NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal 

revision before publication in the Vermont Reports. Readers are requested to notify the Reporter 

of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109 

State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made 

before this opinion goes to press.

2019 VT 40

No. 2018-275

James Ingerson Supreme Court

On Appeal from

 v. Superior Court, Windsor Unit,

Civil Division

Andrew Pallito, Commissioner, 

Vermont Department of Corrections and Leanne Salls

March Term, 2019

Robert P. Gerety, Jr., J.

Daniel D. McCabe of Adler & McCabe, PLC, St. Johnsbury, for Plaintiff-Appellant.

Thomas J. Donovan, Jr., Attorney General, and David R. Groff, Assistant Attorney General, 

 Montpelier, for Defendant-Appellee.

PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll, JJ.

¶ 1. EATON, J. Plaintiff-appellant, James Ingerson, sued the Department of 

Corrections (DOC) for negligence in investigating allegations that plaintiff was being sexually 

exploited by a DOC employee while he was an inmate at a DOC correctional facility. The trial 

court granted summary judgment to the State, holding that plaintiff’s claim was barred by the 

discretionary function exception to the Vermont Tort Claims Act (VTCA), 12 V.S.A. § 5601(e)(1). 

Plaintiff appealed the summary judgment ruling to this Court. We affirm.

¶ 2. The undisputed facts taken in the light most favorable to plaintiff are as follows. 

During the spring of 2011, plaintiff was incarcerated and housed in Echo Unit at the Southeast 

State Correctional Facility (SESCF). Leanne Salls worked as a correctional officer (CO) at the 
2

same facility and was assigned to one or two shifts per week in the Echo Unit. Under Vermont 

law, sexual activity between an inmate and a supervising officer, such as a CO, is illegal and 

constitutes criminal conduct by the supervising officer. 13 V.S.A. § 3257 (criminalizing sexual 

exploitation of inmates). Both parties agree that in April or May 2011, Salls began sexually 

exploiting plaintiff.

1

 Salls and plaintiff state that sexual intercourse occurred several times in the 

staff bathroom of Echo Unit. Plaintiff confirms that he knew Salls’s actions violated prison rules, 

but he never reported any inappropriate conduct to DOC employees or officials. 

¶ 3. In late May 2011, DOC supervisors at the facility began receiving reports of 

boundary violations regarding plaintiff and Salls, including reports that plaintiff and Salls spent an 

inappropriate amount of time talking to each other and sitting together at meals. In response to the 

May reports, two supervisors met with Salls on June 3, 2011. During the meeting, Salls was 

reminded of work rules prohibiting inappropriate conduct, and she denied any inappropriate 

conduct was occurring with plaintiff. Supervisors instructed Salls to avoid excessive contact with 

plaintiff. From June 3 until June 12, 2011, supervisors continued to observe inappropriate 

interactions between Salls and plaintiff, and they referred the matter to the Department of Human

Resources (DHR) for investigation. Specifically, the reports, which were documented in emails 

 

1

 Although plaintiff testified that he consented to sexual activity with Salls, we reaffirm 

that under Vermont law and federal regulations the inherent power imbalance between supervising 

officers and incarcerated individuals renders consensual sexual activity impossible in carceral

settings. See 13 V.S.A. § 3257 (criminalizing sexual exploitation of inmates); see also 34 U.S.C. 

§§ 30301-30309 (outlining federal Prison Rape Elimination Act (PREA)); 28 C.F.R. §§ 115.6-

115.93 (defining sexual contact perpetrated by staff against incarcerated individual “with or 

without [inmate’s] consent” as “sexual abuse” and outlining “zero tolerance [policy] toward all 

forms of sexual abuse and sexual harassment”). A supervising officer engaging in sexual activity 

with an incarcerated individual is criminal conduct under our laws. 

In this case, Salls was the aggressor and plaintiff was the target of sexual exploitation. As 

a result of her actions, Salls pleaded guilty to a misdemeanor. Accordingly, to the extent that the 

court’s undisputed facts refer to Salls’s inappropriate sexual activity with plaintiff as a sexual or 

romantic “relationship,” we refer to these acts as sexual misconduct, abuse, or exploitation. 
3

between the staff, indicated that Salls volunteered to work overtime but said she would only do so 

if she could work in Echo Unit, and that while Salls was working the overtime shift in Echo Unit, 

she and plaintiff spent a significant amount of time together—either standing at Salls’s desk after 

lock in, which is a rule violation, or in unmonitored areas in the facility cameras’ blind spots. 

¶ 4. In response to these reports, DHR notified Salls to appear for an interview on June 

21. During the interview with DHR, Salls denied that she was sexually exploiting plaintiff; she 

later admitted this was a lie. DHR investigators also interviewed plaintiff on June 21. Plaintiff 

told the investigators, “There’s no sexual relationship whatsoever going on between me and Ms. 

Salls.” Plaintiff later acknowledged that he lied several times during the interview in a deliberate 

effort to hide the ongoing sexual interactions between Salls and him, stating that he “tried to hide 

it” and that he “lied to everybody during this whole process.” Plaintiff does not dispute that he hid 

Salls’s misconduct from DOC staff and that Salls did not ask him to do so. 

¶ 5. After the June 21 interviews, supervisors continued to monitor contact between 

plaintiff and Salls. Email reports from facility staff between June 22 and September 4 indicated 

additional concerns and boundary violations, including reports of Salls eating in the dining hall 

with plaintiff, reports of Salls spending too much time in the cells, and reports about Salls’s strange 

behavior with plaintiff in the recreation room—spending time alone with him in unmonitored 

areas. At one point, DOC supervisors attempted to shift one of the facility’s cameras to monitor 

the SESCF staff. However, the new positioning offended staff members due to the camera’s angle, 

and it was returned to its original setting before it yielded any investigative results. 

¶ 6. On September 5, 2011, an inmate alleged that he witnessed Salls make

inappropriate sexual contact with plaintiff during a softball game at the facility. This was the first 

written report that specifically alleged direct sexual conduct by Salls against plaintiff—the 

previous reports indicated suspicions of boundary violations but did not include reports of sexual 

contact. The next day, Salls was assigned to work at the facility’s control post, a position that does 
4

not involve direct contact with inmates. Salls did not work at the facility on September 7 or 8 

because those were her regularly scheduled days off. From September 6 through September 8, 

facility staff investigated the September 5 allegations of sexual misconduct. On September 9 when 

Salls reported to the facility, she was temporarily relieved from duty pending an investigation into 

the allegations. Salls was sent home and did not return to work at SESCF.

¶ 7. Subsequently in August 2014, plaintiff filed suit seeking monetary damages 

alleging that Salls sexually exploited him and DOC failed to keep him safe from sexual 

exploitation by properly supervising Salls. DOC moved for summary judgment, arguing in part 

that DOC was immune from suit. The trial court concluded that, based on the undisputed facts, 

the discretionary function exception in the VTCA applied to the investigation and DOC was 

immune from suit. The court granted DOC’s motion for summary judgment and dismissed 

plaintiff’s claim against DOC. Plaintiff now appeals the court’s ruling to this Court.

¶ 8. On appeal, plaintiff primarily argues that the discretionary function exception does 

not apply to DOC’s investigation because DOC failed to establish procedures for investigating

allegations of sexual misconduct pursuant to its sexual harassment policy, Policy 126. Plaintiff 

further argues that even if the discretionary function exception does apply, DOC waived its 

sovereign immunity because: (1) DOC failed to provide an adequate response to plaintiff’s claims 

by not separating Salls and plaintiff while investigating the boundary-violation reports; and (2) 

DOC was ministerially negligent “when it made incorrect decisions” during the investigation, 

specifically regarding DOC’s repositioning of facility cameras and misinterpreting Salls’s 

employment contract.

2

 The State contends the court was correct and the discretionary function 

 

2

 The court did not rule on plaintiff’s claim against Salls when granting summary judgment 

in favor of the State. The case against Salls proceeded, resulting in a final judgment against her in 

July 2018, at which point this matter became ripe for appeal. Plaintiff does not challenge the 

judgment entered in his behalf against Salls; this appeal focuses entirely on whether the court 

appropriately granted summary judgment in favor of DOC, dismissing DOC as co-defendant in 

the matter. 
5

exception applies because, in the absence of directives or standards requiring DOC to take specific 

steps, DOC reasonably exercised its discretion in investigating the allegations of sexual 

exploitation. Based on the undisputed facts before the court, the discretionary function exception 

applied to DOC’s investigation in this case; we affirm the court’s grant of summary judgment in 

favor of the State. 

¶ 9. We review an award of summary judgment de novo. “Summary judgment is 

appropriate if, with facts taken as alleged by the nonmoving party and reasonable doubts and 

inferences resolved in favor of the nonmoving party, there is no genuine issue as to any material 

fact and any party is entitled to judgment as a matter of law.” Kennery v. State, 2011 VT 121, 

¶ 10, 191 Vt. 44, 38 A.3d 35 (quotations omitted); V.R.C.P. 56(a). 

I. The Discretionary Function Exception Applies to DOC’s Investigation

¶ 10. First, we consider whether sovereign immunity, specifically the discretionary 

function exception contained in the VTCA, shielded DOC’s investigation. 

¶ 11. It has long been established that “[l]awsuits against the State are barred unless the 

State waives its sovereign immunity.” Lane v. State, 174 Vt. 219, 222, 811 A.2d 190, 193 (2002). 

Under the VTCA, the State has waived immunity to the extent that a private analog exists and 

consented to suit when an injury is “caused by the negligent or wrongful act or omission of an 

employee of the State while acting within the scope of employment.” 12 V.S.A. § 5601(a); see

Searles v. Agency of Transp., 171 Vt. 562, 563, 762 A.2d 812, 813-14 (2000) (mem.) (outlining 

discretionary function exception). There are exceptions to this liability where the State has 

expressly elected to retain its sovereign immunity. Relevant to this case, the State has specifically 

retained immunity for acts or omissions by state employees “based upon the exercise or 

performance or failure to exercise or perform a discretionary function or duty . . . whether or not 

the discretion involved is abused.” 12 V.S.A. § 5601(e)(1). This is referred to as the “discretionary 

function exception.” “The purpose of the discretionary function exception is to assure that the 
6

courts do not invade the province of coordinate branches of government by passing judgment on 

legislative or administrative policy decisions through tort law.” Earle v. State, 2006 VT 92, ¶ 22, 

180 Vt. 284, 910 A.2d 841 (quotation omitted).

¶ 12. The exception does not apply to all State action; it shields only acts or omissions 

by state employees that qualify as “discretionary functions.” Discretionary functions are acts that 

require the exercise of judgment in a situation “where there is no specifically dictated course of 

action for the employee to follow.” Id. (quotation omitted). This Court has adopted the two-part 

test outlined in United States v. Gaubert, 499 U.S. 315, 322-25 (1991), to evaluate whether a

State’s act or omission qualifies as a discretionary function. Searles, 171 Vt. at 563-64, 762 A.2d

at 813-14. 

¶ 13. Under the first prong of the test, the court must determine whether a statute, 

regulation, or policy mandates certain acts, or whether performance of a duty involves an element 

of judgment or choice. “Generally, statutory duties that involve a predictable standard for decision 

making are ministerial, and thus subject to tort suits.” Sabia v. State, 164 Vt. 293, 307, 669 A.2d 

1187, 1197 (1995). “If a statute or regulation or policy specifically prescribes a course of action 

for an employee to follow, then the discretion requirement is not met.” Lane, 174 Vt. at 224, 811 

A.2d at 194. Thus, acts that are ministerial and clearly prescribed by policy are not covered by the 

discretionary function exception. However, if there are no clear mandates guiding state action and 

“the court determines that the act involved an element of judgment or choice, it must then 

decide . . . the second prong.” Id. 

¶ 14. The second prong of the test directs the court to determine “whether that judgment 

is of the kind that the discretionary function exception was designed to shield”—policy-related 

judgments. Id. (quotation omitted). The discretionary function exception was intended to protect 

governmental actions and decisions based on public policy considerations; decisions not related to 

public policy are not immune from suit. Kennery, 2011 VT 121, ¶ 32. However, it is presumed 
7

that when a government agent is authorized to exercise discretion, the agent’s “acts are grounded 

in policy when exercising that discretion.” Id. (quotation and alteration omitted). “[T]o survive a 

motion for summary judgment, a plaintiff must allege facts sufficient to overcome the presumption 

that the discretion involved policy considerations.” Earle, 2006 VT 92, ¶ 23 (quotation omitted). 

“The analysis focuses on whether the actions taken by the government employee are susceptible 

to policy analysis, not on an employee’s subjective intent in exercising the discretion conferred by 

regulation.” Kennery, 2011 VT 121, ¶ 32 (quotation and alteration omitted). If state action 

“involves negligence unrelated to any plausible policy objectives,” then the second prong of the 

test is not satisfied, and the discretionary function exception does not apply. Coulthurst v. United 

States, 214 F.3d 106, 111 (2d Cir. 2000); see also Kennery, 2011 VT 121, ¶ 36 (holding that state 

troopers’ welfare check at wrong address was not covered by discretionary function exception 

because “[t]he discretionary activity at issue was to apply the information given the officers to 

search the right house” and there was “no public policy analysis in this activity”). 

¶ 15. If both prongs of the test are satisfied, then the discretionary function exception 

applies, and sovereign immunity bars suit against the State. Yet, the protection offered to the State 

under the discretionary function exception is not boundless. Courts have noted, “time and again, 

that it is impossible to define the precise contours of the exception.” Lively v. United States, 870 

F.2d 296, 299 (5th Cir. 1989) (citing United States v. Varig Airlines, 467 U.S. 797, 813 (1984)

(additional citations omitted)). Although the parameters of the exception are not altogether clear, 

this Court has held that for the discretionary function exception to apply, the State must act to 

discharge its duty. See Sabia, 164 Vt. at 307-08, 669 A.2d at 1197 (holding that judgment on the 

pleadings in favor of State based on discretionary function exception would be inappropriate where 

State failed to act on reports of child abuse). “[O]nce the government makes a policy decision 

protected by the discretionary function exception, it must proceed with due care in the 

implementation of that decision.” Caplan v. United States, 877 F.2d 1314, 1316 (6th Cir. 1989). 
8

This due-care standard applies specifically to implementing acts that are ministerial in nature and 

leave “no room for choice or judgment.” Gaubert, 499 U.S. at 324; see, e.g., Indian Towing Co. 

v. United States, 350 U.S. 61, 69 (1955) (explaining that once Coast Guard undertook to operate 

lighthouse, “it was obligated to use due care” to ensure light was in working order).

¶ 16. In contrast, discretionary acts furthering a protected policy decision are shielded by 

the exception when there is a “range of discretion to exercise in deciding how to carry out 

the . . . activity.” Gaubert, 499 U.S. at 325. These “[a]ctions taken in furtherance of the program” 

are protected, “even if those particular actions were negligent.” Id. at 323; see also 12 V.S.A. 

§ 5601(e)(1) (explaining that discretionary function exception applies to “[a]ny claim based upon 

an act or omission of an employee of the State . . . based upon the exercise or performance or 

failure to exercise or perform a discretionary function or duty . . . whether or not the discretion 

involved is abused” (emphasis added)); see also 28 U.S.C. § 2680(a) (outlining same protection 

with respect to federal government employees).

¶ 17. In sum, while the discretionary function exception shields the State from liability 

for administrative and policymaking decisions, it will not excuse the State from liability for failure 

to act when required or for failure to use reasonable care when executing ministerial tasks in 

furtherance of a discretionary undertaking. Once the government makes a policy decision 

protected by the exception, nondiscretionary ministerial acts executing that decision must be 

conducted with due care and discretionary acts for that same purpose are protected by the exception 

so long as they involve the exercise of judgment. 

¶ 18. Relevant to our analysis here, this Court has recognized that the discretionary 

function exception often applies in the context of state investigations and in carceral settings. We 

have explained that “[a]s it requires substantial judgment in terms of means and manner, the act of 

investigation is a discretionary one.” Amy’s Enters. v. Sorrell, 174 Vt. 623, 625, 817 A.2d 612, 

617 (2002) (mem.); Levinsky v. Diamond, 151 Vt. 178, 191, 559 A.2d 1073, 1082 (1989) (holding 
9

publicity decisions made by assistant attorneys general in course of investigation were 

discretionary), overruled on other grounds by Muzzy v. State, 155 Vt. 279, 583 A.2d 82 (1990). 

Regarding investigating allegations of sexual abuse specifically, in Earle this Court found 

summary judgment in favor of the State was appropriate when no “definitive ministerial standards” 

existed and state employees were required to exercise judgment in response to a sexual abuse 

report made by a foster child. 2006 VT 92, ¶ 25. We held that investigating allegations of sexual 

abuse in that case required state employees to “weigh the competing governmental policies,” and 

therefore the “decisions made . . . in response to allegations of abuse . . . [fell] squarely within the 

intended scope of the discretionary function exception.” Id. ¶ 26.

¶ 19. We have also recognized the broad discretionary authority afforded to prison 

officials. Conway v. Cumming, 161 Vt. 113, 115, 636 A.2d 735, 736 (1993) (recognizing 

“necessarily broad discretionary authority of prison officials over prison administration”); see also

Parker v. Gorczyk, 170 Vt. 263, 277, 744 A.2d 410, 420 (1999) (explaining that decisions 

regarding classification of inmates in administration of prisons “are peculiarly within the province 

and professional expertise of prison officials, and courts should defer to their expert judgment in 

such matters”). Regarding the applicability of the discretionary function exception in carceral 

settings, we recently explained that decisions made when exercising judgment over the 

management of a correctional facility may fall within the discretionary function exception, but 

nondiscretionary duties that are “purely ministerial act[s]” do not. Wool v. Menard, 2018 VT 23,

¶ 15, __ Vt. __, 185 A.3d 577 (quotation omitted) (holding that discretionary function exception 

was not applicable to DOC’s nondiscretionary act of awarding contracts for telephone services). 

¶ 20. In this case, DOC exercised its discretion when it investigated the allegations of 

sexual exploitation at issue without definitive ministerial standards. Based on the analysis below, 

we conclude that this scenario satisfies both prongs of the discretionary function exception to the 
10

VTCA and that sovereign immunity applied to DOC’s actions. The trial court appropriately 

granted summary judgment to the State. 

¶ 21. Regarding the first prong of the test, DOC exercised its discretion when 

investigating the reports of boundary violations. To determine whether DOC was mandated to act 

in a specific way or was called upon to exercise its judgment in conducting the investigation, we 

first examine what DOC was required to do under the statutes and policies in place at the time. 

¶ 22. There is no dispute that DOC is obligated to protect inmates committed to its care 

from sexual exploitation. DOC has statutory obligations, as well as regulations and internal 

policies, governing its actions. Notably, 28 V.S.A. § 601 delegates broad authority and 

responsibility to DOC officers “for the efficient and humane maintenance and operation and for 

the security of the facility.” Specifically, § 601(2) requires supervising officers to “enforce the 

provisions of law and the regulations of [DOC] for the administration of the facility, the 

government of its officers, and the treatment, training, employment, care, discipline, and custody 

of the inmates.” Section 601 also tasks supervising officers with “establish[ing] and 

administer[ing] rules, including rules for the operation of the facility, consistent with [Title 28] 

and the general policies and regulations of [DOC].” Id. § 601(7).

¶ 23. At the time of the events outlined above, DOC Policy 126 was the sole policy or 

directive in place regarding sexual misconduct perpetrated by DOC employees against inmates. 

DOC enacted Policy 126 in January 2003, prior to both Vermont’s adoption of the Prison Rape 

Elimination Act (PREA) and criminalization of sexual relationships between inmates and 

correctional officers. See 2005, No. 177 (Adj. Sess.), § 1 (enacting 13 V.S.A. § 3257 and 

criminalizing sexual exploitation of incarcerated individuals); Vermont Department of Corrections 

Directive 409.09, Prison Rape Elimination Act (PREA) & Staff Sexual Misconduct (2014)

[hereinafter Directive 409.09], http://www.doc.state.vt.us/about/policies/rpd/correctionalservices-301-550/401-500-programs-security-and-supervision/409-09-prison-rape-elimination-
11

act-prea-staff-sexual-misconduct-facilities [https://perma.cc/D7XB-ZB93].

3

 Policy 126 states in

relevant part that DOC “will make serious efforts to prevent employee sexual misconduct with 

[inmates] and will investigate all reports to ensure accountability for all those who are involved in 

sexual misconduct.” Pursuant to Policy 126, the usual sanction for violations of the sexualmisconduct policy is termination absent strong mitigation for the behavior. The policy further 

states that DOC will “develop directives that establish processes” for preventing, reporting, and 

investigating sexual misconduct. Despite this language, DOC did not adopt any additional or 

different policies, directives, or procedures regarding the investigation of or response to staff 

sexual misconduct with inmates until it adopted Directive 409.09 in June 2014. Therefore, at the 

time of the events at issue, the statutes, regulations, and policies in place required DOC to 

investigate reports of sexual misconduct and sanction officers who engaged in sexual misconduct,

but they did not mandate that DOC conduct the investigation in a particular manner or separate 

alleged perpetrators from alleged targets during investigation. 

¶ 24. Although there were no definitive ministerial standards for DOC to adhere to at the 

time, DOC investigated the allegations of boundary violations between Salls and Ingerson. 

Specifically, it is undisputed that DOC supervisors took the following actions: they met with Salls 

and questioned her about her interactions with plaintiff, which she assured them complied with 

DOC’s policies; cautioned Salls about spending an inappropriate amount of time with plaintiff and 

warned her about DOC’s intolerance for sexual misconduct with inmates; requested that DHR 

interview Salls and plaintiff regarding the boundary-violation reports (both Salls and plaintiff 

denied any sexual misconduct was occurring); repositioned cameras to monitor areas frequented 

 

3

 DOC adopted Directive 409.09 on June 2, 2014. A new version of Directive 409.09 

superseded the 2014 version on February 22, 2015. Vermont Department of Corrections Directive 

409.09, Prison Rape Elimination Act (PREA) & Staff Sexual Misconduct (2015), 

http://www.doc.state.vt.us/about/policies/rpd/correctional-services-301-550/401-500-programssecurity-and-supervision/409-09-prision-rape-elimination-act-prea-staff-sexual-misconductfacilities [https://perma.cc/ZR8Y-RL5S].
12

by Salls and plaintiff; and continued watching and receiving information about Salls’s behavior. 

When DOC received a report that Salls had made direct sexual contact with plaintiff, she was 

immediately removed from the area of the facility to prevent future contact with plaintiff. These 

actions required DOC to exercise its judgment and balance competing interests, such as: weighing

the evidentiary value of the boundary-violation reports and drawing conclusions from them;

protecting inmates from legitimate concerns while avoiding the appearance of undermining officer 

authority; balancing the security risks due to inmate liberty with the rehabilitative benefits of 

allowing inmates as much freedom as possible; allocating and managing resources and staff; and 

considering officers’ contractual and other rights. 

¶ 25. DOC engaged in this balancing, and it did so without the benefit of directives or 

guidelines beyond Policy 126’s general mandate that an investigation ensue. See Earle, 2006 VT 

92, ¶ 26 (holding state employees’ discretionary decisions while investigating allegations of sexual 

abuse without specific guidelines or procedures fell within ambit of discretionary function 

exception).4 As we have explained, we generally afford DOC broad discretion in making these 

types of administrative decisions due to the complex nature of managing correctional settings. 

Conway, 161 Vt. at 115, 636 A.2d at 736. We see no reason to depart from that principle here. 

DOC’s actions required the exercise of judgment, satisfying the first prong of the discretionaryfunction-exception test and leading us to the second stage of our inquiry. Lane, 174 Vt. at 224, 

 

4

 Plaintiff attempts to distinguish Earle, 2006 VT 92, from this case because the Vermont 

Department for Children and Families (DCF) does not have the same statutory duty to foster 

families that DOC has to inmates and because DCF had no ministerial requirements for 

investigating while Policy 126 instructed DOC to create investigation procedures. We disagree 

with plaintiff’s analysis. First, both DCF and DOC have a similar duty to investigate allegations 

of sexual abuse—the differences between foster-family and inmate populations are irrelevant to 

our analysis in this context. Second, even though Policy 126 indicates DOC’s intent to adopt 

investigation polices, none were in place at the time of the investigation at issue. Due to the lack 

of ministerial guidelines in both cases, DOC and DCF workers were similarly situated and required 

to exercise their discretionary judgment in both instances. We find these two cases to be 

substantially similar, bolstering our conclusion that the discretionary function exception applied 

to DOC’s investigation here, as it applied to DCF’s investigation in Earle. 
13

811 A.2d at 194 (explaining that “[i]f the court determines that the act involved an element of 

judgment or choice, it must then decide . . . the second prong”).5 

¶ 26. The second prong of the test requires us to consider whether the decisions made by 

DOC during the investigation were of the kind that the discretionary function is intended to 

protect—decisions affecting public policy. Kennery, 2011 VT 121, ¶ 32. As discussed above, 

because DOC exercised its judgment in conducting the investigation, we presume its decisions 

involved matters of public policy. Earle, 2006 VT 92, ¶ 23. This presumption is again bolstered 

by the discretion generally afforded to prison administrators’ decision-making authority and the 

sensitive nature of the investigation at issue. We recognize that sexual-misconduct investigations 

are highly sensitive and, when conducted in carceral environments, pose unique challenges. We 

agree with DOC that balancing the competing interests at stake (outlined above) is a process highly 

“susceptible to policy analysis.” Kennery, 2011 VT 121, ¶ 32 (quotation omitted). To overcome 

the presumption in DOC’s favor, plaintiff is tasked with demonstrating that DOC’s decisions made 

during the boundary-violations investigation were “unrelated to any plausible policy objective,” 

Coulthurst, 214 F.3d at 111, such as failing to inspect weight-room equipment, id., or mistakenly 

 

5

 Plaintiff argues that because DOC exercised its discretion conferred by 28 V.S.A. § 601

and enacted Policy 126, DOC assumed a ministerial duty to effectuate the policy by establishing 

procedures for investigating allegations of sexual exploitation. However, our case law consistently 

explains that ministerial duties are duties conferred by statutes, regulations, or policies that 

“involve a predictable standard for decision making,” Sabia, 164 Vt. at 307, 669 A.2d at 1197, and 

“specifically prescribe[] a course of action for an employee to follow.” Lane, 174 Vt. at 224, 811 

A.2d at 194. Policy 126’s general commendation that DOC establish policies and procedures for 

investigating sexual-exploitation reports lacks the specificity of ministerial guidance—there are 

no clear parameters or steps for DOC employees to follow. While this language indicates DOC’s 

intent to adopt future procedures, it does not require DOC to do so or set any time by which those 

procedures must be adopted. Accordingly, Policy 126 does not align with examples of ministerial 

guidance found in our case law. See Wool, 2018 VT 23, ¶ 15 (holding that awarding contract for 

telephone services was nondiscretionary, ministerial act because it did not require exercise of 

DOC’s judgment to identify “lowest responsible bidder[]”); Kennery, 2011 VT 121, ¶¶ 35-36

(holding that conducting welfare check at wrong address did not involve judgments affecting 

public policy). DOC’s choice not to exercise its discretion and adopt further policies by the time 

of Salls’s misconduct was a matter of judgment, not dereliction of a ministerial duty as alleged by 

plaintiff.
14

conducting a welfare check at the wrong address. Kennery, 2011 VT 121, ¶¶ 35-36. Plaintiff has 

failed to meet that burden. Here, DOC had to make decisions in response to allegations of abuse 

and “weigh the competing governmental policies” at issue. Earle, 2006 VT 92, ¶ 23 (quotation 

omitted). Those judgments are precisely of the kind that the discretionary function was designed 

to shield. We determine that DOC satisfies both prongs of the test and the discretionary function 

exception applies.

II. DOC Did Not Waive Sovereign Immunity

¶ 27. Plaintiff makes three primary arguments countering the applicability of the 

discretionary function exception. He argues that DOC waived sovereign immunity because it: (1) 

unreasonably delayed enacting investigatory procedures, pursuant to Policy 126; (2) failed to 

provide an adequate response when investigating the allegations by electing not to separate Salls

and plaintiff; and (3) negligently executed ministerial decisions within the investigation. We 

address each in turn. 

A. Unreasonable Delay

¶ 28. Plaintiff asserts that DOC waived sovereign immunity by beginning and failing to 

complete a discretionary task (adopting Policy 126 but not establishing further investigation 

procedures) in a reasonable manner. We disagree. 

¶ 29. DOC was not required to adopt investigation procedures. As explained above, 

DOC enacted Policy 126 pursuant to its discretionary authority under 28 V.S.A. § 601. Policy 126 

stated DOC’s intent to establish investigation procedures, but it did not specify when or how DOC 

should enact such procedures and did not require DOC to take any further action. See supra, 

¶ 25 n.5. Enacting Policy 126 and establishing investigation procedures, which DOC achieved by 

adopting a directive to implement the PREA in 2014, were distinct discretionary acts that each 

required DOC to exercise judgment and balance competing policy interests. This is unlike the 

cases cited by plaintiff in which an agency began a single undertaking at its discretion, such as 
15

electing to operate a lighthouse, and then failed to carry out ministerial functions to ensure the 

same project’s success, such as providing routine maintenance for the lighthouse. See, e.g., Indian 

Towing Co., 350 U.S. at 69. DOC completed one discretionary act by enacting Policy 126 and 

later performed another discretionary act by adopting a directive to implement the PREA. 

Plaintiff’s argument attempting to conflate these two acts into one, drawn out undertaking is 

unpersuasive. 

¶ 30. Even if we were to agree that Policy 126 obligated DOC to establish procedures, 

plaintiff’s reliance on national case law to argue that DOC unreasonably delayed in doing so would 

be misplaced. Plaintiff draws his definition of “unreasonable” agency delay from case law 

involving “TRAC” analysis, which differs significantly from this case. See Telecomms. Research 

& Action Ctr. v. FCC, 750 F.2d 70, 79-80 (D.C. Cir. 1984) (establishing “TRAC” test). We briefly 

summarize this case law and its statutory origins to explain and reject plaintiff’s argument.

¶ 31. To ensure agency accountability to its enabling legislation, “Congress has 

instructed statutory review courts to compel agency action that has been unreasonably delayed” 

under 5 U.S.C. § 706(1). Telecomms. Research & Action Ctr., 750 F.2d at 79. In other words, if 

an agency does not comply with its statutory mandate, a party may challenge the agency’s inaction 

via § 706(1). When resolving suits brought under this provision, federal courts have applied a sixfactor analytical framework called “TRAC” analysis to determine whether an agency has exhibited 

“unreasonable delay” in effecting its objectives and whether it is appropriate to compel agency 

action. See id. at 79-80 (holding that Federal Communications Commission’s delay of almost five 

years in resolving overcharge claims did not warrant writ of mandamus); see also Martin v. 

O’Rourke, 891 F.3d 1338, 1341, 1349 (Fed. Cir. 2018) (holding that “Veterans Court should look 

to the TRAC factors as guidance when evaluating mandamus petitions based on unreasonable 

delay in the [Department of Veterans Affairs’] adjudication of benefits claims,” which are 

“nondiscretionary, statutorily mandated benefits” (quotation omitted)); In re Int’l Chem. Workers 
16

Union, 958 F.2d 1144, 1148, 1150 (D.C. Cir. 1992) (per curiam) (issuing order for Occupational 

Safety and Health Administration (OSHA) to complete cadmium rulemaking pursuant to OSHA’s 

statutory mandate after six-year delay). Notably, recent courts applying TRAC analysis have 

emphasized that “an agency cannot unreasonably delay that which it is not required to do.” In re 

A Cmty. Voice, 878 F.3d 779, 784 (9th Cir. 2017); see also Heckler v. Ringer, 466 U.S. 602, 616

(1984) (noting in context of mandamus based on 28 U.S.C. § 1361 that agency must owe petitioner 

“clear nondiscretionary duty”).

¶ 32. With this background in mind, we address plaintiff’s argument.6 Plaintiff attempts 

to prove DOC’s sovereign immunity should be waived by comparing the length of the agencies’ 

“unreasonable delay” in the federal TRAC cases to DOC’s alleged delay in enacting investigation 

procedures pursuant to Policy 126. However, this case is not analogous to the TRAC cases, most 

notably because Policy 126 is an internal policy, not a statutory mandate, and because plaintiff is 

seeking damages from the State, rather than asking this Court to compel DOC to comply with 

Policy 126.7 In this case, we are not persuaded that DOC’s delay in exercising its discretion is 

akin to an agency’s delay in executing a clear statutory mandate. DOC exercised its judgment 

 

6

 The State argues that plaintiff’s claim—that the discretionary function exception does 

not apply because federal case law demonstrates DOC unreasonably delayed in adopting Policy 

126—was not raised before the trial court and is not preserved for appeal. However, this line of 

analysis supports the argument plaintiff made to the court that the discretionary function should 

not apply to DOC’s investigation because DOC “attempt[ed] to exploit a loop hole that was 

negligently self-created” when DOC “did not adopt uniform procedures or directives, as stated in 

Policy 126.” The trial court considered and rejected this argument, which plaintiff attempts to 

resurrect on appeal by pointing to federal case law. See Avery v. Estate of Avery, 2018 VT 59, 

¶ 9 n.3, __ Vt. __, 192 A.3d 1250 (“[W]here a litigant’s argument is clear enough for the trial court 

to evaluate it and for an opponent to respond to it, the claim is adequately preserved for appeal.”

(quotation omitted)). Therefore, the issue is preserved.

7

 Between the time DOC established Policy 126 and DOC’s adoption of a directive to 

implement the PREA, no party sued seeking to compel DOC to establish investigation procedures. 

To date, we have not adopted TRAC analysis in Vermont, and we do not address whether TRAC 

analysis would apply to a suit seeking to compel DOC to act on an internal policy, such as Policy 

126, or whether such a suit would be successful. 
17

pursuant to its enabling statute (28 V.S.A. § 601) and internal policy (Policy 126) when deciding 

whether to adopt investigation procedures. Both § 601 and Policy 126 delegated broad authority 

to DOC—neither required DOC to establish procedures nor specified how DOC should achieve 

that goal. In contrast, the agencies in TRAC case law were subject to enabling statutes that 

required specific action and arguably functioned like ministerial guidelines. Unlike DOC, the 

agencies in TRAC case law were statutorily obligated to act. Martin, 891 F.3d at 1340-41, 1349 

(explaining that Department of Veterans Affairs (VA) benefits are “nondiscretionary statutorily 

mandated benefits” and VA had duty to adjudicate and issue final decisions on these pending 

claims for disability benefit (quotation omitted)); In re A Cmty. Voice, 878 F.3d at 784 (explaining 

that if agency does not have nondiscretionary duty to petitioner to act, agency cannot unreasonably 

delay taking such act). Because of these differences, plaintiff’s comparison between this case and 

the TRAC cases fails. 

¶ 33. Even if the unreasonable delay in the TRAC cases provided a more perfect parallel 

to this case, the remedy in TRAC cases is compelling agency action, not a money claim for 

damages. Compelling agency action is inapplicable here because DOC has already established 

investigation procedures by adopting the PREA. Plaintiff has not pointed to a case where an 

agency’s decision not to exercise its discretionary authority based on an internal policy constituted

“unreasonable delay” and the appropriate remedy was a waiver of sovereign immunity and 

damages, yet he asks us to provide such a remedy here. For the reasons outlined above, we refuse 

to usurp the concept of unreasonable delay from TRAC case law and graft it onto the discretionaryfunction-exception test to justify the remedy sought by plaintiff. 

¶ 34. Finally, even if we agreed with plaintiff that DOC had a duty to adopt investigative 

procedures pursuant to Policy 126 and failed to do so in a reasonable time frame, summary 

judgment in favor of the State is still appropriate because it is entirely speculative that DOC’s 

inaction caused plaintiff’s harms or that enacting such policies would have prevented plaintiff’s 
18

sexual exploitation. For example, we cannot know whether DOC would have adopted procedures 

requiring that alleged perpetrators of misconduct be separated from alleged targets during 

investigation or prescribing a method for positioning facility cameras, as suggested by plaintiff. 

Even assuming such procedures had been put in place, the events at issue still may have occurred, 

especially with both Salls and plaintiff actively working to conceal their meetings. Taking the 

facts in the light most favorable to plaintiff and crediting that he was coerced to obstruct DOC’s 

investigation, the investigation was undisputedly subverted due to plaintiff’s actions and untruthful 

denials, preventing DOC from discovering Salls’s sexual misconduct at an earlier time. Plaintiff 

asks us to speculate both as to the content of any unadopted policy and whether it would have 

prevented some of plaintiff’s damages had it been adopted. This we decline to do.8 

 

8

 Plaintiff argues that granting summary judgment to the State in this case will encourage 

government agencies not to enact policies in order to hide behind the discretionary function 

exception and insulate themselves from future tort claims. However, the discretionary function 

exception is not a get-out-of-jail-free card for bad government behavior—there are limits to its 

applicability. Had DOC failed to take any action in response to the boundary-violation concerns 

or sexual-misconduct reports or acted contrary to its statutory or internal mandates in attempting 

to determine their veracity, the discretionary function exception would not shield it from suit. See 

Sabia, 164 Vt. at 307-08, 669 A.2d at 1196-97. But this is not the case here. DOC acted in 

response to the allegations that were raised and ultimately uncovered Salls’s misconduct. We are 

unpersuaded that agencies will fail to act or refuse to adopt policies with the uncertain hope that 

the discretionary function exception will apply and/or their ministerial actions, if any, will be 

deemed reasonable.

As plaintiff pointed out by highlighting TRAC case law, the legislative and judicial 

branches also aid in ensuring agency accountability. “[U]nder our constitutional system, 

administrative agencies are subject to the same checks and balances which apply to our three 

formal branches of government. An agency must operate for the purposes and within the bounds 

authorized by its enabling legislation, or this Court will intervene.” In re Agency of Admin., State 

Bldgs. Div., 141 Vt. 68, 75, 444 A.2d 1349, 1352 (1982). If an agency fails to perform acts as 

required by its enabling statute, then a party may bring suit seeking the courts to compel agency 

action to perform its statutory obligations. See V.R.C.P. 75 (“Any action or failure or refusal to 

act by an agency of the state or a political subdivision thereof, including any department, board, 

commission, or officer, that is not reviewable or appealable under Rule 74 of these rules . . . may 

be reviewed in accordance with this rule if such review is otherwise available by law.”); V.R.C.P. 

74 (providing for appeals from decisions of governmental agencies when party is entitled to seek 

review by statute).
19

B. DOC’s Decision Not to Separate Salls and Plaintiff 

¶ 35. Even accepting that the discretionary function exception applies, plaintiff argues 

that sovereign immunity must be waived because DOC’s investigation was inadequate.

Specifically, plaintiff argues that based on the internal reporting of inappropriate interactions 

between Salls and plaintiff, DOC should have separated the two during the investigation. Even 

taking the undisputed facts as true and resolving all inferences in plaintiff’s favor, DOC’s decision 

not to separate Salls and plaintiff was part of DOC’s exercise of judgment in conducting the 

investigation, and it is shielded by the discretionary function exception. 

¶ 36. The discretionary function exception applies to government agencies’ 

administrative and policymaking decisions made pursuant to their statutory mandate. Earle, 2006 

VT 92, ¶ 22; see also id. ¶ 30 (Johnson, J., concurring) (“[T]he agency cannot claim immunity 

under the discretionary function exception by simply taking some action, no matter how token, in 

response to a report of abuse; its response must be sufficient to satisfy the mandatory requirements 

of the statute.”). Once the government makes a policy decision protected by the exception, 

agencies must use due care when executing ministerial tasks in furtherance of a discretionary 

undertaking. Caplan, 877 F.2d at 1316. However, discretionary acts furthering the State’s 

protected policy decision—here, DOC’s investigation—are likewise protected by the exception. 

Gaubert, 499 U.S. at 323.

¶ 37. At the time of the events at issue, § 601 and Policy 126, read together, required that 

DOC “take proper measures to protect the safety of the inmates and personnel of the facility” and

investigate allegations of sexual misconduct. Neither § 601 nor Policy 126 required, or even 

suggested, that DOC separate accused officers and alleged targets during sexual-misconduct

investigations or investigations into boundary-violation reports—electing whether to do so was a 

discretionary judgment. Unlike maintaining a lighthouse or properly locating a hazard on a 

navigational chart—which are ministerial acts that “involve[] no discretionary function or duty”—
20

DOC’s staffing decision in the face of concerns regarding contact between Salls and plaintiff 

required an exercise of judgment. See Indian Towing Co., 350 U.S. at 69; Myslakowski v. United 

States, 806 F.2d 94, 98 (6th Cir. 1986). No statutes, policies, or standards dictated DOC action

under the circumstances, and DOC’s investigation yielded no evidence indicating separation was 

necessary, largely due to Salls’s and plaintiff’s falsehoods. Whether we would make a different 

decision in hindsight is not the test; the test is whether DOC’s acts were sufficient to satisfy the 

mandatory requirements and whether they necessitated the exercise of judgment. Even taking the 

facts and all reasonable inferences in a light favorable to plaintiff, DOC’s choice not to separate 

the two met this standard. 

¶ 38. Plaintiff laments that “[t]he standard for protecting Vermont inmates should not 

hinge on catching someone in the act.” We agree. However, in this case, Salls’s and plaintiff’s 

intentional acts undermined DOC’s attempts to discover Salls’s misconduct, which would have 

triggered a DOC response.

9

 Considering the complexity of the investigation, lack of clear 

guidelines, and competing interests at issue, we cannot now second-guess DOC’s decision not to 

separate Salls and plaintiff when both repeatedly told investigators that no misconduct was 

occurring and separation was apparently unnecessary. The discretionary function exception is 

intended to “prevent judicial ‘second-guessing’ of legislative and administrative decisions 

grounded in social, economic, and political policy through the medium of an action in tort.” Varig 

Airlines, 467 U.S. at 814. Allowing plaintiff to attack the wisdom of DOC’s discretionary

judgments made within the course of its investigation would open the door to exactly the type of 

 

9

In pointing to plaintiff’s statements to investigators, we do not intend to suggest that 

plaintiff, as victim, was blameworthy for misrepresenting the facts. We are mindful of the 

dynamics that might lead an incarcerated individual to lie to investigators in a case like this. The 

point of our discussion is that, from the perspective of DOC, plaintiff’s denials of any sexual 

contact by Salls is relevant to the discretion DOC officials retained to separate, or not separate, 

Salls from plaintiff. 
21

judicial scrutiny the exception was intended to prevent. We reject plaintiff’s claim that DOC’s 

decision waived sovereign immunity.

10

C. Negligent Ministerial Decisions

¶ 39. In addition to plaintiff’s claim that the failure to adopt procedures was a breach of 

a ministerial duty, which we have rejected (see supra, ¶ 25 n.5), plaintiff also claims that DOC 

breached ministerial duties in the course of its investigation, resulting in harm to plaintiff and 

waiving sovereign immunity. Plaintiff challenges two specific decisions as the bases for this 

claim—the repositioning of the camera and the misreading of Salls’s employment contract. In the 

absence of any clear instructions requiring DOC to take either action, we conclude that these 

decisions were discretionary. Even if we agreed that these acts were ministerial, which we do not,

plaintiff’s arguments fail because any harm to plaintiff due to these actions by DOC is purely 

speculative. 

¶ 40. First, plaintiff argues that repositioning the camera to eliminate blind spots in the 

facility was poorly and negligently done. He compares the repositioning of the camera, which 

must have involved some delegation, to acts that have been recognized as ministerial, such as the 

welfare check at the wrong house in Kennery, 2011 VT 121, ¶ 36, and “the actual cleanup of 

vomit” in Allen v. Kansas Department of Social & Rehabilitation Services, 731 P.2d 314, 316 

(Kan. 1987). As we have explained, ministerial acts are those with clearly prescribed directives. 

Lane, 174 Vt. at 224, 811 A.2d at 194. In the absence of such directives explaining that cameras 

should be used when investigating reports of boundary violations or how to position them, the use 

 

10

 We address the exception’s applicability to DOC’s decision regarding separating Salls 

from plaintiff in response to plaintiff’s challenge; however, we leave for another day whether it is 

generally necessary to analyze each individual decision within an agency’s discretionary acts to 

determine whether it is protected by the exception. See Gaubert, 499 U.S. at 334 (Scalia, J., 

concurring) (disagreeing with majority as to whether “it [is] necessary to analyze individually each 

of the particular actions challenged” within activity protected by discretionary function exception). 
22

of the camera, its placement, and the choice to move it back to its original position were decisions

within DOC’s discretion when conducting the investigation. 

¶ 41. Even if we were to agree that positioning the camera was a ministerial act and it 

was done badly, there is no evidence beyond mere speculation that a change in camera position 

would have had an impact on Salls’s misconduct such that waiver of DOC’s sovereign immunity 

is appropriate. Salls and plaintiff were actively seeking to hide the ongoing sexual misconduct. 

Whether a change in the camera’s position would have countered their efforts and led to their 

discovery by DOC cannot be known. We decline to hold that the potentially ineffective 

repositioning of the camera waives DOC’s sovereign immunity for conducting the investigation. 

¶ 42. Next, plaintiff argues that DOC’s rationale for not switching Salls’s post earlier was 

based on a misreading of her rights under the union contract and that “familiarity with the 

collective bargaining agreement is a ministerial task put upon facility management.” We disagree. 

At the time at issue, there were no requirements that DOC prohibit contact between Salls and 

plaintiff or that DOC remove Salls from Echo Unit during the investigation. DOC’s decision not 

to remove Salls was discretionary and implicated competing policy rationales—allocating staff, 

interpreting the employee contract, and making decisions that keep inmates safe while not 

undermining staff authority, among others. Even if one element of DOC’s reasoning was flawed—

such as a mistaken interpretation of the contract—the decision not to separate Salls and plaintiff 

in the wake of boundary-violation allegations was a multifactored judgment within the 

discretionary authority of facility supervisors. We cannot accept that DOC’s potential error 

regarding the contract terms waives its immunity under the discretionary function exception. And,

as explained above, even if interpreting the contract was a ministerial decision as alleged by 

plaintiff, is it entirely speculative whether a different interpretation would have incentivized DOC 

to separate the two, especially in the face of the other management concerns outlined above. 

Plaintiff asks us to speculate that if DOC had correctly construed the contract, then DOC would 
23

have separated Salls from plaintiff and plaintiff’s harms would not have occurred. We cannot 

indulge in this type of conjecture.

¶ 43. Ultimately, DOC exercised judgment regarding matters of public policy when 

investigating the allegations against Salls without the benefit of ministerial guidelines. Because 

DOC’s investigation satisfies both prongs of the discretionary-function-exception test, and we are 

not persuaded by plaintiff’s arguments that DOC waived this protection, sovereign immunity 

applies. We affirm the court’s grant of summary judgment in favor of the State. Because we 

conclude that the discretionary function exception applies, we do not consider plaintiff’s 

negligence claim against DOC.

Affirmed.

FOR THE COURT:

Associate Justice