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Author: Dinse


Dinse Welcomes New Litigation Attorney

Dinse is pleased to announce that Andrew Sullivan has joined the firm as an associate attorney.

Andrew is a member of the firm’s litigation group, and provides support and counseling in a variety of areas, including personal injury, insurance defense, medical malpractice, employment, and education, among others. Prior to joining the firm, he was a judicial law clerk for the Rutland Unit of the Vermont Superior Court. Andrew graduated from the University of Richmond School of Law, where he served as Copy Editor for the Richmond Journal of Law and Technology.


New England Super Lawyers Recognizes Thirteen Dinse Attorneys

Dinse P.C. announces that eleven attorneys have been selected for inclusion on the 2018 New England Super Lawyers list in six different practice areas, and two attorneys have been selected for inclusion on the 2018 New England Rising Stars list.  Attorneys are identified as “Super Lawyers” based on extensive nomination and polling among New England attorneys aimed at identifying New England’s top attorneys in each class. Attorneys are identified as being “Rising Stars” based on extensive nomination and polling among New England attorneys who are asked to nominate the best attorneys who are 40 or under, or who have been practicing for 10 years or less.

The practice areas and the attorney(s) listed in each area for the 2018 New England Super Lawyers list are as follows:

  • Business Litigation: Ritchie Berger, Karen McAndrew
  • Business/Corporate Law: Jeffrey McMahan, Brian Murphy, Afi Ahmadi, David Gurtman
  • Employment & Labor Law: Jeffrey Nolan
  • Estate Planning & Probate: Mark Langan
  • Health Care Law: Linda Cohen
  • Real Estate Law: Molly Langan, Austin Hart

The practice areas and attorneys listed for the 2018 New England Rising Stars list is as follows:

  • Civil Litigation: Defense: Andy MacIlwaine
  • Civil Litigation: Plaintiff: Kendall Hoechst

Audio of discussion regarding draft of OCR Notice of Proposed Rulemaking available for download

On September 14, 2018, the National Association of College and University Attorneys (“NACUA”) posted a draft copy of the U.S. Department of Education Office for Civil Rights’ (“OCR”) Notice of Proposed Rulemaking on Title IX of the Education Amendments of 1972.  The draft Notice outlines many potential changes in how OCR will enforce Title IX, including changes to the definition of sexual harassment, the scope of institutional obligations to address sexual harassment, and how institutions should respond to sexual harassment. The draft Notice is available here: In posting the document, NACUA emphasized that: “The draft Notice is currently undergoing review in the Office of Management and Budget.  This is not a final copy of the Proposed Rules, but we wanted to make the draft available to members in light of the significance of the forthcoming regulations and the expected release of the draft in various news outlets.”

On September 17, 2018, Jeffrey J. Nolan, Chair of Dinse’s Education Practice Group, presented a webinar regarding the language and implications of the draft Notice. An audio recording of that webinar is available here: Part 1Part 2.

Please contact Jeff Nolan at if you have any follow-up questions. Thank you.


Dinse Brief: Qualified Opportunity Zones

By Ted Lawrence


To encourage investment in low-income communities, the Tax Cut and Jobs Act created a new section of the Internal Revenue Code, 26 USC § 1400Z, that address investments made in “Qualified Opportunity Zones.”

What are Qualified Opportunity Zones?

Qualified Opportunity Zones are specific geographic areas that have been designated as such by the U.S. Treasury Department.  Earlier this year, the U.S. Treasury Secretary certified a number of Vermont towns and neighborhoods as Qualified Opportunity Zones.  The certified areas include Winooski, parts of Burlington and South Burlington, Vergennes, and Rutland.  Investing in a Qualified Opportunity Zone may provide significant tax benefits to an investor.


Investment in a Qualified Opportunity Fund provides three potential tax advantages to the investor:

  1. A deferral of tax on gains that are invested.
  2. Partial forgiveness of tax due with respect to those gains.
  3. A basis step-up on those gains.

In addition, investment in a Qualified Opportunity Fund allows investors to receive favorable tax treatment on real-estate investments without actually owning or managing the development of real property (unlike, for example, a 1031 exchange property).

Investment Process

Investment in a Qualified Opportunity Zone is made through a tiered structure.  There are three different types of entities and properties involved in the process:

  • Qualified Opportunity Zone Funds;
  • Qualified Opportunity Zone Businesses; and
  • Qualified Opportunity Zone Business Property.

Qualified Opportunity Fund

A Qualified Opportunity Fund is the umbrella entity through which all investments in the Qualified Opportunity Zone program must be made.  A Qualified Opportunity Fund must:

  • Hold at least 90 percent of its assets in “qualified opportunity zone property”—i.e., the stock or interests of a Qualified Opportunity Zone Business, or Qualified Opportunity Zone Business Property.
  • Not make investments in another Qualified Opportunity Fund.
  • Make certain tax filings.

Qualified Opportunity Zone Business

A Qualified Opportunity Zone Business is an entity that owns and operates “tangible property”—i.e., real estate or personal property—in a Qualified Opportunity Zone.  It is the entity that actually performs the development work in a Qualified Opportunity Zone.  A Qualified Opportunity Zone Business must meet the following requirements:

  • “Substantially all” of the tangible property owned by the Business must be Qualified Opportunity Zone Business Property.
  • Follow certain statutory standards detailed in other sections of the Internal Revenue Code.
  • Not function as a “sin business”—e.g., owning golf courses, liquor stores, massage or hot tub parlors, or tanning salons.

Qualified Opportunity Zone Business Property

Qualified Opportunity Zone Business property is tangible property that is:

  • Acquired by the Qualified Opportunity Fund or Business after December 31, 2017.
  • “Originally acquired” (i.e., a new investment) or “substantially improved” (i.e., becomes more highly valued) by the Qualified Opportunity Fund or Business.

Unanswered Questions

There are a number of unanswered questions regarding investments in Qualified Opportunity Zones, including:

  • Whether the deferral and forgiveness on “gains” invested in a Qualified Opportunity Fund refers to all gains or just capital
  • The meaning of “substantially improve” in the context of Qualified Opportunity Zone Business Property.
  • How the basis step-up on gains invested in a Qualified Opportunity Fund will be calculated.
  • Whether Qualified Opportunity Funds and Qualified Opportunity Zone Businesses may organize as LLCs.

The U.S. Treasury and Internal Revenue Service are likely to issue further guidelines on investing in Qualified Opportunity Zones in the near future.  We will send a further update when such guidance is issued.


Best Lawyers Recognizes Thirteen Dinse Attorneys

Dinse P.C. announces that thirteen of its attorneys were recently selected by their peers for inclusion in the The Best Lawyers in America® 2019 (Copyright 2012 by Woodward/White, Inc., of Aiken, S.C.) in twenty different practice areas. Since it was first published in 1983, Best Lawyers has become universally regarded as the definitive guide to legal excellence. Because Best Lawyers is based on an exhaustive peer-review survey in which more than 36,000 leading attorneys cast almost 4.4 million votes on the legal abilities of other lawyers in their practice areas, and because lawyers are not required or allowed to pay a fee to be listed, inclusion in Best Lawyers is considered a singular honor. Corporate Counsel magazine has called Best Lawyers “the most respected referral list of attorneys in practice.”

The practice areas and the attorney(s) listed in each area are as follows:

  • Commercial Litigation: Ritchie E. Berger, Karen McAndrew
  • Corporate Compliance Law: David Gurtman
  • Corporate Governance Law: Brian Murphy
  • Corporate Law: Jeffrey J. McMahan, Brian R. Murphy
  • Education Law: Jeffrey J. Nolan, Karen McAndrew
  • Employee Benefits (ERISA) Law: Daniel R. Sharpe
  • Employment Law – Management: Amy M. McLaughlin, Jeffrey J. Nolan, Karen McAndrew
  • Immigration Law: Leigh Cole
  • Litigation – Construction: Karen McAndrew
  • Litigation – Intellectual Property: Shapleigh Smith, Jr., Karen McAndrew
  • Litigation – Labor & Employment: Amy M. McLaughlin
  • Medical Malpractice Law – Defendants: Ritchie E. Berger
  • Mergers & Acquisitions Law: Brian R. Murphy
  • Non-Profit / Charities Law: Brian R. Murphy
  • Personal Injury Litigation – Defendants: Ritchie E. Berger, Karen McAndrew
  • Product Liability Litigation – Defendants: Shapleigh Smith, Jr.
  • Real Estate Law: Austin D. Hart, Molly Langan
  • Tax Law: Mark A. Langan
  • Technology Law: Jeffrey J. McMahan
  • Trusts and Estates: Mark A. Langan

Two new Vermont antidiscrimination laws took effect July 1

Kendall Hoechst, Amy McLaughlin, Editors
Dinse, Knapp & McAndrew, P.C., Burlington


by Kendall Hoechst

Governor Phil Scott has signed two new laws that will have an impact on all Vermont employers. The first, a response to the #MeToo movement, is designed to protect Vermonters from sexual harassment. The second law restricts employers from making certain inquiries about applicants’ salary history, with an eye toward closing the wage gap between men and women. Both laws took effect July 1, 2018.

Preventing sexual harassment

Applicability. First, the new sexual harassment law expands the applicability of the state’s antiharassment statute to “all persons who engage a person to perform work or services” even if the individuals or entities involved might not have previously met the definition of “employer” or “employee.” That suggests the law is meant to apply broadly. The definition or meaning of “harassment” hasn’t been altered.

Antiharassment policies. Vermont employers are required to provide copies of written policies against sexual harassment to new employees upon hire. Now, you must also provide notice to all employees when you make any changes or updates to your sexual harassment policy. The statute encourages, but doesn’t require, sexual harassment education and training for newly hired employees as well as annual training for existing employees.

Employment contracts. Under the new law, you may not require any employee or prospective employee to sign an employment contract or a waiver that prevents her from opposing, disclosing, or reporting sexual harassment, or participating in a sexual harassment investigation. Likewise, you may not require employees to waive their rights or remedies with respect to a claim of sexual harassment. Any agreement that purports to do either of those things will be void and unenforceable.

Settlement agreements. The law also addresses the settlement of sexual harassment claims. Settlement agreements may not prevent an employee from working for the employer or any parent, subsidiary, division, or affiliate in the future. In other words, no-rehire clauses will render the entire settlement agreement void and unenforceable. A settlement agreement must also include certain statements affirming that the settlement does not prevent the accuser from:

  • Reporting sexual harassment to an appropriate governmental agency;
  • Complying with a discovery request (i.e., a request for evidence related to a legal claim);
  • Testifying at a hearing or trial involving a claim of sexual harassment or participating in any related investigation; or
  • Exercising his right under state or federal labor law to engage in concerted activity for mutual aid or protection.

A settlement agreement that doesn’t include those statements will be void and unenforceable. Furthermore, the settlement agreement must make it clear that the accuser isn’t waiving any rights or claims that might arise after the agreement is executed.

Enforcement powers. The new law imbues the Attorney General’s Office (AG)—or the Vermont Human Rights Commission (VHRC) if the employee works for the state—with the power to enter and inspect any place of business or employment, question any person who is authorized to receive or investigate complaints of sexual harassment, and examine an employer’s records, policies, procedures, and training materials related to sexual harassment. An employer must be given 48 hours’ notice prior to any on-site visit, but the employer can waive or shorten the notice period.

It’s important to note that an employer only has to provide redacted data on the number of complaints of sexual harassment it has received and the resolution of each complaint. You should preserve this kind of data going forward to make compliance with an inspection request from the state easier.

After an inspection, the AG must notify the employer of the results, including any issues or deficiencies; provide resources to assist with the prevention of harassment; and identify any technical assistance it may offer. If the AG deems it necessary, an employer can be required to conduct an annual education and training program, an annual anonymous workplace survey, or both, for up to three years. The AG is required to maintain the confidentiality of records and information related to or obtained through an inspection.

Notice to and participation by the state in private lawsuits. The AG remains empowered to bring enforcement actions, but individuals also have the option of filing sexual harassment complaints on their own without the state’s involvement. Any person who files such a complaint is now required to provide notice to the AG and the VHRC within 14 days of filing the complaint. Either agency has the option to intervene in the action or to file a statement with the court addressing questions of law without becoming a party.

Future efforts to reduce and address sexual harassment. Before December 15, 2018, the AG and the VHRC must develop enhanced reporting mechanisms to make it easier for employees and members of the public to submit complaints of discrimination and sexual harassment. Those mechanisms must include, at a minimum, an “easy-to- use” Web portal and a telephone hotline. The AG must submit a report on the implementation of the enhanced reporting mechanisms on or before January 15, 2020.

The law also appropriates $125,000 to the Vermont Commission on Women for the purpose of creating a public education and outreach program focused on making the public aware of methods for reporting discrimination and sexual harassment, where to find information on the laws against discrimination and harassment, and best practices for prevention.

Finally, the law directs the Office of Legislative Counsel to investigate several aspects of potential future legislation addressing nondisclosure provisions. The legislature is seeking research on requiring notice of settlement agreements that restrict the accuser from disclosing information related to a sexual harassment claim and rendering a nondisclosure agreement void and unenforceable if the alleged harasser is found to have harassed again.

Next steps. You should review your policies on sexual harassment and identify which individuals are designated to receive complaints. It would also be prudent to maintain records of any complaints you receive and all of the associated documentation. Continue to take steps to address any complaints of sexual harassment, including conducting investigations and maintaining appropriate documentation of the results as well as any remedial measures you take in response. You may want to revisit your policies and procedures to ensure they cover those issues.

You should also review your form settlement agreements to ensure they include the necessary statements and don’t contain a no-rehire clause. Finally, check your standard employment agreements to make sure they don’t limit an employee’s ability to complain about sexual harassment or participate in an agency investigation or any similar proceedings. You may want to consider adding a statement to that effect to your confidentiality provisions.

Inquiring about job applicants’ salary history

The other new antidiscrimination law prevents employers from relying on past compensation information to set the salaries of new hires. The term “compensation,” as used in the law, encompasses wages, salary, bonuses, core benefits, fringe benefits, and equity-based compensation. Employers may not:

  • Ask either a prospective employee or his former employer about his past compensation;
  • Require that a prospective employee’s previous compensation satisfy a minimum or maximum standard; or
  • Determine whether to interview a prospective employee based on his current or past compensation.

Importantly, if a prospective employee voluntarily discloses information about her previous compensation, you may seek to confirm or request that she confirm the information, but only after you make a job offer that includes a compensation amount. Furthermore, you are permitted to inquire about an applicant’s salary expectations or requirements and provide information about the wages, benefits, compensation, or salary offered for a particular position without running afoul of the statute.

Next steps. Review your application materials to ensure they don’t include any requests for salary history information. You should also take care not to raise the topic during interviews or other hiring communications.

Bottom line

Even small changes in the law can have a significant impact on employers. These changes are fairly substantial and suggest that the state will have a more critical eye on employers going forward. Not only are preventing and responding to sexual harassment and reducing the wage gap now a more robust part of Vermont law, but they are also the right thing to do.

Kendall Hoechst can be reached at or 802-859-7042.


Vermont Supreme Court again has cause to define ‘cause’ for termination

Karen McAndrew, Leigh Cole, Editors
Dinse, Knapp & McAndrew, P.C., Burlington


by Karen McAndrew

In a recent decision involving the dismissal of a police officer “for cause,” the Vermont Supreme Court again tackled the difficult question of what constitutes grounds for termination when “cause” is required but not fully defined.

A police officer is, of course, a public employee, and as such, his terms of employment are governed by state statute. One section of the law states that an officer “shall hold office during good behavior, unless sooner removed for cause,” and another provision says that an officer may be suspended or removed, after a hearing, when he is found to have “become negligent or derelict in [his] official duty, or is guilty of conduct unbecoming an officer.”

That precise language is unlikely to be found in a private-sector employer’s employee handbook or employment contracts, but many private-sector agreements expressly require cause for termination (often after a specified probationary period). In cases where employee handbooks include a step disciplinary process, courts have found that there’s an implied agreement that an employer will not terminate an employee without following the disciplinary process and having some measure of “cause.”

The facts in this particular case are interesting, and may even leave you scratching your head over how so much time and ink could have been expended over the legitimacy of the officer’s termination, but the court’s decision provides some insight into how far the courts are willing to go to ensure that employees’ rights are respected.

Police officer admits to criminal conduct

Adam Hubacz was employed by the village of Waterbury as a police officer. While he was still working for Waterbury, he applied for a similar position in another town. In connection with his application for employment, he was asked to take a polygraph, which, by statute, may be required of an applicant for a law enforcement position.

As part of the standard protocol, Hubacz was given a copy of the questions that would be asked during the polygraph. In the prepolygraph interview about the questions, he admitted that he had cheated on a police exam, engaged in insurance fraud, taken uniforms from a former employer, failed to report income on his tax returns, and impersonated a police officer to obtain retail discounts and intimidate his high-school classmates. After those admissions, the polygraph was scrapped.

The officer who conducted the interview shared the information with Hubacz’s current employer, the Waterbury police chief, who forwarded the report to the Washington County State’s Attorney. The state’s attorney concluded that Hubacz’s past conduct so undermined his credibility that the state couldn’t use him as a prosecuting witness. (It was part of Hubacz’s job to present cases to the prosecutor and testify in court.) Waterbury then placed him on administrative leave, provided him notice of its decision to terminate him, scheduled a hearing, and ultimately terminated his employment.

Sounds like the kind of history that should convince a police officer to look for another line of work, right? Well, not so fast. Six years later, the Vermont Supreme Court was still wrestling with whether Waterbury had cause to terminate Hubacz.

Case bounces back and forth in the courts

Hubacz filed claims in both state and federal court, followed by appeals, dismissals, and remands for

further hearings. He appealed to superior court after the village trustees again found cause for his termination, this time based on a determination that he had become “negligent and derelict in his official duties” because the state’s attorney’s decision meant he couldn’t bring his cases to prosecution.

The trustees also found that the conduct Hubacz revealed in the prepolygraph interview was a sufficient basis for the state’s attorney’s conclusion that he engaged in conduct unbecoming an officer that eroded public trust in law enforcement. The trustees determined that the state’s attorney’s refusal to prosecute Hubacz’s cases meant that he effectively suffered from a “legal disability” that rendered him unable to perform the essential functions of his job.

The superior court concluded that because the trustees’ ruling was based on the state’s attorney’s decision rather than any independent finding of negligence, dereliction of duty, or conduct unbecoming an officer, it could not stand. The village asked for and was granted a special appeal. The Vermont Supreme Court agreed to consider whether the section of the statute that refers to “cause” provides a stand-alone basis for termination or whether the enumeration of three specific grounds—negligence, dereliction of duty, and conduct unbecoming an officer— means that cause is limited to those three grounds.

This is where a private-sector employer’s handbook language may come in. Many handbooks list various offenses or types of misconduct that constitute cause without making clear that the list isn’t exhaustive. If the specific conduct that led to his termination isn’t on the list, a disgruntled former employee may sue the employer, claiming wrongful discharge.

Supreme court kicks it back to the trial court

The supreme court found that the “cause” referred to in one section of the statute wasn’t limited to the three grounds listed in the other section, and Hubacz’s inability to perform the duties of his office—whatever the reason— constituted good cause for termination. Thus, the trustees didn’t have to make an independent determination about whether Hubacz had in fact engaged in the conduct he admitted to at the prepolygraph interview. (We have to wonder whether the truth of Hubacz’s admitted offenses is even relevant. Is a police officer who falsely boasts of engaging in felonious conduct any more reliable and credible than one who actually engaged in such conduct?)

The court’s decision is limited by a couple of caveats, however. First, the village must determine whether Hubacz’s inability to perform his duties because of the state’s attorney’s findings could be reasonably accommodated by other means, such as assigning him other duties or ensuring that his arrests were witnessed. The court recognized that factors such as the size of the police department would weigh in the evaluation of potential accommodations.

Another concern seemed to be that the statute vests town officials with the authority to hire and fire police officers and doesn’t give the state’s attorney control over those decisions. In that regard, the court held that the state’s attorney’s decision not to prosecute an officer’s cases must be premised on valid grounds. (Again, shouldn’t the officer’s admission that he engaged in misconduct be sufficient, whether or not it’s true?) Because a prosecuting attorney is generally required to disclose any evidence that’s favorable to the defense, it’s possible that the prosecutor would have to turn over evidence that could undermine Hubacz’s credibility—and therefore harm the state’s cases.

In light of those caveats, the court sent the case back to the superior court for a determination on whether the Waterbury Police Department could accommodate Hubacz’s inability to aid in the prosecution of cases and whether the state’s attorney’s decision not to prosecute his cases was “premised on valid grounds.” So six years after he was terminated, he still doesn’t know whether he will wear a Waterbury badge again. But the rest of us may know a little bit more about what constitutes “cause” for termination.

What are the lessons for employers?

First, and probably most important, if you promise employees, through handbook language or otherwise, that they can be terminated only for cause, you would be well-advised to provide some examples of conduct that may amount to cause. But be sure you make it absolutely clear that the list is not exhaustive. You might say something like, “The following examples of conduct may constitute cause and lead to immediate termination, but this list is not exclusive and is not intended in any way to be complete or to limit the types of conduct that may lead to discipline, up to and including termination.”

The other lesson from this decision has to do with the level of scrutiny courts will give your termination decisions. As we’ve often said, if you’re going to terminate an employee for cause, you should have a wellarticulated explanation and be able to demonstrate that you’ve followed whatever prerequisite steps are laid out in your handbook or employment contract. If you haven’t followed those steps, it’s usually much less costly in the end to go back and give the employee a warning or reprimand before resorting to termination. If he then corrects the behavior, the problem will be resolved; if the behavior continues, you will have laid the appropriate groundwork for termination—which will hopefully allow you to avoid a nightmare like the six-plus years of litigation Waterbury has faced in the Hubacz case.

Karen McAndrew can be reached at or 802-864-5751.


Dinse Contributes to Chambers & Partners’ USA: Regional Real Estate 2018 Guide

Dinse attorneys Molly Langan, Jess Phelps, James Langan, and Brian Murphy, contributed to the Vermont section of Chambers and Partners’ USA: Regional Real Estate guide. The USA: Regional Real Estate guide provides expert legal commentary on the key issues for businesses involved in the real estate sector. The guide covers the important developments in the most significant jurisdictions. You can view Dinse’s contribution here.


Dinse Receives Top Rankings in Chambers USA 2018

The 2018 edition of Chambers USA, a leading directory of American lawyers and law firms, recognized 10 Dinse attorneys in their practice areas. The new guide, released May 3, 2018, also recognizes the firm as among Vermont’s best in every category of practice.

The firm’s Labor & Employment group was described as “extremely knowledgeable.” Sources say “Their expertise and experience is very helpful. They’re readily available and really good about talking through the issues.”

The firm’s Litigation group received the highest possible ranking. The team is known as a “highly impressive group with a strong reputation for defending educational institutions, construction firms and healthcare providers, among other clients.”

The firm’s Real Estate group also received the highest ranking and clients say “The team is excellent, from the lawyers to the paralegals to the administrative folks. Every ‘t’ is crossed and every ‘i’ is dotted. Everything is thorough and very timely. These people are very skilled and efficient; we never have a problem.”

The firm’s highly-ranked Intellectual Property practice is recognized as a “Noteworthy practice that specializes in technology licensing, trademarks and copyright matters. Strong experience in domestic and international trademark clearance, prosecution, registration, enforcement and maintenance.” Sources say that the firm has “the expertise and connections to handle big league matters.”

And the firm’s Corporate/Commercial group was top-ranked, with Chambers’ sources saying the firm is “practical, straightforward and easy to deal with.”

Afi Ahmadi
David Gurtman
Brian R. Murphy
Jeffrey J. McMahan
Intellectual Property

Jeffrey J. McMahan
Labor & Employment

Amy M. McLaughlin
Jeffrey J. Nolan
Karen McAndrew
Litigation: General Commercial
Ritchie Berger
Karen McAndrew
Litigation: Medical Malpractice & 
Insurance Defense
Ritchie Berger
Real Estate

Austin Hart
Molly Langan