Scott administration fires back in senators’ lawsuit over Zoie Saunders appointment

In a motion filed Wednesday, Gov. Phil Scott’s administration fired back at the two Vermont senators suing the governor and Interim Education Secretary Zoie Saunders, asking the court to dismiss the case.

The motion, penned by two lawyers in the Vermont Attorney General’s Office, is the executive branch’s first legal response to the lawsuit and the latest episode in a fight emblematic of the deep rift between Scott, a Republican, and the state Legislature’s Democratic supermajority.

In June, Sens. Tanya Vyhovsky, P/D-Chittenden Central, and Dick McCormack, D-Windsor, sued the governor and Vermont’s top education official , arguing Scott exceeded his authority when he appointed Saunders interim secretary minutes after the Vermont Senate voted against confirming her to a permanent post leading the state Agency of Education.

“This is now no longer even about the secretary of education,” Vyhovsky told VTDigger last month. “It’s about separation of powers and the right of the Senate to do the job that it is constitutionally and statutorily given.”

In the administration’s 32-page response, attorneys argued that the education secretary appointment process went as designed. The Senate, through its power to advise and consent, rejected Scott’s permanent appointment of Saunders. And Scott, through his authority to make interim appointments, chose Saunders to fill the role temporarily.

The senators’ “vote to reject Ms. Saunders was not nullified — rather, it was given effect as creating a vacancy,” attorneys for Scott and Saunders wrote.

In March, Scott announced he’d chosen Saunders to lead the state education agency , making her the first person to hold the role permanently since Dan French had left almost a year prior. Saunders replaced Heather Bouchey, who served as interim secretary and remains with the agency.

Saunders, a former executive for Charter Schools USA and chief education officer for the city of Fort Lauderdale, quickly drew criticism and concern from Vermont’s Democratic and Progressive parties. In particular, her background in charter schools, which don’t exist in Vermont, stoked fear among public school advocates. Lawmakers soon joined the chorus of voices opposed to the governor’s appointment.

Amid a legislative session defined by the rising cost of education and accompanying rise in property taxes, senators rejected Saunders’ appointment in a 19-9 vote , a move the administration has called “historic, and possibly unprecedented.”

So when Scott immediately appointed Saunders interim secretary, tensions only grew, culminating in Vyhovsky and McCormack’s lawsuit against the governor.

Now, Scott’s legal team is arguing that the governor acted within his power, and that he did not have to resubmit Saunders’ appointment a second time for the Senate’s consideration during the waning days of the legislative session.

The filing, written by Sarah E.B. London, chief assistant attorney general, and David Golubock, assistant attorney general, also maintains that Scott can in the future “resubmit Ms. Saunders for confirmation.”

The two senators, Scott’s team argued, do not have standing to bring the lawsuit, citing a case in which the U.S. Supreme Court found that a case could be brought when a lawmaker was “singled out for ‘specially unfavorable treatment,’” or “when a majority of a legislative body has had its vote effectively nullified.”

Vyhovsky and McCormack don’t argue that they were singled out, nor did they bring their suit on behalf of a majority of the Senate, according to London and Golubock.

Scott’s team also asserts that the senators’ contentions are “political” rather than legal. By weighing in on the matter, the court could risk stepping outside its “proper role” and preventing a political process from playing out, the assistant attorneys general wrote.

A judge is yet to weigh in on the case.

Read the story on VTDigger here: Scott administration fires back in senators’ lawsuit over Zoie Saunders appointment .