Whitaker v. Montpelier

VERMONT SUPERIOR COURT CIVIL DIVISION
Washington Unit Case No. 25-CV-04605
65 State Street
Montpelier VT 05602
802-828-2091
www.vermontjudiciary.org
Stephen Whitaker v. City of Montpelier et al

ENTRY REGARDING MOTION
Title: Partial Motion to Dismiss (Motion: 10)
Filer: Michael John Tarrant, II
Filed Date: January 26, 2026

This motion is granted.

Defendants, the City of Montpelier and its mayor, Mr. Jack McCullough, seek partial
dismissal of Plaintiff Stephen Whitaker’s second amended complaint.1 As amended, the
complaint includes 5 counts. In Counts 1 and 2, Mr. Whitaker asserts violations of the Open
Meetings Law (OML), 1 V.S.A. § 310–314, and the Public Records Act (PRA), 1 V.S.A. § 315–
320. Defendants do not challenge Counts 1 and 2. Counts 3 and 4 present numerous objections
to City conduct or decision-making, but the allegations are not clearly or effectively organized to
explain what legal claims Mr. Whitaker is asserting. Count 5 is not an independent legal claim
but a list of various declarations and injunctions that Mr. Whitaker seeks. These are remedies
and not claims. Mr. Whitaker has sued Mr. McCullough in his individual capacity, seeking only
criminal penalties against him for alleged knowing OML violations under 1 V.S.A. § 314(a).

Defendants seek to dismiss Mr. McCullough from the case entirely. Otherwise, they seek
to dismiss Counts 3 and 4 both for failure to state a claim and because Mr. Whitaker lacks
standing to bring those claims. They also seek to dismiss or strike whatever portion of Count 5
relates to Counts 3 and 4.

The first challenge is to identify the nature of the legal claims subject to Defendants’
motion. V.R.C.P. 8(f) (“All pleadings shall be so construed as to do substantial justice.”). The
second amended complaint is 171 paragraphs of allegations before a several page long “prayer
for relief.” See V.R.C.P. 8(e)(1) (stating that the allegations of the complaint “shall be simple,
concise, and direct”).

1 The procedural posture of this case is unusual. The Court granted the second motion to
amend the complaint before it considered the timely filed opposition because Defendants made
the filing after hours and the Court did not see it on the docket at the time of its decision.
Defendants then filed a motion to reconsider and a motion to dismiss to preserve their right to
challenge the second amended complaint. For procedural efficiency, the Court denied the
motion to reconsider without prejudice to the substantive arguments in opposition to amendment.
See Order Regarding Pending Motions (Feb. 3, 2026). Those arguments were incorporated into
the motion to dismiss and are considered here.
Count 3 focuses on a contract the City entered into with White + Burke Real Estate
Advisors, Inc., as listing agency, to market and sell the City’s Country Club Road property. Mr.
Whitaker objects to the following: (1) that the City did not follow its Charter or purchasing
policy when it contracted with White + Burke because it did not put the contract out for bid, (2)
it did not produce a written justification for a “sole source” contract when or before it entered
into the contract, and (3) it similarly failed to disclose to the public in a timely manner a
contingent-fee term of the contract, which he alleges creates a conflict of interest in violation of
City policy and is prohibited by unidentified federal grant programs. Mr. Whitaker asserts that
these issues warrant declaratory and injunctive relief voiding the contract. Mr. Whitaker
identifies no statutory right to review or other ascertainable common law claim. As a result, the
Court concludes that this is a claim for a writ of mandamus subject to Rule 75 procedures.

In Count 4, Mr. Whitaker alleges that the Country Club Road property, or some of it, “is
an active Brownfield site enrolled with the Vermont Department of Environmental Conservation
Sites Management Section, with documented exceedances of arsenic, lead, PAHs, and heptachlor
epoxide.” Second Amended Complaint ¶ 155. He alleges that the City has done work on the
property without the correct plans and permissions from the Department of Environmental
Conservation (DEC) in violation of the 10 V.S.A. ch. 159 and DEC’s “I-Rule,” Investigation and
Remediation of Contaminated Properties Rule, available at https://dec.vermont.gov/sites/dec
/files/wmp/Sites/02.2024.Final.corrected.IRule.pdf. He seeks a declaration and injunction
prohibiting further such activity until all DEC-approved plans are in place and corrective action
has been taken. Again, Mr. Whitaker identifies no statutory right to review or other reasonably
ascertainable common law claim, and the Court similarly concludes that this too is a claim for a
writ of mandamus subject to Rule 75 procedures.

1. Standing argument

Defendants seek to dismiss Counts 3 and 4 and argue that Mr. Whitaker lacks standing
because he has not sustained a direct harm from the allegations in those counts. Defendants do
not, however, address municipal taxpayer standing. Municipal taxpayer standing extends to
claims “that municipal assets have been improperly wasted” and does not require “that any direct
loss has been caused to the plaintiff.” Taylor v. Town of Cabot, 2017 VT 92, ¶¶ 9–10, 205 Vt.
586 (citations omitted). At least at the dismissal stage, Defendants’ standing arguments cannot
prevail because Mr. Whitaker is a taxpayer and many of the allegations can be construed as
alleging waster of municipal funds. As a result, the court focuses on Defendants’ Rule 12(b)(6)
arguments in this decision.

2. Dismissal standard

The Vermont Supreme Court has described the familiar standard for Rule 12(b)(6)
motions to dismiss for failure to state a claim. A motion to dismiss is generally disfavored,
especially when the liability theory is novel or extreme. Alger v. Dep’t of Labor & Indus., 2006
VT 115, ¶ 12, 181 Vt. 309 (quoting Gilman v. Main Mut. Fire Ins. Co., 2003 VT 55, ¶ 14, 175
Vt. 554). Such cases should be examined based on evidence, not dismissed pre-trial solely due
to novelty. Id. (quoting Ass’n of Haystack Prop. Owners, Inc. v. Sprague, 145 Vt. 443, 447
(1985)). When reviewing, the Court accepts all factual allegations as true and determine if no

2
facts alleged entitle the plaintiff to relief. Id. (quoting Amiot v. Ames, 166 Vt. 288, 291 (1997)).
We also accept reasonable inferences and assume the opposing assertions are false. Id.

3. Mayor McCullough as a party

Mr. McCullough is in this case only in his individual capacity. He contends he should be
dismissed from this case entirely under 24 V.S.A. § 901(a) and, separately, because Mr.
Whitaker cannot bring a claim against him under 1 V.S.A. § 314(a). Both arguments are correct.

Section 901(a) of Title 24 provides that an action “given against” a municipal officer,
which includes a mayor, “shall be brought against such town or town school district, as the case
may be.” See also 24 V.S.A. § 901a(b) (parallel provision as applied to municipal employees); 1
V.S.A. § 139 (statutory expression town encompasses city). There is no general exception to this
under the OML or PRA. Counts 1 and 2 are properly asserted against the City, not its mayor.

Separately, the only reason Mr. McCullough is in the case at all is because Mr. Whitaker
seeks to prosecute a criminal charge against him for violating 1 V.S.A. § 314(a), which
establishes a criminal penalty for certain OML violations (“shall be guilty of a misdemeanor and
shall be fined not more than $500.00”). However, Mr. Whitaker has not alleged that he is a
state’s attorney or attorney general with the power to initiate criminal proceedings, and he is in
the wrong division to pursue such a claim in any event. Compare 4 V.S.A. § 32 with § 33
(jurisdiction of civil and criminal divisions).

If Mr. Whitaker intended to assert claims against Mr. McCullough more broadly than
under 1 V.S.A. § 314(a), then 24 V.S.A. § 901(a) would apply to bar those claims, too.

The Court dismisses Mr. McCullough from this case.

4. Mandamus standard

A court will only issue a writ of mandamus under the following circumstances “(1) the
petitioner must have a clear and certain right to the action sought by the request for a writ; (2) the
writ must be for the enforcement of ministerial duties, but not for review of the performance of
official acts that involve the exercise of the official’s judgment or discretion; and (3) there must
be no other adequate remedy at law.” Petition of Fairchild, 159 Vt. 125, 130 (1992); see also
State v. Forte, 159 Vt. 550, 555 (1993) (duty appropriate for mandamus must be “simple and
definite”) (citation omitted). A duty is ministerial only when “nothing is left to discretion.”
Bargman v. Brewer, 142 Vt. 367, 369 (1983) (citation omitted). In exceptional cases, mandamus
may also lie to address an arbitrary abuse of discretion that amounts to a practical refusal to
perform a clear legal duty. Office of the Auditor of Accounts v. Office of the Attorney General,
2025 VT 36, ¶ 50 (citations omitted).

In all events, mandamus must be predicated on a “clear and certain right to the action
sought by the request for a writ.” Skiff v. South Burlington School District, 2018 VT 117, ¶ 25,
208 Vt. 564, 575 (residents’ mandamus claim against school district improperly founded on
nonexistent constitutional right); Wool v. Menard, 2018 VT 23, ¶ 18, 207 Vt. 25, 34-35 (inmate’s

3
mandamus claim about competitive bidding properly predicated on statutory right to telephone
services at “lowest reasonable cost”); Petition of Fairchild, 159 Vt. at 130 (adjacent landowners’
mandamus claim against Town properly predicated on right to enforce relevant judicial decision
and Town zoning regulations).

5. Analysis of Count 3

Mr. Whitaker’s Count 3 claim is predicated on the requirements of the City’s charter2 and
its purchasing policy. He also cites generally 24 V.S.A. ch. 33 (Municipal Officers Generally,
24 V.S.A. §§ 801–1147), though he did not identify a relevant statute, and the Court did not
readily identify any. He makes three arguments: (1) the City improperly made the White +
Burke contract sole source and then did not follow City purchasing requirements, (2) the
contingency fee agreement in the contract creates an impermissible conflict of interest, and (3)
the contingent fee term of the White + Burke contract will cause the City to lose eligibility for
certain federal grants.

The City argues and Mr. Whitaker does not contest, the only potentially relevant charter
provision is § 320: “All contracts on behalf of and any purchases for the City shall be authorized
by the City Council, except as otherwise provided by ordinances of the City of Montpelier or this
charter.” Chapter 2, Article III of the Montpelier ordinances3 addresses “purchasing.” The only
relevant provision appears to be this: “The City Council shall develop and maintain a Purchasing
Policy which includes the competitive bid process.” Code § 2–308.

The policy4 sets out standards for competitive bidding on municipal contracts. It then
provides, as relevant here:

EXCEPTIONS: The following exceptions may apply, however there must be
written documentation created and maintained that outlines the process and
rationale for such exceptions:
. . .

Sole Source Purchases: If the City Council determines that there is only one
source for a proposed purchase, it may waive the bid process and authorize the
purchase from the sole source.

Handbook at 99.

The White + Burke contract is alleged by Plaintiff to be “sole source.” To the extent that
Mr. Whitaker takes the position that the contract had to be put out to bid, it did not; the City
could choose to make it “sole source” under the Handbook and Charter provisions laid out
above, and it evidently did.

2 24 app. V.S.A. ch. 5
3 Montpelier ordinances are available here: https://library.municode.com/vt/montpelier/codes/code_of_ordinances.
4 Available in the City Council Handbook found here: https://www.montpelier-

vt.org/DocumentCenter/View/12002/City-Council-Handbook-2025.

4
Defendants argue that Count 3 should be dismissed because Mr. Whitaker implicitly
inserts into the sole source contracting exception a requirement that the written documentation be
created and produced prior to entering into the contract. To the extent that is Mr. Whitaker’s
argument, he fails to oppose the argument on the merits in the opposition. More importantly, the
policy’s text does not impose a timing requirement, much less a clear ministerial precondition to
contract formation, enforceable through mandamus. To the extent this was not Mr. Whitaker’s
argument, he fails to articulate precisely how his argument differs from the City’s
characterization of it.

Mr. Whitaker asserts in his second-amended complaint that the City had a duty to
publicly disclose an alleged contingent-fee term of the contract prior to agreeing to it. He does
not cite any applicable requirement, much less a ministerial one. Again, the City has framed the
argument in this manner, persuasively argued that there is no such legal claim available to Mr.
Whitaker, and Mr. Whitaker has failed to clarify the basis for such a legal claim.

Next, the policy includes a code of conduct section addressing conflicts of interest, and
Mr. Whitaker alleges that the contingent fee term violates it by giving the contractor, White +
Burke, an improper incentive. However, those provisions apply exclusively to “[e]mployees,
officers, and agents of municipality.” Handbook at 97. Plaintiff does not allege that any covered
municipal employee, officer, or agent held a prohibited financial interest or otherwise violated
those provisions. Instead, he challenges the compensation structure of a third-party contractor.
As such, this claim also fails as a matter of law.

Last, the Court turns to Mr. Whitaker’s allegations that the contingent fee contract
provision violates the requirements of certain federal grant programs the City participates in.
The Court accepts as true Mr. Whitaker’s allegation that a contingent-fee term could jeopardize
the City’s continued access to certain federal grants, but he identifies no legal mechanism that
would make the contract void ab initio or impose a ministerial duty enforceable by mandamus.
In addition, there is no legal support for Mr. Whitaker’s assertion that such a provision falls
outside the City’s lawful authority or discretion. To make such a claim, Mr. Whitaker would
have to allege that the City gave away its legislative or police power. See 10A McQuillin Mun.
Corp. § 29:110 (3d ed.) (“Contracts which a municipal corporation is not permitted legally to
enter into are not subject to ratification, and a city may not be estopped to deny the invalidity of a
contract that is ultra vires in the sense that it is not within the power of the municipality to make.
In other words, no ratification or estoppel can make lawful a municipal contract which is beyond
the scope of the corporate powers, or which is not executed in compliance with mandatory
conditions prescribed in the charter or statutes.” (footnotes omitted)); Vermont Dep’t of Pub.
Serv. v. Massachusetts Mun. Wholesale Elec. Co., 151 Vt. 73, 81 (1988) (“Therefore, if a public
corporation enters into a contract that barters away or otherwise restricts the exercise of its
legislative or police powers, then the contract is ultra vires and void ab initio.”).

He does not make such an allegation. And the allegations he does make do not fall into
the elements of a mandamus claim because the negotiation and agreement to this contract was
not a ministerial act – it most certainly involved “the exercise of the official[s’] judgment or
discretion.” Petition of Fairchild, 159 Vt. 125, 130 (1992). In effect, Mr. Whitaker alleges that
the City made an unwise decision that may prove to be a tactical mistake as to federal funding.

5
The answer to those matters is the political process, not voiding otherwise valid contracts with
third parties.

In short, as to all of Mr. Whitaker’s claims related to the contract, they do not allege a
“clear and certain right” to the relief he requests or that the City’s actions were merely a
“ministerial duty” to support this mandamus claim. The Court dismisses Count 3.

6. Analysis of Count 4

Under this claim, Mr. Whitaker cites various perceived requirements of 10 V.S.A. ch.
159 and DEC’s “I-Rule” and seeks to enforce them himself. He identifies no statute or rule
giving him, a private citizen, any cause of action to do so. Generally, action to enforce Chapter
159 is taken by the Secretary of the Agency of Natural Resources pursuant to 10 V.S.A. § 6610a
(enforcement). The statute gives the Secretary enforcement authority and leaves substantial
discretion over whether to act and how to proceed. The statute states the Secretary “may take
such action as the Secretary determines to be necessary.” 10 V.S.A. § 6610a(a). This statute
does not give a cause of action to any private person to exercise the discretion and authority to
which it speaks, and there is no other “citizen suit” provision that has been identified. See
Corbin v. Buchanan, 163 Vt. 141, 144 (1994) (“[W]e note the absence in Vermont of any general
inference of a private action based on government regulations whose clear purpose is the general
welfare.”).

The enforcement powers described by § 6610a are highly discretionary both as to
whether to exercise them and how, and neither matter is ministerial in the slightest. As a result,
there is no private cause of action under Chapter 159 generally. Nor is there any right to
mandamus relief. The Court dismisses Count 4.

7. Analysis of Count 5

Count 5 is a list of items of relief sought by Mr. Whitaker. It is not an independent legal
claim. Because Counts 3 and 4 are properly dismissed, any relief sought in this case that relates
exclusively to those Counts, whether appearing in Count 5 or the prayer for relief, is similarly
subject to dismissal.

6
ORDER

For the foregoing reasons, Defendants’ motion to dismiss is granted to the following
effect:

(a) Mr. McCullough is dismissed as a party from this case;
(b) Counts 3 and 4 are dismissed; and
(c) any relief sought relating exclusively to Counts 3 and 4 is dismissed.
(d) The OML and PRA claims of Counts 1 and 2 are the only remaining claims in this
case.

Electronically signed on February 20, 2026, pursuant to V.R.E.F. 9(d).

____________________
Navah C. Spero
Superior Court Judge

7