Two state senators are taking Gov. Phil Scott to court.

In a lawsuit filed in Washington County Superior Court on Wednesday, Sens. Tanya Vyhovsky, P/D-Chittenden Central, and Dick McCormack, D-Windsor, allege that Scott “purposefully circumvented” the Senate’s constitutional authority to confirm and deny gubernatorial cabinet appointments when he reappointed Zoie Saunders as interim education secretary after the Senate voted against her. 

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

The issue dates back to March, when Scott named Saunders as his pick to lead the state’s Agency of Education.

On April 30, the Senate voted 9-19 on her confirmation vote, denying her their approval for the cabinet seat. Within minutes, Scott reappointed her to serve as interim secretary — a move that, according to his office, does not require Senate approval. 

Saunders has served in the role since.

Reached Thursday morning, Scott’s communications director Rebecca Kelley said in a written statement that the lawsuit “is another example of legislators focusing more on partisan political maneuvering over the hard work to help schools, kids and taxpayers.”

“And it’s no surprise it was announced the same week they imposed a 14% property tax increase,” Kelley added in a follow-up text. “They’d like nothing more than to change the subject and distract Vermonters and the press.”

Vyhovsky spearheaded the effort to file the lawsuit, which names both Scott and Saunders as defendants.

Vyhovsky said she’s “not coming after Zoie Saunders as a person.” It’s Scott who “illegally reappointed” her to the position, Vyhovsky said — and “that behavior is not allowed to occur without challenge.”

She acknowledged that the governor has “the authority to appoint” cabinet members, but noted that state law requires “​​all secretaries of State agencies … shall take office only with the advice and consent of the Senate except in the case of an appointment to fill a vacancy when the General Assembly is not in session.”

“So when we overwhelmingly voted not to consent, it really concerns me for the state of our democracy, for separation of powers, for the institution of the Senate, that that consent — that lack of consent — was not followed,” she said. 

Prior to Saunders’ appointment, Vermont had no permanent education secretary for roughly a year. Deputy secretary Heather Bouchey served in the role on an interim basis from the time former Secretary Dan French resigned from the post in March 2023, until Saunders began her duties on April 15.

When he appointed Saunders interim secretary in April, Scott said in a written statement that he was doing so “pursuant to my constitutional authority to fill vacancies.” The vacancy, he argued, was created due to the Senate’s vote not to confirm Saunders.

At a press conference in his ceremonial office one day after the Senate’s vote, Scott said there was historical precedent for his move. He pointed to former Gov. Howard Dean, who had reappointed nominees of his who were rejected by the Senate during his tenure. Those nominees, however, were not cabinet officials.

In their lawsuit, Vyhovsky and McCormack, who is retiring at the conclusion of his current term in January, ask the court to declare that Saunders has not “validly functioned” as interim secretary since her first day in that job on April 30. That would mean, according to the lawsuit, that any official actions she has taken as interim secretary since then would be null and void.

Vyhovsky and McCormack are also asking the court to declare that state law does not allow for the governor to use an interim appointment to bypass Senate approval. Because Scott did not resubmit Saunders’ name for confirmation before the Legislature officially concluded its 2024 legislative session on Monday, Vyhovsky and McCormack argue that the Senate’s April 30 vote was the chamber’s “final act” on the matter this biennium.

The runup to Saunders’ confirmation vote this legislative session was contentious. From early on, Scott accused lawmakers and groups such as the state teachers union of cultivating a toxic atmosphere around Saunders’ confirmation process, and unfairly launching public attacks on her character.

The temperature only increased after the Senate’s decisive vote against Saunders’ confirmation, and Scott’s swift reappointment. “He didn’t even do us the respect of waiting,” Senate President Pro Tempore Phil Baruth, D/P-Chittenden Central, told VtDigger last month.

“Once a sitting Senate makes a decision, you can’t just appoint that same person,” Vyhovsky said Wednesday afternoon. “That creates a bit of a crisis, right? It can get you into this space where the Senate says, ‘no,’ and you just reappoint them. The Senate says, ‘no,’ and you just reappoint them. And there’s no real sense in having laws if they’re meaningless.”