Senate President Pro Tempore Tim Ashe, D/P-Chittenden, hinted that the Senate may change the confirmation process in the future.
“I appreciate the Senate majority and minority leadership coming together to have a good path and have us move forward on the confirmation,” Ashe said. “I feel like we’ve done our job and knowing that in the future that we improve our practices in some instances.”
Ashe was not available for additional comment about how the Senate might improve its practices.
Gov. Phil Scott’s administration called Lunge’s appointment into question in recent weeks because Senate staff could not find records proving that former Gov. Peter Shumlin appointed her. Scott argued that the Senate needed the paperwork to confirm the appointment.
Additionally, the secretary of the Senate found out that the appointment of Betty Rambur, who sat on the board from August 2013 until January of this year, had never received a vote in the Senate. That body’s confirmation is required for a person to sit on the board, although a governor can make interim appointments when the Senate isn’t in session.
Sen. Dick Sears, D-Bennington, is the chair of the Senate Judiciary Committee, which handles confirmations of judges — the same process as for the Green Mountain Care Board. The governor is supposed to send appointment paperwork to the Senate, which refers it to the committee for a confirmation hearing.
Sears said it’s common for the paperwork not to come to the Senate but that the issue has never stopped someone from being confirmed as a judge. That’s because the administrator for the Vermont Judiciary or the chief justice will contact the committee to find out the progress of the appointment, he said.
Act 48 of 2011, which created the Green Mountain Care Board, outlined a nomination and confirmation process that parallels the judicial nominating process. The main difference is that there is a specific Green Mountain Care Board nominating committee, and the appointment paperwork gets referred to the Senate Health and Welfare Committee.
Sen. Claire Ayer, D-Addison, is the chair of that committee. She said of Rambur’s appointment confirmation: “I was unaware that the ball had been dropped, so I certainly wouldn’t know who dropped it, if it were dropped.”
Judy Henkin, the general counsel for the board, said there is no specific staff person at the board who makes sure the Senate has confirmed its members.
“We do not have a designated person at the time who has done these, and we’ve had staff changes since the beginning of the board,” Henkin said. “So I really can’t tell you who would or will be tracking these going forward, but that will be done.”
Al Gobeille, the secretary of the Agency of Human Services, was the chair of the Green Mountain Care Board when Rambur was appointed in 2013. He said the board has always relied on the secretary of the Senate to take care of the appointment process.
“I don’t know how they do it for judges, but we just always assumed the Senate took care of business. There’s never been a verification mechanism,” Gobeille said.
“Should there be a verification mechanism where the Senate sends a letter or something?” he asked. “I’d want to think that through, but it seems like there should be some way to guard against this happening.”
Gobeille said, based on advice from lawyers he’s worked with, appointments are valid even when they are not confirmed because the board member was acting in good faith, thinking the confirmation process had played out.
Mike Fisher, the chief health care advocate for Vermont Legal Aid, said his main concern about the Green Mountain Care Board is that there are currently only three members on what Vermont law says is a five-member board.
Gobeille left in January to take his current post, and Rambur left several days later to move to Rhode Island. Scott has not yet appointed a replacement for either.
“We really need good leadership at the board,” Fisher said. “It’s important for policymakers to have leadership. It’s important for the public advocate to have a full functioning board, and I don’t know where we’re at in the process of replacing the two members who have left.”
Rebecca Kelley, Scott’s spokesperson, said in an email Thursday that the administration has received a list of candidates from the nominating committee and is conducting interviews.
“We hope to make the remaining appointments in the coming weeks,” she said.
