In a petition filed Wednesday, Gov. Phil Scott’s administration hit back at two Vermont senators suing the governor and interim Education Secretary Zoe Saunders, asking the court to dismiss the case.
The proposal, written by two lawyers from the Vermont Attorney General’s Office, is the executive branch’s first legal response to the lawsuit and symbolizes the deep divisions between Scott, a Republican, and the state Legislature’s Democratic majority.
In June, Senators Tanya Vihovsky, P/D-Chittenden Central, and Dick McCormack, D-Windsor, sued the governor and Vermont’s top education official, arguing that Scott overstepped his authority when he appointed Saunders as interim secretary even though the Vermont Senate voted against confirming her to her permanent position as head of the state education agency.
“This isn’t even about the secretary of education anymore,” Vihovsky told VTDigger last month. “This is about the separation of powers and the authority of the Senate to do the job that it is constitutionally and statutorily given.”
In the administration’s 32-page response, lawyers argued that the education secretary appointment process went as designed. The Senate rejected Scott’s permanent appointment of Saunders through its power to advise and consent. And Scott chose Saunders to temporarily fill the role through his authority to make interim appointments.
“The vote cast by the Senators to censure Ms. Saunders was not annulled — rather, it was made effective as creating a vacancy,” Scott and Saunders’ attorneys wrote.
In March, Scott announced he had chosen Saunders to lead the state education agency, making her the first person to hold the position permanently since Dan French left nearly a year ago. Saunders replaced Heather Bouchey, who served as interim secretary and remains at the agency.
Saunders, a former executive of Charter Schools USA and the chief education officer for the city of Fort Lauderdale, soon drew criticism and concern from Vermont’s Democratic and Progressive parties. In particular, her background in charter schools, which do not exist in Vermont, raised fears among public school advocates. Lawmakers soon joined the chorus of voices opposing the governor’s appointment.
During a legislative session dogged by rising education costs and accompanying property tax increases, senators rejected Saunders’ appointment by a vote of 19–9, a move the administration called “historic and possibly unprecedented.”
So when Scott immediately appointed Saunders as interim secretary, tensions escalated, culminating in a lawsuit filed by Wykowski and McCormack against the governor.
Now, Scott’s legal team is arguing that the governor acted within his power, and that he did not need to submit Saunders’ appointment a second time for the Senate’s consideration in the final days of the legislative session.
The filing, written by Chief Assistant Attorney General Sarah Eby London and Assistant Attorney General David Golubok, also said that Scott may in the future “resubmit Ms. Saunders for confirmation.”
Scott’s team argued the two senators had no standing to bring the suit, citing a case in which the U.S. Supreme Court found a case could be brought when a lawmaker was singled out for “particularly unfavorable behavior,” or “when the vote of a majority of the legislative body was effectively nullified.”
According to London and Golubok, Vyhovsky and McCormack did not argue that they were targeted, nor did they file their suit on behalf of the Senate majority.
Scott’s team also claimed the senators’ arguments were not legal but “political.” The assistant attorney general wrote that by considering the case, the court could risk stepping out of its “proper role” and allowing the political process to stop moving forward.
The judge has not yet commented on the matter.
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