State action on Chieftain appeal looks stalled

By Shawn Cunningham
© 2023 Telegraph Publishing LLC

While the board of the Green Mountain Unified School District board has stopped paying for an attorney to defend its Chieftain name, appeals to the Vermont Agency of Education, which  could permanently settle the issue of whether the name violates school policy, appear to have stalled.

The appeals came after the board voted in mid-May that the name Chieftain — not the Native American silhouette — did not violate its policy against discriminatory branding. Within a month, three individuals – Carrie Roy King, Deb Velto and Matt Gorsky —  had filed appeals.

The Monday, July 10 video conference included the appellants, the school board attorney Mick Leddy, and Emily Simmons, who is the general counsel for the state Agency of Education as well as the hearing officer for the appeals. During that conference, Simmons said, ” … I see no reason in this case why this shouldn’t proceed really quickly from here … I’d like to definitely get this done before the school year, if not several weeks before.”

In September, after learning of the video conference, The Chester Telegraph used the state Public Records Act to request a copy. That first request was denied on the grounds on that it was the “record of, or prepared for, the deliberations of any public agency acting in a judicial or quasi-judicial capacity.”

Appealing that decision, The Telegraph argued that the session had more to do with laying the ground rules so the appellants would know what to expect of the process. The Telegraph also argued that the public has a right to know how the appeal would be conducted. In the late afternoon of Friday, Sept. 29,  The Telegraph  finally received a link to the recording.

July 10 video conference spells out state hearing plans

During the conference, Simmons took pains to explain the legal proceedings to King and Velto, who are not lawyers and do not have legal representation. Gorsky, who also is not an attorney and is without counsel, was not online for the first 48 minutes due to a power failure.  Monday, July 10 was the day the region and the state was being hit with devastating flooding.

Simmons also read from Act 152, the state law sponsored by state Sen. Dick McCormack of Windsor County that prohibits branding and mascots using discriminatory images and language.  Leddy made a point of separating Act 152 from the policy it mandated. “The law doesn’t necessarily have that language in it,” said Leddy, “but the law points to a policy the AOE is to adopt.”

Saying that the three separate appeals are “cumbersome” for the agency, Simmons asked whether the two appellants thought it would be “advantageous” to combine their appeals, but added, “I’m really neutral on the question.”

Neither Velto nor King wanted to combine since each brought distinct arguments to their complaints.

Simmons also said, “I think it is safest to keep them separate.” She added that the “default” is to hold a hearing for each appellant. The appellants and the district would then submit briefs summarizing their evidence and saying what they believe the decision should be. Each side would then reply to the briefs with the appellants going last.

Both Velto and King brought up the problem that the school board’s decision did not contain “a summary of facts and basis for the decision” as required in the policy put together by the AOE and the Vermont School Boards Association and adopted by the Green Mountain board. They were concerned that not having a basis for what the school board would argue put them at a disadvantage. King wondered if Simmons had received the information she had given the school board during the April complaint hearing.

“This is a new hearing,” said Simmons. “I’m not privy to what was presented or any other information unless you submit it as part of your appeal.” This seemed to show that the proceedings would be conducted “de novo” or as new. That would mean that Simmons would be hearing the question of whether the name violates the policy on its merits – as if the school board’s decision had never happened.

That was confirmed when, a little later, Simmons said, “…typically the agency is directed to use a de novo standard of review when there is no different level of review directed by the legislature, which I believe is the case here.”

During the discussion the word “mascot” was used by several people and Leddy took issue with that.

“There is no mascot,” said Leddy, noting that it was “done away with a couple of years ago.”

Leddy also asked if the AOE had issued other decisions on appeals “of this nature.” Simmons said it had not. “This is the first,” she said.

When Gorsky was able to join the meeting 10 minutes before it was scheduled to end, Simmons took him through the issues she had discussed earlier and said she would be issuing a scheduling order for submission of materials and a list of witnesses.

School board attorney requests change of proceedings

About five weeks later, Leddy requested that three things regarding the proceedings be changed. Those were:

• That the three appeals be consolidated into one proceeding,
• That the appeal not be a “contested case,” and
• That the appeal should be an “on the record review. “

All three appellants say that the Leddy’s requests go directly against the agreement that they arrived at with him during the July 10 video conference. Nevertheless, they agreed to have their appeals consolidated into one but not to the other two requests. In his response to the Leddy’s request, Gorsky called trying to change the rules after they had been set “dirty pool.” 

While the repercussions of July’s floods may have slowed down the state’s response, the appellants say they still have no hearing date or a scheduling order and have not received a decision from Simmons on Leddy’s request.

An email to Simmons asking for a timetable for the appeal going forward was not be answered by publication.

In the meantime, Leddy has asked the Agency of Education to provide transcripts of the testimony of then-AOE Secretary Dan French and Simmons before legislative committees on Act 152, which passed in 2022.

He has also asked for the name of the person at the AOE who worked on the model policy for schools that was mandated by the statute. Whether that means that Leddy intended to depose agency officials or call witnesses is not clear.

But it seemed an attempt to more fully defend the mascot name, which would have required far larger legal expenses. Those expenses were stopped during a vote of the Green Mountain board last Tuesday. Still, Leddy agreed to give the board a run-down of his work on the issue, without charge.