Priorities for Upcoming Session

IMG_2058When legislators return to Montpelier in January, we will be greeted by the newly-installed statue of the Goddess of Agriculture, Ceres, replacing the version that had stood atop the Capital Dome for 80 years. The Capital Dome itself has been newly gilded, while inside the State House a number of committee rooms and other spaces have had their own makeovers. Walking the halls of the State House along with veteran lawmakers will be 40 first-term representatives from across the State, bringing new energy and skills to addressing the issues facing Vermont.

I feel privileged to be returning to the restored and reinvigorated State House as one of the four representatives from South Burlington and thank the voters of my district for supporting me. I’m looking forward to advocating on behalf of the district and the State. To that end, going into this session, I have a number of priorities.

First, the legislature needs to continue to address Vermont’s demographic trends — primarily its aging overall population and declining working-age population — that are hindering the State’s economic growth. We need to retain and attract young working families. To do so, we need to attend to those strengths that attract businesses and workers: invest in and right-size our quality public education system, continue to provide health care and State programs that make Vermont one of the healthiest states, and clean up and preserve our great outdoors. We also need to reduce obstacles: attract and retain workers by investing in more affordable housing, early childcare, and family leave, and attract businesses by expanding broadband access and keeping State budget growth in line with revenue growth.

We may not, however, be able to change the demographic trends that the State is facing. Vermont is not the only state with an aging population and declining workforce. By 2026, 17 states will be “superaged,” meaning a population with 20 percent over the age of 65 and a contracting number of working-age people. These 17 states will all be competing for the dwindling pool of young working families. In addition, current restrictive federal immigration policy is blocking all states from enabling immigrants to fill the need for workers. In short, while continuing to develop policies to increase Vermont’s working-age population, the legislature should also consider policies to address the needs arising from the demographics that we have rather than the demographics that we want.
Second, I have a number of priorities that would initially be addressed by the Judiciary Committee, where I hope to serve in the coming Biennium. I intend to continue to find ways to keep individuals who struggle with substance addiction out of the criminal justice system through, for example, the expanded use of treatment courts. The State needs to treat addiction as a public health, not a criminal justice, issue. I also intend to continue to try to reduce Vermont’s incarceration rate while ensuring public safety and to improve the safety of Vermont’s highways.

Third, the legislature needs to make progress on several environmental issues, including those addressed by the Natural Resources Committee, where I may serve if I am not placed on the Judiciary Committee again. Vermont needs a stable and ongoing funding source for cleaning its waters, including Lake Champlain. That funding source should be tied to the pollution causing degradation of the waterways, such as a tax on fertilizer containing phosphorus or on impervious surfaces. The legislature should also ensure that the State is doing enough to help municipalities address combined sewage overflows. Further, to ensure the right balance between emerging environmental issues and the need for development, particularly of affordable housing, the legislature needs to update Act 250. Also, the legislature needs to make significant progress on addressing climate change. I will continue to advocate for putting a fee on carbon pollution at a State or regional level and will consider other initiatives that come out of the legislature’s study on climate solutions from the Joint Fiscal Office.

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Improving Traffic Safety

In 2017, 64 fatal crashes occurred on Vermont roads resulting in 70 fatalities. That was the highest number of Vermont highway deaths since 2012. So far in 2018, 45 fatal crashes have occurred on Vermont roads causing 52 fatalities. The State still has work to do to improve highway safety.

The continuing challenges that the State faces in this area were highlighted at a day-long conference that I attended in mid-October hosted by the Vermont Highway Safety Alliance. The Alliance has been working since 2012 to minimize the occurrence and severity of highway crashes, related injuries, and fatalities. It seeks to improve highway safety by using crash data to inform the improvement of infrastructure, enforcement, education, and emergency medical services. The Alliance has identified several critical areas for improving highway safety, which are explained in Vermont’s Strategic Highway Safety Plan for 2017-2021. In the past two bienniums, I have worked in the legislature to address three of these areas: increasing the use of occupant protection, reducing impaired driving, and curbing distracted and inattentive driving. I intend to continue my work on these areas in the upcoming biennium.

Over 50% of Vermont traffic fatalities in the last two years involved drivers or passengers who were not wearing seat belts. Earlier this year, the House passed a bill on a 133 to 7 vote to enact a primary seatbelt law. Currently, a driver or passenger can be cited for not wearing a seatbelt only if the driver has been pulled over for another traffic violation. A primary seatbelt law allows law enforcement to conduct a traffic stop if the officer observes a vehicle occupant who is not wearing a seatbelt even if no other violation is apparent. States that have implemented a primary seatbelt law have increased seatbelt usage and reduced fatalities and serious injuries. Unfortunately, the Senate did not pass the bill, so it is an issue that should be taken up again next year.

Over 50% of Vermont traffic fatalities in the last two years involved drivers who were impaired by alcohol, drugs or a combination of the two. In 2016, the legislature passed a law to expand the use of ignition interlock devices (breathalyzers linked to the ignition system of a vehicle) for those charged with driving under the influence (DUI). Such devices can be used to keep an individual from driving a vehicle when the individual’s blood alcohol concentration exceeds the legal limit. The law makes these devices more widely available to those charged with a first DUI offense and mandatory for those charged with a second or subsequent DUI offense. During the upcoming session, the House Judiciary Committee will likely revisit this law to see how it is working and whether additional tweaks to the ignition interlock program are needed.

With the legalization of the possession of small amounts of marijuana in Vermont, the broader legalization of recreational marijuana in neighboring states, and the widespread use of opiates, it is likely that more drivers will be impaired by drugs. Earlier this year, the House passed a law that would have implemented the use of an oral fluid test for detecting the presence of drugs in impaired drivers, thus assisting in the enforcement of the State’s drugged-driving laws. Because the bill was not approved in the Senate, the legislature should revisit the need for a roadside drug test in the coming session.

Distracted driving is also a growing area of concern. In the last biennium, the legislature increased the penalties for drivers who use a handheld portable device. In the coming session, I intend to continue to follow what other states are doing to reduce the toll of distracted driving and will look for opportunities to strengthen our laws in this area.

Vermont’s Sentencing Commission

Earlier this year, the legislature passed Act 142, revitalizing the Vermont Sentencing Commission. The Commission originated in 2005 but had been dormant for several years. It was originally established to oversee criminal sentencing practices in the State, reduce disparities in sentencing, and make recommendations regarding criminal sentencing to the legislature.

Since the Commission was originally established, the State has faced the increasing crisis of opiate addiction. The opiate epidemic has affected many aspects of State government, including the judiciary. Family courts have been inundated with cases shaped by problems that arise when parents suffer from addiction. In the criminal justice system, addiction often motivates the offenses that land people in court. Individuals enter the system because they illegally possess opiates such as heroin or have committed property crimes to feed their addiction. The State is wisely moving toward understanding that addiction is best addressed as a mental health concern, not as a criminal matter.

Act 142 tasked the reconfigured Commission with developing responses to the significant impacts of increased opiate addiction on the criminal justice system. The Commission is to consider whether and under what circumstances offenses committed as a result of opioid addiction should be treated as civil rather than a criminal offenses. It will also consider whether the possession or sale of specific, lesser amounts of opioids and other regulated drugs should be treated as civil rather than criminal offenses. The Act recognizes, however, that simply changing the legal status of such offenses is not sufficient. It is not enough to move individuals whose actions have been motivated by addiction out of the criminal justice system. Rather, such individuals have to be steered toward resources that treat addiction as a mental health issue. So, Act 142 also tasks the Commission with recommending how to maximize treatment for offenders as a response to offenses committed as a result of opioid addiction.

The Commission has other, broader tasks. It will review existing sentencing law and practice to determine whether current statutory penalties are appropriate. It will also consider whether certain Vermont criminal offenses that carry only a monetary penalty should be reclassified as civil violations. In short, the Commission will determine how Vermont’s criminal laws can be transformed into a more rational criminal code.

This part of the Commission’s charge arises from the fact that Vermont’s current criminal law is somewhat of a hodgepodge. Some of the State’s crimes come from law developed by judges that has long since been written into statutes. Others were created by legislatures over the years, often triggered by a crime or social problem that gained public interest at the time, compelling the legislature to act. Over 850 criminal offenses are contained in various sections of the Vermont statutes. Statutory criminal prohibitions cover aspects of commercial interaction, environmental regulation, and traditional common law crimes of violence and property damage. Current penalties range from a fifty-cent fine to death.

The structure, or more accurately the lack of structure, of Vermont’s current criminal law presents several challenges. There are inconsistent penalties for conduct that deserves similar consequences. In addition, Vermont’s disparate criminal laws sometimes lack sufficient clarity for individuals to readily understand what conduct is prohibited and what the consequences are for engaging in illegal conduct. Without such clarity, the criminal law’s deterrence effect is weakened.

The Commission is made up of a diverse group of individuals involved in the criminal justice system: legislators, prosecutors, defense attorneys, and representatives from the Department of Corrections, Department of Public Safety, the Crime Research Group, and the Center for Crime Victim Services. I will be serving on behalf of the House Judiciary Committee. The Commission has met twice during the off-session and will submit a report and recommended legislation to the House and Senate Judiciary Committees by November 30, 2019.

Improving Public Safety

Events earlier this year both local and national have challenged Vermonters’ sense of security. The times we live in, when students are fearful about attending school and public spaces seem less safe, have called out for legislative action. In response, as I have explained in previous columns, the legislature passed rational gun restrictions earlier this year. In addition, the legislature passed Act 135, which provides an additional tool for law enforcement to improve public safety, and Act 190, which invests directly in school safety.

Act 135 creates a new crime: the felony of domestic terrorism. To show that a person has committed domestic terrorism, the prosecution must prove that the defendant took a “substantial step” toward violating a State criminal law intending to cause death or serious bodily injury to more than one person or intending to threaten any civilian population with mass destruction, mass killings or kidnapping.

A “substantial step” is an action that clearly indicates that the person is committed to engaging in future conduct that, if completed, would culminate in committing the offense. Under the substantial step test, the fact that an individual had to take further steps before completing the crime does not preclude a finding that the steps he or she has already undertaken are substantial and support a charge of domestic terrorism.
So, for example, if a person scouts out a public space or acquires an assault rifle without a lawful purpose, he could be charged with domestic terrorism if the prosecution can also show that he had the intent to kill multiple people. Without the domestic terrorism law, a prosecutor in such a situation might be able to charge attempted murder, but only if the person had been much closer to committing the crime, such as actually approaching the public space with a loaded weapon. Requiring such proximity to the actual crime in order to have a chargeable offense puts the public at higher risk.

Act 135 increases the penalty when a person knowingly possesses a firearm or a dangerous or deadly weapon on school property with the intent to injure another person. It would make a first offense a felony with a maximum sentence of three years, up from two. It would also increase the penalty for a second and subsequent offense to a maximum sentence of five years, up from three.

In Act 190, the General Assembly appropriated $4 million to the Department of Public Safety (DPS) for a School Safety and Security Grant Program (an article in the August 23rd issue of The Other Paper further explains this program). An additional $1 million for this purpose will come from federal funds. DPS must use the capital grants for planning, delivery, and equipment upgrades to existing school security equipment and for new school security equipment identified through threat assessment planning. Eligible security improvements include video monitoring and surveillance equipment, intercom systems, window coverings, exterior and interior doors, locks, and perimeter security measures. The South Burlington School District is receiving $83,859 from this grant program to help pay for $111,812 of school safety upgrades at the five district schools.

Act 190 also creates a School Safety Advisory Group to develop statewide guidelines and best practices concerning school safety and the prevention of school shootings. The Advisory Group is required to study the following issues and develop guidelines for Vermont schools: (1) improving security in and around school buildings and property, (2) ensuring staff and students know what they should do in the event of a school shooting or other incident, (3) sharing information with parents and the community if an event occurs, and (4) gathering information on security measures implemented in schools from state education and public safety departments in states where shootings have occurred. The Advisory Group is required to submit a written report to the General Assembly with its findings, including specific guidelines, best practices, and any recommendations for legislative action. In the interim, recommended school safety best practices are available from the Vermont School Safety Center.

These are helpful laws, but the legislature will need to continue to take steps to improve public safety in our State.

Addressing Threats to Lake Champlain

Lake Champlain is a critical resource for the State’s economy.  Vermonters and tourists swim, fish, and boat in it.  They drink its water and enjoy its beauty.  But the value of the lake has been under growing threat.  We know it contains too much phosphorous, a nutrient that stimulates excessive growth of algae.  Recently, though, another threat has captured our attention:  the release of untreated or partially treated wastewater that includes human waste, chemicals, pesticides, pathogens, and pharmaceuticals.

In 2018, over 10 million gallons of untreated wastewater and stormwater have been discharged into Lake Champlain.  These discharges are primarily the result of antiquated and inadequate infrastructure. Numerous Vermont communities use combined sewer systems – collection systems designed to convey sewage and stormwater through the same network of pipes to a wastewater treatment plant. In heavy rains, these systems are unable to handle the flow, leading to the discharge of untreated wastewater and stormwater through outlets, called outfalls, into State waterways.  Such discharges are referred to as combined sewer overflows (CSOs).  Heavy rains are not the only cause of CSOs, as seen in the recent discharge from Burlington’s system due to a computer malfunction.

In the past two years, the State has been making progress in addressing this issue, though much remains to be done.  Prior to September 2016, overflows were permitted discharges that did not violate any law, even if they included untreated wastewater.  By permitting CSOs, the State failed to incentivize towns to upgrade their systems or to separate wastewater from stormwater.

In 2016, the Agency of Natural Resources (ANR) adopted a new CSO rule.  The rule provides that, when a municipality obtains or renews a discharge permit, it must identify its CSO outfalls and work to eliminate them or reduce overflows. The municipality must implement technology-based minimum controls to reduce overflows.  If it is not able to provide these controls, the municipality must develop or update a Long Term Control Plan to abate and control its CSOs so that discharges meet Vermont Water Quality Standards.  Control alternatives can include reducing stormwater flows through the separation of combined stormwater and wastewater sewer lines, adding storage tanks or retention basins to hold overflow during storms, expanding treatment plant capacity, adding screening and disinfection facilities for overflow, and incorporating green stormwater infrastructure to reduce stormwater flow into combined sewer systems.

To implement the requirements of the CSO rule, municipalities will require significant funding.  In Act 103 of 2016 and Act 185 of 2018, the legislature amended the requirements for State grants and loans to make them more readily available to municipalities for infrastructure improvements to comply with the CSO rule.  Earlier this year, ANR adopted rules that establish a priority system for grants and loans for water pollution abatement projects.  This system takes into account how the improvements will affect public health and water quality, the resiliency and sustainability of the improvements, project readiness, and cost effectiveness.

Municipalities must take the lead in efforts to improve their wastewater infrastructure.  They must develop improvement projects, educate the public and seek input, and obtain public approval for bonding to help pay for the projects.  In turn, they can seek funding assistance through applying for grants and loans from the State.

Municipalities with CSOs are stepping up.  Numerous projects have been completed, are underway, or are in the planning stages.  This work is critical and should be expedited because, with climate change, the State will likely experience more frequent heavy rain events.  To ensure that municipalities are getting the job done, ANR has issued orders requiring them to come into compliance with the Combined Sewer Overflow rule and Vermont Water Quality Standards.  These orders are enforceable in State court.

 

Compromise to End Budget Impasse

It is better to bend a little than to break.  I kept that motto in mind when I voted for the third budget and revenue bill that ended the 2017-18 Biennium.  As explained in Representative Pugh’s current column, the budget contains significant investments.  To safeguard those investments and avoid a government shutdown, however, compromises were necessary.  For example, the bill relies on one-time money to fund a reduction in property taxes. In my June column, I explained why I opposed this approach.  In short, it undermines local control of spending for our public schools and leaves a hole in the education fund that will have to be made up next year.

The compromise bill also contains a potentially larger threat to local control of schools.  The budget included a provision that takes away from local school boards the authority to negotiate health insurance benefits for school employees and instead creates a state-level commission with that power.  The Governor, a proponent of this provision, vetoed last year’s budget bill to press his demand for a statewide teacher health care contract.  The resulting compromise then included a task force that evaluated the concept.  Its report, issued in December 2017, endorsed making this a statewide benefit rather than one under local control.  During the 2018 session, the Senate Education Committee developed legislation to implement the idea, and it was incorporated into the final budget bill that just passed into law as Act 11.

The Vermont-NEA, the primary union of Vermont educators, which had opposed the concept last year, changed its position and supported the move to a statewide health insurance benefit. This caused many legislators who had opposed the idea last year to endorse it this year.

I have come to see some of its potential advantages.  A single statewide benefit could reduce disparities between school districts in the health insurance offered to employees.  In addition, costs of negotiating health insurance benefits could be reduced. Finally, depending on the results of a statewide negotiation, cost-sharing arrangements between school districts and employees could provide incentives for more informed use of healthcare, resulting in savings.

Nevertheless, I remain concerned regarding the impact of this change.  The salary levels and other benefits that together make up a teacher’s total compensation package are different in each district. Statewide control on one particular aspect of teacher compensation does not take into account the other elements of compensation packages and working conditions in each district.  Local negotiations with teachers and staff involve different tradeoffs between salary and benefits.  For example, South Burlington school staff earn a lower salary than teachers but are required to contribute less to their health insurance costs.  The ability to make these local tradeoffs will be undermined. Further, the ability to achieve local savings on health insurance costs will be curtailed.  In short, the results of the statewide negotiation will dictate costs at the district level, a loss of local control.

So, how is this going to work?  The Act creates a Commission on Public School Employee Health Benefits consisting of four members appointed by the Vermont-NEA, one member appointed by the next largest school employee union, and five members appointed by the Vermont School Board Association.  Starting in April 2019, the employee and employer representatives on the Commission will negotiate premium and out-of-pocket contributions of school districts and employees, whether a district will provide Health Savings Accounts (HSA) and/or Health Reimbursement Arrangements (HRA), and contributions to HSAs and/or HRAs.  If the representatives are unable to reach an agreement, the parties will submit their positions to a factfinder.  If the factfinding process does not lead to an agreement, any remaining disputes would be resolved by a three-member arbitration panel.  The timeline is set so that the statewide benefit can be incorporated into local collective bargaining agreements that take effect on or after July 1, 2020.  The Act prohibits strikes and imposition in relation to the negotiation of the statewide health insurance benefit.

Rather than move health insurance negotiations to the State level, I would have preferred modifications to the existing timelines and guidelines for local collective bargaining that I have advocated during my tenure in the legislature.  Nevertheless, to end the budget impasse with the Governor and avoid a government shutdown, I was willing to bend on this issue and give this initiative a chance.  If you have any questions on this change, contact me at 863-3086 or mlalonde@leg.state.vt.us.