The Vermont Labor Relations Board (VLRB) denied my Motion to Reconsider their decision following revelations that the VLRB chair is in an ethically conflicted relationship with UVM, or gives the impression to any reasonable person that financial, professional, personal and prejudicial factors pose or appear to pose a potential for conflict of interest.
The VLRB chair summarized the facts I supplied in my Motion only up to #6 (see below). The remaining facts were omitted. See my Reply to UVM’s Opposition to my Motion to Reconsider (and Recuse) filed before the VLRB made their decision. Appearance of a potential conflict of interest potential? You be the judge.
VERMONT LABOR RELATIONS BOARD
DOCKET NO. 17-27 (GRIEVANCE OF JOHN SUMMA)
JOHN SUMMA v. THE UNIVERSITY OF VERMONT
AND STATE AGRICULTURAL COLLEGE
REPLY TO OPPOSITION TO MOTION TO RECONSIDER
- The Vermont Labor Relations Board (VLRB) website provides Board member professional biographies to the public, which includes a biography for Mr. Richard W.Park, Chair of the VLRB.
- The VLRB website biography for Mr. Richard W. Park describes Mr. Park as “retired” and makes no mention of being affiliated with Delta Dental of VT (DDV).
- Mr. Park joined DDV’s Board of Trustees in 2012, is currently the corporate secretary of DDV, and was corporate secretary of DDV while leading the hearing (as Chair)of the Grievance of John Summa.3
- In 2014, Mr. Park was vice-chair of DDV. As vice-chair, and later corporate secretary, Mr. Park received compensation. He became corporate secretary in 2015.
- DDV underwrites dental policies (and processes claims) in Vermont, which includes plans offered to employees at UVM and UVM’s Medical Center.
- DDV receives substantial income from its business relations with UVM through its dental plans offered to UVM employees, one of the largest employers in Vermont. DDV regularly donates money to UVM programs.
- Jason Williams is director of government and community relations at UVM’s Medical Center, which has some formal and informal affiliation with the University of Vermont’s Board of Trustees through UVM’s Healthcare Network and UVM’s School of Medicineamong other channels
- Mr. Park in 2016 was corporate secretary of Delta Dental of VT when the decision was made to add Jason Williams to the Board as a director.
- Sitting with Mr. Park on the Board, besides Jason Williams, is UVM’s Grossman School of Business affiliated Paula Cope. Cope is a lecturer at the Grossman School ofBusiness and has been involved for a long-time with fundraising efforts for UVM.
- Nancy Rowden-Brock is a former executive in residence at the Grossman Schoolof Business and is a board member at DDV. Mr. Rowden-Brock has ties to Wall Street- linked financial firms and local businesses tied to UVM
- The Grievant has written critically of the Grossman School of Business links to Wall Street, and Wall Street donations to UVM, at his blog about wrongful denial of reappointment at UVM, which has been referenced by UVM lawyers
throughout the proceedings (pre-hearing and during the hearing) of the Grievance of JohnSumma.11
- The Grievant is a critic of standard model economics promoted by the Grossman School of Business, which has been reported by several state-wide media outlets.11
Discussion and Arguments
Mr. Park led the hearing of the Grievance of John Summa, which ended with a decision in favor of UVM. The failure of the VLRB (and Mr. Park) to publicly disclose his currentindirect affiliation with UVM (and his associated pecuniary interests) vis-a-vis Delta Dental of Vermont (where Mr. Park is the corporate secretary and has been since 2014) alone constitutes a violation of the most basic elements of fairness related to any judicial and administrative justice procedural protocol. Failure to disclose information that would have allowed the Grievant to assess the potential for conflicts of interest, and the potential for lack of impartiality, denied the Grievant a timely option to request recusal of Mr. Park from the hearing. UVM cannot, therefore, argue that the Grievant’s motion is a result of not agreeing with the outcome of the case. This is a trivial statement.
There is no untimeliness to the Motion to Reconsider and request for recusal of Mr. Park. Prior to the hearing, the Grievant was informed through the VLRB website that Mr. Park was “retired,” where there was no mention of past or present affiliation with Delta Dental of Vermont (DDV). Given this available information at the VLRB website, any reasonable person would have concluded that there was no reason to investigate connections of Mr. Park to UVM through DDV. This information would later initially be discovered through Grievant acquisition of IRS form 990 records after learning of the outcome of the hearing, and what the Grievant concluded was a one-sided finding of fact by the VLRB. As noted in the Grievant’s Motion to Reconsider, only one Grievant exhibit was cited compared with 32 UVM exhibits.
Furthermore, it should not be the responsibility of the Grievant to vet such information about hearing officers. Disclosure (and thus transparency) is the responsibility of the hearing officer and the administrative board with which the hearing officer is affiliated. Disclosure in these matters is essential for a Grievant to make decisions about the potential for fairness and impartiality. The Grievant was denied this opportunity through no fault of his own. In fact, given the information available to him through the VLRB website, the Grievant argues he was misled into thinking that Mr. Park was above reproach.
Regarding what constitutes a conflict of interest or an appearance of a conflict of interest, UVM cannot have it both ways. UVM’s Opposition to the Grievant’s Motion to Reconsider contradicts its own published policies related to potential conflicts of interest as they apply to its own officers and employees. UVM’s own definition of a conflict of interest (or appearance of a conflict of interest) and its recommended procedures make clear that if they were applied to Mr. Park, he would be in violation of UVM’s own standards.
A conflict of interest arises with respect to activities that compromise, or appear to compromise, an employee’s judgment in performing his or her University duties. These conflicts can arise when an employee, or a member of his/her family (as defined below) has an existing or potential personal, financial or other interest that: (a) impairs or may reasonably appear to impair his/her independence of judgment in the discharge of responsibilities to the University; or (b) may result in personal gain or advancement at the expense of the University. University employees serve the public trust and are required to fulfill their responsibilities with due care and loyalty to the best interests of the institution. The integrity of the University must be protected at all times, both in actuality and appearance. Conflicts of interest therefore must be: (1) disclosed, (2)eliminated or (3) properly managed. (emphasis added)
Regarding “prohibited conflicts of interest,” UVM’s policy states: Negotiating or authorizing on behalf of the University a contract or other business transaction for services, goods, or products, from a company or enterprise in which the employee or a member of the employee’s family has an substantial financial interest or management position known to the employee.
Applying these standards to Mr. Park would mean he would have been in violation of UVM’s own standards regarding potential conflicts or the appearance of potential conflicts: this because the facts are more than scant that Mr. Park’s affiliation with DDV and DDV’s affiliation through its board members (with Grossman School and UVM’s Medical Center) “may reasonably appear to impair his/her independence of judgement in the discharge of responsibilities.” To be clear, however, the Grievant is not necessarily arguing that Mr. Park was, in fact,
biased in favor of the University, or that his pecuniary interests biased his decision in deciding the grievance. Instead, the Grievant is arguing that there are sufficient grounds for a reasonable person to question the integrity (and fairness) of the hearing process (particularly given the fact of Mr. Park’s failure to disclose his current affiliations with DDV to the public, and thus to the Grievant). This fact alone heightens the appearance of a bias or apprehension over lack of impartiality. UVM attempts to discount Mr. Park’s DDV affiliation, but the fact remains that these are not past affiliations. In the case of McIsaac v. University of Vermont (2003-241); 177 Vt. 16; 853 A.2d 77 2004 VT 50, cited by UVM in its Opposition, the board member in question regarding recusal had a past affiliation.
The DDV corporate secretary position is, in fact, an ongoing one, where Mr. Park is making decisions about company business, which includes underwriting dental plans for UVM employees. Sitting on a corporate board next to UVM business school affiliated individuals (tied to alumni fundraising) and administrative personnel in community relations (with informal and formal links to UVM Board of Trustees) would lead any reasonable person to at least doubt whether Mr. Park could remain impartial, particularly because there might be implications for him should he decided in favor of the Grievant, given his proximity to UVM through DDV. Furthermore, deciding a case that has been reported in the media and received a great deal of attention in the Burlington area, could only make matters worse in this regard.
Beyond the failure to disclose and self-disqualify himself, the Grievant argues that he was denied due process, pursuant to the Due Process Clause in the 14th Amendment of the US Constitution. Government at all levels must provide fair procedures to its citizens in the administering of the law. Yet, this due process was violated in the case of the Grievant. Vermont has no procedures or entities available to receive and determine complaints about administrative hearing officers over appearance of bias or potential conflicts of interest leading to the appearance of justice not being done.
Pursuant to Vermont statute (12 V.S.A. §61(a), Mr. Park should have recused himself on the basis of “disqualification for interest”. Additionally, Vt. Sup. Ct. Order 10, Canon 3E(1), states in no uncertain terms that a judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might “reasonably be questioned”.
According to a Report of the Study Committee on Administrative Hearing Officers(February 2014), which was prepared by a legislative committee of the Vermont legislature pursuant to the 2013 Acts and Resolves No. 61, Sec. 4 (S.1), there is no system in place to address potential conflicts of interest, bias or appearance of bias and unfairness by Vermont hearing officers (Mr. Park is a hearing officer). Below is a relevant section of the committee’s report:
One of the most troubling facts presented to the Committee is that when a person has a concern about a hearing officer’s conduct or performance, there is nowhere the person can go to file a complaint. If a litigant has a concern about a judge in the Judicial Branch, a complaint can be made to the Judicial Conduct Board. Similarly, an allegation of misconduct by an attorney can be made with the Professional Conduct Board, just as complaints about other regulated professionals may be made to (and are investigated by) the Secretary of State’s Office of Professional Regulation. But, remarkably in light of their powers and responsibilities, there is no similar entity able to receive and determine complaints about administrative hearing officers.
This concern is far more than theoretical. According to its Chair, the Judicial Conduct Board regularly receives complaints about the performance of Vermont hearing officers. The complaints vary widely but typically address matters such as professional competence, knowledge and application of the rules, dissatisfaction with the result of a case, showing lack of respect to the parties, and demonstrating bias or prejudice. Perhaps the most troubling complaints involve allegations of ex parte communications or conflicts of interest where the hearing officer denies a request for recusal. Although precise figures were unavailable, the Chair reported that the complaints are not insignificant in number and that they have occurred with enough frequency and consistency that the Board has been concerned about them for some time.
Despite its concern about the complaints, though, the Judicial Conduct Board (JCB) cannot address them. As the Vermont Supreme Court has ruled, the Code of Judicial Conduct does not apply to Executive Branch hearing officers absent a statute directing otherwise. In re Crushed Rock, 150 Vt. 613, 623 (1988). As a result, the JCB is forced to inform complainants that it does not have jurisdiction over matters related to hearing officers. While correct, this response is bound to be frustrating for the complainant. Even more concerning is that the complainant cannot be referred elsewhere because no other entity has jurisdiction, either.
This state of affairs cannot be permitted to continue. It should not be the case that hearing officers make decisions affecting the rights of many thousands of people every year, yet there is no independent entity where a person can file a complaint about how the hearing was handled or about how he or she was treated. (Emphasis added).
The principle underlying the doctrine of reasonable apprehension or appearance of bias is that justice must not only be done, but justice must be seen to be done, a long standing principal of common law long upheld by courts. Given that there is “no independent entity where a person can file a complaint” when facts are discovered that reveal potential conflicts of interest only heightens the concern over justice not being seen to be done. No recourse for a complainant together with appearance of conflicts of interest (pecuniary and others) thus amounts to undermining the integrity of the entire judicial and administrative systems of justice.
For these reasons the Grievant respectfully requests that the Board replace Mr. Park with an alternative VLRB Board member and conduct a de novo review of the Grievant’s proposed facts, arguments and conclusions of law, and reconsider its previous decision.
Dated at Burlington, Vermont the 25th day of May, 2018. JOHN SUMMA
John Summa, pro se
3 Rockland St, Suite A Burlington, VT 05408 Tel. 802-846-7509
1. See http://vlrb.vermont.gov/about-us/board for Board member biographies.
2. The VLRB website biography for Mr. Park states: “He was the Director of Risk Management Services for the Vermont League of Cities & Towns until he retired in 2010.” Id.
3. According to VLRB Executive Director, Tim Noonan, Mr. Park is a corporate secretary of DDV. He contacted Mr. Park to confirm this information after being asked by Mark Cook a journalist based in NYC. Mr. Noonan did not know prior to contacting Mr. Park that Mr. Park was corporate secretary. See
attached audio file of Mr. Noonan voicemail message left on the Grievant’s iPhone. Mr. Noonan had no knowledge of Mr. Park’s current affiliation with DDV when contact by Mark Cook.
Download Noonan voicemail: https://drive.google.com/file/d/0B0fBdViz429iQ2RRN2h6ekVLTEw2d3FhT09ZbHZmc1dGNFJB/view? usp=sharing
4. Delta Dental of VT IRS forms 990 (see years 2012-2016). Total revenue in 2016 was a little over $75
million. DDV processes dental insurance claims by UVM employees and others.
5. Id. DDV underwrites UVM dental insurance plans. See also Dental Plan Description for UVM
6. See https://www.nedelta.com/SiteMedia/SiteResources/downloads/AnnualReports/2015-Annual-Report.pdf for
DDV mention of DDV donations to UVM. UVM Medical Center alone is the largest employee in Vermont. This does not count all the faculty and staff at UVM.
7. Delta Dental of VT IRS forms 990 (see year 2016). See also https://www.nedelta.com/About-Us/Board-
Leadership. See also https://www.uvmhealth.org/pages/about-uvm-health-network.aspx and https:// www.uvmhealth.org/medcenter/pages/about-uvm-medical-center/overview/leadership/board-of-trustees.aspx
9. Id. See also Paula Cope’s longstanding relations with UVM’s alumni association at:
10. Delta Dental of VT IRS forms 990 (see year 2016).
See also: https://www.stowetoday.com/stowereporter/archives/brock-heads-st-michael-s-finances/
11. See https://www.deadendeconomics.com/1858-2/ and https://www.deadendeconomics.com/uvm-flacks-for-
wall-street-by-pushing-free-market-economics/ and https://www.deadendeconomics.com/monte-verde- university-2045-is-uvm-now-on-the-corporate-dole/
12. Id. See also https://vtdigger.org/2017/04/07/uvm-economics-professor-fighting-job-ideals/. Seven Days also ran a story about the grievance that was widely read around UVM and Burlington.