SCOV Law Blog: All vote and no action

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Editor’s note: This piece is by Nicole Killoran is from the Supreme Court of Vermont Law Blog.

In re Rumsey, 2012 VT 74.

If you’ve been paying attention to political rhetoric lately, particularly with regards to recipients of welfare and Social Security benefits, you might assume that getting on the dole is as easy as panhandling on a busy street corner. The reality is, qualifying for government assistance usually involves struggling to convince someone deep in the administrative state that you are truly in need of help, and appealing a denial until someone agrees with you. As today’s decision also demonstrates, sometimes those busy bureaucrats just can’t be bothered with the details of your case, though for today’s applicant it happened to worked in her favor.

Applicant is an elderly woman who suffers from a host of maladies, from chronic seizures to osteoarthritis to anxiety and depression. She lives alone and requires government assistance to carry out her basic bodily and life functions with the exception of meals (provided by Meals on Wheels) and medication management (provided by “others”).

In order to receive care at home, applicant applied for at-home Choice for Care (CFC) services. To get around the waiting list, applicant had to demonstrate that she qualified for high need or highest need services.

Applicant met with a representative from the Vermont Department of Aging and Independent Living (DAIL), who determined after an at-home interview that applicant did not qualify for high or highest need services. Applicant appealed the decision to the Vermont Human Services Board.

The board held a hearing in which it heard evidence from applicant and several others, including her case manager, her physician, a friend, and the DAIL coordinator whose report formed the basis for the denial. The board’s hearing officer issued findings of fact and recommended that the board deny applicant’s request for at-home services.

Several weeks later, six of the seven members of the board met to consider applicant’s case, but could not reach a conclusion because the vote was tied. The board therefore adopted the hearing officer’s findings and issued a written decision upholding DAIL’s denial, without reaching any conclusions on the merits of applicant’s request.

Not satisfied with this result, applicant moved to reopen her case, asking that all seven of the board’s members reconsider her case, and noting that the written decision did not address the elements applicants must satisfy to qualify for CFC services. DAIL opposed the motion, and the board denied it. Applicant appealed.

The board made two mistakes in today’s case, and the SCOV gives it a legal upbraid for both of them. Word to the wise for boards and agencies in the future: even if you can’t agree, make sure you draw a few of your own factual conclusions from the evidence; and, if your swing vote doesn’t show, you should probably just reschedule.


On appeal, both sides of the controversy essentially requested the same thing, albeit desiring different results. Both applicant and DAIL asked the SCOV to decide the case on the merits, which would require that the court interpret the CFC regulations. In the alternative, both parties asked that the SCOV remand the case to the board, with applicant hoping for a seven-member board decision, and DAIL hoping that the SCOV would spoon-feed the board an interpretation of the regulations and then let it fix its findings and its decision.

What results is closer to the latter than the former. The SCOV remands to the board to finish what it started. But before it gets there, the SCOV saunters into the realm of bureaucratic decisionmaking, exposing a rather lazy effort at fact-finding and drawing a definitive line between action and inaction.

The board’s decision stated up front that it could not reach a conclusion in part because applicant had understated her difficulties in caring for herself, indicating that this would be “spelled out below.” However, as the SCOV notes, “nothing was spelled out below”; the decision consisted almost entirely of recited testimony.

While it seems obvious that quoting witness testimony in effect conveys the facts of a particular case, agencies making decisions with the potential to deeply impact the lives of individuals are required by statute to do more than just give a play by play of what the witnesses said. Such recitations of evidence are called Krupp findings in Vermont, and are considered “immaterial and not for consideration” because they demonstrate little else than a pulse on the part of the hearing officer.

In applicant’s case, the hearing officer did just that: the decision repeated what applicant, her doctor, her case worker, her friend, and the DAIL coordinator said at the hearing, but that was it. Nowhere was there a finding derived from the evidence as to whether applicant had a critical need for long-term care, whether her safety was at risk, or whether she had special circumstances. These were all facts that would determine whether she would receive the care she requested. On this point, the SCOV concludes that the board’s decision was woefully inadequate, and remands for “proper findings.”

But the SCOV doesn’t stop there. Applicant’s case raises another point of law that the SCOV decides to address lest it become an issue again on remand. Applicant argued that the board’s tie vote, and its subsequent decision to uphold the DAIL decision because it couldn’t reach a conclusion, was improper under the law. The SCOV agrees.

Under the general provisions of 1 V.S.A. § 172, a decisionmaking body with three or more members must take action by majority vote (unless the Legislature indicates otherwise in the specific agency’s statutes). If the vote is tied, the result is inaction, which requires a remand for a new vote. When it created the Human Services Board, the Legislature said nothing about precisely how many votes are required to take action. Therefore, the SCOV concludes, it’s fair to apply Section 172 to the board.

So what is the difference between action — allowing a review of the merits — and inaction — requiring a remand to the board? The dividing line, the SCOV decides, depends on basic arithmetic. If the majority of the board could have voted to take action, then a majority is required to either vote up or down. This, in turn, depends on whether any of the board members had to recuse themselves and abstain from voting.

In other words, if a five-member board hears a case, any decision must have at least three votes — that goes for an approval as well as for a denial. Anything less requires a revote. This changes if two or three members are recused due to a conflict or similarly legitimate reason for not participating.

The SCOV reaches this conclusion by analogizing the situation to zoning cases where a majority vote of the whole board is required even if less than a majority attends the hearing.

In applicant’s case, the missing seventh board member had no conflict requiring recusal; rather, he or she simply did not make it to the meeting. Because the board could have had a majority vote, the SCOV does not consider its 3-to-3 vote to be an action by its definition of the word. As the SCOV puts it, a decisionmaking body “has not acted so long as we are, so to speak, waiting on a potentially outcome-affecting vote.” Therefore, the board’s tie vote was inaction rather than action, and the remedy for applicant is remand and a new vote.

The SCOV reminds the board that it could easily have waited for its missing seventh member to vote on applicant’s request before upholding the DAIL denial. The Human Services Board essentially acts as an appellate body, reviewing decisions at its leisure, and nothing in the board’s governing statute says it can’t wait to make a decision until everyone is present.

The board’s statute does say, however, that it must “affirm, modify or reverse” DAIL’s decisions, which the board cannot do if it doesn’t reach a majority vote and there are no recusals. If we are “still waiting for the play to be completed,” the SCOV notes, it can’t fall back on default decisional rules such as “tie goes to the runner.”

The board made two mistakes in today’s case, and the SCOV gives it a legal upbraid for both of them. Word to the wise for boards and agencies in the future: even if you can’t agree, make sure you draw a few of your own factual conclusions from the evidence; and, if your swing vote doesn’t show, you should probably just reschedule.

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