¶ 1. Plaintiff Linda Stone sued the Town of Irasburg alleging that the selectboard had acted unlawfully in ordering her, as town treasurer, to raise her bond to $1,000,000. Following plaintiffs inability to obtain the bond and her removal from office by the selectboard, she claimed the Town improperly raised her bond and prevented her from obtaining the bond. She sought monetary damages based on common law defamation, tortious interference with office, violation of the Vermont Constitution, and deprivation of due process. She also asserted that the Town was obligated to pay her attorney’s fees pursuant to statute. In several different orders, the trial court granted the Town summary judgment on all counts. Plaintiff appealed. We affirm in part, and reverse and remand in part.
¶ 2. The record reveals the following facts. On March 2, 2010, plaintiff was elected treasurer of the Town of Irasburg at town meeting. The positions of town clerk and treasurer had previously been held by Barbara Lawson for twenty years. Lawson’s granddaughter Danielle Ingalls held the position of assistant town clerk. After Lawson retired as clerk, the selectboard appointed Ingalls to the position pending the election.
¶ 3. At town meeting, plaintiff and Ingalls ran for both positions. Ingalls was elected town clerk; plaintiff was elected treasurer.
¶ 4. Tension between the selectboard and plaintiff developed almost immediately. On March 22, 2010, a member of the selectboard proposed that the Town’s auditors perform .an audit every two weeks for the first two months and every month thereafter. On March 30, 2010, the auditors complained to the selectboard that they were unable to balance the Town’s books due to mistakes in the reports they received from the treasurer. The errors included changes in the amounts of payment orders, bills written for wrong amounts, transposition of figures, and mistakes in some budget categories.
¶ 5. The minutes of the April 5, 2010 selectboard meeting describe Ingalls’ decision to obtain legal advice from the town attorney Duncan Kilmartin about what to do if the auditors could not balance the books. Kilmartin advised increasing the treasurer’s bond limit from $500,000 to $1,000,000 if plaintiff could not satisfy the auditors. The minutes note that “Randy [Wells] made a motion to follow Duncan [Kilmartin]’s advice, Roger [Gagnon] seconded, approved.”
¶ 6. In a subsequent undated letter, the selectboard gave plaintiff until April 19 to “settle and reconcile [her] accounts to the satisfaction of the auditors.” The letter stated that the selectboard had notified the current bonding company of the dispute and warned of the potential need for increased bonding limits and the appointment of an assistant treasurer.
¶ 7. The minutes of the April, May and June meetings describe continuing tension over plaintiff’s performance. Plaintiff advised that she felt “set up” by the auditors and the town clerk. She admitted that she
¶ 8. The dispute between plaintiff and the selectboard came to a head after a dispute arose concerning an envelope containing $200 which was received at the town offices as partial payment of property taxes for a particular taxpayer. The details remain contested but in broad strokes, the envelope containing the bills was received and placed overnight in the treasurer’s safe. When plaintiff next looked at the envelope, it bore a taxpayer’s name in handwriting. Since she believed that the envelope was unmarked when it went into the safe, she concluded that a member of the selectboard had opened her safe in her absence. One selectboard member had installed the safe and thus had access to the combination. The matter was discussed at the June 28, 2010 selectboard meeting.
¶ 9. The selectboard member suspected of opening the safe abstained from any decision, and the two remaining members of the selectboard responded to plaintiff’s allegations in writing on July 1, 2010. In their fevered five-page letter, the board members made accusations of their own, stating that plaintiff had made “false accusations” against town officials, presented “false evidence,” repeated the accusations when she was told they were false, and continued in her accusations “after acknowledging that [her] own ‘supporters’ doubt [her] honesty.” The letter questioned plaintiff’s truthfulness, honesty, reliability, and ability to perform the duties of Irasburg Town Treasurer. The letter stated that plaintiff had written the name on the envelope herself and then falsely accused the board member of opening the safe and writing the name. It accused her of “deliberate and malicious fabrication of evidence” and lying. It stated that her “pattern from the beginning [of her term as treasurer] has been to accuse others of being responsible for [her] failures.”
¶ 10. The letter required plaintiff to increase her bonding limit from $500,000 to $1,000,000. The selectboard sent copies of the letter to the Vermont League of City and Towns (VLCT), which provided the bond then in effect. The letter explained that:
It is your responsibility to obtain the bond, not ours. You will have to deal directly with VLCT and the bonding company. We are simply notifying them of the reasons for our order to you to increase your bond, and providing them with the evidence which you provided to us, so that they can make appropriate underwriting investigations and determinations.
The letter gave plaintiff ten days to obtain the bond, and stated that if she failed to comply, her position would be declared vacant.
¶ 11. During July, plaintiff renewed her efforts to obtain the higher bond from Cincinnati as well as other insurers. Cincinnati repeated its request for the employer statement which “tells [the bond company] about the job she will be doing and all the controls in place for the funds she will be overseeing.”
¶ 12. In response, town attorney Kilmartin sent the insurer an email declining to fill out the statement on the ground that the selectboard was not plaintiff’s employer and “lacks the most fundamental form of control over the person who collects and disburses tax monies.” Kilmartin suggested
¶ 13. At the next meeting of the selectboard on July 12, 2010, the selectboard extended the deadline for the increased bonding limit to July 22, 2010. Plaintiff appeared at the meeting and attempted to defend her performance as treasurer.
¶ 14. On July 12, 2010, plaintiff filed suit. The initial complaint sought only to “permanently enjoin [the Town] from demanding an increase in [plaintiff’s] bond.” The court issued an ex parte temporary restraining order (TRO) in plaintiff’s favor on July 15, 2010. Following a hearing, the court vacated the TRO four days later without prejudice to renewal. The court noted that plaintiff agreed that since the Town had allowed plaintiff until July 22, 2010 to obtain the bond, there was no imminent harm. The case was scheduled for a preliminary injunction hearing.
¶ 15. Plaintiff filed an amended complaint on July 22, 2010. She continued to seek an injunction enjoining the Town from seeking an increased bond and requested, alternatively, that the Town be required to cooperate with her in obtaining the bond.
¶ 16. On July 26, 2010, based on plaintiff’s failure to obtain the increased bond, the selectboard met and declared the position of treasurer to be vacant. On July 27, the selectboard wrote to plaintiff to inform her of the termination of her position. On July 28, the selectboard met and appointed an interim treasurer and assistant treasurer.
I. Litigation History
¶ 17. In August 2010, after the Town declared her position vacant, plaintiff filed a motion for a preliminary injunction seeking reinstatement and for a writ of mandamus “ordering the Selectboard to grant [her] full and unfettered access to her office and restore her control and custody of the Town’s accounts, financial computer programs, and finances.” The Town filed a series of motions opposing the request for an injunction, and also sought to dismiss the action for failure to state a claim. The court denied the motions to dismiss in December 2010. 1 The trial court concluded that plaintiff’s claims that representatives of the Town had thwarted her efforts to obtain the increased bond by publishing false statements about her established a prima facie case for a “stigma-plus” civil rights claim for deprivation of a liberty interest in violation of the Fourteenth Amendment. 2
¶ 18. The trial court commenced an evidentiary hearing on the motion for a preliminary injunction on January 31, 2011. The hearing continued through a second day on February 28, 2011. It was never completed because plaintiff’s failure to win reelection at town meeting on March 7, 2011 rendered the claim for injunctive relief moot.
¶ 20. Plaintiff filed the first motion for summary judgment. She sought a ruling that the selectboard failed to conduct a formal vote to increase the amount of her bond from $500,000 to $1,000,000 and to declare her position vacant. Those assertions related to count 2. She also sought a ruling with respect to count 5 that 24 V.S.A. § 901(b), which requires municipalities to pay the reasonable legal fees “incurred by an officer . . . acting in the performance of his duties” obligated the Town to pay her legal fees in this case. The Town filed cross-motions for summary judgment on both counts.
¶ 21. In a detailed decision dated July 5, 2012, the trial court granted summary judgment to the Town. It analyzed the civil rights violation as a stigma-plus claim. The court determined that for purposes of summary judgment plaintiff had made out a prima facie case of a stigma-plus claim by alleging damage to her reputation through false statements by the selectboard and the related loss of her position as treasurer. The court noted that the stigma-plus claim was a constitutional claim of deprivation of liberty without due process. It considered the “process” afforded to plaintiff through her participation in multiple selectboard meetings at which her performance as treasurer and the increase in the bonding requirement were discussed openly. Plaintiff had received advance notice of the selectboard’s concerns and proposed actions through the July 1 letter and the discussions at selectboard meetings during the months of April to July 2010. The court concluded that the selectboard meetings on June 28 and July 12 provided a sufficient opportunity for plaintiff to address the claims against her and to clear her name prior to the termination of her position. Since she had received notice and an opportunity to be heard, the court granted summary judgment in favor of the Town on the stigma-plus claim.
¶ 22. The trial court also granted summary judgment to the Town on the statutory claim for attorney’s fees. It determined that the decision to increase the bond limit on April 5, 2010 was a valid exercise of the selectboard’s authority despite the absence of a formal vote by all three selectboard members. The court concluded that plaintiffs actions in filing suit to retain her position was not an action taken in performance of her official duties as required by § 901. The court reasoned:
The town treasurer has many duties, which are set forth in Title 24. They include keeping accounts and investing money; appointing an assistant treasurer; recording the amount of taxes voted for town purposes; and so forth. They do not include suing the town to defend one’s position as treasurer. Ms. Stone’s suit against the Selectboard, which sought to prevent it from effectively deposing her from office, was a personal matter.
¶ 23. In October 2012, the Town moved for summary judgment on the remaining claims — the constitutional “right to be elected,” common law defamation, and “tortious interference with public office.” The Town argued that plaintiffs claim that she was denied her right to be elected into office was rendered moot when she lost the second election for treasurer in March 2011, that she failed to make out the elements of a claim for defamation, and that Vermont law does not recognize a cause of action for “tortious interference with performance of office.”
¶ 24. The trial court granted summary judgment to the Town on all remaining counts in February 2013. The decision was based largely on procedural grounds. The court noted that plaintiffs opposition memorandum was signed by plaintiff, not her attorney, and was not supported by “affidavit, depositions or other sworn testimony as required by [Vermont Rule of Civil Procedure 56].” The trial court addressed the merits of count 1 — the right to be elected arising under the state constitution — and concluded that Article 8 of the Vermont Constitution “does not create a right to retain the office in derogation of a lawful direction to obtain an increased bond.” The court granted summary judgment on the defamation and tortious-interference claims on the ground that plaintiff had failed to support her claims with affidavits or other record evidence.
¶ 25. “We review summary judgment de novo. The same standard employed by the trial court applies here.”
Handverger v. City of Winooski,
II. First Summary Judgment Order
¶ 26. We consider the trial court’s rulings in the order they were made: first, the decision granting summary judgment with respect to counts 2 and 5 and second, the later decision concerning counts 1, 3 and 4.
A. Count 2 — Civil Rights Violation
¶ 27. We begin with plaintiffs claim that the Town damaged her reputation without providing her with an opportunity to clear her name in violation of the Due Process Clause of the Fourteenth Amendment. “To maintain a procedural due process action against a governmental entity, a plaintiff must show that he was deprived of interests protected by the Fourteenth Amendment.”
LaFlamme v. Essex Junction Sch. Dist.,
¶ 28. Plaintiffs claim of reputational damage is frequently described as a stigma-plus claim. An individual may sue for reputational damages under 42 U.S.C. § 1983 if he or she can meet two criteria: damage to public standing through governmental action without a hearing or opportunity to contest the action plus an accompanying tangible loss such as discharge from government employment.
Herrera v. Union No. 39 Sch. Dist.,
¶ 29. The trial court applied this test, setting forth the elements as follows:
To prove a stigma-plus claim, the plaintiff must first demonstrate that the government made stigmatizing statements about her — statements that call into question the plaintiffs good name, reputation, honor, or integrity. Second, the plaintiff must show that these statements were made public. Third, the plaintiff must show some tangible and material state-imposed burden in addition to the stigmatizing statement.
(Quotations and citations omitted.)
¶ 30. In considering the sufficiency of the record to overcome the motion for summary judgment directed to the stigma-plus claim, the trial court appropriately considered the evidence in the light most favorable to plaintiff.
Samplid Enters., Inc. v. First Vt. Bank,
Ms. Stone alleged that the Selectboard made false statements about her in a letter which was published to at least one insurer, VLCT, as well as in phone calls to bonding companies, which resulted in her inability to get a bond. This satisfies the “stigma” prong. In addition, the Selectboard’s decision to raise Ms. Stone’s bond, coupled with its alleged defamatory communications to the bonding companies, amounted to adverse action by the government that resulted in Ms. Stone’s de facto removal from office.
¶ 31. The trial court determined, however, that the “predeprivation hearings,” especially the hearing on July 12 following the issuance of the July 1 letter, provided plaintiff with “an adequate opportunity to be heard.” The trial court quoted at length from the transcript of the July 12 hearing and concluded that at that hearing plaintiff was indeed given an opportunity to express herself before the selectboard.
¶ 32. When the facts are construed in a light most favorable to plaintiff, we disagree that the hearing provided
¶ 33. The facts considered in the light most favorable to the nonmoving party are as follows. Immediately following plaintiff’s election, she was treated unfairly by a selectboard that was influenced by the town clerk — her rival in the election. In an effort to remove her from office, the selectboard doubled her bond requirement following a secret meeting on July 1. The Town’s attorney and the selectboard members contacted all likely sources for the additional insurance coverage and made false statements about her to ensure that no company would accept the increased risk. The board sent plaintiff a letter on July 1, detailing several accusations, including mismanagement, lying and fabrication of evidence. The letter was also sent to potential insurers. Plaintiff appeared at the July 12 selectboard meeting and asked to be put on the agenda. She requested that the board reconsider the bond increase and attempted to defend her performance. She was told by one member:
[I]t’s driving me crazy. Every friggen meeting we come down it’s the same rehash. And I’m not taking sides, I’m not — I’m — I’m [on the] side of Irasburg. I’m [on the] side of Irasburg.
I’m sick of it.
Half the people in town are sick of it. I’m hearing this every time. Will you guys get this shit behind you and get it done.
None of us have done it. This is the law. This is the way the state has set things up to run.
¶ 34. When plaintiff complained that town representatives were calling the bonding companies to make certain they would not issue the new bond, another selectboard member responded:
We’re not — we’re not — we’re not dropping the increase in the bond, I can tell you that right now.
To total of $1 million that you would have, $1 million in coverage. Now 500,000 for right now and you need an additional 500,000 to add up to a million.
You need towork on it and let us know.
¶ 35. Plaintiff presented sufficient evidence to demonstrate a question of fact as to whether the July 12 hearing adequately protected her due process rights. To remedy a stigma-plus violation through a post-deprivation name-clearing hearing, due process requires more than a chance to speak. It requires an opportunity to clear one’s name before a body which is sufficiently neutral that a person has some realistic chance of success. See
Patterson,
¶ 36. According to plaintiff, she initiated the interaction on July 12 by appearing at the hearing and requesting that the selectboard reconsider raising the bond. While the selectboard granted her request and offered her an opportunity to speak, the members made no statement of the allegations against plaintiff at that time. Because the selectboard did not provide notice in advance, plaintiff had little opportunity to address each allegation in turn. Further, the transcript of the hearing creates a question of fact as to whether plaintiff had sufficient opportunity to defend herself at the meeting. The selectboard members’ comments were rude and dismissive. There was no occasion for plaintiff to question the key individuals involved in the allegations or to present her own evidence on the substance of the allegations. Cf.
Campbell v. Pierce Cnty.,
¶ 37. On a final note, on appeal, plaintiff claims that she was entitled to a predeprivation hearing prior to receiving the July 1, 2010 letter. We conclude plaintiff was not entitled to such a hearing in this case. While deprivations of a property interest require a predeprivation hearing, when there is a deprivation of a liberty interest, the process required is a post-deprivation name-clearing hearing. See
Herrera,
¶ 38. Plaintiff also contends that the Town deprived her of a property interest when the selectboard raised her bond and then made it impossible for her to obtain such a bond, effectively dismissing her from her position. In December 2010, in ruling on the Town’s motion to dismiss plaintiffs § 1983 claims, the court concluded that plaintiff lacked a property interest in her elected position, and therefore had failed to state a claim for relief under § 1983 for deprivation of a liberty interest. On appeal, plaintiff renews her claim, and argues that she had a property interest in not being unlawfully ousted from office.
¶ 39. We agree with the trial court that plaintiff did not have a property interest in her elected position. The U.S. Supreme Court has so held for some time. In
Taylor v. Beckham,
B. Count 5 — Legal Fees Under 24 V.S.A. § 901
¶ 40. Under 24 V.S.A. § 901(b), a municipality is required to “assume all reasonable legal fees incurred by an officer when the officer was acting in the performance of his duties and did not act with any malicious intent.” In her complaint, plaintiff claimed that her legal fees should be paid by the Town because she was acting in performance of her duties when she brought legal action to reclaim her office. The trial court concluded that plaintiff was not entitled to payment of legal fees because her lawsuit was filed not to further one of her duties, but instead was a personal matter in which she sought to defend her position as treasurer.
¶ 41. On appeal, plaintiff argues that her suit was not a personal matter, but the sole means for her to enforce her right to engage in the duties to which she was elected. As part of this claim, plaintiff argues that the Town did not lawfully remove her from office because the selectboard did not have the power to raise her bond without a public meeting and a vote. Plaintiff argues that because her removal was not effectuated lawfully, her suit was in furtherance of her duties, and therefore the Town was required to pay for her legal fees under § 901(b).
¶ 42. According to plaintiff, 24 Y.S.A. § 832 requires the selectboard to provide notice, deliberate and take an official vote before requiring an increase in a bond. Plaintiff claims that the selectboard did not hold a public meeting or vote to increase plaintiffs bond prior to sending the July 1, 2010 letter and therefore she still validly held office. There is both a factual and legal question encompassed in plaintiffs argument — whether the selectboard was required by the statute to take an official vote and whether the facts demonstrate that the selectboard indeed voted. Under § 832:
If the selectboard at any time considers a bond of any such officer or employee to be insufficient, it may require, by written order, the officer or employee to give an additional bond in such sum as it deems necessary. If an officer or employee, so required, neglects for ten days after such request to give such original or additional bond, his or her office shall be vacant.
¶ 43. We need not reach plaintiffs argument that the selectboard did not take a formal vote prior to raising her bond and that she therefore still held office until the election vote. Regardless of whether the selectboard followed the correct procedures under § 832 when it raised plaintiffs bond requirement, we conclude the intent of § 901 is not to provide attorney’s fees to municipal employees who have disputes with the town regarding the termination of their employment.
¶ 44. In construing the statutory language, “[o]ur main purpose must be to find the intent of the Legislature based on a review of the entirety of the statutory scheme. Where the meaning of the words chosen is plain, we must give effect to the words chosen.”
Smith v. Town of St. Johnsbury,
¶ 45. Here, the statute states that the Town is required to “assume all reasonable legal fees incurred by an officer when the officer was acting in the performance of his duties and did not act with any malicious intent.” 24 V.S.A. § 901(b). By its plain language, the provision is limited to payment of attorney’s fees when the officer was “acting in the performance of his
¶ 46. The intent of this subsection is illuminated by looking at the entirety of § 901. The section is entitled “Actions by or against town officers.” Subsection (a) indicates that when an action is brought by an appointed or elected municipal officer, “the action shall be brought in the name of the town in which the officer serves,” or if the action is brought against an officer, it should be brought against the town. This indicates that the Legislature intended § 901 to cover those actions in which the interest of the officer is coextensive with the interest of the town such that substitution of the town’s name with the officer’s name does not alter the nature of the action. Here, plaintiff is asserting a right that is personal to her and not simply in pursuit of the town’s interests. We conclude that the intent of § 901 was not to require a municipality to reimburse a town officer for legal fees incurred in a dispute with the municipality about the officer’s position.
¶ 47. Plaintiff cites two out-of-state cases in support of her position that § 901 was intended to allow a municipal officer to be reimbursed for legal fees when the officer was forced to bring an action against the municipality. Although we examine each case, we note that generally out-of-state cases on this topic are not particularly helpful because the statutory language involved is unique.
¶ 48. The first case involved a school superintendent, who was joined as a necessary party in a suit by the town council against the board of education seeking to enjoin an agreement between the superintendent and the board.
King v. Bd. of Educ. of Watertown,
¶ 49. The other case cited by plaintiff is closer factually, 'but did not rely upon a statute at all. In
Ferrara v. Caves,
¶ 50. In sum, neither case compels a ruling in plaintiffs favor. While some states have granted attorney’s fees in like situations, there are equally states that have not. See, e.g.,
Castner v. City of Minneapolis,
III. Second Summary Judgment Order
¶ 51. In February 2013, the trial court granted summary judgment to the Town on counts 1, 3 and 4 — violation of Article 8 of the Vermont Constitution, common law defamation, and tortious interference with performance of office. The court based its decision largely on procedural grounds, concluding that plaintiff had failed to adequately oppose summary judgment. The court ruled that plaintiff as the nonmoving party had failed to properly demonstrate issues of material fact because her response to summary judgment was not supported by affidavit, deposition or other sworn testimony. We conclude that the procedural grounds for granting the motion were inadequate and that the record in this case, including the July 1 letter and plaintiff’s affidavit, which were attached to the Town’s motion for summary judgment, clearly demonstrates the presence of contested facts and a record which — if the evidence favoring plaintiff is believed — could support a judgment in her favor after trial. 6
¶ 52. Vermont Rule of Civil Procedure 56(c), as amended effective January 23, 2012, sets out a mandatory procedure for demonstrating that “a fact cannot be or is genuinely disputed.” V.R.C.P. 56(c)(1). The party asserting that a fact is not disputed must file “a separate and concise statement of undisputed material facts” with citations to the record. V.R.C.P. 56(c)(1)(A).
¶ 53. In this case, the Town was the moving party. Although the Town included a lengthy factual discussion in its motion for summary judgment, its Rule 56(c) statement of undisputed facts was very brief. It states only that plaintiff never passed the audit process as required by the selectboard and that the Town is a member of the Vermont League of Cities and Towns. To the statement, the Town attached plaintiffs affidavit, the July 1, 2010 letter, and plaintiff’s responses to written discovery. The statement of facts
¶ 54. If the Town’s statement of undisputed facts is weak in its adherence to Rule 56(c), plaintiff’s response is nonexistent. Plaintiff filed a memorandum and a response to the Town’s statement, but did not file her own statement of disputed facts with reference to the record or in some other way show that the materials cited by the Town did not establish the absence of a factual dispute. V.R.C.P. 56(b), (c)(1) (allowing adverse party to file opposition and statement of disputed facts and requiring party asserting that fact is genuinely disputed to support assertion by filing statement of disputed facts supported by citation to record). In other words, the Town did not lay out an appropriate statement of undisputed facts and plaintiff made even less effort to engage in the Rule 56(c) process.
¶ 55. The requirements of Rule 56 are important and where a party does not adequately dispute a statement of undisputed facts, we have affirmed the court’s acceptance of those facts as admitted. See V.R.C.P. 56(e) (stating that where party fails to properly support assertion, court may, among other options, consider fact as undisputed);
Sperling v. Allstate Indem. Co.,
¶ 56. Second, plaintiff was not required to submit new evidence in support of her opposition where evidence already in the record supported her position. The parties had both previously filed motions for summary judgment, which contained detailed statements of undisputed facts, with attachments of various important documents. The trial court also conducted a two-day evidentiaryhearing on the motion for preliminary injunction. Certainly, it was not the trial court’s responsibility alone to search this record for factual disputes, but the court should not have turned a blind eye to the existence of this evidence either. See
Pierce,
¶ 57. In addition, plaintiff referenced the letter and facts from her affidavit in her memorandum in response to the Town’s request for summary judgment, although she failed to properly submit a statement of disputed facts • or to include specific references to the record. In effect, the court sanctioned plaintiff with dismissal of the case for failing to appropriately
¶ 58. In other circumstances, the failure of a party to follow the requirements of Rule 56 could result in the granting or denial of the motion for reasons of process only. In this case, however, where neither party has followed the rule, such a ruling cannot be sustained. We turn now to the merits of the remaining claims.
A. Count 1 — Violation of Chapter I, Article 8
¶ 59. In count 1, plaintiff alleged that the Town had applied 24 V.S.A. § 832, the section allowing the selectboard to raise her bond, in a manner that violated Chapter I, Article 8 of the Vermont Constitution. Article 8 provides that “all voters . . . have a right to ... be elected into office, agreeably to the regulations made in this constitution.” Vt. Const, ch. I, art. 8. Plaintiff asserted that by improperly raising her bond and then removing her from office, the selectboard unlawfully invalidated the town vote, which elected plaintiff as treasurer. The court considered this claim on the merits and concluded that Article 8 “does not create a right to retain the office in derogation of a lawful direction to obtain an increased bond.” Thus, the court held that the Town’s decision to require an increased bond under § 832 did not amount to a constitutional violation.
¶ 60. On appeal, plaintiff does not present any argument related to this claim. Although plaintiff argues that the court erred in granting summary judgment on procedural grounds, the court’s decision on this count was not based on procedural considerations, but on the substance of plaintiff’s claim. Absent some argument about why the court’s decision was error, appellant has waived consideration of this issue on appeal. See
State v. Brillon,
B. Count 3 — Defamation
¶ 61. As to count 3, defamation, the court considered the six required elements:
The general elements of a private action for defamation (libel and/or slander) are: (1) a false and defamatory statement concerning another; (2) some negligence, or greater fault, in publishing the statement; (8) publication to at least one third person; (4) lack of privilege in the publication; (5) special damages, unless actionable per se; and (6) some actual harm so as to warrant compensatory damages.
Lent v. Huntoon,
¶ 62. The court’s decision is wholly based on plaintiffs failure to follow the procedural requirements of Rule 56. For the reasons explained above, it was error for the court to grant the Town summary judgment on this basis alone, given the Town’s own failure to comply with the rule and the substantial evidence in the record. The Town did not delineate in its statement of undisputed facts or support with citation to the record that plaintiff agreed the statements in the July 1, 2010 letter were true or that plaintiff was unharmed by any defaming comments. Further, although on appeal the Town claims that several privileges provide a complete defense to this claim, the Town’s statement of fact does not establish the necessary facts to support the asserted privileges.
¶ 63. In addition, it is evident from a review of the record that plaintiff disputes the veracity of the statements in the July 1, 2010 letter, and that she contends that the defaming comments caused her damage. For example, in plaintiffs July 2010 affidavit, which was submitted along with her original complaint and request for injunctive relief, plaintiff averred that the July 1 letter made “unsubstantiated and false accusations.” Therefore, important facts remained disputed, and the court’s order granting summary judgment on this count is reversed.
C. Count 4 — Tortious Interference with Office
¶ 64. Plaintiffs final claim was for tortioiis interference with performance of office. The court granted the Town summary judgment, concluding that plaintiff had failed to raise a factual dispute about whether the selectboard acted maliciously and improperly in attempting to oust plaintiff from office. Just as for count 3, the court’s decision here was based on a procedural shortcoming. For similar reasons, we conclude that this decision was incorrect. Because the Town did not set forth facts in its undisputed statement of fact to establish that the decisions the selectboard made relating to raising plaintiffs bond as treasurer lacked any malicious motivation, the burden to demonstrate a factual dispute on this point did not shift to plaintiff. Therefore, plaintiffs failure to respond in her reply did not warrant judgment in favor of the Town of this count.
¶ 65. We conclude, however, that the Town was entitled to judgment on other grounds. See
In re Cabot Creamery Coop.,
¶ 66. Tortious interference generally refers to interference with performance of an existing contract or a prospective contractual relationship. See Restatement (Second) of Torts § 766 (2013). Under this tort, a person is liable if he “intentionally and improperly interferes with the performance of a contract . . . between another and a third person by inducing or otherwise causing the third person not to perform the contract.”
Id.
While plaintiff styles her claim as one for “tortious interference with performance of office,” there is no such enumerated tort in our case law, or in the law of other jurisdictions. The closest analogy, although imperfect, is tortious interference in the employment context, which has been recognized in some states. See
Fellhauer v. City of Geneva,
¶ 67. Here, to the extent that we can apply tortious interference with an employment relationship to plaintiffs allegation of tortious interference with performance of her office, we conclude that plaintiff has failed to meet the elements of that tort. Plaintiff alleges that selectboard members interfered with plaintiffs performance of her duties as treasurer. Because the selectboard members are agents of the Town and not third parties, plaintiff has failed to allege interference by a third party, and has not pled a prima facie case for tortious interference. See
Farrow,
¶ 68. In sum, the rulings of the trial court are affirmed in part and reversed in part. Regarding the first summary judgment order, we reverse the judgment in the Town’s favor on count 2, the civil rights violation, and affirm judgment for the Town on count 5, the claim for attorney’s fees under 24 V.S.A. § 901. As to the second summary judgment decision, we affirm summary judgment on count 1, the violation of Article 8 of the Vermont Constitution, reverse judgment on count 3, common law defamation and affirm on count 4, tortious interference.
Affirmed in part, reversed in part, and remanded for proceedings consistent with this decision.
Notes
The trial court dismissed claims made by plaintiff against town attorney Kilmartin. This aspect of the case was not appealed.
Both plaintiff and the trial court relied on
Velez v. Levy,
There is a split among the federal circuit courts as to whether there must be an opportunity to cross-examine witnesses at a name-clearing hearing to satisfy due process. Compare
Campbell,
Other courts have rejected the contention that due process requires a differently composed tribunal than the one that rendered the challenged decision. See
Campbell,
There is a relevant statute in Florida, but it is limited to recovery of fees by prevailing defendants. See Fla. Stat. § 111.07 (1981).
We also reject the trial court’s ruling that plaintiffs signature on her responsive motion is grounds for granting summary judgment. Plaintiff signed “on behalf’ of Attorney Merriman — evidently because the memorandum was completed at the last minute. Attorney Merriman’s name appears in the signature block. While we cannot applaud this minimal level of compliance with Vermont Rule of Civil Procedure 11(a), we do not agree that it warrants entry of judgment against plaintiff.