(This story was updated and expanded April 18 at 4 p.m.)Gov. Phil Scott’s administration said Tuesday a key health care regulator who has been serving for nearly six months was not properly appointed by former Gov. Peter Shumlin.
The Scott administration notified the Green Mountain Care Board on April 12 that there is not adequate paperwork regarding Robin Lunge, whom Shumlin announced he was appointing to the board in November.
Senators said Tuesday that Shumlin’s intent was clear, but Scott’s administration questioned whether the former governor followed the right process. Failure to adhere to the process would raise legal questions, the administration said.
Later in the day, Scott said he would not block Lunge from remaining a board member if the Senate accepts her nomination. “If she is confirmed, then we would accept that,” he said.
Lunge has been serving on the board since Nov. 28, but the Senate has not yet voted on her confirmation. Since Jan. 15, she has been one of just three people currently serving on the five-seat board. A quorum is not required for the board to meet, but three yes votes are required for it to take action.
The board held a hearing Thursday about a controversial proposed surgical center and is scheduled to decide Wednesday on what to do about eight hospitals that went over their budgets in fiscal year 2016.
“Our Senior Director of Boards, Commissions, and Public Service has no record of Ms. Lunge’s appointment other than a copy of her Oath of Office,” wrote Jaye Pershing Johnson, Scott’s lawyer, in a letter dated April 12. The letter was first reported by Vermont Public Radio.
“We have confirmed with the Office of the Secretary of State, the State Archives, and the office of the Secretary of the Senate that no appointment documents were ever received,” the letter says. “We have confirmed with the Department of Human Resources that it has an exempt salary request form indicating Ms. Lunge’s new job title as ‘board member’ with salary set in statute.”
“There is a significant question whether Ms. Lunge’s appointment is valid if the documents from the Governor’s Office were never properly transmitted or preserved and the appointment was not consistent with the Vermont Constitution and State law,” the letter says. “The failure to submit the appointment to the Senate is problematic from a separation of powers perspective.”
Reached by phone Tuesday, Lunge declined to comment on the issue.
Typically, if a governor makes an appointment when the Legislature is not in session, the Senate takes action to confirm or deny the appointment once it reconvenes.
In various interviews, members of the Senate quickly voiced support for Lunge’s appointment, and Democrats hold a strong majority in the body.
The Republican governor defended his administration’s reasoning at his weekly news conference Tuesday morning.
“That’s an unfortunate incident that has come to light,” Scott said. “It wasn’t something that I asked for. The Senate came to us, asked us if we had any paperwork on Robin Lunge because there’s a process in place that has to be adhered to. It’s in statute.”
“I don’t want this to turn into a partisan, political fight, but we have to respect the process,” he said. “If they can’t produce the paperwork, and if the Senate says, ‘We don’t have the paperwork,’ we can’t just make it so.”
Scott said at the morning news conference that he would not simply reappoint Lunge to the seat Shumlin intended her to have. “It’s not about intent,” Scott said. “That’s not in the statute. It’s not in the process. I couldn’t because (her appointment) has to go through the nomination process.”
Told that Lunge was on a list of names given to Shumlin through the nomination process, Scott said that was news to him.
“I haven’t seen the list,” Scott said. “I didn’t know she went through the process. But that’s a previous administration.”
“I can’t fix this. She can go through the nominating process again, she has to go through the nominating process, and I could interview her and everybody else and then select who I think should be on the Green Mountain Care Board.”
Al Gobeille, who was chair of the Green Mountain Care Board when Lunge started working there, said the board itself does not handle the appointment paperwork.
Scott declined to weigh in on Lunge’s credentials. She has a law degree and a master’s degree in health care delivery systems. She served as Shumlin’s director of health care reform, overseeing work to establish single-payer health care and Vermont Health Connect, prior to being chosen as a board member.
Johnson, Scott’s lawyer, said at the news conference that Chapter 2, Section 33 of the Vermont Constitution allows Lunge to keep acting as if she were appointed, until the Senate acts to confirm her position. But Johnson said Lunge might not be able to serve if the Senate doesn’t have the proper paperwork to confirm the appointment.
“I think it’s a question that, while it exists, does jeopardize the proceedings of the Green Mountain Care Board,” Johnson said. She said the issue would arise only if someone brought a legal challenge to the board’s authority or one of its decisions. No one has brought such a challenge.
Notarized letter from Shumlin
On Friday, Shumlin sent a letter to Lt. Gov. David Zuckerman, who serves as president of the Senate, saying he had appointed Lunge to the position. Shumlin also attached a notarized affidavit.
“On or about November 16, 2016, I appointed Robin Lunge of Berlin, Vermont as a member of the Green Mountain Care Board for a six-year term beginning on November 28, 2016, subject to the advice and consent of the Senate,” the affidavit says.
Sen. Claire Ayer, D-Addison, the chair of the Senate Health and Welfare Committee, said she accepts that affidavit as the appointment paperwork. She said there is no language in the Vermont Constitution or even in statute saying a more formal notification is necessary.
“It feels like the tempest in the teapot to me because there really aren’t any questions,” she said.
“We invited her in (to the committee) earlier in the year, and I said, ‘Well, consider this your interview, and as soon as we get the paperwork we’ll send it in,’ and now we have the paperwork,” Ayer said.
Sears also accepts the affidavit. He said he and others reviewed the letter and affidavit with the Legislature’s lawyers, and the lawyers found the notification sufficient.
“Quite frankly, the laws say that this Green Mountain Care Board must be treated like a Superior (Court) judge,” Sears said. “It says that the governor has to notify forthwith, but one could argue there are a variety of ways of notifying.”
“Everybody knew that he’d appointed Robin Lunge,” Sears said. “He sent out press releases. He sent out notifications to the senators. What (that) lacks is that formal letter to the president of the Senate. I think that in terms of our laws, he’s satisfied those laws.”
Zuckerman, a Progressive/Democrat, framed Lunge’s appointment as an issue of Vermont values.
“It’s certainly unfortunate that the appropriate paperwork was either not filed or has been lost,” he said.
“I think the question going forward is up to the current administration with respect to honoring the appointment as intended by the prior governor, or whether we’ll see us leave Vermont-style politics of working together and go toward Washington-style of taking advantage of the situation,” Zuckerman said.
“If this (is called) into question and gets fought legally and so forth, the current governor could appoint that intended person to continue the job they’ve been serving in,” Zuckerman said. “If the administration fights this and appoints someone else, they would be going against, I would say, the Vermont tradition of honoring intent.”
Sens. Debbie Ingram and Ginny Lyons — Chittenden County Democrats who are members of the Health and Welfare Committee — and Jeanette White, D-Windham, chair of the Government Operations Committee and a member of the Judiciary Committee, aren’t arguing with Lunge’s appointment. They all say Lunge was a great choice.
“I believe the governor, that was his intention, to appoint her, and he’s attested to it legally, so it should settle any doubt,” Ingram said.
“She’s got an exceptional understanding of health care reform that has been beneficial already,” Lyons said. “When we had her in to testify earlier in the year, she was extremely helpful then, and I know that she’ll be a strong member of the board.”
White said: “She really is a policy wonk. I mean, that’s what she is. … And she grew up in Windham County. What could make her better?”