Ethics Commission withdraws opinion critical of Gov. Scott

Phil Scott
Gov. Phil Scott. VTDigger photo by Mark Johnson.

The Vermont State Ethics Commission has taken back a controversial advisory opinion that was critical of Gov. Phil Scott’s financial relationship with his former company.

The withdrawal comes after the commission concluded the “process used at the time was incorrect.” The reversal, the commission said, was “the right thing to do.”

In October 2018, a month before the general election, the commission ruled that Scott had violated the state’s Code of Ethics because the company he had co-owned, Dubois Construction, also did business with the state. Scott had sold his half of Dubois back to the company, but was being paid over time, which the commission determined amounted to a continued financial stake in the Middlesex firm. The commission ruled Scott had an ongoing conflict of interest being paid by the company while it also did state work.

The 2018 ruling, its first, came after a request for an opinion by the Vermont Public Interest Research Group. The commission’s ruling was criticized by Scott and others for being politically motivated — the commission’s first executive director resigned afterward because he said the ruling went beyond the commission’s authority. The chairs of the two committees in the Legislature that created the commission also said the advisory opinion went too far.

Scott, a Republican, easily defeated Democrat Christine Hallquist in the November election. His spokesperson, Rebecca Kelley, called the advisory opinion “disappointing” and “a weaponization” of the ethics commission process. VPIRG called it a “strong rebuke” of the governor.

In withdrawing the opinion, the commission said Wednesday that it erred when it allowed an outside party to file a request for an advisory opinion. Under a new policy, adopted in May after months of review, the commission’s executive director will issue an advisory opinion only when a state official or employee requests clarity on their own status.

“No longer will the commission accept requests from third parties asking it to use an advisory opinion to pass ethical judgement on the conduct of others,” according to a statement issued by the commission on Wednesday.

Paul Burns, the executive director of VPIRG, blasted the move by the commission to withdraw the opinion.

“They are rewriting history to benefit the powerful and keep the public in the dark,” Burns said in an interview Thursday. “They’re erasing an opinion that was rendered that the commission does not dispute the validity of the merits” of the claim.

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“The public is not well served by that kind of lack of transparency from of all things, the state ethics commission,” Burns said, adding the move would make the commission “less relevant and less useful.” Many, including the current executive director, have questioned whether the commission, with no investigatory or enforcement powers, was toothless.

Commission chair Julie Hulburd said the new policy is what the Legislature intended when it created the commission, which began in January of 2018. The purpose of advisory opinions should be to educate and inform, not to punish, she said. 

Hulburd also noted the commission was still in its infancy and was still learning its role.

“We are now in our second full year of existence,” Hulburd said in a statement. “The Ethics Commission is dedicated to the role it can play in assuring ethical government in Vermont. Providing ethics education and training is fundamental to our mission.

“Advisory opinions should be used to educate. A primary tenet of ethics education is knowing the difference between what one has the right to do and what is the right thing to do. As the commission proceeds, our own education continues. In line with what we have learned, withdrawing the advisory opinion is the right thing to do.”

Hulburd took over as chair of the commission in March. Madeline Motta was the original chair when the opinion was issued. Motta stepped down in February after being elected an assistant judge in Lamoille County.

In addition to who can request an advisory opinion, the new policy makes clear that the executive director can consult “other interested persons” to determine if an ethical violation has occurred. Scott complained that he was never interviewed by the commission before it issued its 2018 opinion.

In the 2018 opinion, the commission said Scott’s conflict of interest arose when Dubois won a two-year contract for $250,000 in 2017, which the commission said “provides significant income to the company, and directly assists the company in meeting its financial obligation to the public official.”

Scott insisted no conflict existed because he had no role in the day to day operations of the company.

Scott sold his half-interest in Dubois after being sworn into office in 2017. He received no cash at the time of the transaction, is being paid over 25 years, and is still owed $2.5 million by the Middlesex company. He said the company could not financially handle paying the full amount he was owed at the time.

The commission said its new policy on advisory opinions came after it reviewed the deliberations of the Legislature to determine its intent and consulted other state ethics commissions and experts.

At a news conference Thursday, Scott applauded the commission’s decision.

“Obviously it was something that I thought was unfair from the very start,” Scott said, adding he was happy to see the commission evolving and reassessing their role “to prevent any political posturing, maneuvering, that could be used in the future and prevent that from happening.”  

“I want to make sure that we prevent any political mischief. We have elections every two years. It’s pretty easy to utilize something of this nature, and somebody did, to try and alter an election,” Scott said. 

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The commission emphasized that it would still accept complaints about alleged misconduct by government officials and would continue to refer them to the appropriate agency for review, including the Vermont Attorney General’s Office or state Human Resources officials, depending on the allegation.

The commission also said it was reviewing the Code of Ethics it drafted in 2018 and would be recommending changes that it would present next year to the Legislature.

Editor’s note: This story was updated at 8:50 a.m. Thursday with comments from VPIRG’s Paul Burns and at 1 p.m. with comments from Gov. Scott. Xander Landen contributed reporting.

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Fred Abbott

Phil Scott started a successful small business then ran for governor and won. He wasn’t independently wealthy before he entered state politics (like so many of our politicians). Vermont is a small state and it seems Gov. Scott has been fully transparent about Dubois Construction. Why the investigation?
Meanwhile the shady characters from the Leahy and Shumlin teams who engineered the shady EB-5 deals, deleted emails, and have been not transparent are not under any investigation at all.

william Farr

The ” Ethics Commission “… Put together by the very people having their ethics checked, lol.
EB- 5 Scandal, where was/is the Ethics Commission?
AG Donovan shielding ( refusing to release info on EB-5 ) state officials with ongoing lawsuits pending, Where was/is the Ethics Commission?
No political motivations by the Ethics Commission, their still learning how to invent themselves, at the taxpayer’s expense of coarse… :~)

walter moses

I am not likely to be moved by Paul Burns tirade on the ethics commission. Pot calling the kettle black.

Kasey Child

There has recently been a lot of major development and infrastructure overhaul in our state’s biggest city, but I haven’t read any news about Governor Scott abusing power to push business to his former company. The ethics complaint was so misleading because it equated the potential for a conflict of interest with active conflict of interest. Every State Senator, Governor, or City Council member can have potential conflicts of interest, but if there is no evidence of wrongdoing, there shouldn’t be an ethics complaint. This was a gross political move a month before the election.

Bob Zeliff

I think the legislature did a poor job of structuring this commission. It seems to me it has evolved to be so ineffective, it should be disbanded.

Let not fool ourselfs!

It seems our political leaders do not want any meaningful audit of their ethics.

Gary Cassady

Wow, a body in Vermont that got something right!👏🎉💥

Jerry Kilcourse

Regardless of the reversal by the Ethics Commission, the fact remains that the Governor still has a financial interest in a company that does business with the state. The whole point is to avoid even the appearance of a “conflict of interest.” Make of it what you will.

I wonder what the reaction would have been if it had been the previous Governor.

Kim Fried

The fact that Burns and his political lobbyist group is upset only confirms that the Commission has made the correct decision.

John Freitag

The standard process for bidding is to post the job and solicit bids. Sealed bids are then opened and read at a specified time to which the public and bidders are invited. Job goes to lowest qualified bidder. If this process was not followed or if Scott’s former company was selected when they were not the lowest qualified bidder then there would have been a problem. No one has said this was the case and this appears to be a political hatchet job by Burns and VPIRG. Not their finest hour.

Jerry Kilcourse

Let me expand on my previous comment:
The lack of “due process” in reversing the Ethic’s Commission’s is a valid point. The Commission has a lot to learn and has damaged its reputation.

No one has suggested that Gov. Scott has actually participated in such a conflict. However, appearance of the potential of one is everything in the public’s perception, regardless of a persons stellar reputation and/or popularity. If not we have a “double standard!”
depending on the person. This should apply to everyone or no one.

If you remember Gov. Scott originally said he had a “iron clad blind trust” in place before he decided to sell DuBois, so he was aware of the potential conflict. If he had sold it outright there wouldn’t be an issue.

J.T. OBrien

Of course VPIRG immediately issued an apology to Gov. Scott for trying to stir up a politically motivated hit job right before an election. Right?


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