JUDGE BACKS FAIRFAX SELECTBOARD

Tuesday December 14, 2004

Judge backs Fairfax
board in clerk dispute

By LEE J. KAHRS
Messenger Staff Writer

ST. ALBANS –– A Franklin County Small Claims Court judge has ruled in favor of the Fairfax selectboard in a small claims case brought by a former assistant town clerk.

Judge Ben Joseph ruled that while Vermont statute dictates that town clerks have the authority to hire one or more assistant town clerks, they do not have the power to pay those assistants.

Only the town, at the annual meeting, or the selectboard has the power to authorize payment to town employees and officers, Joseph wrote in his ruling, citing Title 24, Chapter 33, sections 932 -934 of the Vermont Statute.

Joseph issued the decision Monday, Dec. 6, almost one month after a hearing on the case.

Melissa Allard sued the selectboard seeking back pay for hours she worked as the assistant town clerk. The board countered that the town did not owe Allard because she was hired by Fairfax Town Clerk Tina Levick exclusively as an assistant town clerk, and the town did not budget for that position.

At a Nov. 10 hearing in the Franklin County Superior Courthouse, Allard represented herself and selectboard chair Jeff Blake represented the selectboard.

Allard could not be reached for comment. At a selectboard meeting last night, Blake said the selectboard had “no comment” on the ruling or the suit.

On March 3, Levick dismissed her former assistant town clerk, Rita Magnan, and hired Allard, who is Levick's sister, to replace Magnan. Levick admitted in court that she did not inform the selectboard of her actions.

Magnan was on the town's payroll as the office assistant, which is a budgeted position.

The selectboard sent Levick a letter dated March 8, voiding her dismissal of Magnan, reinstating her as a town employee, and refusing to pay the salary of Allard as assistant town clerk.

The selectboard paid Allard for the 19.5 hours she worked prior to March 8, a period when it appeared Levick had the authority to hire and pay Allard, the judge said.

“Thus it was fair for the Selectboard to pay her for the first 19.5 hours, even though it was not under a legal obligation to do so,” the judge wrote.

In his ruling, Joseph stated that, as of March 8, Allard was made aware of the selectboard’s decision not to pay her out of town funds, yet she continued to work 29 additional hours between from March 11 to April 7. Those were the hours for which Allard was seeking back pay.

“(Allard) chose to continue working on the chance that Ms. Levick and the members of the Selectboard would resolve their differences,” Joseph wrote. “That did not happen.”

Secretary of State Deb Markowitz said that while she understands the decision, it is possible another court could overrule it on appeal based on precedent.

“It sounds like a reasonable decision to me,” she said, “But it is possible the state Supreme Court might disagree. There is old case law regarding tension between separately elected officials about withholding resources.’

Markowitz said the higher court could rule that while the selectboard has the power to set compensation, “there is not a right to say ‘no salary’ if it means a job can’t or won’t get done.”

Joseph, in his conclusion, pointed to the discrepancy of authority in the statute regarding a town clerk’s authority.

“It is difficult to understand why the Town Clerk has the power to make appointments, but no power to pay Assistants for their work,” he wrote. “Nonetheless, that is the law. For that reason, the court awards judgment for the defendant, the Town of Fairfax Selectboard.”