By Michael Bielawski
Two lawmakers are suing the governor regarding his appointment of Zoie Saunders as interim education secretary. The suit was filed in Washington County Superior Court last week.
“The defendant Vermont Governor Phil Scott purposefully circumvented the constitutional and statutory requirement to obtain the advice and consent of the Vermont Senate for the appointment of the defendant Zoie Saunders to the position of the Vermont Secretary of Education,” the lawsuit states.
The governor’s office told VDC Tuesday morning that “The Governor acted within his constitutional authority to keep an otherwise vacant seat occupied,” but did not provide further details.
At least one of the two senators behind this effort – Sen. Tanya Vyhovsky, P/D-Chittenden-Central – has received campaign funding from local and statewide educators. She accepted $450 in 2022 from Robert Millar, a Winooski School Board president. Winooski benefited strongly from the current school spending formula that provides more funding to communities with a large low-income population.
The same year, Vyhovsky also received $1580 from a Vermont NEA (National Education Association) PAC, according to Vermont Secretary of State records.
She also received $1000 in 2022 from the Vermont State Employees’ Association, which represents all state government employees – including those working for the Vermont Agency of Education.
The other plaintiff in this lawsuit is Sen. Dick McCormack, D-Windsor. McCormack is not seeking re-election.
Vyhovsky, however, is involved in a primary race against fellow incumbents Martine Gulick, Philip Baruth, and newcomer Stewart Ledbetter of Winooski, a former TV anchorman. Campaign funds are particularly important in a Chittenden County primary campaign, where the election winners in the deep-blue county are actually chosen.
Vyhovsky also accepted $250 in 2022 from green energy industry’s heavyweight David Blittersdorf, who is president of All Earth Renewables. The state is currently bound by legislation to mandate highly taxpayer subsidized alternative energy sources for heating, transportation, and electricity production, efforts that she supports in her commentaries and voting.
Regarding the Scott lawsuit, Saunders’ appointment came during the immediate aftermath of the Senate’s rejection of her for the position. They voted against her approval via a 19-9 vote back on April 30.
The lawsuit came the same week the Legislature, including Vyhovsky, imposed an almost 14% rise in statewide homestead property taxes, largely on account of the same lawmakers among the supermajority Democrat/Progressive caucus who rejected Saunders. The governor’s office highlighted this point in an email to VDC on Monday.
Governor’s response
Scott press secretary Amanda Wheeler states, “This lawsuit is another example of legislators focusing more on partisan political maneuvering than the hard work to help schools, kids and taxpayers. Fortunately for Vermonters, Interim Secretary Saunders, her team at the Agency, and the Governor will continue to focus on helping schools navigate the desperate need to stabilize the system and improve outcomes for kids.
“And make no mistake, it’s no coincidence this was announced the same week the legislature imposed a 14% property tax increase. They’d like nothing more than to change the subject and distract Vermonters and the press.”
Wheeler continues to stress that this legislature’s actions are driving up the cost of living:
“For the last month, we’ve been focused on reviewing and acting on the 70+ bills the Legislature passed in the last three days of the session and working to address the emergent issues impacting the education system as a result of historic double digit property tax increases and failed school budgets. From the start, Governor Scott has believed in Interim Secretary Saunders’ skills and ability and continues to believe the Agency of Education is in good hands under her leadership.”
The legislature as of last fall slipped down to a 49% approval rating while the governor continues to be among the most popular in America.
Vyhovsky says it’s not about Saunders
Back in May, Vyhovsky wrote a commentary regarding the governor’s appointment of Saunders to the interim position. She wrote, “Our governor decided to disregard our Senate’s rejection, in a clear violation of separation of powers, by appointing Ms. Saunders interim secretary of education anyway. He also indicated he may well appoint Saunders in a permanent capacity after the session.”
She highlights the state statute outlining how each secretary of education is chosen. It states, “Vermont State title 3 § 2702 says that ‘With the advice and consent of the Senate, the Governor shall appoint a Secretary of Education from among no fewer than three candidates proposed by the State Board of Education. The Secretary shall serve at the pleasure of the Governor.’”
Interims are only for the off-session?
At a press conference, Scott referenced an example from Governor Howard Dean’s administration when Dean similarly had appointments to the Vermont State Environmental Board that were rejected. Dean ultimately was able to get his appointment into the seat.
A 1994 Vermont Environmental Board document details the narrative that the governor is referencing. It states, “On February 22, 1994, the Vermont Senate rejected the confirmation of Board Chair Elizabeth Courtney, and Board members Ferdinand Bongartz [father of Rep. Seth Bongartz] and Terry Ehrich.”
By the following March the governor then appointed Arthur Gibb as Chairman of the board. The board accepted Gibb into that role.
However, Gibb nonetheless allowed the two rejected candidates to participate in a key case regarding the Town of Rutland.
“On March 28, 1994, Board Chair Gibb issued a memo to the parties stating that pursuant to 3 V.S.A. S 849, former Board members Bongartz and Ehrich would participate in deciding the Town’s Motion to Alter unless an objection from a party was received on or before April 8, 1994. There were no objections to the participation of Messrs. Bongartz and Ehrich.”
It may be a requirement that interim appointments should happen only when the session is out. According to Scribd, at the federal level the requirement is, “For ad interim appointments, the President appoints candidates during legislative recesses, subject to later confirmation.”
VDC requested the governor’s office that they respond to the concern that interim appointments typically happen off-session. It responded: “The Governor acted within his constitutional authority to fill vacancies. He continues to believe she is the leader we need moving forward.”
Saunders wants community engagement/audit of existing policies
Saunders has experience working with charter schools in Florida, among other education experiences. The interim secretary meanwhile has a 100-day plan including meetings across the state to directly gauge what parents and community members would like to see more of in education policy.
“My 100-Day Plan prioritizes listening, learning, and tackling emergent needs. I look forward to hosting town halls and focus groups across the state. These forums will create an opportunity for all of us – teachers, non-instructional staff, principals, superintendents, students, parents, and community partners – to come together to discuss our educational priorities,” she wrote.
Saunders was criticized as a reverse carpetbagger, coming north to a state where she had no roots. However, as VDC reported, Saunders’ mother and two sisters and their families live in Vermont.
Public weighs in
In the leadup to the confirmation hearings in the House and Senate for Saunders, many Vermont media outlets were publishing opinions on the matter. Mark O’Maley of Concord had his commentary published by VTDigger, he argued that she was underqualified.
“The most recent Vermont secretaries of education — Rebecca Holcombe, Daniel French, Heather Bouchey — have all possessed a doctoral degree. There are major differences between an M.Ed such as Ms. Saunders holds and the Ed.D and Ph.D degrees,” O’Maley wrote.
Other Vermonters wrote in to support Saunders, including three women who got to interview all three of the final candidates for the position. Kristin Clouser, Monica Hutt, Rebecca Kelley, Julie Moore and Kendal Smith – all members of the governor’s cabinet as well as mothers of Vermont students – helped the governor select Saunders. They wrote why they chose her.
“Each of us had the chance to interview the three finalists selected by the State Board of Education and provide input to the Governor as he made his decision. And we are looking forward to the opportunity to work with incoming Secretary Zoie Saunders. More than that, we are optimistic and excited to see how she can strengthen education in Vermont, benefiting our own children and communities,” they wrote.