Doug Racine

Gov. Peter Shumlin has vetoed his first bill this session. The offending piece of legislation? H.290, a law that would have required a state agency to submit monthly reports on elder abuse to the Legislature. The current reporting requirement is annual.

The governor accused lawmakers of wasting taxpayer money, creating unnecessary red tape and distracting the Agency of Human Services from doing its job.

“Coming from a private sector background, I have always been frustrated by unnecessary bureaucracy and paperwork that exists in state government,” Shumlin said. “Instead of focusing on outcomes, these impediments to progress cost taxpayers too much money and deliver little by way of results.”

Lawmakers were shocked by the governor’s veto and one suggested that it was the first time a “report bill” had received the gubernatorial boot.

Sen. Claire Ayer, D-Addison, who helped to draft the legislation, said legislators worked hard to develop compromise language. Senate and House conferees met with Shumlin administration officials for two hours on a Saturday to negotiate the particulars. Up to moments before the bill was supposed to be signed, lawmakers agreed to allow the administration’s lawyers to tweak the bill one last time.

Rep. Sandy Haas, P-Rochester, said she was flabbergasted by the veto.

“We worked with them and we came to an accord, and they said, ‘Fine, we can do it,’” Haas said. “That’s the place where we’re scratching our heads.”

Ayer took umbrage at the governor’s message to lawmakers. “It was an insulting, condescending veto,” Ayer said. “I think he must have the wrong information because it’s a good bill.”

Legislators say the new monthly reporting rules for the Adult Protective Services division, which is responsible for ensuring that the elderly and disabled adults are protected from abuse, neglect and exploitation, are necessary because the division has been underfunded for years and as a result hundreds of cases have been ignored.

The legislation calls for an independent, $75,000 study, commissioned by the Legislature. (It was originally requested in 2009.) The Department of Disabilities, Aging and Independent Living recently asked a consultant to analyze the Adult Protective Services protocols for investigating allegations of abuse and that report came out in January; lawmakers say the study doesn’t answer questions they’ve raised about the effectiveness of the troubled program.

The dispute appears to boil down to a lack of trust between the Legislature and the administration. The Shumlin administration says progress is being made on a long-running problems with Adult Protective Services that began during the Douglas era; lawmakers want proof that there have been improvements in the form of rigorous data disclosure.

For years, the division has not kept up with reported abuse cases, most of which come from advocates from the elderly. Under statute, the state is supposed to investigate reports within 48 hours; last year about 300 cases went weeks, and in some cases months, without followup.

Several hundred reports of abuse, neglect and financial exploitation submitted by physicians, social workers, caregivers, family members, neighbors and advocates for elderly and disabled Vermonters were relegated to a backlog last year.

After the Shumlin administration moved half of the cases onto a waiting list and then allegedly eliminated 90 cases in the backlog, Vermont Legal Aid and Disability Rights Vermont filed a lawsuit against the state last December.

The backlog and waiting list numbers became the focus of the dispute now in Washington Superior Court, and the history of the way in which the cases were handled remains unclear.

Doug Racine, secretary of the Agency of Human Services, says the state has hired more investigators and is making progress on an issue that began with the Douglas administration. According to data from the Department of Disabilities, Aging and Independent Living, there were 447 cases under investigation as of March 30. Ten investigators are charged with determining whether the accusations of abuse, neglect or financial exploitation can be substantiated.

Sen. Claire Ayer, D-Addison. VTD/Josh Larkin

Racine says the lawsuit is a “distraction” from the investigative work that needs to be done and he is frustrated that Vermont Legal Aid didn’t give the administration more time to implement new programs.

The requests from lawmakers for detailed information about the size and nature of the waiting list are also seen as a “distraction.” (Lawmakers say they want data going forward, not information from last year, which is the subject of litigation.)

“We were clear the legislation wasn’t needed and could get in the way of getting the work done,” Racine said.

The governor lanced into lawmakers for proposing a bill that “does nothing to advance the goal of protecting those vulnerable Vermonters, and adds yet another layer of bureaucracy to state government, and wastes taxpayer dollars.”

“By requiring expensive, time-consuming, and duplicative reports by the Agency of Human Services to the Legislature, this bill distracts AHS from doing its job: protecting our most vulnerable Vermonters,” Shumlin said.

The monthly reports would have required data on more than a dozen criteria, Ayer said, but the information queries are built into the “off the shelf” software program the department recently purchased, and so lawmakers felt the requirements were wouldn’t be a burden for staff to produce.

“We understood it was just a matter of pushing the button,” Haas said. “It takes longer to print than to do the work to ask for it.”

As for the $75,000 independent study, Haas said the money could come out of the $4 million surplus in the Choices for Care program, which keeps elderly Vermonters in their homes.

Haas said the report is necessary because the analysis of Adult Protective Services conducted at request of DAIL Commissioner Susan Wehry did not answer the questions raised by lawmakers in a 2009 provision. When Maria Greene, the consultant hired by Wehry, testified, lawmakers were dissatisfied with her report. “We didn’t feel she could answer questions we were asking,” Haas said. “We were not satisfied; it was not the independent evaluation that we needed.”

In an interview, Racine strenuously objected to the statutory monthly reporting requirement and the study. He said lawmakers were requiring much more extensive oversight than he’d seen before at the Agency of Human Services. The monthly reporting mandate, he said, would take away resources from the staff of 10-12 investigators in Adult Protective Services. The study, in his view, is redundant.

“I made it very clear to the committee we would be happy to report on request as the administration does with legislative branch, but I felt we didn’t need to write it into statute,” Racine said. “The offer is always there.”

The Vermont Legal Aid lawsuit

The governor’s veto came a day after he signed H.413 into law, which gives the state the authority to seek civil penalties for perpetrators of elder abuse.

Barbara Prine, lead attorney for Vermont Legal Aid in the lawsuit, said Shumlin is sending Vermonters a mixed message about the state’s role in elder abuse protection.

“We believe in civil enforcement as well, however, the first step is the APS system, and obviously, the Legislature had concerns about what’s going on with APS,” Prine said.

Barbara Prine, a lawyer for the Disability Law Project at Vermont Legal Aid, talks to reporters about the lawsuit the nonprofit filed against the state regarding Adult Protective Services' investigative practices. VTD file photo/Anne Galloway

Prine said H.290 would have been a vehicle for the administration to restore trust with advocates, legislators and the public.

Meanwhile, the Vermont Legal Aid case is wending its way through the court system.

Prine amended her original complaint in response to questions about the legal standing of the plaintiffs (the Washington County Superior Court judge in March said the individuals in the Legal Aid case weren’t directly affected by problems at APS). Now four organizations — Community of Vermont Elders, Senior Solutions, Southwest Vermont Council on Aging and Disability Rights Vermont — are plaintiffs in the suit which alleges the state of Vermont is not meeting the statutory mandates to ensure vulnerable adults are receiving adequate protection.

The new court filing cites allegations of abuse reported by the four organizations that they say APS ignored. In one case, a disabled man committed suicide two months after a Vermont State Police advocate filed a report with APS that he had been abused and financially exploited by his ex-wife. In another case, a daughter repeatedly stole pain medication from her mother. The incident was reported to APS but no action was taken. In another case, an elderly woman with cognitive and physical disabilities was neglected and exploited by her boyfriend. Later she was found sitting in feces and was transported to a nursing home. Reports had been filed when signs of abuse first emerged, but “the only contact from APS was a follow up call in November 2011 to the case manager checking on the situation 5 months after the report was made,” the lawsuit alleges.

Prine alleges that reports take weeks, even months to investigate and that means abuse can continue unabated. If allegations can be substantiated, perpetrators are supposed to be listed on the state’s abuse registry.

The Shumlin administration’s request that the lawsuit be dismissed was denied.

Read more about the Vermont Legal Aid lawsuit.

Read more about the history of the troubled APS division.

Editor’s note: This story was updated between 5 a.m. and 7 a.m. May 17.

VTDigger

State archivist Gregory Sanford chats with historian and author Michel Sherman in the state archives headquarters in Middlesex Wednesday. Photo by Andrew Nemethy

Without Gregory Sanford, Vermont history just wouldn’t be the same.

For 30 years, he’s been the state archivist, preserving, organizing, cataloging and pondering the documents that underpin the existence of the state we call Vermont. He’s been equal parts crusader and visionary, enthusiastically at home in an arcane, fascinating field that is distant from most of us — and yet, ever-present in our lives. For without our history, what are we?

That question has been the beating heart of his body of work ever since he joined state government in 1982, tying him to three decades whose changes in his chosen field — thanks to technology and tectonic shifts in thinking — proved to be as dramatic as a change from Vermont winter to summer.

On Aug. 1, he’ll leave the official duties behind with his retirement and move on to creating trails and gardening on his Marshfield property, convinced now at the age of 65 is the right time to step aside.

“It’s just the way my mind works. I can’t adequately describe or understand the technology that can move us to the next level,” he says. He calls his replacement by his deputy Tanya Marshall “brilliant at several levels,” citing especially her grasp of the evolving technological changes in archiving material.

The ensuing media hoopla that has erupted makes him “colossally uncomfortable.”

“I’m particularly bored with Greg Sanford,” he says, then graciously allows a long interview.

Few others are, though, which is not surprising when considering his impact and impactful appearance, well known around the Statehouse and circles of the capital. With his long sweeping beard, now white and reminiscent of Gandalf in “Lord of the Rings,” and tall build (now gained a certain rotundity), Sanford has always been a striking figure who puts the lie to the idea government is filled with faceless bureaucrats.

Let alone anonymous bureaucrats. He has been a passionate advocate for public access to documents and for making records easily accessible, honored by his peers for his efforts and with the Matthew Lyon Award from the Vermont Press Association in 2011 for his “lifetime commitment to the First Amendment and the public’s right to know.”

Sanford’s sharp mind spews mile-a-minute quips, wry asides and self-deprecating humor as it brings his work down to earth in language anyone can understand. His monthly columns “Voice from the vault” often put that on display, trying to disguise, he jokes, the boring substance they dealt with.

“I used to take myself very seriously in the beginning,” he says. “Then I realized I come with the full set of human foibles.”

And, he adds, “I think humor breaks down barriers.”

That this Connecticut native who got a degree in history from Washington College in Maryland and a master’s in history from the University of Vermont ended up as archivist was sort of a fortuituous fluke. In fact, in 1982 Vermont didn’t have an archivist.

“I was hired as something called editor of state papers,” he explains.

A fellow named Jim Douglas and his deputy Paul Gillies had something to do with that. Douglas, now an ex-governor, was at the time secretary of state and Gillies, now a municipal law expert, interviewed Sanford for the position.

Sanford imagines the conversation Gillies had with Douglas this way: “I saw this guy — he may be a little weird, but he looks like he could do the job.”

Check.

State Archivist Gregory Sanford in the archival stacks that house 97,000 boxes of Vermont records. Photo by Andrew Nemethy

Sanford, who lives in Marshfield with partner Ondis Eardensohn and has two grown children, came to Vermont in 1971 to visit friends in North Fayston in the back-to-the-land hippie days. Or as he puts it, “Once upon a time I wanted to be a country cow-freak hippie.”

He ended up milking the academic world instead and by the time Douglas hired him, had history pretty much running through his veins, having studied with legendary UVM history professor Samuel Hand working on an oral history of equally legendary Sen. George Aiken, which left him “fascinated with Vermont politics.” He also worked with noted oral historian and author Charlie Morrissey and at MIT.

But his editor’s job, which was to annotate and publish 18th century Vermont records, came with no staff and no authority to do much.

While humble about his accomplishments, that Vermont now has a massive modern archival records warehouse in Middlesex with some 97,000 banker boxes all bar-coded is no minor feat.

When Sanford came on board, Vermont was the last state in the nation not to have a state archives. Worse, for Sanford, was that he did his job in the basement of the Pavilion office building, not the best place for records that ranged the 1777 Vermont Constitution to priceless papers from Thomas Jefferson and Ira and Ethan Allen.

“Not only was it below the floodplain, there were no windows,” he recalls. And there were high pressure water lines and sewage lines.

“It was not what one would consider an ideal archival space,” he says wryly.

From there the state’s archives moved to Montpelier’s historic Redstone building with the secretary of state’s office, again to a basement but at least on a hill well above flood level — and a 10th of the size needed.

A key piece of Sanford’s work has been convincing the Legislature and state officials to merge disparate public records functions into the Vermont State Archives and Records Administration, established by the Legislature in 2008. A critical impetus was the increasing digitization of records and the complex issues that raised, says Sanford. He also was driven by a strong desire to “unlock” those records for the public.

The archivist’s job is pretty simple at the most basic level: What do you save, and what do you throw away. It’s a problem anyone who’s ever moved has faced.

It gets really complex when you’re a state.

“Quite frankly, not all records are equal,” he says. Managing what to archive, and the technology of it, still animates him, he admits, noting that he’s been known to go on “about things archival.”

The complexities of records and record keeping have undergone enormous expansion in recent years, forcing probing thought by agencies like his with limited resources. Records, he notes, once were vellum and parchment, then paper and photocopies. Now in ever-more rapid progression we have migrated onto tapes and floppy discs and CDs and who knows what’s next. He cites a figure that 5 percent or 6 percent of all the energy used in the world is used by computers.

His office now has 13 full-time and several grant positions, including four people whose sole job is to try and figure out rational ways to decide what to preserve and how to manage and preserve it with document management systems.

Sanford admits it can sound “boring as hell” but the historian in him flips back to the excitement in it all, even after 30 years.

Archives, whether records of court decisions or governor’s thinking or policy decisions, are all about “context” and he can cite example after example where he went into archival records that provided perspective that informed modern debates, from civil unions to fuel shortages to methane digesters and universal health coverage.

“That’s part of what I wanted to do, to get the context out there,” he explains.

“To the degree that I touched people’s lives, yes, I’m very pleased I did my job,” he says.

VTDigger

VTD Photo/Alan Panebaker

Vermont’s two largest utilities plan to use a streamlined rate-setting procedure to “blend” their electricity rates.

Gaz Metro is in the process of obtaining state approval for the purchase of Central Vermont Public Service. The Montreal-based company plans to merge its Vermont subsidiary, Green Mountain Power, with CVPS. If the deal goes through as expected, 80 percent of Vermonters will receive electricity from the new company.

Once the utilities have merged, Gaz Metro will use a process called “Alternative Regulation” to request approval of its new blended rate for the combined utilities. This protocol limits public involvement but saves money by sidestepping a lengthy process with the Public Service Board.

AARP-Vermont is worried that the alternative rate-setting process will limit public scrutiny of Gaz Metro’s plan to recoup $21 million through higher rates.

In 2001 the board allowed Green Mountain Power and CVPS to increase rates to cover losses associated with a power purchasing deal with Hydro-Quebec. In exchange, the board required the utilities to agree to a “windfall” sharing mechanism should either be sold. In a 2012 memorandum of understanding with the Vermont Department of Public Service, Gaz Metro agreed to return $21 million owed to CVPS ratepayers through investments in weatherization and efficiencies; it plans to recoup the money, plus 7 percent interest, through rate increases.

According to one Public Service Board decision, the contract with Hydro-Quebec could have cost somewhere around $130 million in extra costs between 1999 and 2016.

AARP challenged the original agreement between state regulators and the utilities. The advocacy group for seniors wanted that money to go to customers in the form of a refund or check.

“If the MOU is approved, there will be no opportunity later in a rate proceeding for AARP or ratepayers to object, to submit testimony, to submit argument, or to request an investigation as to whether the $20.9 million spent on weatherization, efficiency, economic development, etc., should be in the rate base,” AARP’s filing states.

The two utilities have used the Alternative Regulation process for years. Green Mountain Power started in 2006 and CVPS in 2008. Unlike traditional “cost-of-service regulation” rate setting, which can take a number of months, the alternative process requires filings every three months. Increases or decreases in electricity costs pass through to ratepayers. Under some forms of alternative regulation, utilities can earn a larger profit if they meet performance or efficiency goals.

Only CVPS, Green Mountain Power and Vermont Gas Systems, also a Gaz Metro subsidiary, use the process. They are all investor-owned rather than publicly owned. They also periodically use a full cost-of-service rate review process that allows more public input.

For example, the Vermont Public Service Board approved a 7.46 percent rate increase for CVPS in early 2011, and another 4.8 percent rate increase in late 2011. On Tuesday, CVPS announced it was asking for a 2.2 percent surcharge that would go into effect in July that would cover expenses from Tropical Storm Irene.

In 2011, Green Mountain Power asked for a 3.2 percent rate increase.

With the more streamlined process, there is generally not a public hearing. The Department of Public Service and board decide whether to approve the new rates.

Washington County Electric Co-op General Manager Avram Patt. VTD Photo/Josh Larkin

The alternative rate-setting structure is typical not controversial.

Smaller, municipal or cooperative utilities generally do not use it because they have not found a way to make it work with their nonprofit structure.

Avram Patt, general manager of Washington Electric Cooperative, said two years ago the community-owned electric company raised rates for the first time in 11 years, so there has not been a need for such frequent updating.

Rate-setting in the context of the merger controversy

During the last legislative session, lawmakers floated proposals to prohibit utilities from recovering money in rates for investments that do not benefit the electric system as a whole. This would include investments in thermal efficiency where a homeowner heats with fuel oil or some other non-electric source. The proposed provisions never became law.

In the 2001 “bailout” agreement, the board limited the amount of money Green Mountain Power would have to share as a result of a profitable merger at $8 million and $16 million for CVPS. In 2007, when Green Mountain Power was sold to Gaz Metro, the board approved an efficiency program where the utilities would invest that money and ratepayers would benefit.

Now the Department of Public Service and the utilities propose doing something similar, where the utilities will invest ratepayer money in a fund that will go toward weatherization and efficiency. That money will have to yield $25 million in energy savings for customers. Shareholders will get that $21 million investment back in rates, with 7 percent interest.

That windfall requirement, which made headlines during the Legislature this session, could be approved as part of the overall docket rather than go through the more strenuous rate setting process that it would otherwise require, according to a final reply brief filed by AARP earlier this month.

The utilities and the Department of Public Service agreed that investing the money in efficiency would yield more benefits than refund checks, but AARP says even if that is the case, there should be a more transparent process demonstrating how the investment benefits ratepayers.

In a filing with the Public Service Board, AARP attorneys said they were worried that without the public process of traditional ratemaking, that money could be improperly spent without any recourse.

“All or parts of the $20.9 million may turn out to have been imprudently spent, or may turn out to be not used and useful, and therefore not just and reasonable to recover in rates, but ratepayers will be forced to shoulder this load regardless,” the group’s most recent filing states.

Jim Dumont, an attorney representing AARP in the docket, said it would be premature for the board to approve the expenditures before they occur.

He is also concerned the process will go forward without enough substantive input from the public.

“All of this elephant will pass through snake and come out the other end just the way they want it,” Dumont said.

Sarah Hofmann, deputy commissioner of the Department of Public Service, said interested parties can ask for an investigation into the rationale for rate increases approved under alternative regulations.

In that situation, the board would open a new case, which could take up to seven months.

The advantage of the faster alternative regulation plan process as opposed to traditional rate cases, Hofmann said, is “it’s done in real time rather than case time” and rates reflect more accurately the true price of electricity. It also saves litigation costs and allows utilities more access to credit also.

Hofmann said the memorandum of understanding the department signed with the utilities offers additional safeguards for intervenors and the public.

Under that MOU, the utilities must submit a report by July 1 that outlines how they will verify savings that result from the merger. Parties in the docket will be able to comment on the rate adjustments. Green Mountain Power will have to file a report each year for the next 10 years.

Dorothy Schnure, a spokeswoman for Green Mountain Power, said customers will see either a rate decrease or less of an increase starting in October 2012.

If the board accepts the MOU, the utilities will have to produce $2.5 million in savings for their customers in that first year. The next year it is $5 million. The utilities are required to verify $144 million in savings to customers. The $21 million in investments in efficiency, about $12 million of which will go to weatherization programs, is supposed to yield $25 million in benefits to customers through reduced electricity use.

Schnure said the company is analyzing what their rate request would be this fall if nothing changed.

“It will be $2.5 million less than it would be without the merger, should the merger be approved,” Schnure said. “In addition, we’re looking for other savings to pass through to customers.”

Schnure said the AARP’s allegation that the board will not analyze the investment in the efficiency fund is incorrect. She said the board and the Department of Public Service will review how the money is spent to make sure the utilities act prudently.

The utilities are asking for the alternative rate setting plan to carry through 2014, when there will be a full cost-of-service review of rates. Commercial and industrial rates will not be affected until then.

Starting this summer, CVPS residential customers will pay about $87.43 on average each month. Recent rates published on the Green Mountain Power website show their residential customers purchasing a similar amount of power would pay around $84.89.

Residential customers for both companies will pay the same rate starting Oct. 1, 2013, if the merger goes through. Schnure said she could not estimate what exactly the new blended rate will be.

VTDigger

Sen. Dick Sears, chair of the Senate Committee on Judiciary. VTD/Alan Panebaker

This legislative session, two judicial issues captured the headlines — the death with dignity bill and a proposal to allow police access to the state’s prescription drug database. Both attempts at sweeping reforms failed.

A number of other changes to the legal system addressed by the Legislature’s Senate and House judiciary committees have garnered little attention. This session lawmakers approved changes to divorce proceedings for gays, criminal record expungement and new child-support enforcement rules, highway condemnation requirements and search and rescue protocols.

Though these pieces of legislation may not have hit the media spotlight, many will have real-world consequences for Vermonters. Some are designed to protect the vulnerable; others make it harder for individuals to flout the law.

H.413 will allow the state to assess fines on nursing homes for cases of abuse

One of the new public safety bills that expands the attorney general’s authority to prosecute abuse of vulnerable adults — went into effect on Tuesday when Gov. Peter Shumlin signed H.413 into law at a senior center in Shelburne.

At a press conference and bill signing at Shelburne Bay Senior Living Community, Shumlin told the story of 81-year-old Daniel Wright who died shortly after moving into Green Mountain Nursing Home in Colchester in 2005. Wright was assaulted by another resident who had dementia and had a history of violence against staff and other patients. The perpetrator’s mental state made prosecution impossible. A subsequent case involving Wright’s family and the home was settled out of court.

Shumlin said though the nursing home staff did not deal the deathblow against Wright, they failed in other areas.

“None of the prior assaults upon residents had been reported as required by both state and federal law,” he said. “They were covered up. The nursing home had taken no steps to protect its residents and gave no special orders for supervisors so that other residents wouldn’t be harmed. … On the day of the assaults, nursing staff failed to take Mr. Wright’s vital signs and failed to notify the physicians of the assaults that he had endured. After his death, they failed to notify the medical examiner.”

Shumlin did not name Green Mountain Nursing Home in his speech. Sorrell confirmed Wright was a resident of the home.

Robert Sterling, administrator of Green Mountain Nursing Home, said he understood Wright’s case differently. “He died, according to the autopsy of natural causes and everything,” Sterling said.

Vermont AG William Sorrell. VTD/Josh Larkin

Wright’s death was one of the cases that spurred the attorney general’s office to seek a legislative remedy.

Assistant Attorney General Linda Purdy, who investigated the case, said autopsy results stated Wright’s primary cause of death was natural, but his conditions were complicated by the assaults.

“He died of both some cardiovascular problems and the secondary cause, which they couldn’t really quantify, was the attack and the injuries he sustained,” Purdy said.

The nursing home’s attorney, Scott McGee, said that despite the tragic nature of the events, staff at the home were all doing their jobs correctly. “As far as we were concerned, all the right steps had been taken,” McGee said. “In these kinds of things, people can second-guess lots of steps. Everyone was working in good faith.”

Sorrell’s office threatened a civil action against the nursing home, but found they didn’t have strong legal footing to do so.

“We wanted more clear legal authority to bring such a suit,” he said.

H.413 does exactly that, Sorrell said. Under the new law, the state may bring a civil action of up to $50,000 against a nursing home or individual caretaker where neglect, abuse or exploitation results in death and other actions for lesser amounts when the victim survives.

H.535, Bias-free policing

For the first time, local law enforcement will be required to adopt bias-free policing policies and to collect racial information from routine traffic stops.

H.535 requires all Vermont law enforcement agencies to implement “bias-free” policing policies designed to deter police from racial discrimination. The policies would be based on Vermont State Police guidelines and recommendations the Attorney General’s office made to the state’s 73 independent policing entities in 2010. About 30 municipal police and sheriffs departments have policies addressing racial discrimination.

The growing disproportionate representation of blacks in prison has raised questions about racial bias among law enforcement officials and the court system.

H.758, dissolution and divorce

Gays from out of state who obtain civil unions or marriage certificates from Vermont have had no way of dissolving that union or divorcing in home states that didn’t recognize their Vermont status.

This bill makes it possible for couples to break up through a no-fault process based on mutual agreement.

Previously under Vermont law, gay couples had to live in Vermont for six months before they could get a divorce or dissolution.

S.37, expungement of a nonviolent misdemeanor criminal record

This bill creates a process for expunging the record of an arrest or conviction for many nonviolent misdemeanors.

Sen. Dick Sears, D-Bennington, says he supported the legislation because he heard from Vermonters who had been arrested and convicted of minor crimes 20 to 30 years ago for possession of small amounts of marijuana and other petty offenses but who hadn’t been in trouble with the law for decades and wanted to apply to have their records expunged.

“The bill provides a process for people to apply to state’s attorney in the county where they were convicted,” Sears said. “If they are clean of any crime for 10 years or more … they can apply to have the record expunged.”

The basic conditions? Ten years must have elapsed, any sentence must have been completed, restitution paid or conditions met and there can have been no subsequent criminal convictions. The final decision is at the discretion of the court.

Certain offenses, such as sexual exploitation of children and violation of a protection order, cannot be expunged.

When the court decides in favor of removing the criminal record, it issues a certificate that “must state that such person’s behavior after the conviction has warranted the issuance of the order.” The FBI and all other agencies which have or might have the record are notified. The statute requires that from the time the certificate is issued the person “be treated in all respects as if he or she had never been arrested, convicted or sentenced for the offense.”

S.203, child support enforcement

According to a report from the Department of Children and Families, about 30 percent of court-ordered child support goes unpaid each month. The state of Vermont has nearly $100 million in unpaid child support on the books.

Under a new statute, parents who refuse to pay child support may be subject to civil contempt. If the court finds the individual in contempt, he or she may be required to search for work, participate in employment, educational, or training-related activities. If the individual fails to complete the court-ordered program, he or she may be subject to incarceration.

Sears said, under the new provisions, the nonpaying parent “holds the keys to jail cell” — he or she can be released from prison by paying up or complying with the court’s recommendation.

While the state can’t hold someone in jail for lack of funds, it can detain an individual for contempt of court.

Though scofflaws wouldn’t be held for long, Sears said “it’s enough to grab some people’s attention.”

The legislation softens requirements for parents who are willing to make payments but who have been hurt by the economic downturn, Sears said.

The bill also revises the options for calculating available income in determining child support, and it makes it easier to get relief from a default child support order if the parent can show the court used incorrect financial information in calculating income.

S.122, human trafficking, prostitution provision

If someone is convicted of prostitution and can show they have been a victim of human trafficking, the court can allow the individual to file a motion to vacate.

Once the motion is granted, the victim’s name is removed from all the related court records.

The victim need not have reported the crime of human trafficking to law enforcement before the arrest. Various protections are now offered to victims of human trafficking that parallel those provided for victims of domestic violence, sexual assault and stalking, such as providing lists of counseling and shelter services. State services will now be revised to meet the needs of human trafficking victims.

S.115, a bill barring ineffective assistance claims against assigned counsel

Some defendants have sought to hamper the criminal justice process by suing assigned defense attorneys who were in the middle of litigating their cases, according to Defender General Matthew Valerio.

Valerio says S.115 bars defendants from inappropriately manipulating the system. “Now you have to follow the normal process and get redress through courts before suing your attorney,” he said.

“It doesn’t take away your rights to pursue a negligence case, it just tells you what order it has to be done in and by doing that it prevents individuals who for the wrong reasons are attempting to manipulate the criminal justice system,” Valerio said.

Valerio’s office hires more than 50 lawyers a year to work on contract with the state. These attorneys have to purchase their own malpractice insurance. There was a concern that the lawsuits against some contract attorneys who are doing serious felony work with the most difficult clients and getting a number of claims could get to point where it would be difficult to obtain malpractice insurance.

Convicted criminals had been taking a page from Michael Brillon, who was sent to jail on a domestic violence charge and went through six assigned public defenders. His case went to the Vermont Supreme Court, which ruled that his right to a speedy trial had been hampered, and eventually the U.S. Supreme Court, where justices ruled that “delay caused by the defense weighs against the defendant.”

H.751, juvenile delinquent custody

This legislation allows 16- to 17-year olds who have committed minor crimes the option to stay in state custody and receive services for an additional six months.

That additional time could make a difference for some kids, Sears said. The bill also calls for a study to evaluate the success rate of the juvenile system.

Editor’s note: This story was updated between 5:15 a.m. and 6:30 a.m. May 16.

VTDigger

BURLINGTON — Local residents expressed strong, often conflicting views at a hearing Monday night about whether the Burlington airport should become home to F-35 fighter jets. More than 300 people gathered at South Burlington High School to discuss the environmental and economic impacts of the proposal.

Most Vermont officials and business owners who spoke, or sent messages, waxed enthusiastic about the prospect. They touted economic benefits, showered praise on the Vermont Air National Guard, and warned about the possibility of lost National Guard jobs if Burlington isn’t chosen.

Opponents pointed to increased noise levels and other impacts that could damage or even destroy the viability of nearby neighborhoods.

Five locations are currently being considered by the U.S. Air Force, but Burlington International Airport is one of two “preferred alternatives.” The other is Hill Air Force Base in Utah, an Air Force command center that handles a wide variety of aircraft.

Several speakers opposed to basing the aircraft in Vermont wondered why Burlington’s relatively small airport, located adjacent to a residential neighborhood, is being considered over larger, more remote locations.

While proponents suggest this merely reflects the Vermont Guard’s excellent reputation, another reason is clearly cost. Modifications to the Burlington airport would cost $4.6 million, while changes at Hill are estimated at $40 million.

Delivery of between 18 and 24 joint strike fighters could begin in 2015, eventually flying out of Burlington airport between 5,486 and 7,296 times a year. Eighteen F-16s currently maintained by the Vermont Air Guard would be reassigned or retired.

The hearing began with a brief description of the process, followed by statements from public officials. John Tracy and David Weinstein read a joint statement from Sens. Patrick Leahy and Bernie Sanders who called the selection of Burlington a “major vote of confidence” for the Vermont National Guard. The statement stopped short, however, of endorsing Burlington’s selection. The two senators urged the Air Force to consider the “legitimate concerns” being expressed about noise and other environmental impacts.

Remarks read on behalf of Rep. Peter Welch were similarly nuanced, balancing the “vital importance” of the Guard and the need to hear from the community. Welch plans to submit a letter to the Air Force “reiterating what he learns from the feedback.”

“I … feel strongly that (the) drawbacks are outweighed by the extraordinary benefits that this opportunity presents our communities and our state.” ~Peter Shumlin

Gov. Peter Shumlin was unequivocal in his statement. He pointed to the prospect of jobs, economic growth and investment opportunities.

“I know there are some concerns about noise and other potential drawbacks,” he wrote. “While I appreciate those concerns I also feel strongly that these drawbacks are outweighed by the extraordinary benefits that this opportunity presents our communities and our state.”

The F-35, already the largest single military program in history, has been in development for more than a decade. Eight foreign countries are part of a coalition that has agreed to buy the multi-purpose aircraft once it is perfected.

But a long, growing list of agencies and officials, including the Government Accountability Office, parts of the U.S. Department of Defense, congressional committees and national parliaments in other nations, are becoming increasingly worrried about cost increases, design faults and missed deadlines.

The price per plane is currently estimated at somewhere between $110 million and $150 million — not counting another $184 million in weapons systems for each aircraft.

During a March congressional hearing, lawmakers told Defense Department and Air Force officials that the fighter jet’s development has become a prime example of how not to run such a program. A GAO report says that the F-35 already has a cost overrun of more than $1 billion and production has been delayed by six years.

A GAO report says that the F-35 already has a cost overrun of more than $1 billion and production has been delayed by six years.

At the same time the fiscal crisis in the European Union has raised questions about whether the original F-35 coalition will survive much longer. Last week, Australia pushed back its planned purchase of 70 planes by two years, which will save the country $1.6 billion. That decision came a month after Canadian Prime Minister Stephen Harper blocked the Defense Ministry from spending any more on the fighter. Britain has also pulled back on its planned purchases.

In Fort Worth, Texas, unionized workers went on strike in late April over health-care benefits and pensions at the plant where Lockheed Martin is building the plane, and at two military bases where it is being tested. The main sticking point is Lockheed’s call for an end to the employees’ defined benefits pension. In previous contract negotiations they gave up medical benefits for retired workers.

During the public hearing at South Burlington High School, many who want the plane based in Vermont also have economic matters in mind. Tom Brasssard, a business owner and vice chair of the Burlington Business Association, urged people to “imagine what it would be like without the Air Guard here.”

His conclusion was that its presence is more important than any concerns about increased noise. Brassard and others warn that if the F-35 does not come to Burlington the National Guard base could see cutbacks, or even be closed.

Resident Steve Trono argued that the decision is a human rights issue that will affect the health and well-being of many area residents. He pointed out that the impacts would be relatively larger in Burlington than at the other bases under consideration.

“It will make more than 1,000 houses unsuitable for residential use,” he noted. Like other critics of the plan, he called claims that the base might close if the F-35 isn’t bedded in Burlington “a cheap scare tactic.”

Louis Holmes, also an opponent, argued it doesn’t make sense to base such a noisy, problematic aircraft in a densely populated area that also depends on tourism. Noting that many people who support the idea were talking about the record of the Air National Guard, while most in opposition commented on the environmental impacts, he wondered whether comments that did not focus on the contents of the EIS should be part of the official record.

According to the Air Force analysis, between 1,820 and 2,863 households could be affected by the increased noise of the aircraft. The environmental impact statement concludes that “the number of complaints received by the installation and level of annoyance experienced by underlying communities and residents would likely increase.”

Under the heading socioeconomics, the statement notes that if 18 jets are bedded in Burlington there will be no impact on “regional employment, income, or the regional housing market.” However, the arrival of 24 planes would lead to 266 more military jobs. In either case, an estimated $2.34 million would be spent on construction, mainly in 2016.

The EIS also mentions “environmental justice,” a reference to the disproportionate number of low-income and minority residents live in areas who would experience the greatest noise impacts. It indicates that seven neighborhoods and two churches, as well as the Chamberlain School and St. Michael’s College, would experience “incompatible land uses for residential purposes.”

Juliet Buck, a leading critic of the plan, asked a series of pointed questions. “How much is noise remediation going to cost for the homes that aren’t bulldozed, assuming there might actually be some remediation? How long will condemned homes remain vacant?” Such questions should be addressed and answered before “anyone other than an open industry shill supports this,” she said.

The Environmental Impact Statement can be read at www.accplanning.org, or by calling 757-764-9334 for a hard copy. The public comment period is open until June 1. In the meantime, a discussion of the F-35 will be on the May 21 agenda of the South Burlington City Council.

Burlington Mayor Miro Weimberger has opted to review both the EIS and the community response before issuing his position.

VTDigger