«THE BIG BOOK OF WOOF TABLE OF CONTENTS ABOUT THIS HANDBOOK INTRODUCTION CHAPTERS I. DOG IMMUNIZATION AND LICENSING IMMUNIZATION LICENSING 1. ...»
Each hearing should be conducted according to the selectboard’s rules of procedure setting forth the sequence of events governing the proceeding. A copy of these rules should be made available to all selectboard members, parties, and the public prior to the commencement of the hearing so that all are aware of what is to be expected. The chair opens the hearing by reading the warning for the hearing, followed by the victim’s complaint, and a statement that the hearing is mandated by Vermont State Title 20, Section 3546. The chair should also remind all attendees that the hearing is in the public, not of the public. As such it will be conducted in an orderly manner according to the selectboard’s rules of procedure, and that no public comment will be taken unless it is relevant to the complaint made and the dog subject to the hearing. Selectboard members should be asked to disclose any conflicts of interest or ex parte communications with the participants and recuse themselves from the hearing when a conflict or the appearance of a conflict is present. The complainant, dog owner, and all others testifying are then sworn in prior to testifying.
2. Managing Evidence and Testimony It is important for the selectboard to properly manage the evidence it receives. Each document it receives should be marked with any necessary identifying information. A participant may submit any evidence. It is up to the selectboard to determine what submitted evidence is credible and relevant to the disposition of the matter before it.
The chair should manage the testimony by requiring speakers to introduce themselves and to prevent participants from talking to or over each other. Selectboard members should ask all those appearing any questions they deem necessary to determine whether the dog bit someone off the owner’s premises without having been provoked and, if so, what protective order is warranted by the facts and circumstances of the attack.
3. Concluding the Hearing, Deliberations and the Written Decision Upon motion and majority approval, the chair can either adjourn the hearing to a time and date certain (e.g., to obtain additional evidence), or close the proceedings by stating that this is the final public hearing on the matter. The selectboard will then conduct a public deliberation, or may vote to enter into a private deliberative session, in which case the written decision of the selectboard setting forth its findings of facts, conclusion of law, and decision with or without a protective order for the dog will be delivered to the owner by certified mail. A public deliberation allows the public to observe but not participate in the consideration. A private VLCT Big Book of Woof, May 2014 Page 31 deliberative session allows a selectboard to make its decision in a neutral environment, where it is able to freely discuss, without undue pressure, the reasons for and against granting its decision and order. This is an exemption to Vermont’s Open Meeting Law (OML) that allows the selectboard to weigh, examine, and discuss the reasons for and against issuing a protective order and what form it should take. The OML does not extend to “the judicial branch of the government of Vermont or of any part of the same or to the public service board; nor shall it extend to the deliberations of any public body in connection with a quasi-judicial proceeding.” 1 V.S.A. § 312(e). This process is analogous to a jury deliberating in private during a court proceeding. The written decision of the selectboard will serve as its final decision.
Each written decision should include such basic information as the names of the complainant and dog owner, a description and name of the dog, its license number and whether it has a current rabies vaccination, the date and time of the hearing, the names of selectboard members who participated in the hearing, all persons who testified, and should reference the written evidence proffered. In addition to the selectboard’s conclusion as to whether the bite occurred off the owner’s premises and without provocation, the decision should include the selectboard’s findings of fact. These are facts gleaned from the evidence presented at the hearing that the selectboard deems credible and relevant and which it will use to develop and support the reasons for its decision and order. There is no statutory deadline for issuance of vicious dog decisions. The selectboard should take whatever reasonable amount of time is necessary to prepare a complete and accurate decision and, if applicable, protective order. Just as with any action by the selectboard, a majority of the members of the board must concur in their vote to render a decision. The law governing taking action states that “When joint authority is given to three or more, the concurrence of a majority of such number shall be sufficient and shall be required in its exercise.” 1 V.S.A. § 172. This means that if only three members of a five-member board are available, the board is able to convene, but all three must agree in order to take any action.
THE PROTECTIVE ORDERThe decision/protective order is the articulation of the selectboard’s determination of whether the dog is found to have bitten the victim without provocation and, if it has, its order for the “protection of persons.” The “persons” to be protected include not only the victim but the public at large. A protective order that compels the humane disposition of every dog found to have bitten a person without provocation will certainly protect the public from the dogs subject to the order, but it will also likely lead to increased appeals to your decisions to superior court. In addition, it doesn’t prevent the owner who may have been responsible for the dog’s behavior from acquiring another dog, nor is it fair to the dog that may not have been acting viciously and suffers the consequences of an irresponsible owner. Arriving at a protective order that balances the rights of owners and the safety of the public is not an onerous task, but it does require having a rudimentary understanding of dog behavior in general (namely, how they communicate with us and distinguishing between acceptable or normal aggressive behavior and abnormal aggressive behavior) and engaging in some simple fact-finding to tailor your order to the specific factors causing the behavior that is driving the complaint. To highlight the potential benefits of this approach, consider the following hypothetical scenario: a person comes across a dog running at large with a tennis ball in its mouth. The dog is a small breed, doesn’t seem threatening, and has a collar and tag. Assuming that the dog is not a stray, but rather someone’s pet, the person deduces that the dog is accustomed to a certain level of human engagement and reaches for the ball to play a game of fetch. The dog is silent. It doesn’t bark, grunt, or growl, but stares intently VLCT Big Book of Woof, May 2014 Page 32 at the person. Just before the person touches the ball, the dog drops it and nips the person’s hand.
Who’s to blame? The person gets a couple of stitches for his injury and submits a written complaint to the selectboard. The selectboard holds a hearing, finds that the dog wasn’t provoked, and orders that it be humanely disposed of. There is no question that the dog was running at large and that its owner should be cited, but did it deserve to be put down?
1. Reasons Why Dogs Bite Dog bites typically happen for a number of reasons. Knowing these causes can often go a long way towards instructing what questions you should ask the dog’s owner during the vicious dog hearing and fashioning the protective measures of the selectboard’s order. For example, some dogs bite because, unbeknownst to their owner, they are physically sick. Consider asking the owner these questions at the hearing: When was the date of the dog’s last veterinarian visit? Has there been any noticeable change in the dog’s physical appearance or demeanor? Has the dog been attacked or has it been bitten itself recently? Depending on the answer to these and other questions, and based upon the facts and circumstances of the case, your protective order sets forth certain conditions specific to these root causes. Other reasons for bites are that the dog (1) is unaltered (unneutered/unspayed); (2) has been trained to act aggressively; (3) has been abused or neglected (or has been chained up for extensive periods of time); (4) chases moving objects;
and (5) acts out of protective or territorial instinctive behavior.23
2. Dog Talk Like other social animals, dogs communicate using both auditory and visual means. What a dog is trying to communicate goes a long way to deciphering the intent behind its behavior, thereby enabling more effective management through protective orders and more efficient and effective regulations. Dogs communicate with us all the time. The problem, more often than not, is that we’re not listening. The key to avoiding misinterpreting their behavior is to understand what they are saying. Your interactions with a dog is akin to talking with someone who speaks a different language from you. The inability to communicate with someone increases the likelihood of misunderstandings and can lead to confrontations and eventually disengagement. Sure, we can teach dogs to understand what we’re saying, but our capacity to understand them is far greater than their capacity to understand us. Consider this classic example: you approach a dog to pet it and the dog responds by growling. One thing a dog’s growl communicates is a defensive warning – the dog may be telling you to back off. Not knowing this, you nevertheless try to pet the dog. The dog responds by nipping your hand. Certainly this result could have been easily avoided absent the obvious language barrier. The fostering of better interspecies communications
can be accomplished by familiarizing yourself with the five primary categories of dog sounds:
1. Bark: communicates defense, play, greeting, lone call, call for attention, warning;
2. Grunt: communicates greeting, sign of contentment;
3. Growl: communicates defense warning, threat signal, play;
4. Howl: communicates need for social interaction/assembly, other reasons unknown; and Whimper/whine: communicates submission, defense, greeting, pain, attention seeking.24 5.
Cynthia A. McNeely & Sarah A. Lindquist, “Dangerous Dog Laws”: Failing to Give Man’s Best Friend a Fair Shake at Justice, 3 J. Animal L. 99, 107 (2007).
Id at 105.
VLCT Big Book of Woof, May 2014 Page 33 It is a misconception that a dog will bark before it bites someone. Usually, a dog is silent prior to attacking someone. A dog typically uses body language and facial gestures as another method of communication. The dog in the example with the ball employed the stare, which is the most commonly used facial expression to communicate an impending attack. Aggressive dogs also often bare their teeth, curl their lips, and raise their hackles (the hairs along the dog’s backbone).25 Next, the dog had in its mouth a tennis ball. His reaction could be considered a manifestation of possessiveness – a form of aggression applicable to protecting non-food items – but this is a perfectly normal behavioral trait and hardly constitutes the type of abnormal aggressive behavior (viciousness) that is dangerous to people, domestic animals, and other domestic pets warranting the dog’s destruction. Armed with this information, a selectboard can formulate questions to determine whether the attack was provoked and, if so, arrive at a protective order appropriate in scale to the facts and circumstances of the case.
3. What Should the Protective Order “Order”?