracting out their work to a private company. Because we conclude that plaintiffs have failed to show that the Attorney General clearly abused his discretion in approving the contract privatizing the work previously done by the employees, we affirm the superior court's dismissal of the suit.

The Council operates the Vermont Police Academy, providing basic and advanced training to law enforcement officers and firefighters. Until July 1993, it ran a food service staffed by civil servants employed under the State Employees Labor Relations Act and the collective bargaining agreement in effect at the time. In the fall of 1992, the Council submitted its proposed budget for fiscal year 1994 to the Department of Finance and Management, which works with state agencies in preparing the Governor's proposed budget for each fiscal year. The Department questioned why the Council had a full-time cafeteria staff to service a part-time training facility. Based on the Department's estimate of the savings that would be realized by privatizing the food service at the Academy, the Governor proposed that the Council's budget for fiscal year 1994 be reduced by $73,000. The Legislature approved the budget, and the five food service workers were laid off. The Council contracted with a private company to provide meals at the Academy beginning July 1, 1993. On August 4, 1993, the Attorney General certified that the food-service contract was not contrary to the spirit and intent of the classification plan and its merit system principles.

Plaintiffs filed two separate actions challenging the layoffs and ensuing contract. In September 1994, they filed a grievance with the Vermont Labor Relations Board, alleging that the State had violated the collective bargaining agreement by failing to demonstrate that the contracting out of their work met the contractual criteria required for such action, and by failing to give the VSEA a meaningful opportunity to discuss cost-saving alternatives to the layoffs before taking the action. In October 1994, in a 2-1 decision, the Board dismissed plaintiffs' grievance, and this Court affirmed the Board's action in September 1995. See In re VSEA, 164 Vt. 214, 666 A.2d 1182 (1995).

In the other action, brought in August 1993, plaintiffs filed a complaint under V.R.C.P. 75 in superior court, requesting that the court declare the employees' layoffs to be in violation of state law and order the Council to restore the employees to their former positions. The State filed a counterclaim asking the court to declare that state law and the collective bargaining agreement entitle it, for economic reasons alone, to lay off state employees and contract out their work to private employers. In September 1996, the superior court dismissed both plaintiffs' complaint and the State's counterclaim. The court found no basis for review of the Attorney General's certification of the contract privatizing plaintiffs' work, and concluded, in any case, that plaintiffs had failed to show an abuse of discretion. The court also concluded that state law did not require express legislative authorization before state employees could be laid off and their work contracted out to private employers. On appeal plaintiffs argue that (1) the superior court had jurisdiction to adjudicate their complaint, and (2) the Attorney General abused his discretion in certifying the contract at issue.

I.

The first issue concerns the source and scope of the superior court's jurisdiction to review the Attorney General's certification of contracts between state agencies and private persons. The Attorney General may certify to the Governor that such a contract is not contrary to the spirit and intent of the classification plan and merit system principles, in which case state laws concerning classified service do not apply to any positions resulting from the contract. 3 V.S.A. § 311(a)(10). There is no statutory provision for review of the Attorney General's decision whether to certify such contracts. Plaintiffs sought review of the Attorney General's decision in this case under V.R.C.P. 75(a). On appeal, they argue that the superior court has jurisdiction to review the Attorney General's certification under both Rule 75 and the Declaratory Judgment Act, 12 V.S.A. § 4711.

The Declaratory Judgment Act allows parties who have a dispute within a court's jurisdiction to petition that court for declaratory relief at an early stage of the proceedings; however, the Act does not increase or enlarge the jurisdiction of the court over any subject matter or parties. Gifford Memorial Hosp. v. Town of Randolph, 119 Vt. 66, 70, 118 A.2d 480, 483 (1955); accord McGlynn v. Town of Woodbury, 148 Vt. 340, 343, 533 A.2d 1187, 1189 (1987); Trivento v. Commissioner of Corrections, 135 Vt. 475, 478, 380 A.2d 69, 72 (1977). ¹ Accordingly, we must look to Rule 75 to determine whether the superior court has jurisdiction to review the Attorney General's certification decisions. Cf. Molesworth v. University of Vermont, 147 Vt. 4, 6-7, 508 A.2d 722, 723 (1986) (superior court review of university's in-state tuition eligibility determinations was available under Rule 75; Declaratory Judgment Act did not increase or enlarge superior court's jurisdiction).

Rule 75(a) provides that any action by a state agency "that is not appealable under Rule 74 ² may be reviewed in accordance with this rule if such review is otherwise available by law." When, as here, legislation is silent on whether review is available, we have permitted appeal under Rule 75 so long as review would have been available under any one of the extraordinary writs, such as mandamus, scire facias, prohibition, quo warranto, and certiorari. Hunt v. Village of Bristol, 159 Vt. 439, 440, 620 A.2d 1266, 1266 (1992). Plaintiffs concede that the only possibility in this case is mandamus. Generally, the purpose of mandamus is to require a public officer to perform a simple and definite ministerial duty imposed by law. Eastern Advertising, Inc. v. Cooley, 126 Vt. 221, 222, 227 A.2d 294, 295 (1967); Rutland Cable T.V., Inc. v. City of Rutland, 121 Vt. 399, 403, 159 A.2d 83, 85 (1960). Thus, mandamus ordinarily is not available to compel discretionary decisions. See State v. Forte, 159 Vt. 550, 555, 624 A.2d 352, 356 (1993). The writ has been extended, however, to reach extreme abuses of discretion involving refusals to act or perform duties imposed by law. Id. at 555-56, 624 A.2d at 356; accord Bargman v. Brewer, 142 Vt. 367, 370, 454 A.2d 1253, 1255 (1983).

Here, notwithstanding plaintiffs' protestations to the contrary, the Attorney General's certification decision is plainly discretionary in nature. Indeed, it is difficult to imagine a more discretionary act than determining whether, considering all relevant facts and circumstances, a particular contract violates "the spirit and intent" of a detailed statute such as the state classification law, 3 V.S.A. § 311(a)(10). Given the above analysis, we conclude that the superior court had jurisdiction to review the Attorney General's certification decision under only a very limited standard of review to determine whether there had been a clear and arbitrary abuse of authority.

II.

We now address whether the Attorney General clearly abused his discretion in certifying that the food-service contract did not violate the spirit and intent of the classification plan and merit system principles.

Under 3 V.S.A. § 311(a)(10), the classified service

shall include all positions and categories of employment by the state, except as otherwise provided by law, and except the following:

....

(10) A person or persons engaged under ... contract, ... when certified to the governor by the attorney general that such engagement is not contrary to the spirit and intent of the classification plan and merit system principles and standards provided by this chapter.

The term "merit system" is defined as

the system developed to maintain an efficient career service in state government under public rules, which, among other provisions, includes appointment through competitive examination; nondiscrimination because of race, sex, politics, national origin, or religion; an equitable and adequate compensation plan; tenure, contingent on successful performance; and promotion, contingent on evaluated capacity and service.

3 V.S.A. § 312(a).

"Merit system principles" include

(1) Recruiting, selecting, and advancing employees on the basis of their relative ability, knowledge, and skills, including open consideration of qualified applicants for initial appointment;

(2) [Repealed.]

(3) Training employees, as needed, to assure high-quality performance;

(4) Retaining employees on the basis of the adequacy of their performance, correcting inadequate performance, and separating employees whose inadequate performance cannot be corrected;

(5) Assuring fair treatment of applicants and employees in all aspects of personnel administration without regard to political affiliation, race, color, national origin, sex, or religious creed...