The Legislature created Vermont’s first-ever state ethics commission in 2017 after years of public pressure from government transparency groups and the press.
But for good government advocates, the resolution was inadequate. The commission had no investigative or enforcement powers — and basically nothing to enforce since no single statutory code of ethics covers all three branches of government.
Attempts at reform in the past five years have gone nowhere. And a new attempt to make progress on the subject this legislative session is, once again, on shaky ground.
For Sen. Anthony Pollina, P/D-Washington, who has unsuccessfully sponsored legislation in the past to give the commission some teeth, this session won an influential ally: Sen. Jeanette White, D-Windham, chair of the Senate Government Operations Committee.
Together they sponsored S.171. The measure would not give the ethics commission additional powers, but it would create a single ethics code, binding all three branches.
The bill has received hours of hearings in the government operations committee, and a vote has tentatively been scheduled on several occasions, only to be postponed. After a last-minute flurry of objections late last week, mostly from attorneys working for the judicial branch, the committee now finds itself back at the drawing board.
“It definitely does seem like: Why are these objections being raised now, at the point where they’re getting ready to pass a bill?” said Ben Kinsley, a board member of Campaign for Vermont, a conservative group that also advocates for government ethics reform.
Attorneys have chiefly made a separation-of-powers argument. The Vermont Supreme Court, not the Legislature, is charged with disciplining judges and lawyers. What’s more, they’ve argued, prosecutors and public defenders must already abide by a professional code of conduct.
“Vermont’s Code of Professional Responsibility is one of the more progressive codes in the country and is continuously reviewed for changes that may be necessary,” John Campbell, the executive director of the Department of State’s Attorneys and Sheriffs, wrote to the committee.
But Christina Sivret, the executive director of the Vermont Ethics Commission and an attorney herself, said that doesn’t hold up. Public attorneys may already be bound by a professional code of conduct, but gaps remain in ethical guidelines.
“The rules of professional responsibility are primarily centered around the attorney-client relationship,” Sivret said. “A state code of ethics is really centered around the attorney’s role as an employee of the state and their responsibilities and duties to their employer, their co-workers and the public.”
At a special meeting Monday, the ethics commission voted to endorse a resolution reaffirming the body’s support for earlier iterations of the bill.
Sivret said the board is concerned by the prospect of re-writing the bill to exempt the judicial branch in whole or in part, or of simply deferring in the legislation to each branch’s existing rules or ethical guidelines. It’s fine if other regulations overlap with the ethics code, she argued, but the judicial, legislative and executive branches should all share a common baseline set of rules.
“We want to see a bill that we can support,” she said. “The bill that we can support is a bill where a code of ethics applies to all three branches of government and that doesn’t undermine the original intent of drafting this legislation.”
Sivret is not the first executive director of the ethics commission to express frustration at the Legislature’s halting attempts at reform. Her predecessor, Larry Novins, spent the bulk of his three-year tenure advocating for the enactment of an ethics code — to no avail.
“Given what’s gone on in our national government for the last five years, and the importance of ethics in government, (it’s) been very frustrating that there’s been so little actual buy-in,” Novins said. “I think a lot of the things that appear to be coming up now are excuses for doing nothing.”
Novins recalled getting calls from people asking for guidance and telling them whether or not they took his advice, he had no power to protect them from retaliation if they did the right thing — and no ability to sanction them if they did not.
“It was meaningless. It was beyond meaningless. It was a charade,” he said.
A statutory ethics code, as proposed by the commission, may overlap with some existing professional codes of conduct, Novins said, and could be too strict in some instances. But he argued the Legislature should go ahead and create one anyway as a relatively low-stakes test of what works and what doesn’t, particularly given legislators aren’t contemplating granting the commission enforcement power, he said.
“To take something that is pretty benign and very similar to what most every other state has and say we don’t want this because it’s not perfect, I think is just a way of avoiding dealing with reality,” he said.
Gov. Phil Scott, who has tussled with the commission in the past, said he supports creating a statutory code of ethics binding all three branches. Alongside then-Lt. Gov. David Zuckerman, Treasurer Beth Pearce, Auditor Doug Doffer, Attorney General TJ Donovan and Secretary of State Jim Condos, the governor sent a letter to lawmakers in 2020 urging them to adopt one. That remains Scott’s position, his press secretary, Jason Maulucci, said Monday.
Meanwhile, the Vermont Public Interest Research Group, which has long advocated for ethics reform, has decided to stay out of this year’s legislative debate. Unless a bill also contemplates giving the ethics commission real power, VPIRG executive director Paul Burns said, it did not feel worthwhile to dedicate organizational resources to follow it and advocate for its passage.
“We’ve not seen a great deal of hope that the state’s elected leaders are interested in doing anything terribly meaningful on ethics,” Burns said.
Pollina said he hopes the current bill, if enacted, could be a modest step forward in the direction of one day giving the commission real investigative and enforcement abilities. But White is clear she thinks the reform effort can end with an ethics code.
A “rigorous commission” with enforcement powers “would cost a fortune,” she argued. And White said she sees no evidence that there’s much bad behavior the ethics commission should be intervening in any way.
“We have a report every year from the Ethics Commission about how many calls they had, how many were followed up on, what happened to them,” White said. “And we haven’t seen a need for it.”
The ethics commission gets “fewer and fewer calls and requests for information as the years go by,” Sivret said.
But she thinks people may simply have grown tired of calling on a governmental body for help — only to realize it has no ability to offer meaningful assistance.
“A lot of people are looking for a third party to review their question or review their complaint, and when they find out that we can’t, then they move on,” she said.
