Waterbury Municipal Manager Bill Shepeluk (center), Gov. Peter Shumlin and Sen. Peter Welch in Waterbury in 2015. Photo by Elizabeth Hewitt/VTDigger
This story by Josh O’Gorman was published in the Waterbury Record on April 18.
A lawsuit is likely now that the Waterbury Select Board has rejected a settlement offer for a discrimination complaint related to its summer camp program.
By paper ballot, the board voted 3-1 Monday night to reject the settlement offer from the Vermont Human Rights Commission on behalf of a disabled 10-year-old boy who was kicked out of the town-operated summer camp.
“The town, in my eyes, did nothing wrong. We shouldn’t be subject to penalties for that,” board chair Chris Viens said after the vote. “The community has offered a program that has served children well over a number of years, and many of them have had disabilities and we’ve dealt with those.”
In September, the Vermont Human Rights Commission ruled 4-1 that the town discriminated against the boy when it failed to offer requested accommodations after being notified of the boy’s disability.
According to the commission’s report, on July 11, 2017, a boy referred to as K.O. in the complaint to protect his anonymity was asked to leave the town’s eight-week summer day camp and not return due to his behavior that day.
According to a camp counselor, K.O. “threw multiple tennis balls over the fence to the pool, threw pieces of Monopoly all over the building and one in the trash, pushing chairs over, threw a rock at me, threw a hockey stick into the drain, tried to lock me out of the building … attempted to pick up a picnic table and throw it, knocked multiple things over inside and outside, tried to throw other campers’ belongings over the fence and into the trash.”
According to the report, K.O. “engages in inappropriate types of behavior under normal circumstances. K.O.’s expression of emotional and behavior problems is sufficient to support his identification as a student with emotional disturbance. … K.O.’s disability impacts him across all settings, in and out of school.”
The report says K.O. was born to a drug-addicted mother and an absent father, and was adopted when he was 3 years old.
The report also states that the boy had attended other summer camps without incident. The boy’s school records state that “K.O. is a likeable boy overall. He is charming and personable, and draws people in. He cares about pleasing adults and cares what they think. He is resilient, affectionate and sweet. K.O. is curious and asks lots of questions and is a careful observer of his surroundings. He is a good negotiator and knows what he needs to do to get his needs met.”
When K.O. was asked to leave the camp, town officials were not aware of the boy’s disability, records state.
“K.O.’s parents chose not to disclose his disability to staff prior to the start of camp,” the report states. “They found that, when they have shared his disability in the past, it led to their son being unfairly targeted and admonished for incidents wrongfully imputed to him.”
Days later, after the parents disclosed K.O.’s disability, municipal manager William Shepeluk sent an email to the parents, stating the boy was not welcome back at the camp.
In the same email, Shepeluk invited K.O. to enroll in other camps offered by the town, including a weeklong tennis camp and a soccer camp. Also, he invited K.O. to sign up for swim lessons and use the pool when it was open to campers and members of the public in the afternoon.
The Vermont Human Rights Commission ruled that the town did not discriminate against the boy initially when he was told to leave, because town officials didn’t know about his disability.
However, the commission ruled the town did discriminate against the boy when officials, after learning of his disability, told him he couldn’t return.
For about four months, the select board has met in executive session with representatives of the Vermont Human Rights Commission in an attempt to reach a settlement.
“The town, in good faith, with the Human Rights Commission, went back and forth on a settlement proposal,” Shepeluk said. “Like in most legal actions, there was give and take. We met in executive session three or four times in recent months, and each time there was a tweak made to the settlement agreement.”
However, the two sides were unable to reach an agreement.
After the commission’s decision on Sept. 20, the two parties had six months to reach an agreement. After that, the commission could sue the town. Shortly before the March 20 deadline, the parties agreed to a one-month deadline extension.
However, it does not appear that time was a factor.
“We understand what the law is, and we will do what we can to comply with the law, and we’re not interested in having a settlement agreement that is essentially a binding contract that says you will do certain things that are not necessarily prescribed by the law,” Shepeluk said.
Parental reaction
In a statement, K.O.’s father — referred to as “Mr. Oak” in court documents in the interest of anonymity — expressed disappointment in the board’s decision.
“I am very confused as to why the select board would reject an agreement that we worked on in good faith for the last six months. As a taxpayer, I question the decision to spend tens of thousands more taxpayer dollars defending this case,” Oak said.
“The final agreement we reached with the town was not what we were hoping for,” Oak said. “We compromised extensively on the language of protections for children with disabilities and I can only hope that in the end the federal court will set a new standard for towns and municipalities in our state to protect these children who are often cast aside and abandoned by their communities.
“This is no longer about our son. He is doing great and has shown great strength and resilience in overcoming what has happened to him,” Oak said. “What I was truly hoping for was to put in place some real solid protections for the thousands of children in our state who suffer abuse and abandonment at the hands of a parent and show them that our communities will stand by them even when it’s difficult.
“Our select board has sent a clear message that Waterbury is not that town.”
“The Vermont Human Rights Commission has approved taking this case to federal court. I call upon them to do this in the name of every foster or adopted child out there who suffers from trauma or adverse childhood events,” Oak said. “I am saddened that the good name of our town will be associated with a fight to deny these incredible children the same opportunities as other children in our town. I love our town and it was for this reason that I agreed to settle the complaint. Today, I am saddened by their lack of compassion and kindness toward disabled children.”
Bor Yang, executive director of the Vermont Human Rights Commission, confirmed that the case is heading to the courts.
“The commissioners voted to go to court if the issue has not been resolved,” Yang said.
Bor Yang, executive director of the Vermont Human Rights Commission, testifies in favor of a proposed constitutional amendment to guarantee an individual’s right to reproductive freedom before the Senate Health and Welfare Committee at the Statehouse in March. Photo by Glenn Russell/VTDigger
‘It is the right thing to do’
The decision follows guidance released April 10 by U.S. Attorney Christina Nolan regarding access for disabled children at summer camps.
“The law requires camps to provide equal opportunities to children with disabilities whose needs can be reasonably accommodated,” Nolan said. “But of equal importance is that it is the right thing to do. Camps present a tremendous opportunity for positive experiences in childhood, offering environments where children grow in confidence, knowledge, ability and interpersonal skill. No child should be unreasonably denied those opportunities because they have a disability.”
Under the Americans with Disabilities Act, summer camps, both private and those run by municipalities, must make reasonable modifications to enable campers with disabilities to participate fully in all camp programs and activities.
Camps are obligated to pay for the cost of any reasonable modifications necessary for children with disabilities to participate in camp activities, and parents should not be charged any additional fee beyond standard camp enrollment costs.
Paper ballot?
Waterbury Select Board members Mark Frier, Nat Fish, Michael Bard and Viens participated in Monday’s paper ballot vote. Board member Jane Brown was not at the meeting.
The move to vote by paper ballot was unusual, but not unheard of, said Jenny R. Prosser, general counsel and director of municipal assistance for the Vermont Secretary of State’s Office.
“I have heard of this before. I can’t say affirmatively, one way or another, what a court would do with that. The law is silent on how a board votes. In our view, it does appear to violate the spirit of the open meeting law,” Prosser said.
“There is a real risk a court would say a public’s right is not to just know the outcome of the vote, but how each member voted. If someone called me in advance and asked, can we do that, I’d say it’s risky and to talk to your lawyer.”
Read the story on VTDigger here: Waterbury summer camp dispute headed to court.