Government agencies can demand all kinds of personal information in the course of deciding whether to grant licenses, permits and the like. But they’re only supposed to extract information they actually need – as opposed to asking questions that are merely designed to test how honest you are.
Unless, apparently, the agency is the Vermont Department of Liquor Control.
Consider, for example, that on September 17, 1985 – a quarter century ago – I made an illegal left turn while visiting my aunt and her family in Virginia. She had given me some driving directions, which I somehow misunderstood. When I made that left, I was a block away from where I was supposed to be – and, since I was focusing on the directions, I didn’t notice the “no left turn” sign. I did, however, notice the police officer who pulled me over.
Guilty as charged, I paid a small fine in due course. To this day, my aunt doesn’t know I got the ticket – but now the Vermont Department of Liquor Control (DLC) does.
I had to disgorge this information to the DLC earlier this year when a food co-op on whose board I serve decided to seek a license to sell beer and wine in Vermont. My board colleagues and I were instructed to provide complete lists of any criminal convictions (of which I have none) as well as any traffic violations.
Not wanting to hold up my co-op’s license application, I disgorged everything I know about my driving record. But, as someone who teaches administrative law, and who is an endemic curmudgeon when it comes to coughing up personal information just because someone demands it, I got to wondering why the DLC could possibly care about illegal left turns and speeding tickets in the course of evaluating liquor license applications.
Happily, section 806 of the Vermont Administrative Procedure Act provides a mechanism for finding out. This provision allows citizens to make formal requests of agencies for changes in their rules or policies. Within 30 days, an agency is obliged to respond by either granting the request (or at least starting the process of doing so) or explaining why it will not.
I sent such a request to DLC Commissioner Michael Hogan in July. And, 36 days later, I had my reply – not from the commissioner himself but from his lawyer, Assistant Attorney General Jacob Humbert.
Liquor licensees, Humbert wrote, “are charged with understanding and enforcing oftentimes complex statutes and regulations designed to protect the welfare of the people of Vermont.” In that light, according to the VLC’s lawyer, “criminal and motor vehicle offense information, together with the person’s level of candor concerning such offenses, provide a more complete picture of each responsible person’s capacity to conduct their affairs within the boundaries of the law.” (Emphasis added.)
These comments, though written in sensible government lawyer-ese, become worrisome when deconstructed.
Do Vermont’s liquor authorities really think it possible that people who commit traffic infractions do so because they don’t understand what “no left turn” or “speed limit 55” mean – and, thus, might not be able to grasp what “don’t sell beer to people under age 18” means as well? That would be ridiculous, even if one accepts Humbert’s characterization of Vermont liquor law as “oftentimes complex.”
That leaves only the rest of Humbert’s explanation – that the information is relevant when deciding if an applicant generally has the capacity to conduct her or his affairs “within the boundaries of the law.”
One issue is that the DLC lawyer conflates two distinct things – criminal convictions and traffic violations. The former obviously do have a bearing on whether someone has the moral compass to obey the law. But there is a reason why Vermont doesn’t define minor traffic violations as crimes (unless committed habitually). These civil infractions simply lack the same moral dimension as thievery, violence and other more heinous varieties of criminal conduct.
The other issue — and the one where the DLC’s position seems especially inconsistent with the values one associates with Vermont – concerns the department’s professed interest in using this information to evaluate applicants’ “level of candor.” In other words, it’s a trap – the DLC can do its own research about your minor traffic tickets and test how honest you’ve been on your application. Call it a virtual polygraph test.
The idea that a government agency would create such a lie detector mechanism is so at variance with basic notions of fairness that one is tempted to conclude that Assistant Attorney General Humbert misspoke, perhaps out of zest to justify his client agency’s practice. Alas, the agency itself uses the same explanation.
Weeks before I sent my letter to Commissioner Hogan, I complained about the practice in question to my state legislators, one of whom made inquiry of the DLC’s licensing bureau. A staff member from the bureau replied, in part: “We go back to the beginning when we do record checks so I always tell perspective [sic] licensees to be honest and if they can’t remember to state that they can’t remember. We are basically looking for honesty and integrity in our licensees.”
There’s nothing inherently wrong with a licensing agency concerning itself with the honesty and integrity of licensees (nor, obviously, with an agency employee trying to be helpful to a legislator with a constituent request). But that doesn’t mean that a government agency should be allowed, in effect, to demand irrelevant personal information so that it can give an honesty quiz to license applicants.
What makes this practice truly scary is that no formal rule or regulation of the DLC requires, justifies, or even explains it. Demanding such information from applicants is purely a matter of the agency’s discretion. Theoretically, nothing rules out a future commissioner demanding that applicants “friend” him so she can check out the veracity of their Facebook pages. After all, if you list your status as “single” when you really aren’t, this would clearly be probative of your honesty and integrity.
I assume that some will react to this concern unsympathetically, given that liquor is dangerous stuff and those given the privilege of selling it in Vermont ought to expect exacting scrutiny from state officials. But it doesn’t mean that license applicants should expect the Spanish Inquisition.
Principles aren’t really principles when they apply in the easy situations and are sacrificed when the stakes are high, as with liquor licenses. The principle here is one of limited government that doesn’t try to trick citizens or eviscerate their privacy. The DLC would do well to re-read the 1989 admonition from Justice John Dooley of the Vermont Supreme Court, who noted that it is not liquor regulators’ job to be “attempting generally to regulate public morals.” (For the record, the citation is In re Club 107, 152 Vt. 320, 324 (1989)).
As an administrative law professor and fan of strong government, I try to impress upon my students that having vigorous state and federal agencies is a good thing. When an agency reserves the right to ask applicants any questions regulators please, this can only undermine public confidence in the noble purposes of the public sector.
Donald M. Kreis is assistant professor and associate director of the Institute for Energy and the Environment at Vermont Law School.
