When Rep. Michael Marcotte, R-Newport, was first elected to the Vermont House almost 20 years ago, he said, he was uncomfortable participating in votes that might help his convenience store and redemption center business, Jimmy Kwik Store, in downtown Newport.
But then he learned more about how the Legislature defines what counts as a conflict of interest.
These days, the Newport Republican is chair of the House Committee on Commerce and Economic Development and also fully participates in bills that impact his business, such as H.158, which would expand the types of beverage containers subject to a deposit fee and won approval in the House in late March.
“Now I understand more of what the conflict of interest rules deal with,” Marcotte said.
While nearly half of the Senate and roughly a third of the House are retired, according to ethics disclosure forms compiled and analyzed by VTDigger for its Full Disclosure series, the rest supplement their modest Statehouse salaries with jobs, ranging from selling real estate to nursing. The Legislature’s rules define a conflict of interest so narrowly that they almost never prevent lawmakers from crafting and voting on bills — even when they or their employers stand to benefit financially.
“How this has been interpreted, the benefit has to be very direct,” said Rep. Brian Cina, P/D-Burlington, a member of the House Ethics Panel, which handles complaints against members of that chamber. “Just because you work for an organization that gets money from the state, that doesn’t mean you can’t vote.”
In Marcotte’s case, he was free to vote on H.158 because the proposed expansion would bring more business to all of the state’s roughly 70 redemption centers — not just his.
“It is helping the whole industry,” explained Marcotte, who voted in favor of the bill.
‘Direct and immediate’
Rules that govern activity in both the Senate and the House prohibit members from voting on matters in which they are “immediately and directly interested.”
But what does that mean in a part-time citizen legislature in which members work and own businesses that give them a direct personal or financial interest in the laws they consider?
Paul Burns, executive director of the Vermont Public Interest Research Group, said he thinks an independent body such as the Vermont State Ethics Commission would be best suited to determine when a legislator’s advocacy might cross a line. Created in 2017, its small staff provide guidelines, advice and investigations into a broad range of conflicts within the executive branch.
“There are some constitutional questions about who can govern the ethical practices of the members of the Legislature,” said Burns. “Of course, the Legislature feels strongly they, and only they, can do that.”
The Vermont Supreme Court determined in a 2001 case that the legislature has an “exclusive constitutional prerogative” to determine when a member should be disqualified from voting due to a personal or financial interest.
So individual legislators are left to wrestle with the question themselves.
“No one wants to go away feeling that they did something that benefitted them in particular,” said Sen. Dick Mazza, D-Grand Isle, another store owner.
But the interpretation of that phrase endorsed by the General Assembly’s professional staff goes a long way toward assuaging those feelings.
“‘Direct and immediate’ is much smaller than you and I might think,” said John Bloomer, who, as secretary of the Senate, advises the chamber on how to follow its rules and procedures.
At a biennial ethics presentation in January, legislative lawyers explained to all new lawmakers that they should step away from a vote only if a piece of legislation affects them personally in a way that goes beyond how it affects others in a particular group.
“Without an immediate or direct interest, members are required to vote because your constituents expect you to do so,” said House Clerk BetsyAnn Wrask, that chamber’s administrator, at the training. “That’s what you are here for, to represent them.”
In fact, Deputy Chief Counsel Michael O’Grady told representatives at the training, they and their colleagues historically have erred more than not by seeing a conflict of interest when none exists. In his years as legislative counsel, O’Grady told them, he had only seen one instance in which a representative had correctly stepped away from a vote.
That was when a legislator married to the state’s top judge did not vote on a bill that set salary ranges for different types of judges. The only judge within one particular range was in her household, so the vote had direct personal financial implications for that household alone, O’Grady said.
It’s really up to the voters to determine whether they are happy with what and for whom their elected representatives are advocating, said the Senate’s Bloomer.
The point of financial disclosures is so that people can decide for themselves whether officials are acting in the state’s interest or their own, he said. “It becomes a political issue at that point,” Bloomer said.
To field complaints, the Senate and the House each have an ethics panel made up of members of that chamber. Anyone can make a complaint, according to House and Senate procedures, but recent records suggest those are rare.
Legislators can also turn to their respective panels for advice about whether they have a conflict.
The Senate panel received no complaints last biennium. The House panel was more active, receiving four in 2021 and three in 2022, along with two requests for ethical advice.
The details of a case generally remain confidential if the panel determines there is no ethical violation or that a warning or other “remedial action” is sufficient.
For Mazza, the decision about whether and how to engage with a particular topic is very personal.
The Colchester Democrat said he has, at times, struggled with voting on policies related to alcohol sales because the stakes were so high for his business. In the past, he said, he brought that discomfort to his colleagues. “It’s up to the individual to ask for leave (from the chamber) not to vote on it,” he said.
As a courtesy to a colleague, senators may grant a request like that, said Bloomer. There’s also another less formal way to bow out of a vote.
“You don’t have to be on the floor,” he said. “I am not going to send out the Sergeant at Arms to get you.”
Balancing perspectives
Many lawmakers have a higher level of comfort voting on legislation in which they have a stake. Some make the case that their other jobs make them especially qualified to craft laws in the realm in which they work.
Cina, who sits on the House Health Care Committee, said that the insights gained from his work as a part-time mental health counselor at the largely state-funded Howard Center gives him an even greater responsibility to weigh in on related topics.
Most committees, on the House side in particular, have members who in their work lives are directly affected by the bills that move through.
According to VTDigger’s database, there are three public school teachers on the House Education Committee; three employees of health care providers on the Health Care Committee; three legislators who work for social service nonprofits on the House Human Services Committee, and one who works directly for the Department for Children and Families; two dairy farmers, a vegetable farmer and one logger on the House Agriculture, Food Resiliency and Forestry Committee; and two renewable energy policy advisors on the House Environment and Energy Committee.
Until recently, Rep. Dan Noyes, D-Wolcott, a member of the human services committee, worked as the director of volunteers for the Central Vermont Council on Aging, which relies on state funding.
The two roles aren’t in conflict, Noyes said, because his legislative committee work and job stemmed from the same commitment to improving the lives of seniors. He said he also made an effort to mention his employment when funding and issues concerning the Area Agencies on Aging would arise.
“Everyone here knows where I worked, for sure,” Noyes said.
House Speaker Jill Krowinski, D-Burlington, certainly thinks about lawmakers’ different life experiences, including employment, when making committee assignments, said her chief of staff, Conor Kennedy. She seeks to promote fairness by balancing the viewpoints and backgrounds of people on a particular committee, he said.
“I think she tries to be really thoughtful about the process so that the committees represent Vermonters and Vermonters from all walks of life,” Kennedy said.
When people with a certain professional background are assigned to a particular committee, Krowinski tries to make sure that there are differing perspectives from within a given industry, Kennedy said. For example, on the agriculture committee, she wanted to seat farmers running both conventional and organic farms.
About half of legislators request a committee in which the subject matter is related to their outside work, Kennedy said. Those seeking something different often tell him it’s because they want to learn about a new area. He doesn’t recall someone requesting a different assignment in order to avoid a conflict, he said.
At times, legislators with aligned workplace interests find themselves together on the same side of an issue. That can happen in the form of lawmakers employed by social service nonprofits sitting on legislative committees that recommend increases in their funding.
Other times, it’s a last-minute effort to strip a new proposed regulation from a bill.
In April 2021, Marcotte joined with Rep. James Gregoire, R-Fairfield, who owns the Fairfield Market, and Rep. Patrick Brennan, R-Colchester, who also ran a convenience store, to push for a substantial change to a previous iteration of the “bottle bill” during a floor vote. Gregoire joined Marcotte in supporting the 2023 version.
Their 2021 amendment would have removed the requirement that retailers participate in the redemption of any container they sell, paying the deposit due and coordinating a return to the distributor or manufacturer. Today, retailers can request an exemption from the requirement if there is another redemption center nearby.
In 2021, Gregoire said he was concerned that the bill would take away the exemption option, which his store received. It also would have included gallon containers of juice and water in the redemption program. That would have posed a challenge to small retailers like him who already make use of every square foot, he said.
“We don’t have anywhere near the space for that,” Gregoire said recently, recalling the earlier vote. The current bill makes neither change.
The House Journal reports Gregoire’s statement explaining his support for the amendment the three men were pushing in 2021. “Businesses that already struggle to survive do not need another hoop to jump through,” he said.
In the end, their amendment failed by 15 votes, and the House passed the bill. Later, it stalled in the Senate. The Journal does not record whether Gregoire mentioned one of those businesses was his.
Next up in VTDigger’s Full Disclosure series: As lawmakers ponder Vermont’s housing crisis, disproportionately few of them rent — and many make their money selling or renting out real estate. Is it the “people’s house” or the “house of landlords?”
Correction: A previous version of this story mischaracterized the relevant Vermont Supreme Court case.