The Law Firm of Bucknam & Black PC

What you should know about employment discrimination

What you should know about employment discrimination

Employers and employees are usually aware that discrimination in the work place is illegal. The definition of illegal discrimination, however, can be difficult to understand. As I have shared with clients in the past, it is not illegal for a boss to be a lout.   But when does questionable behavior cross the legal line? Knowing the answer can protect both the employer and the employee.

Generally speaking, discrimination happens when an employee (or potential employee) is treated differently than other employees. There are a variety of legal reasons for an employer to “discriminate” between employees- skill levels, experience, length of time on the job, etc. Discrimination becomes illegal when the employee is treated differently because they belong to a particular category of people. Our legal system recognizes that throughout our nation’s history certain segments of society have been treated differently in the work place for reasons that have nothing to do with job performance. Anti-discrimination laws establish “protected classes” as a means of leveling the employment playing field. Thus, “discrimination” becomes “illegal discrimination” when an employee is treated differently than others solely because the employee is a member of a protected class.

Federal anti-discrimination employment laws

There are a number of federal laws that define “protected class.”  The Civil Rights Act of 1964 prohibits employment discrimination based on the employee’s race, color, religion, sex or national origin.  The Age Discrimination Act of 1967 protects employees over the age of 40. The Americans with Disabilities Act of 1990 prohibits employment discrimination against qualified individuals with disabilities in the private sector and within state and local governments. (A 1973 law prohibits disability discrimination by federal government employers.) These are just a few of the federal laws that govern employment relationships.

Unlawful discrimination is defined by federal laws in a variety of ways. “Unlawful discrimination” can include harassment based on the basis of membership in a protected class. It includes retaliation against an individual for filing a charge of discrimination, participating in an investigation or opposing the employers discriminatory conduct.  Employer decisions based on stereotypes or assumptions about members of a protected class constitutes illegal discrimination, as does denying employment opportunities to someone because that person is married to a member of a protected class.

Unlawful discrimination also includes employment practices which, while not necessarily targeting a specific individual, have an adverse impact on employees simply because of their membership in a protected class. For example, a school systems policy of only hiring new teachers with less than 5 years experience has been found to be age discrimination. Even though the policy did not specifically prohibit hiring anyone over a particular age, the impact of the policy disproportionately disadvantaged older teachers. The school system could offer no legitimate business interest for its hiring policy and as such was in violation of federal law.

An employer can be held responsible for discrimination in the workplace even when the discrimination is not a result of the employer’s own conduct. An employer can be liable for unlawful discrimination when the employer knowingly allows the existence of a “hostile work environment.” Such an environment exists when employees are subjected to harassment (ridicule, intimidation or insults) by other employees because of their membership in a protected class. If the employer becomes aware of the situation and fails to take corrective measures the employer may be subjected to a claim of unlawful discrimination.  While a court may ultimately find that employee behavior was merely offensive and did not rise to the pervasiveness necessary to establish unlawful discrimination, the employer runs a serious risk in not taking complaints about employee conduct seriously.

Federal anti-discrimination laws make it illegal to discriminate in the hiring and firing of employees based on their membership in a federally-defined protected class. But they also apply to a wide range of other employment related activities: compensation, assignment and classification of employees; transfers, promotions, layoffs and recalls; job advertisements, recruitments and testing; use of company facilities; access to training programs; and pay, retirement plans, disability leave and fringe benefits.

Whether federal anti-discrimination law will apply to a particular private employer typically depends upon the number of employees. One notable exception is the Equal Pay Act of 1963 which prohibits sex-based wage discrimination (paying one gender less for doing substantially the same work as their opposite gender colleagues.)  This law applies to all employers who are covered by the Federal Wage and Hour Law, which is virtually all employers.

Vermont and New Hampshire anti-discrimination employment laws

Both Vermont and New Hampshire have their own anti-discrimination laws in addition to the federal laws. In both states the laws are known as the “Fair Employment Practices Act.” In Vermont the laws apply to every employer; in New Hampshire they apply to employers with six or more employees. New Hampshire also excludes from the definition of employer (for purposes of fair employment practices) certain social clubs, fraternal organizations and religious associations.

The federal and state laws are similar in many respects. One noteworthy difference, however, is the definition of “protected class.” New Hampshire defines “protected class” to include marital status and sexual orientation (prohibiting discrimination against people who are- or who are perceived to be gay, lesbian, or bisexual.) While gender identity is not specifically recognized as a protected class, New Hampshire has recognized the right of transgendered people to pursue anti-discrimination claims under the state’s disability discrimination category.

Vermont includes sexual orientation in its definition of protected class, but also specifically includes gender identity and “ancestry.” Vermont also prohibits employment practices which discriminate against someone solely on the basis of having had a positive HIV-related blood  test. (It is illegal in Vermont to make the taking of an HIV-related blood a condition of employment.)

In Vermont drug addiction and alcoholism are considered physical or mental impairments protected by its anti-discrimination law. (No protection is afforded if current drug or alcohol use prevents the employee from performing their job duties or if their employment would threaten the safety or property of others.) Federal law protects people who suffer from alcoholism but not people who use illegal drugs. New Hampshire’s law mirrors the federal policy.

In both states the laws encompass the federal law protections by reference, but also provide for independent legal claims.  An employee can file suit under both state and federal law, lose the federal law case but still prevail on claims based on the state law.  (The general rule is that federal law provides a minimum basis of Constitutional protections; states are free to provide protection above and beyond the federal law.)

What can employers do?

It would be impossible for an employer to completely eliminate the potential for claims of discrimination. And not every complaint of discrimination made by an employee rises to the level of unlawful discrimination. But litigating such claims comes with the risk inherent in asking a judge or jury to decide, as well as the cost in money, time and resources. Taking steps to minimize the potential for employment discrimination makes financial sense.

  • Work with a legal or human resource professional to develop a discrimination policies and procedures manual for all employees. Keep the manual up to date;
  • Review the manual with management staff and have them sign off on having taking training and understanding their responsibilities. Hold management accountable for what goes between employees on in the work place;
  • Require employees to review the manual, and consider requiring periodic training on discrimination issues;
  • Provide employees a method for bringing complaints forward and encourage them to bring complaints forward sooner rather than later;
  • Hire a human resources professional who is trained in, experienced with and sensitive t o discrimination issues;
  • Act quickly but thoughtfully when discrimination complaints are brought forward. Involve the employee, the employees manager and the human resources professional. Take disciplinary action that is appropriate to the situation and document the steps taken. Doing nothing in the hope that “things will blow over” is usually the worst thing an employer can do in response to complaints of discrimination.

What can employees do?

Employees who believe they have been the victim of discrimination, harassment or retaliation in employment have several options:

  • Bring your concerns to your manager or department head. Follow your company’s internal complaint process. If this fails to resolve the matter in a satisfactory way, consider seeking assistance from an attorney;
  • Private sector employment discrimination complaints are handled by the Civil Rights Unit of each State’s attorney general office. State employee discrimination complaints are handled by the state’s Human Right’s Commission;
  • Discrimination complaints brought under federal law can be filed with the U.S. Equal Employment Opportunity Commission.

Return to Annual Homestead Declarations

Return to Annual Homestead Declarations

Vermont funds its educational system through a property tax system. The “education tax” is imposed on all homestead and nonresidential property, but at differing rates. The basis for classifying a particular property a homestead (and thus being taxed at a lower rate) is dependent upon the owner filing a “homestead declaration” with the Vermont Department of Taxes.

Effective January 1, 2013, property owners in Vermont will again have to file an annual homestead declaration in order to have their property classified as a homestead for purposes of the statewide education tax.  This is actually a return to the system that existed up until 2010, when the Department of Taxes stopped requiring an annual declaration. A homestead declaration filed in 2010 remained valid until the property was sold, the property was no longer the owner’s primary residence or the owner was no longer domiciled in Vermont. When this happened the property owner was expected to file a homestead declaration withdrawal with the Department of Taxes.

The goal was to relieve property owners from having to remember to file the declaration each year. As it turns out, however, property owners are regularly forgetting to file the withdrawal which has apparently caused all kinds of record keeping problems for the Department of Taxes.  In response, the Department has decided that a return to an annual filing requirement is in order.

A “homestead” property is statutorily defined as the principal dwelling and parcel of land surrounding the dwelling, owned and occupied by a resident individual as the individual’s domicile. An individual can only have one “homestead”; second homes and camps are generally not considered homesteads. (Camps can qualify only if it is the  owner’s principal residence.)  Although Vermont law does not require a particular number of days that an individual must occupy the dwelling to qualify as homestead, mere ownership and spending a lot of time at the property is not enough to qualify for homestead status.  The individual must be domiciled in Vermont and the house must be occupied as the individual’s principal dwelling. Spouses and civil union partners who own and occupy a residence together need to file only one homestead declaration.

The necessary form, and more information about homestead declarations, can be found at: www.state.vt.us/tax

Understanding The Visa and MasterCard Class Action Settlement Notice

 In the past few weeks merchants have been receiving a “Notice of Class Action Settlement” related to a lawsuit against Visa, MasterCard and numerous banks.  The purpose of the Notice is to provide information about the law suit and the proposed settlement to members of the “class.” The Notice encompasses 27 pages and can be overwhelming to the non-lawyer reader. Because it outlines a) how members of the class may be entitled to cash payments from Visa and MasterCard and b) certain rule changes concerning surcharges for accepting these cards, the Notice should not be simply tossed in the trash.

The Lawsuit

The case, titled In Re Payment Card Interchange Fee and Merchant Discount Antitrust Litigation has on going in the U.S. District Court, Eastern District of New York, for the past seven years. Plaintiffs brought the case on behalf of merchants who accept Visa and MasterCard and include Payless Shoes, Parkway Corp. and Leon’s Transmission Service, Inc.  They claimed that MasterCard, Visa and approximately 40 member banks violated federal antitrust laws by conspiring together  set interchange fees (fees typically paid by merchants for accepting Visa and MasterCards) and imposed and enforced rules that limited merchants’ ability to steer customers into other payment methods. It is the Plaintiffs’ argument that such conduct forced merchants to pay excessive fees for accepting MasterCard and Visa cards.

The Class

Class action lawsuits are used when a large number of plaintiffs have claims or when claims are being made against a large number of defendants. Usually the plaintiffs or defendants are located in multiple states. The plaintiffs bring suit on behalf of a proposed class of plaintiffs. For the case to move forward as a class action the court must agree that the members of the proposed class have suffered a common injury or injuries, typically resulting from an action on the part of a business or a particular product defect or policy that applied to all proposed class members in a typical manner. The court must also be convinced that the initial plaintiffs have t he capacity and resources necessary to represent the class as a whole. If the court agrees, the class is certified and the initial plaintiffs are authorized by the court to act on behalf of all members of the class.

The initial plaintiffs are required, however, to provide all prospective members of the class  notice of their individual rights throughout the case. One particularly important right afforded prospective class members is the right to “opt out” of the class action and bring their own lawsuits against the same defendants. Typically, if a prospective class member does not affirmatively opt out of the class they will be bound by the results of the class action lawsuit. If someone does opt out, however, they will be bound by the results of their independent lawsuit. You cannot opt out of a class action and then opt back in if your individual case is not successful.

You received the Notice because…?

The parties have, after seven years of extensive litigation (more than 50 million pages of documents were reviewed and over 400 witnesses were deposed) decided that a settlement is in the best interests of both the class and the defendants.  A settlement does not mean that Visa and MasterCard admit any wrong doing. Settling the case means the defendants avoid the risk of a judgment that they must pay more than the settled amount; plaintiffs avoid the risk of a judgment for less money.  The settlement has not yet been approved by the court. Before that court will decide whether to accept the settlement the members of the class must be notified of their rights under the proposed settlement and given the option to opt out.

The records of Visa, Mastercard and the bank defendants show that you are probably a person, business or other entity that accepted Visa-Branded cards and/or MasterCard branded cards in the United States anytime from January 1, 2004 through November 28, 2012.  This makes you a member of the class, if you decide not to opt out.

What are the benefits to the class from the settlement?

The settlement provides two categories of benefits to class members: 1) a cash settlement and 2) changes in the rules and practices Visa and MasterCard can impose and enforce on class members who continue to accept Visa and/or MasterCard.

The cash benefit portion of the proposed settlement requires Visa, MasterCard and defendant banks to establish two funds from which class members may be paid. Combined, the two funds total just over seven billion dollars.  These funds will be used to pay money awards directly to class members, pay for the cost of administering the settlement (if approved by the court) and to cover attorney’s fees and expenses.  A portion of the funds (approximately $1.5 billion dollars) will be held back to cover claims of merchants who chose to opt out of the settlement and proceed in court with individual claims.

The expectation is that merchants will receive an amount equal to actual or estimated interchange fees paid on Visa and MasterCard transactions for the period of January 1, 2004 through November 28, 2012. The interchange fund provides payment (equal to 1/10 of 1% of credit card transaction volume) to merchants who accept Visa and MasterCard during an eight month period starting June 29, 2013.

The actual amount received, however, will be affected by the total value of all valid claims filed, costs of administration and attorney’s fees and expenses approved by the court. Details of how claims will be calculated are expected to be available as of April 11, 2013.

The rule changes, if approved by the Court, will become effective no later than January 27, 2013. Under the new rules, merchants will be able to charge an extra fee to customers who use Visa or MasterCard branded credit cards, may offer discounts at the point of sale to customers who do not pay with MasterCard or Visa. Merchants who operate under different trade names at more than one location will no longer be required to accept MasterCard and Visa at all of those locations. (If operating under one trade name the rule will still be that Visa and MasterCard must be accepted at all locations or none.) Merchants will still be allowed to set a $10 minimum purchase for Visa and MasterCard.

How Do you make a claim?

The Court first has to approve the proposed settlement. If approved, you will eventually have to file a valid claim in order to get payment from the settlement. If you have not opted out of the settlement the claim form will be mailed to you. It will also be available at www.PaymentCardSettlment.com.   Class members with more than one location or franchise may fill out (but are not required to) a pre-registration form which is available at the website.

A “Fairness Hearing” at which the Court will hear arguments as to why the proposed settlement is or is not fair is scheduled for September 12, 2013. How long it will take the Court to decide whether or not to accept the proposed settlement is unknown. The result is that it will be several months before a claim form will be available. In the meantime it is advisable for merchants to pull together information that supports the amount of their claim.

What if I don’t like the proposed settlement?

You have two options: 1) you can object to the settlement and 2) you can opt out.

To object to the settlement you must file a Statement of Objections with the U.S. District Court for the Eastern District of New York. A copy of your statement must also be sent to counsel for both the plaintiffs and the defendants. Your statement must ne postmarked no later than May 28, 2013.  Refer to pages 12 and 13 of the Notice for additional information.

How do you opt out?

You can only opt out of the cash settlement class. The proposed rule changes, if accepted by the court, cannot be opted out of and will apply to all merchants accepting MasterCard and Visa branded cards.

To opt out you must send a letter to the address specified in the Notice. First class mail is acceptable; you cannot opt out by phone, fax, email or online. You should keep a copy of your letter for your records. The letter must provide identifying information about the merchant (including the merchant’s taxpayer i.d. number), specifically state that you wish to opt out of the “cash settlement class in the case called In Re Payment Card Interchange Fee and Merchant Discount Antitrust Litigation.”  Refer to the Notice (pages 11 and 12 for the information that must be included in your opt out letter.)

Your letter must be postmarked no later than May 28, 2013.  If your letter is postmarked after that date it will be considered invalid. You will be bound by the terms of the settlement but you will also remain a member of the Cash Settlement Class entitled to payment. If you file your opt out letter on time you will not be eligible for payment under the terms of the class. You then have the right to bring claims against the Defendants on an individual basis.

What if you do nothing?

If you don’t file a claim form, object to the settlement or opt out you will not receive payment. You will be bound, however, by the terms of the cash settlement. All merchants, whether they file a claim, object or opt out will be bound by the proposed rule changes, assuming the court approves the settlement.

Where can I get more information?

Contact information, copies of the proposed settlement and a list of important dates can be found at www.PaymentCardSettlement.com

Defending against a Relief from Abuse Complaint or Domestic Violence Petition

Author’s Note:  Our firm represents both plaintiffs and defendants in New Hampshire and Vermont  in relief from abuse complaints (as they are called in Vermont) and domestic violence petitions (as they are called in New Hampshire).  This article deals with defense of such cases, in part because there are many sources of information for plaintiffs in both New Hampshire and Vermont.  See, for example, the Vermont Judiciary website,  http://www.vermontjudiciary.org/GTC/Family/abuse.aspx  or the New Hampshire judiciary website http://www.courts.state.nh.us/fdpp/dv_petitions.htm .

There has been an upswing in  relief from abuse (RFA) or domestic violence (DV) cases.  It is understandable  for a variety of reasons, some of which have little to do with abuse:

  • There is no filing fee or service fee for serving the defendant.
  • The petition or complaint will usually be reviewed on the same day it is filed, even if the court is not in session.  This is in contrast to other temporary relief sought in family court, which can take weeks, and even months, to be heard or decided by a judge.
  • If the complaint or petition is denied, under both Vermont and New Hampshire statutes, although each has a slightly different protocol,  the defendant will not know that the plaintiff filed the request. Therefore, as a practical matter, there is no downside to filing requests for relief.
  • If the petition or complaint is denied, and the plaintiff appeals, a hearing will be set within ten days.  Again, the time frame is much shorter than  other family court matters.
  • If a temporary order is issued, the defendant is served immediately, and all the relief that was ordered (for example, temporary possession of the home, custody of the children), goes into effect immediately.
  • Once an order is issued, a hearing must be set within ten days in Vermont, or 30 days in New Hampshire, per statutory requirement.
  • In New Hampshire, the rules of evidence, including the rule prohibiting hearsay, do not apply, thus making it easier for unrepresented parties to present evidence.
  • “Abuse” has a broad meaning, and does not need to include actual physical harm, but can include threats of harm, or stalking, in New Hampshire, “harassment.”  It also includes any kind of restraint, such as blocking a person from leaving his or her home.

Defending against relief from abuse complaints or domestic violence petitions is important, for if a final order is issued, there are certain consequences that can be dire:

  • A defendant who is under a relief from abuse or domestic violence order cannot possess firearms.
  • If there is a violation of the order (this is also true of a temporary order), the defendant is subject to criminal penalties.
  • Persons who have final orders on their record can lose their jobs and can be prevented from obtaining certain jobs.  Many employers, including employers in the military and law enforcement,   can and do use final RFA or DV orders as sufficient reason to discipline or terminate an employee.
  •  An RFA or DV order can limit your access to your children, your assets, and your legal and financial documents.
  • An RFA or DV order can prevent the defendant from attending public events, or even traveling certain roads, if  the plaintiff is in attendance or in proximity

Here are some do’s and don’ts in defending against a relief from abuse complaint or a domestic violence petition.

Don’t violate the temporary order.   In a Vermont  case a number of years ago where a temporary relief from abuse order was issued, the defendant sent the plaintiff a short love note.  The temporary order was dismissed, after a hearing, for lack of evidence, but the defendant was charged and convicted of a violation of the temporary restraining order.  If the order provides for no contact, that is exactly what it means.  The plaintiff can try to contact you, either directly or indirectly,  but you must never respond.  If you violate the temporary order, you not only will be charged with a crime, but, in my experience, you will have a harder time convincing the court that no abuse occurred

Don’t give the court the impression you think the plaintiff is crazy or just spiteful, or the court system is biased against you.  Family Court judges are conscientious,  are dealing with limited facts, and are trying to protect potential victims.  In my experience, Family Court judges try hard to be unbiased, and for the most part, they succeed.  However, if you are disrespectful to the court or dismissive of the petition or complaint, it will be much harder for the court to rule in your favor.

Don’t just deny the claims;  if the only evidence the court hears is the plaintiff’s claims and your denials, the court will likely grant the petition or complaint,  because the court will lean on the side of protection.

Do ask for a continuance if you need more time to obtain an attorney and get the facts together.  The Vermont statute allows you a continuance if you were unable to obtain an attorney in time for the hearing, and the court will likely allow you a continuance if you can convince the court that you have witnesses that were not available for the hearing, or need more time to prepare   In New Hampshire, a continuance will be granted “for good cause shown”,  but since New Hampshire provides for more time between the temporary order and the final hearing, a continuance in New Hampshire may not be needed.  A continuance means the temporary order remains in place for a longer period of time, but it is worth it.  A temporary order, if it does not become a final order, is confidential, and the records will be eventually destroyed by the court.

Do keep any texts, emails or other communications from the plaintiff. The Relief from Abuse or Domestic violence statutes require the court to find not only that abuse occurred  but that “there is danger of further abuse.” (Vermont’s statute) or the conduct constitutes a “credible present threat to the petitioner’s safety” (New Hampshire statute).   If the plaintiff tries to contact you after obtaining an RFA or DV order, those attempted contacts may be used to persuade the court that the plaintiff  does not believe that there is danger of further abuse or a present threat to his or her safety.   Remember, however, you can never respond to any communications from the plaintiff after you have been served with a temporary order.

Do obtain discovery, and even take a deposition.  VRFP Rule 9 (Abuse Prevention) provides that the court can order depositions to be taken for good cause shown.  In New Hampshire, it also appears that depositions may be taken under the general rule in New Hampshire’s Family Division.  Depositions are highly unusual in these cases, but they can be invaluable, and are worth seeking,  because RFA or DV hearings are the nearest thing to a 19th century trial, before discovery rules were in place, where no one knew ahead of time what evidence was going to be presented.  Many judges will not limit the evidence to what the plaintiff stated in the affidavit, and you can be blindsided by evidence with no means to defend against the evidence, if you have not obtained discovery ahead of time.

Do obtain an attorney, if possible, and as soon as possible.  These cases can have lasting effects on your life, your job, and your relationship with your children.  It is important to obtain legal counsel.  An attorney can contact the plaintiff in preparation for the hearing (but not to send messages from you) .  An attorney can determine whether the court has jurisdiction, or can assess whether there are other legal issues that need to be addressed.   An attorney can subpoena witnesses and records and prepare admissible evidence to help defend you.  Perhaps  most importantly,  an attorney with experience in Relief from Abuse or Domestic Violence cases can work with the plaintiffs or their attorneys to fashion an agreement that does not result in a final order and at the same time protects the plaintiff.

Update on Out of State Subpoenas–Notes from real life

A couple of months ago I wrote about the new Vermont statute that provided an easier way to subpoena records from out of state entities.

We had a chance to use the new statute, and here is our experience, with  some practical tips which may help to make the process more effective for other attorneys.

We subpoenaed records from Virginia.  The first task was to call the court in the county where the subpoenas were being served.  We learned that the court was quite familiar with the process, and gave us instructions on how to file a subpoena with their court, and informed us that further instructions were also on their website.  We did as we were instructed–except for one error noted below.  We received responses from two entities:  one, a bank, informed us they had no records of the accounts we requested.  Another, a credit card company, responded with a long legal letter, and concluded with an instruction to contact  their subpoena compliance division.   We did not hear back from the third subpoenaed party, a large corporation.

We called the large company, and after being transferred to several departments,  they told us they were not aware of any subpoena.  Finally, we called the Virginia court, and were told the subpoena had been returned to the court by the sheriff’s department because it did not have a service copy.  Since we always send service copies, and since the other parties had been served, and thus must have had service copies, this was a puzzle.  The further puzzle was why the court did not notify us.   We were informed that we needed to send an additional fee for the court to notify us of the error–something the court did not tell us when we first called.  We then sent another subpoena and a service copy per the court’s instructions.  We then kept calling the court and the sheriff’s department, but no one seemed to know where the second subpoena was.  The court clerk said it had been sent over to the sheriff, and the sheriff’s department said they did not have it.  We found out that the sheriff’s department was in the same building as the court, so this was yet another puzzle. Finally, the mystery was (sort of) cleared up.  Part of the problem was that there was an additional fee for service by sheriff–and that was our mistake, as the court’s website spelled that out. So, without the additional fee, the second  subpoena did not actually reach the sheriff.  The first subpoenas had been sent to the sheriff despite the fact we did not pay the additional fee, and the sheriff served the first two entities.  But the time we had sent the second subpoena, someone had realized that we had not paid the additional fee for sheriff service.  In any case,  since time was running out,  I pleaded with the sheriff’s department  to serve the large company anyway.  They did.

The legal department of the large company called me right away.  By the time they were served, the time tlimit on the subpoena was too close to respond in time.  I asked if they could fax some of the information to us (we were scheduled for a hearing in a few days).  They agreed.  And in fact, we received all of the records, certified, by snail mail,  and  in time for court.

The lessons we learned from the experience:

1. Large companies are familiar with subpoena requirements, and will respond promptly  to an out of state subpoena–something that small Vermont and New Hampshire business entities do not always understand, in my experience.

2. You should contact the court and service processor early and often  to make sure you are doing everything necessary to have the out of state entities served properly.

3. If there is a problem,  let the court or service processor know what your problem is.  Most people are sympathetic and want to be helpful.

 

The Public Service Board, Industrial Wind Turbines, and the question of beauty

Vermont’s signature environmental law, Act 250, in place now for over 40 years, has protected Vermont’s environment through a process that requires developers to demonstrate that that they meet certain statutory criteria before they can begin their projects.

Unfortunately, Act 250 does not apply to some of the largest developments Vermont has encountered in recent years. Industrial wind-tower developments on our ridgelines have an environmental impact far in excess of most Act 250 development projects in Vermont. However, instead of Act 250 proceedings at the district environmental commission with appeals to the Environmental Court the statutes for industrial wind projects require the Public Service Board review wind-tower applications and issue certificates of public good. The appeal from a Public Service Board proceeding is to the full Board, and then to the Supreme Court. The Public Service Board’s statutory mandate includes facilitating renewable energy projects such as wind power. To be sure, the Public Service Board is also required to consider environmental impacts of the development, but it would be as if Act 250’s legislative policies included encouragement of major shopping malls or industrial parks as well as determining whether the projects meet certain environmental standards.

The conflict between considering environmental impacts and encouraging industrial wind projects has been resolved by the Public Service Board in favor of industrial wind in virtually every case. The Board’s partiality toward wind development is demonstrated in its decisions regarding the aesthetic impact of industrial wind development. The Public Service Board is required to consider the same environmental factors that are outlined in the Act 250 statute. One factor, as set forth in 10 V.S.A. § 6086 (A) (8), provides that a board, agency, or court must determine whether the project has an “undue adverse effect on … aesthetics.”

The Vermont Supreme Court has adopted the Environmental Board’s three-part test to determine whether a project has an undue adverse effect on aesthetics, called the “Quechee” test. The second prong of the Quechee test is whether the project “offends the sensibilities of the average person.”

The Public Service Board has ruled in various wind-tower cases on what it has determined to be offensive to the sensibilities of the average person. In the Searsburg wind-tower case, the Public Service Board ruled that the average person’s sensibilities would not be offended by that wind project if he or she were properly educated. The Board stated: “With adequate information about the benefits of sustainable wind-generated electrical energy over other energy alternatives, the average person should not find this proposed project shocking or offensive.”

There are two problems with this Board guideline. First, because wind power is not sustainable without massive taxpayer subsidies, the statement makes no sense. Under this Board guideline, if Vermonters learned about the actual costs of wind generation, they would be more shocked and offended. According to the Wall Street Journal, based on statistics from the Department of Energy, wind generation received nearly 5 billion dollars in government subsidies in 2010, at a cost of $56.29 per megawatt hour, while the oil and gas industry received 486 million dollars in subsidies, at a cost of 64 cents per megawatt hour. Not only is wind generation not economically sustainable in Vermont, but it never will be for the simple reason that Vermont’s ridges are not windy enough. According to Dr. Benjamin Luce, chairman of the sustainability studies program at Lyndon State College, Vermont’s mountain ridges “possess surprisingly little wind resources.” Second, even if wind generation were sustainable in Vermont, its “benefits” are not related to aesthetics. Aesthetics is defined by the Merriam Webster dictionary as “a pleasing appearance or effect; beauty.” That has nothing to do with the efficacy of energy generation. If efficacy were the measure of aesthetics, oil and gas production facilities would be more aesthetically pleasing to the average person than industrial wind towers.

In the Searsburg case, the Board went on to clarify its holding concerning the average person’s sensibilities. It stated: “While some individuals who live close to the proposed project may find the proposed project offensive, they are not representative of the ‘average person’ because of their personal interest in the area and their opposition to change.”

There you have it. If only those unenlightened folks who love Vermont for its pristine ridgelines and peace and quiet were properly inculcated on the benefits of “sustainable” wind generation, they would find the towers aesthetically pleasing instead of grotesque. And the Vermonters who live near the industrial project should have no say as to whether the project is aesthetically offensive, because they live too near the project and they are not forward enough in their thinking.

The Board’s standard for determining whether an “average person” would be offended by industrial wind turbines on their ridgelines is a mixture of elitism and confused thinking. It is certainly not a legal benchmark against which courts could measure.

The Board did no better in the Sheffield wind-tower petition. It issued one paragraph concerning the second prong of the Quechee test in a 118-page decision. In that paragraph, the Board wrote : “In a previous docket, we stated that consideration of wind generation facilities ‘requires a balancing of two fundamental state policies: promoting in-state renewable resources, and protecting Vermont’s ridgelines.’ A large number of the public comments received in this Docket focused on the fact that the Project would impair the aesthetic qualities of the ridgelines. We recognize that scenic qualities of the area are important to its residents and there will always be some resistance to any change in the landscape. However, the Quechee test does not guarantee that the aesthetic qualities of an area will not change. The majority of the views of the Project are from a distance such that the size would not be overwhelming. Viewed from such distances, the average person would not find the scale of the Project shocking or offensive.”

There you have it again. Folks who live in rural Vermont because of its beauty and quiet are “resistant to change” in the landscape. Therefore, according to the Board, there is no undue aesthetic impact on the area. The Board’s reasoning bears no relation to whether an average person would offended by the ugliness of industrial wind towers.
The Board’s holdings demonstrate that it is utterly indifferent to the aesthetic impact of industrial wind turbines in Vermont, particularly in the Northeast Kingdom.

The State wants wind energy no matter what the cost to its ridgelines or residents, and the Public Service Board is a willing participant in this charade.

Finding hidden sources of a spouse’s income in a divorce

Obtaining an appropriate  award of spousal maintenance (alimony) or child support depends in large part on obtaining accurate information about your spouse’s income. Many people believe that their spouses are hiding income. There are ways to determine income, or to make an educated guess about income that the court will consider in determining alimony or child support.

The most common type of income concealment is when a spouse owns his or her own business. It is a virtually universal complaint that a spouse who runs a business does not report all of the business income. The purpose for non-reporting is to minimize tax liability, and if divorce litigants’ testimony is accurate, it is a rare business person who reports all of his or her business income to the IRS.

If you believe there is hidden income, there are several ways to determine actual income.

  • First, if possible, before you separate and litigation begins, make copies of all relevant financial documents you can obtain in your home, or if you have legal right to access them, in your spouse’s place of business.   These include financial statements from banks, credit unions, investment firms, or other financial institutions.  You should also copy credit card statements,  insurance policies,  deeds and wills and trusts. The documents should be copied and returned to their original place.   In this way, you will have sufficient account information to obtain further records, as well as any information about purchases and any estate planning that your spouse has engaged in.  In addition, internal financial information such as ledgers, profit and loss statements, and income statements either in hard copy or on file on the computer should also be copied or downloaded for future reference–again, if you have legal right to access those records.
  • Gather evidence of your standard of living during the marriage by cataloguing expensive purchases and vacations. Take pictures of expensive items purchased during the marriage, and make copies of any appraisals or invoices showing the value of any personal property purchased.
  • If you are leaving the marital home and your spouse is going to retain possession, take pictures of every room in the house to show the assets that are located there.  This also helps when you are trying to negotiate for a division of the personal property.
  • Obtain historic bank statements and bank loan files from any joint account.  If you have a joint account with your spouse, the bank will provide you with back statements and cancelled checks and deposit slips.  You may also be an officer in your spouse’s business, and thus be able to request account information regarding your spouse’s business.  (You may be able to obtain information about your status in your spouse’s business by going to the Secretary of State’s website.)
  • Check with your accountant or bookkeeper  to see if he or she will provide you with  financial documents.  If the accountant worked for both you and your spouse, the accountant should provide you with any information concerning joint financial transactions–of, if you are an officer in your spouse’s business, obtain financial information about the business.
  • Check and print all relevant information on social networking sites such as Facebook or Linkedin, which may show lifestyle information, asset purchases, or other financial information that your spouse may brag about.  Be sure to do this as early as possible, before your spouse blocks the sites.

Once you obtain all the financial documents you can on your own, and litigation has started,  your attorney should take the following steps:

  • Review your spouse’s financial affidavits that are required to be filed with the court.  These often reveal more than they intend to, including account information,  household expenses, as well as lists and values of assets which may indicate higher income than your spouse has reported.
  • File discovery requests asking for financial information that you were not able to obtain prior to litigation, such as names of financial institutions where your spouse has accounts.    The opposing party is required to respond, and you will be surprised how much information you can glean from the responses even if your spouse is hiding income.
  • If bank accounts are in your spouse’s name alone, or he or she has separate business bank  accounts,  your attorney can subpoena bank records. The law requires that a bank must notify the account holder of the subpoena, and if the account holder objects, you will be required to go to court to obtain an order for production. However, the information is relevant in a divorce case, and the court in most cases will order the bank comply with your request. You will have to pay the cost of production, but the cost has come down substantially because of the new technologies the banks now use to store information. You should ask the bank for statements, check images, deposit slips and deposited items. If your spouse has only one account, then it is easy to determine how much income your spouse is actually collecting if he or she is depositing income into bank accounts.  Determining actual income is more difficult when there is more than one account, and funds are transferred between accounts. You will have to try to follow the funds through each of the accounts, and you may need a forensic accountant or other financial expert to sift through the accounts. If there are multiple accounts, cancelled checks and deposited items can help follow the money trail.
  • Subpoena your spouse’s bank loan files. They are revealing, because when people want a bank loan, they want to demonstrate that they have the means to repay, so their financial statements filed with the bank often look entirely different than the income tax return filed with the IRS. The bank loan files also should include the bank’s analysis of the application and other financial information and notes. Therefore, when you subpoena the bank loan files, you should ask for the entire file.
  •  Subpoena your spouse’s bookkeeper or accountant to a deposition, and request that person to bring your spouse’s files. You can also require your spouse to testify under oath at a deposition. At a deposition, it is sometimes easier to force a deponent to provide information about financial accounts and records than requesting that information through written  interrogatories and requests to produce.
  • Have a forensic accountant or your attorney’s financial consultant review financial records of your spouse’s business to determine whether the expenses of the business include any personal expenses.  If they do, those personal expenses will be considered by the court to be personal income.
  •  Other sources showing life style or income are UCC filings, obtainable online, which will reveal personal property purchases that your spouse took out a loan on;  Dun and Bradstreet reports, and  department of motor vehicle records.

A new and nifty way to obtain discovery out of state–with a caveat

As those of you who have practiced for many years know, it has been nearly impossible to obtain out of state discovery in a civil case. In order to obtain discovery, a litigant was required to obtain an order from a court in their home jurisdiction, file the order with the foreign jurisdiction and request the order be enforced. The litigant would be forced to hire an attorney licensed to practice in the foreign jurisdiction to enter their appearance to enforce theVermontorder. For clients with limited funds, this was not a practical way to obtain discovery.

Today, this rule can seriously restrict the obtaining of discovery because of our mobile and internet culture. Many litigants now have out of state financial accounts or own out of state assets. It is not unusual, particularly if litigants reside near a state border, for a litigant to hire out of state accountants, bookkeepers, or counselors. Those experts have not been available for deposition unless the parties agree, or a litigant goes through the process of obtaining an order in their home state to be enforced in the foreign jurisdiction.

Now, under the Uniform Interstate Depositions and Discovery Act (UIDDA), discovery is much easier to obtain. In 2011,Vermontincorporated this Act in VRCP 45 (Subpoenas). The Act provides that when a jurisdiction adopts the provisions of the Act, its litigants can use the Act’s provisions in the foreign states where the Act has also been adopted. As of 2011, the following states, other than Vermont, have adopted the Act: California, Colorado, District of Columbia, Delaware, Idaho, Indiana, Kansas, Kentucky, Maryland, Mississippi, Montana, Nevada, New Mexico, New York, North Carolina, South Carolina, Tennessee, Utah, Virgin Islands and Virginia.

South Dakotaadopted the Act as of July 1, 2012, andGeorgiaandAlabamahave adopted the Act effective January 1, 2013.MaineandArkansashave adopted similar rules, but apparently only in guardianship proceedings.

Rule 45 states as follows:

“Issuance of Subpoena for Interstate Depositions and Discovery.

(A) To request issuance of a subpoena under this rule, a party must submit a foreign subpoena to the clerk of court in the county in which discovery is sought to be conducted. A request for the issuance of a subpoena under this rule does not constitute an appearance in the courts of this state.

(B) When a party submits a foreign subpoena to a clerk of court, the clerk shall promptly issue a subpoena for service upon the person to which the foreign subpoena is directed.

(C) A subpoena under subparagraph (B) must:

(i) conform to the requirements of Rule 45 and other applicable provisions of these rules, but may otherwise incorporate the terms used in the foreign subpoena so long as they conform to these rules;

(ii) advise the person to whom the subpoena is directed that such a person has a right to move in the Vermont court under Rule 45(c) for an order to quash or modify the subpoena; and

(iii) contain or be accompanied by the names, addresses, and telephone numbers of all counsel of record in the proceeding to which the subpoena relates and of any party not represented by counsel.

(4) Service of Subpoena. A subpoena issued under paragraph (3) must be served in compliance with Rule 45(b), except that the officer or individual responsible for service shall not return a certificate of service or affidavit to the court that issued the subpoena. Instead the officer or individual responsible for service shall deliver a certificate of service or affidavit to the party who requested the subpoena.

(5) Deposition, Production, and Inspection. Rules 45(a), 45(b), 45(d) apply to subpoenas issued under paragraph (3).

(6) Application to Court. An application to the court for a protective order or to enforce, quash, or modify a subpoena issued under paragraph (3) must comply with Rule 45(c) and be submitted to the court in the county in which discovery is to be conducted.”

Thus, if a litigant wants to subpoena documents in a foreign jurisdiction which has adopted provisions of the Act, he or she need only file the subpoena with the court clerk in the jurisdiction where the person subpoenaed resides. Moreover, because the rule indicates that such a provision does not constitute an “appearance”, it is reasonable to conclude that an attorney filing the subpoena in a jurisdiction where the attorney does not have a license to practice would not be violating the rule against unauthorized practice of law.

The matter becomes more complicated however, if the person subpoenaed moves to quash the subpoena or requests a protective order in the foreign jurisdiction, or if the person who issued the subpoena seeks to enforce it in a foreign jurisdiction. I have found only one jurisdiction which addresses this issue:Utahhas specifically stated in its statutes that, other than filing a subpoena with a court clerk inUtahunder the provisions of the Uniform Interstate Depositions and Discovery Act, any other action by an attorney not licensed inUtahwould be considered unauthorized practice of law.

Utah’s statute reflects what the courts would likely rule in the other states regarding any actions other than filing a subpoena. If an attorney needed to defend the issuance of a subpoena, or needed to enforce the subpoena in a foreign court, then it is logical to assume that the attorney would need to be licensed to practice in that state.

Thus, if the party subpoenaed complies with the subpoena and does not challenge it in a foreign jurisdiction, no outside counsel licensed in the foreign jurisdiction would be necessary, saving litigants additional expense. However, if the subpoena requires court intervention, then counsel in the foreign jurisdiction would need to appear.

This new Act provides an easier and less expensive way to obtain discovery. Its limitation is that if the discovery is contested in any way, then out of state counsel must be hired. One would hope that, once this Act is more generally implemented, the lessons derived from the implementation of the Act would point toward ways of making it easier to obtain contested discovery out of state.

 

 

 

33

Opinion: Unrepresented (pro se) parties in court should not have special treatment

A man  filed for divorce a year after he separated from his wife.  He was represented by an attorney at various times during the divorce, but at the final hearing, held two years after he filed, he was unrepresented.  The parties had been notified of the final hearing many weeks earlier.    The wife, who had an attorney, had prepared for the hearing, and had witnesses ready to testify.  The husband claimed he  did not know what he was supposed to do.  The court commented that because he was not represented by an attorney,  the hearing would be “one-sided”.  After the wife’s attorney requested that the hearing go forward, the court allowed testimony, but at the end of the hearing, ordered that the husband be allowed another 1/2 day to present additional evidence, with the hearing to be set several weeks later so that the husband could obtain an attorney.

A woman filed a relief from abuse petition and was granted a temporary order for relief from abuse.  When the defendant  was served, he filed a motion to modify the relief from abuse order, failing to provide a copy to the the woman or her attorney. As a result, he was given a hearing with two days notice to the plaintiff.   The plaintiff and her attorney had to set aside other matters to prepare for the hearing.  However, they were not prepared for the defendant’s motion because they were not provided a copy.  When the court found out defendant  had not provided a copy to the opposing party, the court commented that unrepresented parties sometimes do not understand the rules, and went ahead with the hearing.

A unrepresented man filed a  motion with the court concerning a financial transaction involving persons not parties to the court proceeding.   The court issued an ex parte order ordering  the opposing party, who was represented by an attorney, to perform a task within a few hours; otherwise the transaction could be postponed, jeopardizing the transaction itself.  The opposing party’s attorney had to drop everything to attempt to comply with the court’s  order.

These three incidents happened recently before three different judges. In each of the cases  the unrepresented parties were given consideration because they did not have an attorney.  As a result, the represented party was penalized–either with onerous deadlines or with expensive and emotionally draining delays.

The courts tell unrepresented parties that they have the same duties as attorneys to understand the law and the procedures of the court.   The reality is that often unrepresented parties are given more consideration than those parties who are represented by attorneys.

Clients notice.  They rightly complain that it is fundamentally unfair to the party who has hired an attorney, and that they should not have to pay their attorney for the failure of the other side to properly follow court orders or understand the law.

I agree.  When an unrepresented party is given special consideration,  it dimishes  the prestige of the court, in my opinion.  Why?  because whan a court treats one party differently than another, the message to litigants is that the rules can be bent, depending on the status of litigant.   This message is often a shock to litigants who are unfamiliar with court processes. It also has the unintended effect of reducing the number of represented parties.  To be sure, many parties are unrepresented in court because they cannot afford an attorney. But not all parties who can afford attorneys hire them to represent them in court.  One reason may be that they believe they will be given a break if they do not have an attorney.  The courts should disabuse any litigant of that belief at the beginning, by making sure unrepreseented litigants are required to follow law and procedure, just as those who are represented by an attorney must.

 

 

 

New disclosure requirements for sales of residential property

Effective January 1, 2013, the sellers of real property that is not served by a public water system will have to provide the buyer with certain information about the potential health effects of consuming contaminated groundwater and the availability of test kits from the Vermont Department of Health.

According to the U.S. Environmental Protection Agency and the Vermont Department of Health, nearly 40% of Vermont residents obtain their drinking water from groundwater sources. News stories of families harmed by contaminated by contaminated ground water sources are becoming more frequent, and in many cases the link between the health issue and groundwater is not made until years after the damage has been done. Legislation initially considered would have required property owners to test water wells for a variety of contaminants.  The proposal was met with stiff opposition, and the newly enacted law is seen as an acceptable compromise in addressing a significant health concern. Sellers do not have to test their water source, but they do have to notify buyers of potential risks.

Vermont law already requires the sellers of pre-1978 homes provide buyers with information about the hazards of lead paint.  Sellers are now required to also provide buyers with similar information about the potential risks of contaminated groundwater water within 72 hours of the “execution of a contract for conveyance of real property (more commonly referred to as a “purchase and sales agreement.”)  The informational materials are being developed by the Department of Health and should be available on line prior to 2013.

Sellers who work with a realtor or broker should find it easy to comply with the new law.  The statute requires the department of health to worker with brokers to develop language to be added to the “seller’s property information report (“PIR”).  The PIR is a written report developed and voluntarily used by the real estate industry to disclose to buyers important information about the property.  Providing the information at the beginning of the sale minimizes the risk that a buyer will later claim that the seller failed to disclose information which may have caused the buyer to reconsider the purchase. While some may see the new law as more burdensome paperwork it can actually protect the seller down the road.

The new law is not limited in applicability, however, to only those deals involving a real estate professional.  Nor does the requirement appear to apply only to residential property.  The statute merely requires that any “seller” of real property provide the required information to buyers which would include “for sale by owner” transactions and sellers of commercial properties as well.

But while the seller’s failure to provide the required information will not affect the marketability of the property’s title, a civil penalty of up to $250 can be incurred.

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