Report for H.87 – and act to establish a classification system for criminal offenses

Below is the report that I gave today in the House for H.87, which passed on a unanimous voice vote.

Vermont’s current criminal law is a patchwork of common law crimes that have been put into statute and new offenses created by the legislature over the years. With no attempt to standardize them, our criminal laws have evolved in a manner that has led to inconsistencies. Similar conduct leads to different punishments under different parts of the criminal code.  Not only that, the structure of the laws itself is confusing to those who encounter the criminal justice system.

Recognizing that Vermont needed to modernize and simplify its criminal code, in 2013 the Legislature passed Act 61.  This law created a Criminal Code Reclassification Working Group to review all of Vermont’s criminal penalties as well as to look at other state’s sentencing structures.  The Working Group was tasked with recommending a sentencing structure that allows for consistent sentencing that match the gravity of the offense and the culpability of the offender.

In 2015, the Working Group recommended a 5-tier classification system for felonies and misdemeanors. Each tier has a maximum term of imprisonment and a maximum fine. In 2018, in Act 142, the Legislature tasked the Sentencing Commission with making recommendations for which offenses should be placed in which tier. 

The Commission has been working on this project for the last 3 years. It includes prosecutors, defense attorneys, judges, law enforcement, legislators, and other stakeholders. Their initial recommendations formed the basis last year of H.580, which the House passed. Because of COVID and the State of Emergency, H.580 was not taken up by the Senate and that bill now forms the basis of what you have before you in H.87.

To reach our goal of having a rational, consistent, and simplified criminal code, H.87 establishes the structure of the code, or the classification system, based on the Commission’s recommendation. H.87 also starts to place criminal offenses into their appropriate classes, focusing on property crimes based on the Commission’s recommendation. 

Because of the complexity of this project, the Commission has phased its recommendations for different categories of crimes. Your Judiciary Committee is doing the same. We are starting with property crimes, but in future bills, we will address other Sentencing Commission recommendations on sex crimes, crimes against persons, drug crimes, and other categories. 

Turning to the bill’s language.

Section 1 of the bill is found at page 436 of today’s calendar.  This section sets up the classification system for criminal offenses.  There are five felony level classifications, from Class A that carries a maximum sentence of life imprisonment and a maximum fine of $100,000, to Class E, which carries a maximum term of imprisonment of three years and a maximum fine of $7,500. 

The bill also sets forth five classes of misdemeanors, from a Class A misdemeanor with a maximum 2-year term of imprisonment and maximum fine of $5000, to a Class E misdemeanor that carries no incarceration and a $250.00 fine. 

The bill in subsection (c) provides that the court must consider defendant’s financial ability to pay a fine when determining the amount of any fine. This provision codifies the current discretionary practice of courts.

Section 54 of title 13, starting on page 437 of today’s calendar,  provides transitional provisions.  When this bill goes into effect, in July 2022, all crimes that the legislature has not explicitly placed into a class will be automatically placed into a class.

But we should be able to address all crimes by July 2022 so that this automatic placement will not be necessary. The Commission has continued its work.  It has provided recommendations on sex crimes and crimes against persons and should have the remaining offense categories addressed by the end of the year. There will be plenty of time for the legislature to act on its recommendations before the transitional provisions go into effect.

The remainder of the bill addresses the classification of property crimes.  Currently, the sentence for many of Vermont’s property crimes depends on the value of the property involved. 

The Commission recommended that we keep this basic principle and use a tiered system of sentencing depending on the value of the property. Tiered systems for determining penalties for property crimes are commonly used in other states.

The tiers can be found at pages 438-439 of today’s calendar.  The Judiciary Committee followed the Commission’s overall recommendation, but modified the specifics of the proposed tiers. 

The key difference between the Commission’s recommendation and H.87 relates to what is referred to as the felony threshold.  Under current law, the felony threshold for many property crimes is $900.00.  If you steal over $900.00, you are facing a felony.  If under $900.00, a misdemeanor.  The Commission suggested that the felony threshold should be moved up to $10,000.00.  But the Committee felt that moving from $900.00 to $10,000.00 was too large a leap.  Also, that felony threshold would be far above what any other states have set.  The Committee therefore reduced the threshold to $3000.00 to be more in line with other states.

In addition, the Committee changed the maximum terms of imprisonment for offenses involving values over the felony threshold.  The Commission recommended that felony offenses be categorized as either Class D felonies, carrying a maximum term of imprisonment of 5 years, or Class C felonies, carrying a maximum term of imprisonment of 10 years. The Committee, however, decided that it was more appropriate for felony offenses to be charged as either Class E felonies, carrying a maximum term of imprisonment of 3 years, or Class D felonies, carrying a maximum term of imprisonment of 5 years.

How the tiered system works, and how we justified using maximum terms of imprisonment of three or five years for felonies, is best explained by way of an example.  I’m going to skip over section 2 of the bill for now to explain.

Lets turn to the crime of False pretenses, which can be found at page 442 of today’s calendar. Say you commit the crime of false pretenses and the value of the property is less than $900 –  under current law your maximum term of imprisonment would be one year.  But if the value of the property is over $900, that maximum jumps up to ten years. The bill replaces this structure so that it is more gradual. It provides that the sentence will depend on the value tiers and classification system found at sections 52, 53, and 55, of this title, which can be found at pages 436 to 439 of today’s calendar. Under the bill, if the value involved in a false pretenses charge is over $3000 but less than $100,000, the offense would be a Class E felony, with a maximum term of imprisonment of 3 years.  Over $100,000, it would be a Class D felony, with a maximum term of imprisonment of 5 years.

The Committee looked at actual sentences imposed over the past five years for the crimes addressed in H.87, including for the false pretenses offense.  The average minimum term of incarceration for a felony-level false pretenses offense was 1.1 years.  The average maximum term was 3.6 years.  Offenders simply are not being sentenced to anything close to the 10-year maximum term. The penalty structure in H.87 is in line with the typical sentence for the false pretenses offense and the other property offenses in the bill. 

A number of the property offenses addressed in H.87 were not susceptible to tiering by value and therefore do not follow the tiered system.

So, for instance, the offense of identity theft, found at page 443 of today’s calendar, is classified as a Class E felony for a first offense and a class C felony for a second offense.  It does not use the tiered property value for purposes of determining a sentence.  Simply put, it would be difficult to put a value on what is taken when one’s identity is stolen.

I won’t go through every one of the property crimes in H.87.  Sections 3 through 21 and 23 through 50 of the bill modify the penalty provisions of Vermont’s property crimes by either following the tiered system or classifying the offense as a class C, D, or E felony or a class A, B, C, D, or E misdemeanor. 

I will turn your attention to Section 22 of the bill found at page 446 of today’s calendar.  This section creates a new crime of organized retail theft.  This new crime is included due to a concern raised in Committee.  There are groups of individuals acting in concert who shoplift from stores and sell the goods on the black market.  These individuals take particular care that they are not exceeding the value of goods such that they may face a felony if caught. The new offense of organized retail theft would allow law enforcement to aggregate the total value of stolen goods over a period of time to determine the appropriate sentencing level. The Committee believed that it was important to add this new offense to provide law enforcement with an additional tool to address this activity.

I will turn briefly back to section 2 of the bill, found on page 439 of today’s calendar.  This section aligns Vermont’s attempt law with the new classification scheme.

Finally, section 51 of the bill provides that the law would become effective on July 1, 2022.

The Judiciary Committee heard from:

Executive Director, Center for Crime Victim Services 
Legislative Counsel
Executive Director, Crime Research Group of Vermont
Director of Research, Crime Research Group of Vermont 
Deputy State’s Attorney, Department of State’s Attorneys & Sheriffs 
Assistant Attorney General, Vermont Attorney General’s Office 
Advocacy Director, ACLU of Vermont 
Judge, Vermont Judiciary 
Head of Appellate Division, Office of Defender General 
Vice Chair, Sentencing Commission 
Chair, Sentencing Commission 

The vote in the committee was 11-0.

H.87 initiates the modernizing, rationalizing, and simplifying of Vermont’s criminal code. We ask you for your support.

Report for H.145 – Amendments to Use of Force law

The following is the report I gave today on H.145, which passed on a unanimous voice

Last year, we passed two bills involving police use of force.  S.219, which became Act 147, established a criminal offense, holding law enforcement criminally accountable if they used a prohibited restraint on a person and caused serious bodily injury or death.  A prohibited restraint was defined as a maneuver that impedes the flow of blood or oxygen to the brain.  In other words, a chokehold.

The second bill, s.119, which became Act 165, established statewide statutory standards for police use of force, including the use of deadly force. Act 165 tightened the existing restrictions on use of force in several ways.

First, in determining whether a use of force was justified, Act 165 requires a court to look at an officer’s conduct and decisions leading up to the use of force. Did the officer seek to deescalate the situation to avoid having to use force?  Or did the officer instead escalate the situation, making the use of force inevitable?  Without these new standards, to determine if the use of force was justified, courts generally would look only at the moment when force is used, not what led up to the use of force.

Second, the law says that any use of force must be reasonable, necessary, and proportional in order for it to be found to be justified.

Third, when an officer knows that a person is impaired due to a mental illness or some other factor, the officer must take that into account in determining what, if any, force to use in the situation.

Fourth, for use of deadly force to be justified, it must be objectively reasonable and necessary to counter an immediate threat of death or serious bodily injury.  If there is a reasonable alternative to the use of deadly force to counter the threat, the officer must go with the alternative.  Also, the force applied must cease as soon as there is no longer a threat.

Fifth, Act 165 along with Act 147 banned chokeholds, although their use could be justified when deadly force was justified.

Finally, Act 165 had an effective date of July 1, 2021 to allow the Department of Public Safety to produce a policy to put the use of force standards into effect. DPS has dutifully taken up the task and it continues its work on those implementing policies. To assist it in drafting these policies, DPS has asked for clarifications of certain parts of the use of force law. H.145 provides the necessary clarifications.

The primary need for clarification involves prohibited restraints, or chokeholds.

Under the laws we passed last year, an officer who uses a prohibited restraint (chokehold) that results in death or serious bodily injury can avoid criminal liability by invoking the justifiable homicide defense.  That defense applies if deadly force was justified under the standards set forth in Act 165. The laws passed last year provide an indirect way of getting to the conclusion that use of a chokehold is permitted if deadly force is otherwise justified. H.145 is more direct, clear, and transparent in reaching this conclusion.

First, H.145 changes the terminology in the law.  Instead of the term “prohibited restraint,” the bill would call it what it is – chokeholds.

Second, it clarifies the definition of chokeholds. It makes the definition easier to use and more straightforward to make sure that we are covering the actions that we mean to address.

Third, it makes clear that an officer must intervene when another officer is using a chokehold when deadly force is not justified.

Finally, it clarifies that a law enforcement officer may not use a chokehold unless deadly force is justified. This means that a law enforcement officer may use a chokehold when faced with a situation requiring the use of deadly force.

These changes do not ease the restrictions on the use of chokeholds. The statutory standards for use of deadly force remain strict.  Before use of a chokehold can be justified, it must be objectively reasonable and necessary to defend against an imminent threat of death or serious bodily injury and there must be no reasonable alternative to the use of deadly force to prevent death or serious bodily injury. The use of a chokehold must cease as soon as the subject no longer poses an imminent threat of death or serious bodily injury.

There are situations where the use of a chokehold may be the best or only option that a law enforcement officer may use in a life or death situation.  If an officer’s only option is use of a firearm, that could result in more fatalities then if the officer could use a chokehold in such a situation.

In short, H.145 provides strict restrictions on the use of chokeholds, but recognizes that in very limited circumstances their use may be justified.

H.145 provides other clarifications that I will cover in my section by section overview.

Section-by-Section Analysis

The language of the bill can be found starting at page 458 of today’s calendar.

Before I proceed to the text of Section 1, I will address a technical issue as to how H.145 appears in today’s calendar. You will note that all of the language in Section 1 of this bill is underlined, which usually means that it is new language. Here, it isn’t really new language.  Most of Section 1 of H.145 is the same language that was passed as Act 165 last year.  But Act 165 does not go into effect until July 1 of this year.  The way we amend a law that has not yet taken effect is to repeal it and to reintroduce it with any changes. So, although it looks like H.145 is all new language, most of it is language we passed in Act 165.

On the Judiciary website, under today’s date, you can find a document under my name that highlights the language in H.145 that changes the language in Act 165.

In addressing Section 1, my report will focus on those aspects of Act 165 that this bill changes.

In Section 1, H.145 defines chokehold as “any maneuver on a person that employs a lateral vascular neck restraint, carotid restraint, or other action that applies any pressure to the throat, windpipe, or neck in a manner that limits the person’s breathing or blood flow.”  This definition is more straightforward than that provided in Act 165 and covers the actions that we wish to prohibit.

Totality of the circumstances is modified from Act 165 by adding the following language:  “including the conduct of the person or persons involved.”  This clarifies that it is not just the conduct of the law enforcement officer that is relevant.  The conduct of the person or persons involved in the situation is also relevant to a determination of the justification of a use of force by the officer.

Subsection (b) found at page 459 of today’s calendar provides the standards for use of force.  The first four subdivisions of this section contain the same language as Act 165 but have been reordered for clarity.  Subsection (b)(1) was subsection (b)(4) in Act 165 and subsection (b)(2) was subsection (b)(3) in Act 165.

Subsection (b)(7) on the top of page 460 of today’s calendar provides that an officer has a duty to intervene when the officer observes another officer using a chokehold in a situation where deadly force is not justified.  This provision was in the use of deadly force section in Act 165, but we moved it to the use of force section. The placement in the use of force section, as opposed to the use of deadly force section, clarifies that a chokehold may not be used when deadly force is not justified and that officers must intervene in the event that a chokehold is being used in such a situation.

Subsection (c) sets forth the standards for use of deadly force.  The standards set forth in this section are the same as found in Act 165 with the exception of new subsection (c)(6), which provides that “a law enforcement officer shall not use a chokehold on a person unless deadly force is justified. . .”

Section 2 of the bill, starting at the bottom of page 460 of today’s calendar, replaces the definition of “prohibited restraint” with the definition of a chokehold in the criminal offense for the unjustified use of a chokehold.

Section 3 replaces the term prohibited restraint with the term chokehold.

Section 4 changes a cross reference in 13 VSA 2305(3), the justifiable homicide defense.

Section 5 and 6 change the terminology and definition from prohibited restraint to chokehold.

          Sections 7, 8, and 9 are a bit technically complicated, but here is the upshot of what they do.  They repeal the use of force standards set forth in Act 165, which are replaced by the standards in this bill.  And they make the provisions in this bill effective on September 1, 2021.  This is an extension of time from July 1, 2021, to give law enforcement sufficient time to complete its policy and additional training on the use of force standards.

          We heard from the following witnesses:

Legislative Council

Retired Director of the Human Rights Commission

Chief, South Burlington Police Department and representing the Vermont Association of Chiefs of Police

Representative from Northfield

Major, Vermont State Police

Executive Director of Policy Development for the Department of Public Safety

Staff Attorney, Disability Rights Vermont

Chief of Police, Montpelier, and representing the Vermont Police Association

Deputy States Attorney from the Department of State’s Attorneys & Sheriffs

Advocacy Director, ACLU Vermont

Commissioner of the Department of Public Safety

Windham County State’s Attorney

Director of the Civil Rights Unit of the Office of the Attorney General

Attorney from MadFreedom

The vote in your Judiciary Committee was 11-0-0

AMENDMENT

The First instance of amendment provides clarity in the chokehold offense that passed last year and is the subject of Section 2 of H.145. The language that is being amended can be found at page ______ of today’s calendar.  It clarifies that this criminal offense does not apply if a chokehold is applied in compliance with use of deadly force standards.

The Second instance of amendment is technical and recommended by legislative council as the more appropriate way to accomplish what sections 7, 8, and 9 in H.145 sought to accomplish.  Namely it repeals Act 165 and extends the effective date for the use of force standards to give law enforcement sufficient time to complete its policy development and training on those standards.

Town Meeting Report – Legislative Update

Introductory Message

The 2021-2022 biennium began in total virtual mode with legislators logging into Zoom from 150 locations across Vermont. We are mirroring the schedule of a normal in-person session, though the process of legislating remotely 5-7 hours per day is somewhat slower than normal. Despite these challenges, we are making progress on critical policy goals, including:

  • Creating an equitable COVID recovery plan that rebuilds the economy in all 14 counties
  • Increasing affordable housing options for Vermont’s working families
  • Investing in the state’s child-care system to improve access, affordability, and quality
  • Expanding broadband service to rural communities for telehealth, education, and remote work
  • Crafting policies with a revised lens of racial and social equity that uplift BIPOC, LGBTQIA+, women, people with disabilities, and other vulnerable Vermonters

Below, I provide highlights of some of the work of the House Committees, starting with the Judiciary Committee, on which I serve.

Judiciary

Clarifying Police Use of Force

Near the end of the legislature’s extended session last year, and in the wake of the murder of George Floyd and the nationwide outcry that arose in response to it, we passed legislation establishing new standards for use of force by law enforcement officers that specifically prohibited chokeholds. This year we are revisiting and clarifying this law via H.145. All Vermonters deserve the assurance that they will not be subjected to excessive use of force by law enforcement in any situation. Our law enforcement officers deserve a clear and concise statement of what Vermont law allows and prohibits while they conduct their jobs and protect the public. Our work on this important legislation will add clarity to the law and better establish the protections for all Vermonters put in place last year.

Smoothing Paperwork Path for Home Buyers & Sellers

COVID has disrupted many aspects of our daily lives. One important event that has been completely altered is the buying or selling of a home. While we are in quarantine, it is not possible to get the buyers and sellers into the same room for the signing of legal documents. As a result of this, signings are currently being done by other people using power of attorney for the actual buyer and seller. Because this is a new process, it is inevitable that some of these documents will contain errors—not properly referencing the power of attorney used to carry out the signing of the documents, for example. We are working on a bill, H.199, that will ensure the validation of these documents despite the errors that may creep into the current process. Vermonters attempting to get through the challenges of COVID should not discover years later that one of the most important legal transactions they will ever conduct, the buying of their home, is not technically valid. We are working to ensure stability in this process for Vermont homeowners.

For additional details regarding the work of the Judiciary Committee, please review my post dated February 25, 2021.

Appropriations

Fiscal Year 2022 Budget

House Appropriations is currently working on the FY2022 budget, which covers the programs of state government and its community partner organizations from July 1, 2021 to June 30, 2022. The committee is on target to present its proposed budget to the full House in the middle of March.

Balancing the extraordinary infusion of federal and state revenues that will not be sustained over time while meeting the extraordinary need of Vermonters as they endure the pandemic are the principal challenges of developing the budget. In a typical year, there is a structural gap between revenues and expenditures. This year, when we have 10 times the usual number of people living in temporary housing, when we have five times the usual number of unemployed people, when every downtown and rural community has businesses that are struggling on a day-to-day basis, the challenge is making strategic use of non-recurring money that will help Vermont build back better.

The committee is going deep into the numbers, hearing budget testimony from all state-related entities from all three branches of government. It is looking at performance accountability in new and old initiatives. It has sought input from the public, hearing from 73 Vermonters in oral testimony and 29 in written testimony. It has also sought recommendations from each of the legislative policy committees.

The goals? To craft a fiscally responsible budget that supports and strengthens Vermont communities and families. To protect and lift up the most vulnerable Vermonters. To move us beyond a maintenance budget, across all 14 counties, and leave no one behind.

Federal Support: Dollars Flowing from DC

Since the early weeks of the pandemic in 2020, the COVID-related dollars flowing to Vermont from Washington have been substantial. As of mid-January 2021, the federal infusion equaled approximately 20 percent of our state’s economy. It is estimated to yet reach as much as 30 percent.

As of early December, approximately $5 billion had come to Vermont, much passing directly to agencies and departments for specified COVID relief purposes. Within this amount was the $1.25 billion that became the Coronavirus Relief Fund (CRF), from which the legislature had authority to appropriate dollars to target specific support of Vermonters and their communities. Allocations ranged from assistance to dairy and non-dairy farms, working lands, state parks and other public lands to connectivity, health care stabilization, and childcare; to a variety of economic business sectors, both for-profit and nonprofit, to UVM and the Vermont State Colleges system; from municipalities and pre-K-12 school districts, to all manner of housing and justice-related entities.

Because use of CRF dollars had to follow strict federal guidance, until Washington unexpectedly changed that guidance at the very end of 2020, portions of allocations were reverted, reallocated, transferred. The bottom line is that, as of early February, $6.3 million was back in the CRF. The House Appropriations Committee is considering carefully so as to allocate those dollars to the greatest immediate needs.

Note that all of this federal help, with even more on the way, is one-time money. Once we are at the better side of the pandemic, Vermont must stand on its own in support of Vermonters coping with residual and on-going economic, emotional, and social hardship.

Commerce & Economic Development

Protecting Vermont’s Small Businesses
The COVID-19 pandemic has had serious impacts on many small businesses, including the hospitality, events, and tourism industries in particular. Over the past year, a number of federal and state grants and forgivable loans have helped to ensure the survival of these operations. However, some businesses (such as those started or purchased in 2020 or late 2019) have not qualified for nor been able to access this assistance due to program criteria. The legislature has been working with the Governor’s administration to create a $10 million “gap” grant program to help businesses that have received minimal to no assistance. This grant program recognizes that all businesses, whether new or smaller in size, play a critical role in the state’s economic recovery by putting Vermonters to work.

Revitalizing Downtowns
After the completion of a pilot program, the legislature is working with the Governor to devote $5 million to create the Better Places Program. This program would provide grants between $5,000 and $20,000 to improve the vitality of downtowns, with a focus on projects that can make an immediate impact to public spaces. Public area beautification, bike baths, use of vacant property and storefronts, enhancing farmers’ markets or community gardens, and projects to support downtown performing arts are examples of ways these funds could be used to revitalize town centers. Municipalities, community groups, and nonprofits would be eligible to apply.

A further budget request has been recommended to add $5 million to the Downtown Transportation Fund. This fund supports many larger projects aimed at improving the infrastructure of downtown centers, including streetscape improvements, street lighting, parking and signage upgrades, and pedestrian and bicycle safety.

Natural Resources, Fish & Wildlife

Bringing the Bottle Bill into the 21st Century
Vermont’s beverage container and redemption law, the “Bottle Bill,” was enacted in 1973 to address roadside litter and increase recycling. It was last updated 30 years ago to add liquor bottles and containers of beer, wine coolers, and carbonated beverages. After three decades, another update is needed to address the growing variety of beverage containers and rising litter and recycling needs.

The update has three main parts. First, an increase in the deposit from 5 cents to 10 cents. The nickel deposit has not changed in nearly 50 years. If the deposit had kept up with inflation, it would be closer to 30 cents today.  Second, an expansion of the types of containers accepted, to include wine bottles, hard cider and non-carbonated drinks except for milk. Third, bill would provide an increase in the handling fee given to vendors.

The Bottle Bill has been an effective policy that incentivizes recycling and reduces waste. Containers covered under the Bottle Bill have greater market value for recycling than those that go through the general recycling stream. Updating the Bottle Bill will allow us to capitalize on market demand and ensure that less waste ends up in the state’s only operating landfill.

Protecting Water Quality

Water quality standards are the foundational tool that the state uses in its efforts to restore and maintain the health and proper uses of its surface waters. These standards are codified in the federal Clean Water Act and approved by the EPA; they are used to assess the quality of water for drinking, swimming, fishing, boating, and habitat function.

H.108 clarifies the long-time interpretation and practice that Vermont’s water quality standards apply to all surface waters, including rivers, lakes, ponds, and wetlands. The bill also updates the state’s Clean Water Act Section 401 provision to help the state better manage large projects that may discharge to Vermont’s surface waters.  This includes projects that are subject to a federal permit or license, such as an interstate energy project.

Promoting Forest Health & Biodiversity
The Natural Resources, Fish and Wildlife Committee is developing strategies to support forest health, including initiatives to support and enhance wildlands and intact forests. Protecting the biodiversity of our forests is essential. We are facing a moment in time when forest fragmentation, habitat loss, the loss of connecting habitat, and the introduction of invasive pest and plant species are severely impacting our wildlife, diminishing the abundance, diversity, and native species type of wildlife populations. Biodiverse forests not only protect our wildlife, they also store precipitation during severe weather events, and are a cost-effective means of sequestering (absorbing) and storing carbon. The committee is looking at how our neighbors, New Hampshire and Maine, support wildland conservation. 

Education

Equity & COVID Recovery

The focus of the Education Committee’s work this year has been equity and the intentional allocation of educational resources, instruction, access, and opportunities according to need. We started by hearing updates from Vermont schools on their COVID-19 response plan and how they will continue to move all students forward into the recovery and learning re-engagement phase. Common themes emerged: the most at-risk students need critical supports, the social and emotional needs of students are significant, access to stable internet has been an ongoing challenge, staffing is difficult due to COVID, and capacity and resources have been seriously stretched. Through all these challenges, staff and students have shown remarkable innovation and resiliency. We’ll continue to keep an eye on equity as we seek to better serve all students statewide, while directing our resources in a targeted way to assist students who struggle.

School Construction: Taking Stock & Studying Funding

Built decades ago, it’s no secret that many of Vermont’s school buildings are aging and in dire need of repair.  We are working on addressing the state of our school buildings and significant deferred maintenance needs by moving forward with a committee bill (DR 21-0782). Vermont is currently the only state in New England without a school construction funding program; with the exception of emergency projects, our aid program has been suspended since 2007. The proposed language starts with an update of the school facility standards and a statewide needs assessment survey for all school buildings. It also includes a report on funding options due in December 2022. Improving the physical learning space yields healthy and energy-efficient facilities and better educational outcomes.

Education Funding: The Weighting Study

The committee is continuing to address proposed changes to Vermont’s education funding formula. A December 2019 legislative study conducted by UVM (Study of Pupil Weights in Vermont’s Education Funding Formula) concluded that the manner in which the state calculates the cost of educating certain categories of students (including low-income students, English language learners, secondary and preK, and rural students) is outdated and inaccurate. While this work is starting in the Senate, the committee is discussing various proposals regarding how to implement the report’s recommendations and provide more equitable funding across the state.

Vermont State Colleges: A Critical Crossroads

Last year, former Chancellor Jeb Spaulding touched off a firestorm when he published a white paper on the crisis facing the Vermont State Colleges. In response, the legislature passed Act 120 of 2020, which created the Select Committee on the Future of Public Higher Education to address “the urgent needs of the Vermont State Colleges and develop an integrated vision and plan for a high-quality, affordable, and workforce-connected future for public higher education” in Vermont. Working with the National Center for Higher Education Management Systems (NCHEMS), the committee delivered its second report to the legislature on February 12. The report urges the legislature to “act with urgency” in providing sufficient funding — over the next six fiscal years — to keep the state colleges stable while VSC commits to a far-reaching restructuring plan. Recommendations include maintaining the Community College of Vermont as a separate entity focused on sub-baccalaureate and workforce-relevant training (especially for adults); combining Vermont Tech, Castleton, and Northern Vermont University under a single accreditation; and an “aggressive coordination” of administrative services. The FY22 budget request of $67.4 million includes a historic $30 million base appropriation, funding to cover the ongoing structural deficit (gap between anticipated revenues and expenses), and investments in institutional transformation (IT, project management, marketing and more).

Corrections and Institutions

Funding Capital Projects at State & Local Level

The Corrections and Institutions Committee continues to take testimony regarding the Governor’s proposed Capital Budget. The $123 million proposal funds building and infrastructure projects across state departments through the allocation of bonded dollars each biennium. Projects in the pipeline span restoring the slate roofs at the Waterbury State Office Complex, replacing door controls at Southern State Correctional Facility, relocating the courthouse in Newport, and an overhaul of the parking garage at 108 Cherry Street in Burlington. While the majority of funds go to specifically planned projects, a significant amount of money is designated for grants and loans to Vermont communities.

This locally-focused component of the Capital Budget creates important opportunities for municipalities and community entities to leverage state dollars to initiate projects, stimulate growth, and address local needs. Some of the grant and loan opportunities considered include:

Visit each program’s website to learn more about the application process and deadlines.

Corrections: Investigating Allegations, Changing the Culture

The Corrections and Institutions Committee recently reviewed a report produced at the request of the Agency of Human Services by law firm Downs Rachlin Martin. Committee members took extensive testimony about the issues the report raised, as well as the intention of Department of Corrections to change its culture. The report was the culmination of months of investigation into allegations of sexual harassment,  misconduct, abuse, and exploitation at the Chittenden Women’s Correctional Facility. While clear guidelines have been in place regarding these issues since 2014, numerous misconduct allegations were reported nonetheless. Interim Commissioner James Baker wants to incorporate many of the DRM report recommendations seeking to change the workplace environment in the state’s correctional  facilities and throughout DOC. Proposed changes include: having staff that provide direct service to incarcerated individuals wear body cameras, having pre-employment polygraph tests, and forming both an advisory commission and a special investigation commission to address these kinds of misconduct.

Energy & Technology

Broadband: Supporting Rural Buildout

Access to high-speed internet is essential to daily life. We use the internet to go to work, attend school, see a doctor, interact with government, and connect with our community and the world. Unfortunately, the promise of modern communications has bypassed many rural communities in Vermont.

H.360 seeks to accelerate community broadband deployment throughout Vermont. Key elements include: funding for pre-construction expenses, expanded grants and loans for building broadband infrastructure in unserved and underserved areas, a new workforce development program, and protections for Vermonters’ privacy and unrestricted access to the internet. This bill would bring over $50 million of new capital to support the construction of community-based fiber assets in the most underserved parts of the state.

The legislation also establishes the Vermont Community Broadband Authority to coordinate and fund broadband buildout, to support Vermont’s regional communications union districts (CUDs) and their partners, and to advocate at the federal level for programs and policies that will accelerate the deployment of universal broadband in rural Vermont.

Modernizing Our IT Infrastructure

For decades, Vermont has under-invested in state government’s information technology infrastructure. By dedicating a significant down payment to long-deferred IT projects this year while establishing a funding mechanism for ongoing upgrades, we can address an issue that affects all of state government. The pace required to keep up with the necessary technology replacements and maintain hundreds of applications requires a systemic approach and consistent funding. In particular, the fast-evolving cyber-security landscape brings new threats to the functionality of government systems and the security of private information.

The legislature is considering one-time investments for systems upgrades such as replacing the four-decade-old mainframe at the Department of Motor Vehicles, modernizing the Bright Futures Information System to serve childcare programs, addressing severe technology constraints at the Department of Labor’s unemployment program, and making critical cybersecurity upgrades.

Weatherization: Energy Savings & Healthier Homes

Vermont has some of the most energy-inefficient housing stock in the nation. Addressing this issue can help our state meet its climate goals, save Vermonters money, improve our local economy, and help citizens be more comfortable and healthy in their homes. The legislature will be providing increased support for accelerated weatherization programs. Weatherizing a home often pays for the investment in less than five years and provides continued reduction in greenhouse gas emissions, energy costs, and health care costs, while increasing public health, for many years into the future.

General, Housing & Military Affairs

A Place at the Bargaining Table for All School Employees

In Act 11 of 2018, the General Assembly set up a mechanism for negotiating school employees’ health care benefits on a statewide basis. The first go-round convinced both sides that Act 11 needed statutory revisions. The House passed those revisions, which incorporate recommendations from both the Vermont National Educators Association and the Vermont School Boards Association, on February 17. The bill would allow negotiation teams to bargain premium shares and out-of-pocket expenses that are different for support staff members, teachers, and administrators. If the parties are unable to reach agreement, current law provides a dispute resolution process. H.81 would increase the transparency of this process, particularly related to the health insurance costs to be borne by employees and employers.  

Formal Apology for Eugenics

House General is considering a Joint Resolution (J.R.H.2) that would formally apologize for the role of the Vermont General Assembly in supporting Vermont’s eugenics program. In 1931, the General Assembly officially endorsed eugenics through statute by passing an “Act for Human Betterment by Voluntary Sterilization,” which sought to prevent procreation of “idiots, imbeciles, feeble-minded or insane persons” to improve the public welfare. Historians testified that eugenics project activities extended beyond sterilization to removing children from their families and institutionalizing or incarcerating individuals, with generational implications.

The resolution recognizes and apologizes for the General Assembly’s role in state-sanctioned eugenics policies and practices. In addition to the apology, the resolution further commits that further legislative action should be taken to address the continuing impact of eugenics policies and the related practices of disenfranchisement, ethnocide, and genocide in Vermont.

Government Operations

U.S. Census & VT Reapportionment
The U.S. Constitution calls for a nationwide census and reapportionment process every 10 years. This ensures that any population changes are reflected in legislative districts to maintain equal representation. This time around, COVID and other factors have thrown a wrench in the gears, and the Government Operations Committee is hearing that the U.S. Census data won’t be ready until September 30.

While Vermont doesn’t have a big job with our single U.S. Congressional district, state legislative districts will have to be aligned with any population shifts. One national trend that may impact some districts is a move away from multiple-member districts. Last year, the legislature passed a bill to change the Chittenden County format from one district with six senators to two districts with three senators. The current state population sets the suggested number of constituents per House district at 4,200. The Secretary of State’s website has a map with some preliminary looks at reapportionment and some districts that are not meeting the 4,200 threshold. That process will have a different timeline now, given the Census delay. Learn more here.

Pensions: Bridging the Unfunded Gap
State pensions are grabbing lots of headlines recently. Vermont oversees the pension management for three groups: state employees; teachers in pre-K to 12 schools; and municipal workers. The upkeep and viability of these funds is a vital oversight concern for the Legislature. In a January report, Treasurer Beth Pearce recommended changes that would significantly reduce the $4.5 billion unfunded pension and other retirement liabilities — for example, increasing employee contributions or reducing cost-of-living adjustments for future retirees — but it’s important to remember that her report is just a starting point. The Speaker has committed to bringing together all stakeholders to craft an equitable solution, and the Government Operations Committee has so far heard from the Joint Fiscal Office, Treasurer Pearce, and key employee groups. The process of determining the best course of action will be time-consuming and laborious. Stay tuned.

Health Care

Solutions for Healthcare Workforce Crisis

Vermont is facing a healthcare workforce crisis. The Rural Health Task Force submitted a report on January 10, 2020 (before COVID) that highlighted needs in nearly all healthcare professions and settings. One year later, we have an even deeper understanding of the needs of our healthcare workforce.

The Health Care Committee is exploring this problem in depth. We know that the population in Vermont and our healthcare workforce is aging. Demand for healthcare and long-term care services and support are increasing. It is estimated that roughly 5,000 nursing-related positions were needed prior to the pandemic, a deficit that’s likely to increase.

Solutions are being implemented to address this problem, including scholarships and loan forgiveness for healthcare providers, tax incentives to retain newly graduated nurses, and modifying professional requirements so more nurses can be trained. One particularly exciting new program is the Vermont Workforce Loan Program (VWLP).  Since inception, the VWLP has awarded 69 scholarships to students in LPN/RN programs. This compares to 5–8 annual scholarships awarded in previous years since 2015. The Health Care Committee is exploring how to extend and expand this program.

Addressing Healthcare Disparities

A disturbing reality has been brought into focus by the pandemic. Data from a December 2020 Vermont Department of Health report reflects the disproportionate effects of COVID-19 on Vermonters who are Black, Indigenous and People of Color (BIPOC): “Although BIPOC Vermonters represent 6% of the population, they represent 18% of COVID-19 cases. In addition, BIPOC Vermonters have significantly higher hospitalization and chronic disease rates, relative to white non-Hispanic people with COVID-19.” A recent Health Department survey reveals that health disparities are greatest for Vermonters of color, LGBTQIA+, people with disabilities, and those living in poverty.

H. 210, an act relating to addressing disparities in the healthcare system, was introduced to address these worrisome concerns. The bill proposes to: (1) establish the Office of Health Equity; (2) establish the Health Equity Advisory Commission; (3) issue grants for the promotion of health equity; (4) collect data to better understand health disparities in Vermont; and (5) require an additional two hours of continuing education on cultural competency in the practice of medicine.

Meeting Mental Health Needs

The Health Care Committee has spent significant time and focus on mental health in Vermont, taking testimony from the Department of Mental Health, designated agencies, and specialized service agencies. Mental health is an essential part of overall health for adults, children, and families. The committee is exploring funding avenues to strengthen our system, as we know there will be increased demand as a result of pandemic-related stress. Pathways Vermont Support Line, funded by the Department of Mental Health, has averaged 1,200 calls per month in the last year with a dramatic increase of calls during the COVID-19 pandemic. The Support Line is open 24/7 to provide confidential, nonjudgmental support and connection to all Vermonters. Anyone can call (833) VT-TALKS or to text, use (833) 888-2557. COVID-19 has significantly increased the stress in all our lives and having these resources available is crucial.

Human Services

COVID-19 Response: Ensuring Lasting, Equitable Recovery

The COVID-19 pandemic has been an unprecedented public health emergency. In response, the legislature has worked tirelessly to leave no Vermonter behind. We dedicated more than $60 million in hazard pay to our essential workers. We allocated the resources necessary for long-term care facilities to deliver services safely to older Vermonters. We assisted mental health and substance use counselors to operate remotely through telehealth. We provided the resources to sustain childcare and afterschool programs and supported organizations that assist our most vulnerable Vermonters.

With the vaccine roll-out well underway, we are expecting the next round of federal funding to continue supporting our communities. These federal funds, passed in December 2020, will further assist the state’s COVID testing, contact tracing, and vaccination efforts. Emergency rental assistance will be provided to help those who cannot pay rent or utility bills. Childcare providers will receive a boost in funding, as will mental health and substance use prevention programs. The legislature looks forward to continuing the work with our communities to ensure that relief efforts go to those who need it most.

Ambitious Plan for Childcare System

High-quality childcare is an investment in Vermont’s future. By increasing access and affordability for Vermont’s families, we help parents stay employed and contribute to their local economies. By  increasing childcare worker wages, we can support and grow our early educator workforce. By prioritizing the well-being and development of our children, we are giving the next generation of Vermonters a head start to success.

H.171 will make these investments a reality. The reforms offered in this bill are based on feedback from Vermont’s parents, providers, employers, and community members. Not only does H.171 make childcare more affordable, it removes barriers to access, ensures fair wages for providers, establishes workforce development programs, and creates a study to identify future revenue sources.

We know that childcare is essential to keeping our communities strong. Meanwhile, Vermont’s childcare system is sorely in need of resources. H.171 is a monumental step towards funding childcare in a way that reflects its true value to our state.

Sustainable Future for Community-Based Care

Thousands of Vermonters, from the very young to the very old, are supported by private nonprofit providers who accept Medicaid as payment for services. These providers are often referred to as home and community-based providers. They serve people with a variety of risk factors including, but not limited to significant healthcare issues and drug and alcohol use. They also support needs related to aging, mental health issues, and developmental disabilities. As a state, our policy reflects the evidence-based findings that people achieve the best care and outcomes when served in their communities, close to friends and family, rather than in institutional settings. However, we have yet to develop a sustainable system to pay for these community-based services.  H.153 begins to provide the framework to consider changes and recognize cost of living adjustments to the Medicaid rate reimbursement system for these critical supports to vulnerable Vermonters.

Transportation

Transportation Modernization Act

The Transportation Modernization Act of 2021, introduced with 70 co-sponsors, moves climate and equity goals into the Transportation Budget Bill. The bill seeks to:

  • Save Vermonters money
  • Reduce climate pollution
  • Expand existing programs like the state electric vehicle (EV) incentive and Mileage Smart
  • Make it easier for low- and moderate-income Vermonters to purchase low- and zero-emissions vehicles that are cheaper to fuel and maintain
  • Continue fare-free transit to eliminate transportation costs for people who might not be able to afford it otherwise
  • Expand the Complete Streets program and improve high-traffic corridors for cyclists and pedestrians

The associated costs would ideally be funded through the increased federal monies that are coming to Vermont to support transportation. The committee will work with the Administration to find the right financial allocations for these goals.

Infusion of Federal Funds

The Transportation Committee has moved into high gear during this virtual legislative session and has been working on priorities like investing in community infrastructure, maintaining our highways and bridges, increasing rider access and affordability in suburban and rural communities, incentivizing the transition to electric vehicles, and making high-MPG cars more affordable for all income levels.

While transportation revenues remain below pre-COVID levels, we are fortunate to be receiving an infusion of federal funds, an estimated $50 million with the potential for more. The committee is determining the best use of these funds to support Vermonters by comparing the recommended budget from the Administration with the priorities of committee members.

Transition to Electric Vehicles

The legislature and administration have supported several efforts in recent years to help Vermonters transition to electric vehicles and to expand EV public infrastructure across the state. The Agency of Transportation serves on an interagency team that’s administering the current grant program for charging stations. The first two funding rounds granted approximately $1 million to add roughly 30 charging stations across Vermont. The third funding round will dedicate about $1.7 million to fill gaps in the fast-charging network along highway corridors. Once constructed, these new charging stations will put fast chargers within about 30 miles of almost every address in Vermont.

In the FY22 budget, the committee is reviewing the continued financial support needed to expand Level 2 charging at workplaces, multi-unit dwellings, downtowns, and other destinations. The legislature worked with various stakeholders to remove the Public Utility Commission jurisdiction over public charging stations, thus allowing charging companies to construct and operate new stations without the need to obtain a Certificate of Public Good and to price charging by per-kilowatt hour.

Federal grants have increased Vermont’s ability to purchase electric buses for the statewide transit system. Two buses are currently in service and an additional 12 have been ordered. In the FY22 Transportation Bill, the committee is reviewing a long-range plan that outlines the costs, timeline, training, maintenance and operational actions required to move to a fully-electrified public transportation fleet.

With the assistance of electric distribution utilities, Drive Electric Vermont (DEV) continues to administer a point-of-sale or lease incentive program for new plug-in electric vehicles. DEV provides consumer education and outreach relating to electric vehicles, research and data tracking, and stakeholder coordination.

Ways & Means

House Ways and Means

The Ways and Means Committee views its work in the context of six pillars that underlie good tax policy: sustainability and reliability, economic competitiveness, fairness, simplicity, accountability, and tax neutrality.

School Budgets & Yield Bill

Every year the legislature sets the education property tax rate in the “Yield Bill.” This is a complicated formula based on the sum of school district budgets, the number of equalized pupils, and the balance needed in the Education Fund after other revenue is taken into account. This has been a difficult year for revenue projections (along with everything else) and a letter from the Tax Department sent in December, based on outdated projections, pointed to significantly increased tax rates. Fortunately, thanks to significant federal spending and direct federal payments to individuals, we saw increased consumer spending statewide that led to revenues in the Education Fund above and beyond our expectations. Much of this spending happened online and Vermont has been well-poised to collect sales tax on those online sales because of recent legislation allowing us to collect taxes on online purchases sold into the state.

Additionally, proposed spending from school districts, as reported to the Agency of Education and not yet approved by voters, points to a lower increase in school budgets than anticipated.  If this trend continues, the average education spending increase—which is what tax rates are based on—will be less than 1 percent. We will continue to work on this issue and on final rates, but this is the latest in a series of signals that our education property tax rates are likely to be substantially lower than were predicted in December. The yield bill that was passed out of committee (H.152) will likely keep property taxes close to flat across the state.

Tax Structure Commission Recommendations

Approximately every 10 years, the Vermont Legislature charges an independent tax commission with looking across our system of taxation to make recommendations for the future. We just received a draft of their report, and it includes recommendations for moving to a fully income-based system of education taxes, broadening the sales tax base, and seeking to tax wealth more accurately through capital gains, estate tax changes, and more. Their recommendations are not immediately actionable but will help guide our work over the next few bienniums.

Corporate Income Tax Changes

Proposed corporate tax changes in H.189 are intended to shift the tax burden away from corporations with a significant physical presence in Vermont by (1) changing to a “single sales factor,” a switch many neighboring states have made as our national economy moves towards a higher proportion of service-based corporate income; (2) changing methodologies to determine how to apportion profits (from the “Joyce Rule” to the “Finnigan Rule” — for a deep dive, click here); and (3) changing how to consider any corporate sales not taxed in any other state when assessing total and apportionable sales. Our intent is for the corporate tax burden, in general, to continue a shift to out-of-state corporations and support our Vermont employers.

Agriculture & Forestry

Working Lands & Farm to School
While new bills, like babies, often attract much oo-ing and ah-ing, it’s good policy for committees to check in with the “legacies” of past legislation. Early in the session, the House Committee on Agriculture and Forestry heard “what have you been up to?” testimony on two programs it helped create and cultivate: the Working Lands Enterprise Initiative (WLEI) and the Farm to School program (F2S). Working Lands (which provides grants and consulting for rural economic development projects) is such a success that the Governor has proposed adding $3 million in a one-time appropriation to next year’s WLEI budget. F2S, which advocates for, and coordinates, getting local food into our schools, is an on-going win-win-win (farmers benefit economically, healthy students are more focused, schools achieve better results); the only restriction on expanding its success is financial, as there are never enough dollars for deserving programs. 

Ag & Food: Road Map for the Future
Eighteen months in the making, with input from over 1,500 Vermonters, the Vermont Agriculture & Food System Strategic Plan 2021-2030 debuted in February with much fanfare and appreciation. A collaboration between the Vermont Sustainable Jobs Fund’s Farm to Plate team (F2P) and the Vermont Agency of Agriculture, Food and Markets (VAAFM), the work provides, as Secretary Tebbetts summarized, “a road map to the future.” “The Big Book,” all 200 spiral-bound pages of it, is made up of 54 product, market, and issue briefs. For the next decade, this go-to resource will be the dog-eared “Ag bible” for policymakers and stakeholders, not to mention a good read for select boards and planning commissions, and a must-have for town libraries. Let’s just say you want to know what the bottlenecks in hop production are. It’s there. Or you want to dig into Vermont food opportunities in major metropolitan markets. It’s there. Or you want to see what the experts recommend for food security, or farm succession, or racial equity in the Vermont food system. It’s all there. Not to mention strategic goals, priority strategies, and credits for the 52 lead authors and 111 expert contributors.  Available online at: vtfarmtoplate.com/plan/ or, if you ask the F2Pers nicely, as a hard copy.