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Board continues to grapple with disputes related to dog attacks

Town's attorney suggests working toward an agreement — and amending ordinance to head off future conflicts

HALIFAX—At a specially noticed public meeting of the Selectboard May 9, officials returned to the question of Shilo, a dog who has bitten two people this year and whose fate has been the subject of intense debate.

In a shift in the town’s position on the matter, town counsel Bob Fisher suggested the town work to come to an agreement with the dog’s owner, Katie Bak — who strongly opposes killing Shilo and has proposed fencing him in instead — and amend a town ordinance to resolve any uncertainty about the town’s authority to act in situations like this one.

Shilo had previously been at the top of the board’s agenda at its May 3 meeting, when Bak and supporters, joined by her attorney, James Valente, had argued that the town didn’t have the authority to order the dog killed. That meeting, in turn, followed an April 19 meeting that involved discussion of a complaint that the dog had bitten 26-year-old Justin Hill on April 13 when he was working in a yard that abuts Bak’s property.

At the April 19 meeting, the board learned that the dog first came to the attention of Animal Control Officer Andy Rice and Health Officer Sue Kelly in January when the dog bit a DHL driver delivering a package to the home. Rice and Kelly said that in investigating that bite, they learned Shilo’s license had lapsed and the dog wasn’t current on his rabies shots.

Rice and Kelly said they next learned from neighbors that the dog had been involved in another attack a few years earlier — one that Selectboard Chair Lewis Sumner said he remembered investigating, although no bite was officially documented. In 2013, Bak installed an invisible fence, according to Valente.

Bak did not return a call for comment prior to press time.

On April 19, Rice and Kelly told the Selectboard April 19 that the January attack would have triggered a much stronger response had they known then that this wasn’t the first such incident.

Kelly said she had received conflicting reports about the attack on Hill. According to Kelly, Hill said he was raking and listening to music when the dog came up from behind and bit him on the leg. Bak drove by in her car but wouldn’t step out of the vehicle and couldn’t control the dog through commands, Kelly said Hill told her. Hill was bitten two more times, in the leg and hip.

Kelly noted that Hill was lawfully armed at the time, and that he had had the right to kill the dog when it attacked him.

According to Kelly, Bak reported that she was walking Shilo — off-leash, as permitted in Halifax — and that Shilo took a short cut through the neighbor’s yard and attacked Hill.

Hill sought medical attention because the bites broke the skin. At the April 19 meeting, Rice said that Bak had originally offered to help pay the bills, but that she now appeared to be “treading water” on that offer. (Valente said in the May 3 meeting that his client hadn’t ruled out paying the bills but was focused first on saving Shilo.)

Kelly said Bak had expressed her willingness to euthanize Shilo just before the April 19 meeting but had then changed her mind later the same evening.

There was a robust discussion at the April 19 meeting about taking strong action in order to protect the public — including getting the word out to neighbors, the road crew, and emergency responders — and the scope of local and state authority over the dog.

According to Rice and Kelly, any dog that bites a person — even those dogs that are current on their shots — must, by law, be quarantined for 10 days and examined for signs of illness before being euthanized to ensure against vaccination failure. If the owner can’t or won’t quarantine or control the dog, then the dog must be kenneled at an area shelter with the capacity to handle such a dog — which rules out the Windham County Humane Society and most other private kennels.

At the April 19 meeting, no one expressed doubt that the board had the authority to order that the dog be euthanized. The only question was whether it was necessary to hold a hearing before such an order could issue.

Selectboard member Mitch Green proposed that, in light of Bak’s apparent willingness to euthanize without a hearing and order, the board should draw a firm line in the sand: Either the owner should provide proof, within 48 hours, that the dog had been euthanized, or Rice should make whatever arrangements were necessary to impound the dog for the remainder of the quarantine period.

These were Rice’s marching orders at the end of the April 19 discussion.

A change of heart

The May 3 regular meeting of the Selectboard opened with a full house, and that was before Shilo’s owner, Katie Bak, along with her family, friends, and attorney filed in.

Rice brought the board up to date. He described trying to balance compassion for an owner faced with putting down a beloved member of the family and concern for public safety.

He reported that, following the April 19 meeting, he had discussed with Bak an alternative solution that had received approval from Green and Sumner: Bak would retain possession of the dog until Monday, May 2 — the 10th day of the quarantine. She would keep the dog inside at all times, and would maintain the dog on a lead anytime he was outside.

Rice said Bak told him she had already arranged for the dog to be examined — alive — and then put down by a local veterinarian on May 2.

Rice noted that this eliminated the expense, need and trauma to the family of having the dog’s head removed and examined — something, he said, that was mandatory under state law when an animal is euthanized before the 10-day quarantine expires.

He read an email from Bak in which she thanked him for his empathy and accommodation, and in which she confirmed that she had made an appointment to put the dog down and granted Rice permission to obtain confirmation that the deed had been done.

“Then all of a sudden,” Rice said, “everything changed and they decided not to euthanize.”

Valente spoke on behalf of Bak. He reported that at the last minute, faced with the prospect of putting the dog down, Bak started questioning whether the town ordinance provided the town the authority to order that she do so.

She retained Valente’s services, Valente said, and had been diligently pursuing the possibility of installing a tall physical fence. Her offer to the town through counsel was that she would keep the dog on a harness whenever the dog was out in the public, and would otherwise “keep the dog within the confines of the fenced yard for the rest of the dog’s life if it means that the life can continue, naturally.”

Valente suggested that if the board, Rice and Kelly agreed that the fence would resolve the issue, then there would be no need to take the time to hold a public hearing.

“If everyone agrees on the cure, why discuss the disease?” he asked.

The board declined that invitation, and the floodgates opened.

Character witnesses for Shilo described their personal, positive interactions with him individually and during rambunctious, child-filled events at the house. One of Shilo’s supporters was wheelchair-bound. He described his experience of dogs being threatened by his chair, and, more striking, by seeing him dragging himself around on the floor by his upper body, the way he often moves around indoors. Shilo, he said, had, from their first encounter, been unfazed. Ray Combs, a regular attendee of Selectboard meetings who happens to be a neighbor of Bak, noted that he had never had a problem with Shilo, either.

Hill, the man bitten by Shilo, offered a strong dissenting view.

“That dog is not friendly at all,” Hill said. “[He] came out of nowhere and bit me in the back of my leg [and] ripped my pants all the way down the side.” He challenged Valente’s report of what happened the day of the incident, and Valente’s promise, on Bak’s behalf, that she would keep the dog on a lead — a promise Hill said Bak had already broken in the days since the attack.

Board member Brad Rafus pressed Valente about the chronology of events, suggesting that each corrective action Bak took was reactive rather than proactive. Rafus pointed out that Shilo’s rabies shots and licensing were not brought up to date until after the DHL attack, for instance.

Valente suggested the call to euthanize Shilo was cruel to both the dog and the owner.

“The dog doesn’t get to give itself a rabies vaccine and doesn’t get to license itself,” Valente said. “To punish the owner by killing the dog … is inconsistent with the statutory scheme and … vindictive and mean.”

That drew a heated response from Peggy Rafus, who said nearly everyone in the room was a pet owner, that every pet owner loves their animal, and that “responsible pet owners” do what they have to do.

Green followed up with a personal story of having put down a beloved dog after the dog bit a neighbor.

“I know it hurts, but you have to do the right thing.”

Later in the meeting, Green indicated that as far as he’s aware, this wasn’t the first time the town had to deal with a biting dog — but in the past, “the owner’s always taken care of it and we’ve never had to go this far.”

Legal authority

Valente turned to the question of whether the town had the legal authority to require that the dog be put down. He read from one section of the governing statute, 20 VSA c. 193, S.3546 (“Investigation of vicious domestic pets and wolf-hybrids”). This section lays out the rights of pet owners to notice and a hearing about their dogs before a selectboard can order that a vicious dog be euthanized. Valente focused on the last subsection of this provision, which provides that if a town has adopted “ordinances that are inconsistent with this section,” then the ordinance trumps the statute.

Valente then read from the Halifax ordinance. The ordinance, adopted in 1998, is captioned the “Halifax Animal Nuisance Control Ordinance” and states that it was promulgated pursuant to S.3549 of the statute — which concerns barking or loose dogs. The ordinance appears to govern the animal control officer’s authority to impound vicious dogs and appears to limit the town’s authority to euthanize dogs to those situations when a dog owner fails to reclaim his dog within six days of the impoundment.

Under Valente’s reading, the ordinance (which permits the owner to keep a dog from being put down by reclaiming the dog) trumps the statute (which would permit the town to order the dog be euthanized after a hearing).

Green insisted that regardless of the express words of the ordinance, the board had the authority to order that the dog be euthanized, and would exercise that authority if necessary. Valente quietly but firmly responded that such action would leave Bak no choice but to file suit against the town to force it to follow its own laws.

The threat of a lawsuit hung in the air in other ways, as well. Early on, Hill had been vocal about the $600 of medical bills out in his truck that Bak had originally promised to pay — and about the fact that since then, he said, she wouldn’t even answer his calls. When Valente asked to see them Hill told him that they would “hear from my lawyer.”

Toward a resolution?

At the most recent meeting, Fisher cautioned that the language in the town ordinance might be deemed cloudy. Because of the possible ambiguity, Fisher said, if the town’s action were challenged, a court might adopt Valente’s interpretation and hold that in adopting the ordinance, the town had given up its authority to euthanize dogs deemed vicious.

Fisher nevertheless suggested that if no agreement were reached with the owner, the town could stand its ground, and follow the notice and hearing procedures set forth in S.3546 to reach a decision whether to order that the dog be put down — with the understanding that Bak might challenge that decision in court.

Town officials discussed the requirements that the town would want to impose for an agreement to be a responsible resolution to the current situation. These included specifying the size and strength of an enclosure; the manner in which it would be secured; the kind of lead necessary for an owner to be fully in control of a dog of Shilo’s size (Kelly, who is a licensed veterinarian, estimated that Shilo weighs about 100 pounds); the kind of muzzle that might be necessary for this kind of a dog; and the need to alert the community to document violations of these provisions.

Fisher left the meeting having promised to fast-track the first draft of the agreement.

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Originally published in The Commons issue #356 (Wednesday, May 11, 2016). This story appeared on page D1.

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