Is it legal for the Shumlin administration to keep financing plans for the single payer health care system a secret? Even when those plans have been shared with House legislative leadership?

Those are the questions at the heart of a lawsuit brought by Rep. Cynthia Browning, D-Arlington, against the state of Vermont.

Rep. Cynthia Browning, D-Arlington. File Photo by John Herrick/VTDigger
Rep. Cynthia Browning, D-Arlington. File photo by John Herrick/VTDigger

Gov. Peter Shumlin has used executive privilege, a legal doctrine that protects his decision-making process, to keep the deliberations of the Business Advisory Council on Health Care Reform and the Consumer Advisory Council on Health Care Reform out of the public purview.

Browning believes Shumlin has applied the doctrine too broadly in order to prevent public access to information about his plans for single payer. She said her request does not breach executive privilege. She is asking for work products and presentations from Michael Costa, the deputy director of health care reform; she is not suing for audio tapes of the meetings, or communications from members of the councils to the governor, which are confidential.

“I think that the principle of transparency and accountability and not violating open meetings laws — those principles are subject to interpretation, and so is executive privilege,” Browning said.

One of the documents, a draft presentation, was shared with four lawmakers.
When Costa handed out confidential documents to House Speaker Shap Smith, Reps. Sarah Copeland Hanzas, Mike Fisher and Janet Ancel, he waived the administration’s right to claim executive privilege, according to Browning’s latest filing. That’s because when Costa shared the information with individuals who are not part of the councils or the executive branch, he crossed a line between the branches of government. Executive privilege is “inextricably rooted in separation of powers under the Constitution,” they argue, and sharing the documents with lawmakers “frustrated any claim” that a separation of powers is fundamental to their exercise of executive privilege in this instance.

Browning said the legislative leadership is complicit in withholding information from other lawmakers and the public. “I don’t think it serves the public interest,” she said.

“Some members of the Legislature know more about the financing plan than the rest of us do,” Browning said. “I think that’s interesting in terms of the role of the Legislature, the Democratic caucus and the whole issue of transparency. If you’re going to be a member of the governor’s staff, be a member of the governor’s staff.”

Smith says the Shumlin administration was asking lawmakers for advice. Whether executive privilege applies to that communication, he said is a legal question.

“I think it’s their determination to assert the privilege,” Smith said. “You have to have some expectation of privilege around documents. The scope of that question is a legal one.”

Michael Costa, deputy director of health care reform. File Photo by Hilary Niles/
Michael Costa, deputy director of health care reform. File photo by Hilary Niles/VTDigger

The legislative branch is not going to rubber stamp the governor’s financing plan, he said. “It’s not a given that the Legislature would adopt what the administration puts forward,” Smith said.

The state moved to dismiss Browning’s case in June. The Vermont Attorney General’s office argued it is necessary to maintain the confidentiality of the documents in order to “preserve candor, openness and creativity in the governor’s deliberative process on the health care financing issue.” Executive privilege, according to the state, extends to “all documents connected to the governor’s deliberations, consultations and receipt of policy advice.”

In the latest round of court machinations last week, Browning’s lawyers, Primmer, Piper, Eggleston and Cramer extracted a list of privileged documents from the Shumlin administration.

The attorneys were not able, however, to obtain a crucial accompanying document that explains why each of the documents are exempt from public disclosure. No reasons are given for invoking executive privilege. Browning’s lawyers say the court should interpret that failure as a demonstration that the state can’t make a specific factual “showing,” and, therefore, can’t presume the documents should be kept confidential.

Browning’s attorneys say the documents are in the public interest and citizens have the right to the “free and open examination” of public records under the Vermont Constitution even when “such examination may cause inconvenience or embarrassment.” The burden of proof is on the administration to demonstrate otherwise, they argue.

Rep. Janet Ancel, D-Calais, who attended the Jan. 30 meeting, said whether the Shumlin administration should continue to keep the plan a secret is a political question.

“I used to work for a governor, they need room and time to develop policies and executive privilege gives them the space to do that, but at some point you say this policy is going to be developed more effectively if it’s more public,” Ancel said. “I don’t know when that is.”

Ancel, who is chair of House Ways and Means, the tax writing committee, says she wants to see the plan “when it’s a good plan,” but we can’t keep the “state in suspense indefinitely.” Employers need to know what the next stage in health care is going to be, she said. In the coming session, she anticipates that the Legislature will make the financing decisions.

In the meantime, she said: “I don’t feel the need to be sitting, watching it be developed. We’ll do better if it is a legislative response to something the governor is ready to put forward and make arguments for.”

Gov. Howard Dean said the courts have upheld the right of executive privilege. The governor needs time to decide what he will put in front of the Legislature. Once the information goes public, Dean said, stories in the press are accepted as gospel, the political grist mill gets into gear and that can make the debate and creation of the plan more difficult.

There needs to be a full debate, Dean said, “But I think the governor gets to choose when that debate happens and has to have ability to make sure it’s well thought out. He’s got to have the ability to do that.”

Members of the business council were asked to keep the conversations with Costa and other members of the administration confidential, and they have stayed mum, as requested by the governor.

One of the members, Gregg Beldock, who owns the Bullrock Corp., says Costa has worked diligently and provided the council with “tremendous perspective.”

“I think the process is a good one, and I think we’ll all be pleased with the outcome,” Beldock said.

Bram Kleppner, the CEO of Danforth Pewter, another member of the council, says the confidentiality creates a smoother process and healthier debate among members of the council. “Is it ultimately better to avoid lots of alarm over nothing and rumors that are untrue?” Kleppner said. “Or is it better to give everyone full access to information and let people sort out what’s going to happen on their own? I don’t know.”

Darcie Johnston, a critic of the Shumlin administration’s plans for single payer, says Browning has provided needed leadership.

“Gov. Shumlin promises a transparent administration but on his plans for single payer health care he has been anything but transparent,” Johnston said. “All Vermonters have the right to know how Governor Shumlin is planning to pay for his single payer health care scheme. Cynthia Browning is a transparency hero.”

The Shumlin administration was to provide the Vermont Legislature with a financing plan for single payer in January 2013 and when officials didn’t deliver, they promised to deliver a plan this year, but soon after the session started, the governor’s office begged off that deadline. The plan is now expected to be made available to the Legislature and the public at large after the November election. The Shumlin administration has said it would implement the plan in 2017.

Editor’s note: This story was updated with quotes from members of the business council and lawmakers at 5:51 a.m. Aug. 4.

VTDigger's founder and editor-at-large.

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