Two Vermont senators sue Gov. Scott over secretary of education interim appointment

Two Vermont senators are suing Gov. Phil Scott over his controversial appointment of interim Secretary of Education Zoie Saunders.

In a lawsuit filed on June 19, Sens. Tanya Vyhovsky, P/D-Chittenden, and Richard McCormack, D-Windsor, accused Scott of violating the Vermont Constitution when he selected Saunders to serve as interim Secretary of Education after the Senate blocked her permanent appointment to the position.

The lawsuit argues that Scott is constitutionally obligated to “obtain the advice and consent” of the Senate before filling a secretary of state agencies seat.

“The governor can’t strip away the power granted to the senate by both the VT constitution and state law,” Vyhovsky said in a Facebook post about the lawsuit on June 21, “but by disregarding our unambiguous decision to reject his appointment for Secretary of Education he did exactly that.”

Scott, however, said back in April that he had followed historical precedent, contending that former Gov. Howard Dean also bypassed Senate opposition to appoint his nominees, according to VTDigger. VTDigger, however, pointed out that none of the nominees Dean reappointed held cabinet positions.

More: Vermont Legislature makes history, overrides six vetoes

Scott spokesperson Amanda Wheeler disparaged the lawsuit as “another example of legislators focusing more on partisan political maneuvering than the hard work to help schools, kids and taxpayers.”

“And make no mistake, it’s no coincidence this was announced the same week the legislature imposed a 14% property tax increase,” Wheeler said, referencing the “yield bill” Scott has consistently lambasted for being economically irresponsible. “They’d like nothing more than to change the subject and distract Vermonters and the press.”

Vyhovsky denied any ulterior motives for the lawsuit, calling accusations that she and McCormack are trying to divert attention from their legislative actions “not just incorrect but wildly off-base.” She also rejected claims that they filed the lawsuit because of “political parties or divides.”

“Sen. McCormack and I are doing this because it’s the right thing to do, not because of the letters after our names, and because we both took an oath of office to protect and uphold the Vermont Constitution,” Vyhovsky wrote on Facebook, adding that she believes “the overreach of executive power leads us away from democracy to authoritarianism unless it’s challenged at every point.”

What led to the lawsuit?

Scott announced on March 22 that he had selected Saunders – a former education administrator from Florida – to serve as secretary of education from a pool of candidates recommended by the state Board of Education. When Saunders took office on April 15, her position had been vacant for roughly a year, with Deputy Secretary Heather Bouchey serving as interim in the meantime.  

Scott’s pick immediately came under fire from critics – both constituents and lawmakers – who expressed concern about Saunders’ work experience. For instance, Saunders had only spent three months in public school leadership prior to accepting the secretary of education role in Vermont. She also had never served as a teacher, principal, school district administrator or superintendent like past secretaries of education had.

Additionally, some Vermonters questioned Saunders’ charter school experience, especially her connection to Charter Schools USA, whose founder emerged from the conservative think tank The Heritage Foundation.

Scott defended Saunders in a March 28 statement, accusing critics of “spreading or believing misinformation, making assumptions and levying attacks on her character” before even getting to know his nominee.

Despite Scott’s admonishment, the Senate voted 19-9 to reject Saunders as secretary of education.

“Ninety-nine times out of a hundred, the Senate heartily endorses the appointee, but in this case a majority of the Senate found Zoie Saunders’ resume a mismatch with the current moment,” said Senate President Pro Tempore Phil Baruth, D-Chittenden, in a statement.

Immediately following the Senate vote, Scott named Saunders the state’s interim secretary of education – the reason for Vyhovsky and McCormack’s lawsuit.

“Zoie’s professionalism, grace, and class throughout this process, despite the unfair, ill-informed treatment, has been truly remarkable and honorable,” Scott said in a statement. “I’m very proud of her and how she has handled these hurtful, false attacks, which makes me and my entire team more confident than ever that she is the right person for the job.”

Vyhovsky reiterated on Facebook that the Senate’s feelings about Saunders is not why she and McCormack filed the lawsuit.

“This is not about the person Gov. Scott submitted for appointment nor is it about the work that she’s done,” Vyhovsky wrote. “It’s about the governor’s decision to overrule the senate and make that appointment without our legally required consent. It’s about making case law that tells any governor who comes after Scott that Vermont enforces the separation of powers.”

What are the plaintiffs’ goals?

In the lawsuit – which also lists Saunders as a defendant – Vyhovsky and McCormack are asking the Vermont Superior Court to rule that Scott cannot circumvent the Senate’s authority by appointing a candidate they rejected to an interim version of that cabinet position. (The statue referred to in the lawsuit does not explicitly state interim appointments must be approved by the Senate, just secretary of state agencies appointments in general.)

The plaintiffs are also asking the court to declare that the Senate’s rejection of Saunders is the chamber’s “final act” on the matter for the 2024 session, since Scott did not resubmit his nominee’s name for consideration on or before the day the Legislature graveled out.

Vyhovsky and McCormack are asking the court to rule that Saunders has not “validly functioned” in her role as secretary of education – due to the reasons above – thereby nullifying any actions she’s taken since she assumed the position at the end of April.

Who is paying for the lawsuit?

Vyhovsky told the Free Press in an email that Vermonters “across the political spectrum” have stepped up to donate over $11,000 toward the plaintiffs’ attorney fees. She and McCormack plan to fund the rest, assuming the donations don’t already cover everything, Vyhovsky said.

“It’s unfortunate that two Senators needed to use private resources to sue to enforce the separation of powers as defined in both the VT constitution and state law,” Vyhovsky wrote, but added that “retaining private counsel was the only viable option” as she and McCormack needed to take immediate legal action.

All donations will be paid directly to a IOLTA trust account belonging to one of the plaintiffs’ lawyers.

Megan Stewart is a government accountability reporter for the Burlington Free Press. Contact her at mstewartyounger@gannett.com.