The $80 million word: Shumlin administration, contractor misread FEMA requirements

Secretary of Administration Jeb Spaulding. VTD/Josh Larkin

Secretary of Administration Jeb Spaulding. VTD/Josh Larkin

A single word is at the root of FEMA’s initial rejection of a plan for the replacement of the Vermont State Hospital and the Waterbury State Office Complex, both of which were damaged by Tropical Storm Irene nearly a year ago.

Jeb Spaulding, the secretary of the Agency of Administration, said that a contractor used the word “damaged” instead of “destroyed” in a set of recommendations the state filed with the Federal Emergency Management Agency.

Timothy Brunette, a contractor for FEMA who was working closely with in the Vermont Department of Buildings and Grounds, used fact sheets and public policy digests instead of the federal code as the basis for drafting key language in the state’s request for assistance to FEMA, according to Spaulding. Brunette used the term “damaged” in the “Decision Analysis,” which outlined his recommendations for the state’s submission to the federal agency. All of the buildings at the state office complex are still standing. Most sustained flood damage.

On June 28, FEMA officials gave a Powerpoint presentation to Shumlin administration officials. Spaulding said they told the administration “we shouldn’t have said damaged, it should be destroyed.”

Brunette used a “permanent location” fact sheet, and a Public Assistance Policy Digest (p. 111) to draft the analysis, according to Spaulding. The administration used the recommendation as the basis for its FEMA request and did not catch the semantic slip up.

The federal code, 44 CFR 206.226, says FEMA can approve funding for restoration of a destroyed facility at a new location when:

(i) The facility is and will be subject to repetitive heavy damage;

(ii) The approval is not barred by other provisions of Title 44 CFR; and

(iii) The overall project, including all costs, is cost effective.

Brunette “messed up,” Spaulding said, but the information FEMA provided was confusing because “there it says destroyed but then they use the word damage for the rest of the discussion.” The current fact sheet he says uses the words “damaged or destroyed.”

Spaulding said that FEMA led the administration “down this road” and the “materials are ambiguous — at least they’re contradictory to each other.”

Spaulding said FEMA hadn’t given the administration a “no,” but he also said it wasn’t clear whether the state hospital and some of the buildings at the complex would be eligible for public assistance. FEMA has agreed to give the state a 90 percent match for projects that qualify for public assistance. Vermont has received more than $100 million in public assistance for other projects so far.

On July 20, the Shumlin administration told lawmakers FEMA’s previous reassurances that it would provide some level of funding were “for all intents and purposes disavowed.” Michael Clasen, deputy secretary of the Agency of Administration, told lawmakers that the state hospital is not eligible for FEMA funds and assurances that rebuilding the office complex would be eligible for reimbursement are also uncertain, including such key elements as moving the heating plant out of the floodplain before the complex is reconstructed.

Spaulding hasn’t given up on the original plan, which includes a new building for the state hospital in a new location and funding for renovations at local hospitals for psychiatric wards, along with replacement of the heating plant, the agricultural laboratory, a sewage system, demolition of damaged buildings and floodproofing.

The administration has asked its consultants, Witt and Associates (James Lee Witt was head of FEMA under President Bill Clinton), to shepherd through the state’s original plan. The firm was hired shortly after the flood last fall to help the state with its FEMA application. The consultants, Spaulding said, seem to think they might be able to “win on the damaged or destroyed” language.

“We haven’t said we’re not going to try to push that in Washington, D.C., if the alternative route we’re working on now doesn’t bear sufficient fruit,” Spaulding said.

When asked what level of funding would be sufficient, Spaulding said: “I don’t know, we’ll know it when we see it. On the upper end we hoped we had in the high 80s. Somewhere between zero and $80 million. Honestly, I don’t think I thought we’d get to $88 million.”

Vermont’s congressional delegation met with FEMA chief Craig Fugate on Wednesday at Sen. Patrick Leahy’s office on Capitol Hill to discuss Vermont’s “recovery needs.” In a statement from Leahy’s office, there was no mention of the current breakdown in communication between FEMA and the Shumlin administration. Leahy, Rep. Peter Welch, D-Vt., and Sen. Bernie Sanders, I-Vt., said they convened the meeting “as part of our ongoing communication with FEMA and other federal agencies about Vermont’s recovery needs.”

“We had a constructive discussion with FEMA Administrator Craig Fugate that included updates from FEMA’s perspective and from ours, focusing on the bigger picture as well as on the details of various recovery matters,” the delegation reported. “Administrator Fugate agreed on the need for steady progress on all remaining fronts and also to deploy additional staffing resources to Vermont if needed. We and our offices will build on this discussion in our continuing work with the state and with FEMA, USDA and other front-line agencies.”

Meanwhile, state officials are working on an alternative plan. Spaulding said the state is writing up project worksheets for every building for the costs for flood proofing, restoring damage, and bring buildings up to code “as if we were going to do it and see what that adds up to, then take the money and do what we want with it.”

“At this stage it’s trust, but verify,” Spaulding said. “We’re starting to do a little homework in case the alternative plan doesn’t work out.”

“I do think sometimes I can be naive, but I do think they (FEMA officials) are trying to help us,” Spaulding said.

Sen. Joe Benning, R-Caledonia, an attorney and a member of the Senate Institutions Committee, says someone “dropped the legal ball.”

“Those buildings are still standing,” Benning said. “We did everything we could to stabilize those buildings as the first priority. They were cleaned and heated and stabilized, so now you have the question, are they damaged or destroyed. I think the feds would have a powerful argument they aren’t destroyed they’re still there.”

Nick Russo, assistant director-FCO operations at Federal Emergency Management Agency, has not returned repeated requests for comment. FEMA is expected to reveal how much it is willing to reimburse the state in the next few weeks.

The state made Brunette’s three-page analysis available to VTDigger.org as part of nearly 500 pages of records. The Shumlin administration made the correspondence between the state and FEMA available on Friday afternoon.

Follow Anne on Twitter @GallowayVTD

Comments

  1. Stan Hopson :

    Brock actually might be able to whittle down some of that 30 point lead Shumlin enjoys with this damaged vs destroyed boondoggle.

    • Jed Guertin Guertin :

      Actually Stan, Mr. Brock has really put his foot in his mouth on this one. In a recent interview he said “We can split hairs about which words were used.”

      Most Vermonters know that there’s no splitting hairs between having your barn being destroyed and having a your barn roof damaged.

      I doubt if Mr. Brock would consider it splitting hairs if he found out that a stock he’d just invested in as being labeled “depressed” when it should have been categorized as “junk bond status.”

      There’s no question Shumlin and Spaulding should have/could have done a better job on this. FEMA definitely, muffed it. And I don’t know where Neil Lunderville fits in this. But I definitely wouldn’t want someone involved who thinks the difference between damaged and destroyed is splitting hairs.

  2. walter carpenter :

    Ode to the power of a word.

    • Renée Carpenter :

      What about the power of a headline?! VTdigger.org chose: ” The $80 million word: Shumlin administration, contractor misread FEMA requirements.” but if one reads the article, it is AMBIGUOUS and CONFLICTING LANGUAGE in FEMA documents that seems to be at the root of the problem; and because of this, Shumlin officials continue to pursue funding through legal channels and negotiations with FEMA. Anyone who has dealt with state and/or federal governments at this level is likely to have a strong sense of the political nuances behind every such negotiation. (Thank goodness for our VT Congressional delegation who will, perhaps, put Vermont taxpayers before partisan politics in using their influence and staff to correct these issues.)

      VTdigger could have chosen a different and MORE ACCURATE headline, rather than this one that fuels Republican political rhetoric.

  3. David Black :

    Sounds like the beginning of another Dumb and Dumber movie.

  4. Frank Davis :

    What will the inside the beltway advisors to Brock’s campaign invent now as accusations? Is this the “document” that Brock wanted to “see” to affirm his implication of ineptness or conspiratorial collusion or cover-up by Shumlin? Hopefully sense will prevail and the proper and promised aid will be forthcoming, regardless of the semantic mix up and thanks to the unraveling of the mystery.

  5. David Dempsey :

    The state hires a consultant, who used to be the head of FEMA, to help the state with doing the FEMA application. Apparently that was a waste of my taxes. Why didn’t they catch the semantic error that Jeb Spaulding mentioned. Some blame for this problem needs to go to the person or people responisble for hiring them. It’s easy to point fingers at other people when things fo wrong, but the bottom line is that the buck stops on Shumlins desk.

    • Jed Guertin :

      If I read the article correctly, the State didn’t hire the contractor. The contractor was working for FEMA. And you’re right, the person responsible for hiring this contractor should take some of the heat.

      However, making this a political event, helps no one. Since Brock feels that the difference between the meanings of destroyed or damaged is “splitting hairs” it’s unlikely he’d ever figure out what happened.

      • David Dempsey :

        Hi Jed,
        I was talking about the conslutant, Witt and associates, that the state hired to help prepare our FEMA application, not the contractor that worked for FEMA. Witt was the head of FEMA under Clinton. I just wondered if they checked out the application and didn’t catch the semantic error. Nice to hear from you.

  6. David Usher :

    Damaged and destroyed clearly do not have equivalent meaning. If money and effort were spent after flooding to dry out and do other work,that signals damage not destruction.
    This situation goes beyond a play on words and the facts and FEMA requirements should have not been in question when the Legislature developed and voted a budget. This is a failure of the Shumlin administration.

  7. Steve Merrill :

    Funny how things work out, he says “Sure-I’d like to get married someday”..She hears something completely different and next day is telling her friends they’re engaged..Maybe if Brunette was a Blonde, all would be forgiven, and we elected Shummy knowing full well he had a learning disability, remember that story he kept telling us about old Ms. Crabtree and how she never gave up on him? And I’m sure if Randy Brock was Guv he’d been filing and filling out the forms personally, NOT..SM

  8. Two Items of Note:

    The title of the section under which ‘destroyed’ facilities is addressed is called:

    § 206.226 Restoration of damaged facilities

    Second Item of Note:

    The code was updated as of Oct. 1, 2011. This may or may not be significant depending on what was changed and how effectively it was distributed.

    Having worked for a government contractor in the past, I know how crazy the writing of these codes can make you. Deciphering individual words to exact the exact meaning that was intended, and then filling out forms or putting together reports to ensure that you are saying, in their language, what you mean is no easy task.

    I’m not saying that the error was unavoidable – I’m saying that the way things are worded makes errors, at some point, inevitable.

  9. My understanding is that 50% or greater damage is considered by FEMA to be destroyed as it applies to replacement … http://www.mmrs.fema.gov/government/grant/pa/9524_4.shtm

  10. Frank Davis :

    Synonyms for destroyed and for damaged are often listed as each other in many a thesaurus. Similarly, damage is frequently used to define destroy in many dictionaries. FEMA regulations and applications also uses the words without specific regard. Apparently a particular FEMA bureaucrat whoo reviews applications with the intent of pinching pennies (not always bad but not always wise) believed he/she discovered a way to deny federal largesse to a state. Are there others out there who are so hate filled against the governor that they would credit this confusion to a learning disabilty? Apparently the governor’s success, achievement and prosperity are not enough evidence to overcome the bias of the 7:29 PM comment author.

  11. Michael Ryan :

    Well fellow Vermonters, You fellow taxpayers got what you voted for dishonest collection of politicians who put their political ambitions ahead of a common sense solution;that being restore and/or Rejuvinate the brooks bldg and heating facility Dredge the river surrounding the complex and MINIMIZE the overall burden of the taxpayer.remember Gov. Shumlins Promise of TRANSPARENCY! WHAT A SHUM(SHAM)

  12. Is there a site that has all the documentation and projected costs of the various proposed solutions? If so, would someone please share a link? Thanks!

  13. Alex Barnham :

    Why would anyone want to run for governor with all the crap that is being thrown around. Shameful.

  14. Dan Luneau :

    Apparently you folks that have been chirping in on this issue have never dealt with our federal bureaucrats before because if you had you would understand that this particular situation is business as usual. As far as the blame game goes, I would put it in the category of don’t count your chickens—–

  15. David Dempsey :

    Here is an analogy. I smashed up my car and the insurance adjuster said it could be totaled, in which case I would get X dollars. But he wanted to check on a couple of things to get a better damage estimate back at his office. He said he would let me know in a day or two, and they would pay for a rental if we needed one. That afternoon my wife and I went car shopping and we found one we liked and could afford, as long as we got the X amount I thought we would . I decided not to tell her that X dollars wasn’t a sure thing, and I conviced he buy the car tight then. The next day the adjuster called and said he figured out that it could be fixed for X dollars minus $6,000 and the check was on its way. After a number of pretty food choice words, I calmed down and tried to think of someone other than myself that caused this mess before my wife got home. But, as they say honesty is the best policy, so I told her what happened and after a number of very good choice words, we decided to return the car.

  16. NICOLE LEBLANC :

    Lets Hope Not! We to Keep the Governors office Democratic!!! The GOP NEEDS to be sent into retirement!!!! 8 years of GOP governors is enough!!!!!!! Say NO TO THE GOP IN AUG/NOV.

  17. Josh Fitzhugh :

    We have a Democratic governor, a Democratic president, a Democratc congressman and two Democratic US senators. I think there was an assumption that with this political clout FEMA would deliver the money to the state. The fact that FEMA began to have cold feet, or at least someone at FEMA had serious questions about funding the Waterbury rebuild, indicates to me how far out of line or how far beyond the norm Vermont’s request was or is.

    It also is a sign of how dependent we have become on Uncle Sam, for road repair, building repair, health care waivers, military contracts, F-35s, etc, etc, etc. My daughter used to say, when she was five or six years old, “You are not the boss of me!” Well increasingly, it seems to me, Vermont has the same complaint to make to the Feds in Washington, yet as with my daughter then, the answer is they are. We need to do something to change that, IMHO.

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