OFFICE OF THE SELECTBOARD
Town of Halifax, Vermont
SELECTBOARD SPECIAL MEETING MINUTES
May 9, 2016
Call to Order
The meeting was called to order at 7:30 p.m. Selectboard members Lewis Sumner, Mitchell Green, and Bradley Rafus were present, as were Town Attorney Robert Fisher, Andrew Rice, Susan Kelly, Cara Cheyette, and Robbin Gabriel.
Changes and/or Additions to Agenda
Lewis Sumner said Gabriel had a topic to discuss with the Board later in the meeting.
Discuss Dog Issue with Town Attorney
Attorney Robert Fisher advised he has reviewed state law and the Halifax municipal ordinance related to dogs; he asked the Board to provide specifics of the individuals involved. We can do this in open session, or go into executive session to discuss legal strategy, he continued. Sumner recommended holding discussion in open meeting.
In the event of a dog bite, said Fisher, if the town does not have a municipal ordinance, Title 20 of the state statutes applies. The statute contains a procedure for investigating vicious dogs and dog bites. The incident is reported; the Selectboard, health officer, animal control officer, or dog warden investigates; then the Selectboard can hold a hearing at which evidence is heard from both sides. The Board then makes a decision based on the facts. That decision can be anything from no action, to restraint, to euthanization. However, if a municipal ordinance exists and is inconsistent with the state statute, that ordinance supersedes state law. The Town’s municipal ordinance, Fisher went on, simply states the dog can be impounded and reclaimed by the owner within six days. He advised that while an argument could be made that the Town’s ordinance was not inconsistent with state statute, but simply silent, that argument would most likely be appealed by the dog owner in Superior Court. That, he said, can get expensive.
Two other options would be to repeal the municipal ordinance and rely on state statute, or amend the ordinance to align with the template provided by Vermont League of Cities and Towns. Mitch Green asked whether repeal or amendment would apply to an incident that has already occurred; in Fisher’s opinion taking either action would prove useful in arbitrating future incidents, but the present situation calls for an agreement between the Town and dog owner. Either repeal or amendment requires a process which takes several months. Meanwhile, dog owner Kayte Bak has indicated through her attorney, James Valente, a willingness to sign an agreement with the town.
Animal Control Officer Andy Rice summarized the dog’s history and the bite incidents for Fisher. The dog (Shiloh) began its life as a feral dog in the south, said Rice, and was brought here when three or four months old. Two bite incidents have been reported and investigated—a DHL driver in January and Justin Hill about a month ago. Both victims were treated in hospital emergency rooms. While Bak originally agreed to euthanize the dog after a 10-day observation period, she did not do so. (See May 3 Selectboard meeting minutes at http://halifaxvt.com/selectboard/meeting-minutes/2016-05-03-selectboard-regular-meeting-minutes-draft/ for additional detail.) Shiloh was not registered or vaccinated until after the first bite, said Rice. The dog is unpredictable; we’re somewhat concerned that if we agree to fencing the dog, are they going to do it, or is the gate going to get left open. We have neighbors who are concerned. We have alerted the road crew, EMS, and the fire department to the situation.
Either bite victim has the right to sue the dog owner privately for personal injuries, Fisher told the Board. From the town’s perspective, you’re looking at protection of the public. Relying on the ordinance, which only provides for impoundment and reclaim by the owner, is an exercise in futility, and if they (owner) have gone back on what they said was going to be their agreement, for right now we are stuck with their decision. One choice is to proceed along the lines that the ordinance is not inconsistent (with state statute) and hold a hearing.
In response to an earlier question from Green, Fisher said the Board’s May 5th meeting did not constitute a hearing, unless the meeting had been warned as a hearing and notices sent out. No, we didn’t do that, said Sumner; we didn’t know they were all coming. Rather than hold a hearing that will probably be appealed in Superior Court, said Fisher, you can consider forming an agreement with Bak that will, from your standpoint, protect the public. Fisher approved Sumner’s suggestion that an agreement be witnessed by a notary public. Can there be a stipulation that if the terms of the agreement are not followed, the dog can be euthanized, asked Rice.Yes, Fisher replied.
The town ordinance, said Cara Cheyette, is pursuant to §3549 (of state statute), which only concerns nuisance dogs. §3546 covers holding hearings and euthanizing dogs. If the ordinance is only pursuant to §3549, couldn’t it be argued the town never adopted an ordinance pursuant to §3546? That’s the argument the town would make, answered Fisher. James Valente is taking an opposite stance. I’m not saying he’s right, but the owner would appeal to Superior Court for a decision.
Sue Kelly recounted some of the compliance problems she had dealt with, including Bak’s refusal to have Shiloh quarantined at a facility after the second bite, her unwillingness to have the dog tested by the state, her decision not to have the dog euthanized after agreeing to do so, and her inability to adequately restrain the dog on leash. The more I hear, the more the likelihood of compliance diminishes, remarked Fisher. He mentioned the possibility of an emergency amendment to the ordinance, but needs to research that option before offering an opinion. Would the town be liable, asked Brad Rafus, if there were an agreement in place and the dog got out and bit someone again. If the town has exercised a reasonable duty of care, replied Fisher, it would seem unlikely a jury would find the town negligent. The owners have shown no responsibility for the animal so far, said Rafus. The dog was not licensed or vaccinated until after the first bite in January. At the last meeting, a gentleman stated the dog had been at his house, which is a mile and a half to two miles from the dog’s residence. This is not a small dog, added Sue Kelly; it’s over a hundred pounds.
Discussion moved to details for inclusion in an agreement, including type of collar and muzzle, type and length of leash; type of fencing and specifications for installation, and consequences for non-compliance. Sumner recommended having Fisher write up an agreement, with input from Kelly and Rice. Abutting land owners and neighbors should receive a copy of the final agreement, and be advised to document any infractions with pictures, added Rice.
The Board approved a request from Gabriel to have Charlene Martynowski assist for a few hours in preparing for the first printing of the Grand List, and to be present during grievance hearings in an advisory capacity.
Executive Session (if necessary)
Hearing of Visitors
The meeting was adjourned at 8:32 p.m.