Right before the final vote, Sen. Norman McAllister stood up at his Senate seat, signaling he wanted the presiding officer, Lt. Gov Phil Scott, to recognize him.
He asked for a short recess.
It was at least the third time in the proceedings the Franklin County senator had asked for a break, ostensibly to get advice from a constitutional lawyer, as well as his closest ally and biggest defender in the Senate, fellow Republican Peg Flory, a Rutland civil and criminal attorney.
Scott granted him a few more minutes.
In the front of the chamber, next to the stairs to Scott’s slightly elevated perch, McAllister and the lawyers huddled. A reporter overheard Flory use the word “resign.” It was already clear from the hourlong debate that the Senate was prepared to suspend him. An amendment offered by Flory to put off Senate action until after McAllister’s criminal trial had failed, sealing his fate when it received 10 votes in favor and 20 against.
During the break, senators milled around and chatted on the floor of the chandeliered, green-carpeted chamber. A few stayed at their desks. Senate President Pro Tem John Campbell, also a lawyer and a part-time prosecutor, stage whispered he thought McAllister was about to resign. It would make sense, he said, he’s lost the fight. Why go down in history as the first senator to be kicked out by their peers?
A few minutes later, McAllister returned to his seat, at the end of the back row of the split horseshoe that holds the 30 senators, his seat one of two closest to the door at the back of the chamber. The Highgate farmer had already cleared off his desk and put all the Senate journals, calendars and leaflets of upcoming bills in the recycling waste basket at his left foot.
His desk looked out of place without any clutter.
Scott smacked the gavel. Are you ready for the vote?
Again, the outcome was 20-10.
History had been made.
For the first time, the Vermont State Senate had kicked out one of its own.
Two green-coated members of the Sergeant-at-Arms staff escorted McAllister out of the building, professional, friendly, offering to help nudge him through the throng of reporters and cameras and out to his car. McAllister laughed and said he’d gotten to know many in the scrum well over the past seven months since he was arrested just outside the Statehouse on the second to last day of the session last May and charged with multiple counts of sexual assault.
In the parking lot media session after the Wednesday suspension, a reporter asked McAllister if now he’d resign. The premise was this: hadn’t he proven his point, maintained his innocence and fought for his seat, but now, the judgement rendered, didn’t it make sense to go? And let the people of Franklin County have full representation, two senators instead of one, and focus on the fighting the criminal charges that could result in going to prison.
“You need to let the dust settle and let me think for a minute,” McAllister told the reporters. Drained, he said he needed some time and wanted to talk to his family and strong supporters before making any decisions. He served 10 years in the House before being elected to the Senate in 2012.
Even though many senators thought he was going to pull the plug right before the vote, McAllister said that wasn’t an option he wanted to pursue, that “if I was going to resign, I would have resigned in May.”
What about resigning now?
“I think everything’s in play right now. I got to talk to family, I got to talk to people who have encouraged me not to resign,” he told the reporters.
Less than 24 hours after the vote, the buzz at the Statehouse was McAllister was ready to step down. Perhaps in the middle of Trumpapalooza, any disgrace presumably drowned out by the Donald. But then word was an announcement, if it actually occurs, was more likely to happen sometime next week.
A few senators aren’t holding their breath, among them Joe Benning, R-Caledonia, the Senate minority leader. Benning, also a criminal lawyer, went to McAllister’s aid that May afternoon when he was arrested. To Benning, that’s what you do. Everyone should have counsel before talking to the police.
Not long after that May arrest, Benning said McAllister promised if the case wasn’t resolved in six months that he would resign and allow the governor to pick a replacement. But in November, McAllister said he would not be stepping down.
“He reneged on that, which left me shaken,” Benning said. “I think right now his credibility is out the window with me.”
However, according to Benning and other senators interviewed in the days after the vote, it makes sense for McAllister to resign now that the suspension proceedings are over. When McAllister addressed his colleagues, he highlighted two reasons he should not be suspended: one, he had done nothing wrong, and two, his constituents deserved full representation.
In a suspension, McAllister is stripped of his power but still holds his seat and still gets paid. If he had been expelled, or if he resigned, the seat would be empty and the governor could appoint a replacement.
Now that the Senate had made its decision, the issue of right and wrong, guilt and innocence, the senators argued, moves to the courts in Franklin County, where the criminal justice system will render judgement on whether McAllister is a sexual predator or a supremely wronged man.
The question of whether his constituents have two senators and not one, they say, now rests solely in McAllister’s hands. Why hold on, they argue, when his powers have been stripped and he can’t effectively serve his people? Sure, he could fight, but would a court grant him immediate relief and let him back on the floor? Wouldn’t a challenge more likely take months? Can he fight two battles at one, financially and otherwise? Shouldn’t his focus and claims of dwindling finances be put toward fighting the criminal charges instead of the Senate decision? Which if he challenged, might be resolved after the session when legislators have to run for re-election anyway?
“At this point, he really has no reason not to resign,” Campbell said Friday. “He didn’t really before either, I didn’t think, but he really doesn’t now.”
Campbell primarily prosecutes sex assault cases as a deputy prosecutor in Windsor County. The stories, he said, are often horrific. The senate leader said he read the police affidavits in the McAllister case — again — at the beginning of the week, to refresh his memory of the details.
“Not to read what the witnesses said, but what Norm said,” Campbell said. And reading them again, he said, “That sealed it for me.”
The affidavits include a conversation police taped of McAllister where he appears to be discussing trading rent for sex. The police affidavits also describe shocking allegations of what McAllister is accused of doing with a young woman McAllister hired to work for him at the Statehouse.
Sen. Philip Baruth, D-Chittenden, sanitized the allegations on the Senate floor as “sexual activities.” Not only was he trying to avoid a discussion about guilt or innocence, he had no interest in soiling the Senate with the sordid details in the police reports or the stories that had come in newspapers from the young woman and from McAllister himself. One story in particular that appalled many senators was when McAllister, now 64, told Seven Days reporter Mark Davis that sex with the young woman had been consensual and had only begun after she reached 16 years old, the age of consent.
During a break in the suspension hearings, one senator said: “We probably wouldn’t be here if he’d kept his big mouth shut.”
Benning said the allegations are revolting but said he would have read the affidavit out loud on the Senate floor if expulsion, a more serious move, had been the option and he didn’t sense that senators had read the document. Benning also said he would have read the document and played the police tape if McAllister had challenged an expulsion and forced a Senate hearing.
Many senators were concerned expulsion would trigger a Senate chamber trial that would include calling the alleged victims as witnesses, which some worried might hurt the upcoming criminal trial in Franklin County court.
“I believe I could have walked into that room (Senate chamber) with a tape recorder and the transcript between Mr. McAllister and the woman that was monitored by the police … and hit the play button on that tape machine and that would have ended the case right there,” Benning said. “I would not have had needed to bring in any of the alleged victims in the criminal case, not have to mess with any of the people involved in the criminal case in a way to jeopardize either the prosecution or the defense.”
Sen. Alice Nitka, D-Windsor, was one of the six Democrats and four Republicans who voted against the suspension. She said she didn’t believe the Senate had the authority to suspend a senator, only the power to expel. In an interview, she stressed the presumption of innocence played a key part in her decision.
Nitka said she had not read the affidavits, that she didn’t feel that was necessary in order to vote on the suspension. She said that paperwork was relevant in the courthouse, not the Statehouse.
“I think the thing of it is, that an affidavit is filed by someone who’s making the charges, it’s not an affidavit from the person charged,” Nitka said, “and I don’t want to be the judge and jury of this situation. We have a court system that’s to do that, not us.”
Nitka also wondered “how did we miss this” and why the sexual harassment protocols in place at the Statehouse didn’t apparently work. In a half-hour discussion Friday, she said relationships “are not always black or white” and that they can often be “more complicated” than they might appear. The senator said she never detected anything wrong in her conversations with McAllister’s intern.
“She certainly didn’t tell me anything about this, these allegations. Nothing about this, no, she didn’t talk to me about this. No, I’ve spoken to that young woman. Yes, there was no, no discussion of this at all. I had no clue of these allegations,” Nitka said.
Benning criticized Nitka and any senator who had not read the affidavits, then added a dash of compassion.
“I feel that’s a terrible disservice to being able to make a vote like that,” he said when told Nitka had not read the affidavits. “That affidavit is very explicit, it is somewhat horrific” but he said it was important to read.
Benning said he was soon going to speak to a class at Johnson State College about the suspension hearing and had distributed the affidavit to the students ahead of time.
Why?
“With the goal that they understand that real people get involved in these kinds of situations and we need to learn why certain behavior is unacceptable. And that affidavit clearly establishes behavior that was not acceptable,” Benning said.
He continued: “So if the senators who were voting did not take the time to read that document, and I suspect many more than just Alice Nitka are in that category, then they were handicapped walking into that conversation. I don’t want to backtrack and say they are at fault for something. I mean everybody reacted to this the best they could. None of us have been faced with this before, and I think everybody was trying to do their best under the circumstances.”
Nitka and Benning also thought McAllister was going to stop the vote and resign. They, Baruth and other senators interviewed hope the Franklin County farmer will step down now, that it would be best for his constituents. Campbell speculated that McAllister might wait to see if a Franklin County resident fights the suspension, which he hinted he might do. McAllister told reporters he would not make an appeal himself.
Twenty minutes before the suspension hearing started, McAllister was resigned to the outcome and said it was “a foregone conclusion.” Sitting alone at his Senate seat, he was asked if he considered staying home, letting the proceedings play out without him there.
“Not for a minute,” McAllister said with insistence. He said the court documents contained false charges but couldn’t detail them because the criminal case was pending.
“I have to hope and believe in the system. That said, how many people have been executed in this country who were innocent?” McAllister asked.
A short time later, when he defended himself before his colleagues, he warned: “The only person in this room who knows I’m not guilty of anything is me. Others may be judging me or pre-judging me based on what’s been written, or what they saw, but it’s not always fact and you all know that,” he said. “I have not done anything to warrant this.”
Baruth argued to err on the side of caution.
“He used in some sense his power as a senator to bring her to the chamber, to bring her to the Statehouse, to bring her to Montpelier as a legislative intern partially for the purposes of producing unwanted sexual conduct. If the allegation is of that particular sort, if it’s at that level, then I think we need to suspend, just to err on the side of caution with the people we’ve been charged to protect,” Baruth said.
Campbell said McAllister’s supporters and in particular his family will have to be the ones to convince him to step down. On the day of the suspension hearing, McAllister ate lunch with his son, Heath, in the Statehouse cafeteria. Heath left before the hearings started, McAllister said, to pick up a child at school.
Benning agreed McAllister’s strong supporters and family hold the key.
“Unfortunately, he has made a decision thus far that has locked him into pride. And I don’t believe he’s got the ability to overcome that pride right now unless his own family and his friends who have supported him thus far say ‘Norm, you can’t win this argument, we need to have somebody that’s representing us in the chamber and at this point, if you’re acquitted or exonerated you can run for reelection, but right now we need to have somebody sitting in that seat.’”
Said Baruth: “I think the chances are greater that he will resign now. I think in a sense Sen. McAllister was hoping and maybe gambling that the Senate would ultimately not act and that would have, I don’t know that it would have seemed like a vindication. I think maybe he thought that would strengthen his position going into trial. I don’t want to get into his mindset or motives, but now, without doubt, his constituents are down a vote and he can erase that problem.”
Baruth snapped his fingers.
“Like that.”
Correction: An earlier version of this story incorrectly stated that a special election would be held last November if McAllister has stepped down. His replacement would have been appointed by the governor and served the remainder of the two-year term.
