Two state senators filed a lawsuit on Wednesday alleging that Gov. Phil Scott violated state law and the Vermont Constitution by naming Zoie Saunders to serve as interim education secretary even though the Senate voted not to confirm her.
The suit, which was filed against Scott and Saunders, marks another hurdle for the secretary, a former charter school strategist from Florida. She has faced pointed criticism over her credentials since the governor announced that she was his pick for the top education job in March.
The lawsuit was filed
by Sens. Tanya Vyhovsky (P/D-Chittenden-Central) and Dick McCormack (D-Windsor) in Washington County Superior Court. It states that the governor "purposefully circumvented the constitutional and statutory requirement to obtain the advice and consent of the Vermont Senate" in appointing Saunders.
On April 30, the Senate voted 19-9 against confirming the appointment. Immediately afterward, Scott appointed Saunders as interim secretary. In a press release announcing his decision, Scott said the move was made "
pursuant to my constitutional authority to fill vacancies." The governor's then-press secretary Jason Maulucci said
Scott was considering appointing Saunders to the permanent job after the Senate adjourns.
Both Vyhovsky and McCormack had voted against confirming Saunders. Their suit asserts that there is no provision in state statute that allows for "interim" appointments of agency secretaries that bypass the Senate's "authority and responsibility to grant or withhold its consent to such an appointment."
Because the governor failed to resubmit Saunders' name for confirmation to the Senate after her initial confirmation was rejected and before the legislature adjourned on June 17, the suit states, the Senate's rejection should stand until the governing body reconvenes in January 2025.
The lawsuit asks the court to declare that Saunders lacks the authority to do the job. The suit also asks for a declaratory judgment that Saunders has not "validly functioned" in her role since April 30.
Jared Carter, one of the lawyers representing the plaintiffs and a professor at Vermont Law & Graduate School, said the lawsuit is not partisan but is fundamentally about the separation of powers, as laid out in the state's constitution.
Vyhovsky echoed that sentiment in a press release on Thursday.
“At a time when the foundation of our democracy is at stake nationally, it is incredibly important that we stand up when our Vermont Constitution is challenged," Vyhovsky wrote. "The oath I took when I was sworn into office requires me to protect and defend the Constitution and that charge has never felt more pressing than it does right now. "
It is unclear who would lead the Agency of Education if the court finds in favor of the senators. After former secretary Dan French resigned in April 2023,
deputy secretary of education Heather Bouchey served an interim education secretary for more than a year.
In a statement on Thursday, the governor defended his decision to appoint Saunders and suggested that the lawsuit was meant to distract from the yield bill, which will raise Vermonters' property taxes an average of 13.8 percent in order to fund increasing education costs. The governor vetoed that bill, but the legislature overrode Scott's veto earlier this week.
"This is another example of legislators focusing more on partisan political maneuvering than the hard work to help schools, kids and taxpayers," the governor's statement reads. "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," the statement continued. "They’d like nothing more than to change the subject and distract Vermonters and the press."
Vyhovsky said in an interview on Thursday that the lawsuit was filed this week to coincide with the adjournment of the legislative session, in consultation with lawyers.
"It has absolutely nothing to do with the yield bill," Vyhovsky said.