An agency's failure to exercise discretion is an abuse of discretion. Burbo v. Dep't of Soc. Welfare, 157 Vt. 664, 665, 599 A.2d 1045, 1046 (1991) (mem.) (holding that an agency's "refusal to exercise the discretion that its own regulation allow[ed was] an abuse of discretion").

The challenged policy sets forth eligibility requirements that prevent plaintiffs from obtaining furlough prior to completion of their minimum sentences, but does not preclude the Commissioner from exercising his discretion regarding furlough on an individual basis once those requirements are met. Thus, by delaying individual furlough assessments for inmates convicted of violent felonies until those offenders have completed their minimum sentence, the Commissioner is not exercising his discretion in a manner inconsistent with § 808(a) or the statutory criteria contained therein. Cf. Burbo v. Department of Social Welfare, 157 Vt. 664, 665, 599 A.2d 1045, 1046 (1991) (department abused its discretion by failing to follow own regulation giving it discretion to set welfare recoupment rates in individual cases). Accordingly, the superior court erred in concluding that the challenged policy violated § 808(a).