Author: lalonde

Op Ed and Other Media Related to Bill to Ban Strikes and Imposition

lalonde

Aki Soga, the Burlington Free Press Editorial Page editor, wrote an Op Ed article on the unsuccessful attempt in the legislature to ban teacher strikes.  He concluded that “[a]nyone who sees in the defeat of the strike ban provision only an affirmation of the status quo lacks the vision to be a leader in education in Vermont.”

Also, I had the opportunity last week to discuss the vote on my amendment to ban teachers strikes and school board impositions in “Under the Golden Dome,” a program produced weekly during the legislative session.  You can watch the video here.  My clip is toward the end of the video.

Finally, here is a link to a post-mortem on the issue that appeared on the Seven Days web site.

Reasonable Restrictions on Firearm Ownership

lalonde

This past week, House Judiciary spent its time off the floor taking testimony and discussing potential tweaks to S.141, An Act Relating to Possession of Firearms. When the Senate considered this bill earlier in the session, it was one of the most controversial pieces of legislation that the General Assembly had before it. The controversy primarily involved inclusion of a provision requiring universal background checks. The Senate passed out a version of the bill that excluded this provision. Nevertheless, House Judiciary has still heard from a lot of people who are opposed to the bill, which restricts ownership of firearms by violent felons and those who are a danger to themselves or others.

This Slope Isn’t Slippery

One of the arguments that I have heard against the bill is that it simply starts Vermont down a slippery slope toward further curtailment of Second Amendment rights. I don’t buy that argument.

One problem with slippery slope arguments is that they avoid the merits of the issue itself, and focus instead on imagined consequences. In other words, they change the subject. To most, the merits of keeping violent felons from having guns is obvious. But to many, the merits of universal background checks are not so obvious. Each idea should be judged on its own merits, and, indeed each has been. The Senate passed out its gun bill excluding the provision requiring background checks because of its questionable merits.

I’ll give you another example besides gun-related legislation. I have heard the argument that allowing marriage between same-sex couples will only lead to allowing marriages between people and their goats. Well, no. The issue was whether two consenting adults have equal rights to get married. It has nothing to do with goats. Support for reform A does not require support for reform B. Someone who believes that the government shouldn’t discriminate against gay men or women by refusing same-sex marriage, does not have to believe that the right to marry should be extended to a man and his goat.

Similarly, one can be in favor of keeping guns out of the hands of violent felons and those who are a danger to themselves or others, while also believing that background checks impermissibly impinge on the Second Amendment protection for the right to own guns.

I will grant that slippery-slope positions are not self-evidently wrong. If the state restricts gun ownership by violent felons and those who are a danger to themselves or others, maybe legislators will be more willing to consider other restrictions on gun ownership. But the opposite could easily be true. After going through the arduous and controversial process to restrict gun ownership by violent felons and those who are a danger to themselves or others, the legislature will be more reluctant to go through that again any time soon to impose other restrictions on gun ownership or will believe it has reacted appropriately to the problem and does not need to impose further restrictions.

Section-by-section Summary of S.141

Section 1: This section establishes a Vermont criminal offense for possession of a firearm by a person who has been convicted of a violent crime. All 49 other states and the federal government currently find this conduct to be criminal. A violation would be punishable as a two-year misdemeanor.

A violent crime is defined to include the following offenses: (1) those involving a subset of “listed crimes,” which is a legislatively-created list of major offenses; (2) sexual exploitation of children; or (3) selling, dispensing, or trafficking significant amounts of illegal drugs where the amount is so great that the penalty is a 10-year felony. A violent crime also generally includes an offense in another jurisdiction comparable to one on this list if the penalty would prohibit a person from possessing a firearm under federal law. “Firearm” is defined the same way as in the federal law, which excludes antique firearms and muzzle loaders.

Section 2: This section makes it more likely that someone who has relinquished firearms due to a restraining order and failed to pay a storage fee will be notified that the firearms are to be sold. Last year in Act 191 (the Fee Bill), the General Assembly created a procedure for a person who is required to relinquish his or her firearms pursuant to a relief from abuse order to store them with a law enforcement agency, an approved federally licensed firearms dealer, or another person. If the applicable storage fee is not paid then the weapon may be sold after a reasonable effort is made to notify the owner of the sale. Act 191 defined “reasonable effort” to mean providing notice of the sale by first class mail, certified restricted delivery. Section 2 of S.141 amends that definition and provides that reasonable notice means notice as provided for in the Vermont Rules of Civil Procedure. This means that notice must be provided through personal service, and only if that proves impossible can notice be provided by mail or by publication.

Section 3: This section requires the Departments of Public Safety and of Mental Health to report on progress in establishing a Vermont version of the New Hampshire Gun Shop Project, an initiative in New Hampshire to reduce the number of firearms-related suicide deaths by helping gun shop owners avoid providing firearms to suicidal persons.

Sections 4, 5, and 6: These sections deal with reporting the names of some people prohibited by federal law from possessing firearms for mental health reasons to the National Instant Criminal Background Check System (known as NICS). S.141 requires Vermont to join the 38 states that currently do some version of this type of reporting.

Section 4 relates to criminal proceedings and requires that a report be made if a defendant is found not responsible for a crime by reason of insanity or incompetent to stand trial due to a mental illness and is committed to the Department of Mental Health after a determination by the Criminal Division of the Superior Court that the person is a danger to himself or herself or others. Section 6 relates to civil commitment proceedings and requires that a report be made if a defendant is subject to a hospitalization order or non-hospitalization order after the Family Division of the Superior Court determines that the person is a danger to himself or herself or others. The reports to the NICS are confidential and only include information sufficient to identify the person, the reason for the report, and a statement that it is made in accordance with federal law. The person who is the subject of the report is also provided with a copy, which must inform the person that he or she is thereafter prohibited from possessing a firearm. Section 5 is a technical provision that permits these reports to be made without violating state confidentiality laws.

Section 7: Section 7 establishes a process through which a person who has been prohibited from possessing a firearm for mental health reasons can petition the Court to have his or her name taken off the NICS database if he or she is no longer a danger to himself or herself or others. The Court considers the circumstances regarding the petitioner’s case, including his or her mental health and criminal record, character evidence, and statements from known victims.

Section 8: Since the bill is prospective and only applies to court findings of dangerousness made after the effective date, Section 8 provides a mechanism to report the names of those who have been previously found dangerous by a court and for that reason are currently in the custody of the Department of Mental Health when the bill is enacted. Section 8 requires that by October 1, 2015, the Department must report the names of those persons to the Court Administrator, who then reports them to NICS in the same manner as will be done for other proceedings going forward.

Section 9: This section provides that the violent criminals in possession, fee for storage, and New Hampshire Gun Shop Project provisions are effective July 1, 2015, while the provisions related to mental health reporting are effective October 1, 2015.

The Committee will likely be voting on the bill early this coming week.

Reporting out an amendment to prohibit strikes and imposition

lalonde

The following is the script that I used in reporting out an amendment today to prohibit strikes and imposition and to form a task force for considering further changes to collective bargaining.  I ad libbed a bit, but this captures most of my talk.  Here is a link to the House Journal for the day.  My amendment starts at page 980.  The amendment was defeated 73-70.  Here is a link to an article on the issue in the Burlington Free Press.

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My experience as a member of the South Burlington School Board informs my view point on this amendment, which I have cosponsored.

A little over four years ago, the South Burlington School Board voted to impose contract terms on the district’s teachers. As a member of the Board, I voted against imposition. I won’t go into the details of my reasoning, but I believed that in order to justify imposing contract terms a school board had to have no other choice. Given the turmoil imposition causes, it should be used rarely, if at all.  There are other options.

Many of the community members the Board heard from during that time four years ago agreed and said it better than I can.

One community member wrote the following:

“The members of the school board and the teachers taking on negotiations have an opportunity to model to our children that when things get tough, it is best to sit down and talk it out.       Teachers often say, “Use your words.”      Please practice this.       Sit down and talk some more and if that doesn’t work   . . .   get creative by sharing more ideas.”

Another community member said the following:

“The faculty in your schools spend their days teaching, among many other things, children to have discussions when they have problems with each other.  They work with students so they develop skills to be able to sit down and talk things out.  What a poor, poor example you are setting for the youth in South Burlington.”

And another:

“By imposing a contract on the South Burlington teachers you are sending a message to our community that you are unwilling to communicate and work towards a mutually acceptable resolution to the current labor and budget crisis.”

Many other community members made similar points. I think they are correct. There are other ways to resolve disputes between teachers and school boards that don’t involve imposition or the threat of imposition.

At the same time, there are other ways to resolve disputes between teachers and school boards that don’t involve strikes or the threat of strikes.

This past fall South Burlington endured a five-day strike before settling a contract. We heard similar input from the community then.

The following message was sent to both the teacher’s Association and the School Board:

“I plead with you, please find a way to seek a reasonable, logical, sustainable contract negotiation that keeps our children the main focus and for our community members who are raising them. We personally are prepared to wait however long that may take.”

Another community member said the following:

“I can’t help but wonder what the poor behavior and negotiation tactics are teaching our youth.  They certainly are watching and learning.  Is it okay to push around another group of people?  Is it okay to threaten others?  To storm out if you don’t get your way?”

We also received many emails and comments from individuals expressing the emotional impact the strike had on them and their children, and the bitterness and enmity that it caused.

In the end, what did the strike accomplish? It definitely caused a serious drop in community support for the district’s teachers. I and other school board members heard from many individuals who expressed their anger, not at the board, but at the teachers.

What else did the strike accomplish? Before the strike, the board had a proposal on the table that provided a bit over 7% in new money over three years. After the strike, the teachers had managed to raise this figure to a bit over 8%. The enmity of the community for a one percent gain over three years.

Last fall was not the first teachers’ strike that I have lived through. My father was a teacher and a member of the Michigan Educators Association, part of the NEA. He was in a leadership position and was the spokesperson for the Union when it struck back in 1970. Unlike today, that was a time when teachers made far less than the median income in the communities in which they worked. The strike did improve that situation. But the cost was great. As my mom has told me, for years afterwards people would avoid her in town because her husband had gone on strike. It took years for the community to recover.

This bill, H.76, wisely eliminates both the right of school boards to impose contract terms and the right of teachers to strike.

By doing so, it would improve the collective bargaining process. It will require the parties to engage in meaningful dialogue. Currently, with the threat of imposition and strike, too often the parties talk past each other or don’t talk at all. Instead of compromise, the parties cling to their positions and brandish their threats of imposition or strike. The Board has the incentive to say, if we don’t get our way, we will impose. The teachers have the incentive to say, if we don’t get our way, we will strike. That mind set needs to be changed, and this amendment does that.

I have spoken about my experiences in South Burlington. But I have had the opportunity to speak to many other school board members from across the state, and they share this view. The threat of strikes and imposition are not productive and, indeed, impeded compromise.

So, at Section 1 of the bill, we find the heart of the matter – strikes and imposition shall be prohibited. The Effective Dates provision of the bill, Section 5, provides that the prohibition on strikes and imposition applies to negotiations beginning on or after July 1, 2016.

Sections 2 and 3 of the bill repeal two provisions that with the prohibition on strikes and contract imposition would cause the statute to become internally inconsistent.

Section 4 establishes a task force on dispute resolution in labor relations for teachers and administrators and requires a report from the task force. It is in section 4 that the changes from the amendment in the calendar appear. I’ll point those out momentarily.

This section replaces the dispute resolution mechanism that was in the amended bill voted out from the education committee. It represents the primary change to what the education committee passed out of committee and what the House General committee has considered.

The education committee felt that the dispute resolution mechanism was appropriate. Also, testimony was provided in House General from labor lawyers who said that the mechanism would work. Nevertheless, members of House General had serious and legitimate reservations about the mechanism. Accordingly, this amendment establishes a task force to consider further the rules for teacher collective bargaining when strikes and imposition are prohibited.

Let me note here that 38 states prohibit teacher strikes. All of the New England states with the exception of Vermont prohibit strikes. The vast majority of New England states are able to reach timely settlements without strikes or imposition being an option. With few exceptions, these states are doing fine and are reaching finality in contract negotiations. Indeed, all but one of these states are paying their teachers higher wages than in Vermont, despite those teachers not having the right to strike.

This amendment allows additional consideration of what is and is not working with these states. And the fact that strikes and imposition would be prohibited as of July 2016 would add incentive for the task force to come back with a timely, thorough analysis.

One might ask, but what if we can’t come up with a new way to get to finality? I submit that the current collective bargaining system would work fine, even without the right to strike or impose. Under current law, the parties may mediate, go to fact finding, or even agree to binding arbitration. If the system stays the same except for the elimination of strikes and imposition, it will still be an improvement that should lead to more creative problem solving at the negotiating table. It is better than having the end game of negotiations be a strike or contract imposition.

Let me point out one change from the amendment as it appears in the calendar. The amendment did not allow the task force to consider mandatory binding arbitration as an option. We wanted the task force to focus on finding a solution that does not entail binding arbitration. Given concerns that we heard expressed, we have struck the language that prohibited consideration of binding arbitration.

End of Section 4 (a) and (c)

I note that only one New England state mandates binding arbitration.

My opposition to binding arbitration is that it is fundamentally undemocratic. It puts in the hands of an unaccountable third party, rather than the elected school Board, decisions related to 80% of a school’s budget. It puts in the hands of an unelected third party the decision that will impact the property taxes that the community must pay for education. The third party would have no fiscal responsibility or accountability to the community, nor would he or she necessarily be familiar with community issues. That is not a solution that the legislature should support.

In addition, binding arbitration is not a means to find the creative, cooperative solutions that we now need to find through the negotiations process. We are facing continued spending pressures in education, particularly now with the cap put in place H.361. We are facing rising health care costs. With binding arbitration, school boards and the teachers association will not have the incentive to find creative ways to address the rising costs of health care, or to address increasingly difficult funding issues.

Having said that, the amendment does not preclude consideration of mandatory binding arbitration.

Walk through Section 4

Section 4(a) creates the task force.

Section 4(b) establishes the membership of the task force – representatives of the Vermont NEA and the Vermont School Boards Association. Here is where there is another change from the amendment in the calendar. Rather than having the Executive Director of the Vermont Labor Relations Board on the task force, section (b)(5) provides that the VLRB will appoint an individual with labor relations experience as chair of the task force.

Section 4(c) charges the task force with evaluating possible statutory changes to improve the process for resolving a dispute or impasse during teacher or administrator labor negotiations. It establishes what the task force should consider.

Section 4(d) provides that the task force has to consult certain other interested parties.

What was previously Section 4(e) in the calendar version has been struck.

The new Section 4(e), previously 4(f), provides that on or before November 15, 2015, the task force shall submit a report to certain House and Senate committees.

Section 4(f) provides certain rules regarding meetings of the task force. Here, again the amendment on your desk modifies this provision.

In Summary, eliminating strikes and imposition will

*          Avoid the adverse impacts to a community, to schools, and to children who would otherwise have to go through a future strike or imposition.

*          Improve the negotiations process by taking away the threat of strikes and imposition, which discourage compromise.

Education, Water, Infrastructure and More

lalonde

In the past week, the House debated and passed a major education reform bill (H.361), a water clean-up bill (H.35), and the capital bill (H.492).

I voted yes on the education bill even though, as a school board member, I had some major concerns with aspects of it, particularly the inclusion of a cap on local school spending. In my next article in The Other Paper, which comes out this Thursday, I will be addressing this issue more fully (stay tuned). In the interim, a couple good articles about the cap can be found in VTDigger and the Burlington Free Press. Also, the Vermont School Board Association published an extensive analysis of the bill as passed. And take a look at the write-up of the Vermont League of City and Towns for an alternative view of the bill.

I also voted for the water bill, which was less controversial than the education bill. Its detractors were concerned about impacts to small farms and the funding mechanism for the cleanup, but the concerns could not turn back the momentum that was behind this important bill. The bill would raise $8 million in new revenue, including $2.3 million in fee increases to be paid by farms and others contributing to the pollution entering the State’s waters. It would also add a .2% surcharge on the property transfer tax. H.35 takes a large step on what will be a long journey to clean State waters, including Lake Champlain. For more information, see my prior blog posts about the water bill and this VTDigger article.

Finally, I also voted for the capital bill, which funds State infrastructure projects over the next two years through issuing long-term bonds. Among other priorities, the bill provides $7.6 million dollars over two years to the Vermont Housing Conservation Board, with at least $1.5 million of that amount to be used for statewide water quality improvements in FY16 and another $1 million in FY17. The Committee on Corrections and Institutions, which works on this bill, recognizes that it is essential that the State address the water quality issue before the EPA mandates a solution, which could mean a more expensive and less effective approach to the cleanup of the waters of the State.

The only controversial part of the bill was a provision that a fair wage be provided to Vermonters working on projects that the Department of Buildings and General Services (“BGS”) oversees. Payment of a fair wage, which is referred to as the Davis-Bacon Prevailing Wage after the federal law that established it, is already required when Vermont is paying for part of a project that also includes federal dollars. This new provision addresses all projects undertaken by BGS.
I, along with the rest of the House, spent most of the time over the past two weeks on the House floor taking up the budget and revenue bills last week and the bills discussed above this past week. Still, some work was accomplished in committees.

The House Judiciary Committee continued to take testimony on H.221, relating to criminal justice reform. Although supporting the general concept of seeking to decrease incarceration rates in Vermont, representatives from the Attorney General’s Office, the Court, and the Department of State’s Attorneys and Sheriffs’ Association expressed concerns over some of the ways the bill seeks to accomplish that end. The Vermonters for Criminal Justice Reform, headed by former House Representative Susan Wizowaty, is working with these agencies to offer language that addresses their concerns.

In addition, S.115, relating to expungement, should be on the House floor next week. This bill allows for wiping from the record convictions that were based on conduct that has been decriminalized, such as convictions for possession of marijuana in an amount that is no longer criminal. House Judiciary added a section to the bill that provides an alternative avenue for expungement of crimes committed by an individual who was 25 years old or younger at the time of the qualifying offense. Under this provision a person can petition for expungement 5 years (as opposed to 10 to 20 years) after satisfying the terms and conditions of his or her conviction and successfully completing a term of public service programming as approved by the Community Justice Network. In addition, the individual has to have paid any restitution order of the Court and cannot have been convicted of a later crime. The Court also must find that the expungement serves the interest of justice. This new language would help reduce the collateral consequences of conviction, which is one of the aims of H.221 discussed above.

In the coming week, Judiciary will be focusing on S.141, relating to possession of firearms, which just passed the Senate. After a thorough walk-through from Legislative Council Counsel, Judiciary started taking testimony during breaks from the floor over the past week. The bill would restrict gun ownership for violent felons and individuals with certain mental illnesses who are a danger to themselves and others. It also provides a procedure for individuals who had suffered a mental illness to regain the right to gun ownership. I have already been receiving many emails that weigh in on this bill.

Appropriations and Revenue Bills

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I have found the Vermont Statehouse to be largely nonpartisan. This is most evident within committees, which for the most part put politics aside and try to derive the most workable solutions to the problems they face. The Judiciary Committee, on which I serve, has so far this session passed twelve bills out of committee, each on 11-0 votes.

This past week, the Appropriations Committee on an 11-0 bipartisan basis voted out of committee the budget bill for fiscal year 2016 (H.490). The nonpartisanship abruptly ended. However, once the whole House took up this bill along with a revenue/tax bill (H.489), which had passed out of the Committee on Ways and Means on a party-line 8-3 vote.

Before the third reading of these bills, a group of Republicans offered amendments plainly aimed solely at scoring political points, not at trying to resolve the underlying issues facing the legislature. They sought to cast themselves on the side of lower- and middle-income Vermonters by suggesting a reduction in taxes on those making less than $60,000 and an increase in spending on low income heating assistance. They did not, however, provide offsetting additional taxes on those earning higher incomes or realistic spending cuts.

In any event, the budget and revenue bills did eventually pass with some bipartisan support and without the Republicans’ amendments. And despite the political game playing that occurred, I do recognize the benefits of having a minority party that acts as a check on the majority. Further, through trying to reach compromise among the parties – the Democrats, Republicans, and Progressives – the legislature as a whole can achieve a better solution. In order to reach compromise, though, each party is likely going to have to accept some outcomes or positions that they find disagreeable.

Indeed, this was certainly the case with both the revenue and budget bills. I initially found aspects of the bills to be objectionable, but those aspects were the price of passing bills that, overall, are steps in the right direction for fiscal sustainability in Vermont. Also, as I delved more deeply into the explanation of those aspects of the bill, what I found alleviated my concerns enough so that I was comfortable voting for the bills.

As to the revenue bill, I disliked its apparent potential disincentive to charitable giving. Among other changes to the tax code to raise revenue, the bill caps itemized deductions, including for gifts to charitable organizations, at two and a half times the standard deduction amounts (a couple filing jointly, for example, could still deduct $31,500). Because these deductions provide an incentive for giving, a number of nonprofit organizations objected that scaling them back would hinder their fundraising.

As I learned, though, the actual impact on charitable giving would likely be very limited. Most of the tax benefit from a charitable contribution comes from the federal deduction, which is two to three times more valuable than the state benefit. It would make little financial sense to stop contributing to charities because of the limitation of the state deduction while foregoing the more valuable federal deduction.

People donate for a variety of reasons, not simply to receive a tax deduction. In fact, only 30% of Vermonters itemize their deductions but many more than that contribute to charities. The cap on deductions will affect a small group of taxpayers, resulting in a tax increase for slightly more than 6% of filers.

In effect, the cap on deductions, as well as other aspects of the revenue bill, results in a more progressive income tax. Given that the income growth for the top two income brackets in Vermont has grown significantly over the past several years, while middle class income has for the most part stagnated in the state, adding progressivity to the tax system made good sense to me.

I had a number of issues with the cuts proposed in the budget bill, but my major concern related to a $6 million cut in funding to the Low Income Heating Energy Assistance Program (“LIHEAP”). During the floor debate, however, I learned that the effect of this cut should not be dramatic. LIHEAP is a federal program. Up until recently, Vermont supplemented the program by providing state dollars through the Emergency Board, which would consider the need for additional funding in the fall after federal dollars for the fund had been designated. Two years ago, the legislature instead appropriated money for LIHEAP up front rather than waiting until it understood the extent of the federal investment in the program. The budget bill will return the state to the previous procedure.

Further, as the economy has improved and as fuel costs have decreased, the pressure on LIHEAP’s resources have decreased. As of the end of February, LIHEAP still had $3 million available if it needed a crisis grant, which is an additional benefit provided to households experiencing a heating crisis. This amount, if unused, will roll over to next year’s program. Finally, an amendment was approved that will designate up to $5 million of any general fund surplus at the end of this fiscal year to LIHEAP. In short, low income Vermonters are not at risk of losing the LIHEAP assistance that they may need next winter.

Having largely addressed my major concern with the budget bill, I was able to focus on its more positive features. First, in conjunction with the revenue bill, it closes the $113 million budget gap that the state was facing in the next fiscal year. Second, the FY 2016 budget is not an end point but part of a long term process of fiscal change to achieve a balance between the state’s spending and its expected revenue growth rates. Spending was projected to grow by five percent annually, while the state’s domestic product is projected to grow by only three percent annually.

As the Appropriations Committee has explained, to meet this balancing goal, the budget bill:

1) Reduces reliance on one-time funding. In the last fiscal year, the budget relied on $53 million in one-time funds. This budget includes $25 million in one-time funds and next year’s budget is projected to include just half that.
2) Reduces the rate of spending growth. To this end, the budget includes a number of efforts to reduce long-term spending in corrections, public safety, buildings, and other areas.
3) Sets forth two additional longer-term goals: to move toward budgeting for less than 100% of projected revenues and to explore a two-year budget, allowing time in the second year to focus on results-based accountability, evidence-based budgeting, and structural reforms.

Slower than anticipated economic growth, continued federal reductions in programs, and a growing demand for state services have created a difficult budget environment. The FY 2016 budget that was passed on to the Senate starts a multiyear process that will bend the spending curve toward long term sustainability. For more on these bills, I would suggest reading April Burbank’s recent article in the Burlington Free Press.

Judiciary Committee Update

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In the past week, the House passed a variety of bills that had been voted out of the Judiciary Committee. One such bill would ensure that States Attorneys file cases involving juveniles in the Family Division of state court, where certain confidentiality and other procedural protections are in place, rather than in adult criminal court, which lacks such protections (H.95). Another bill would make it a crime to disseminate sexually explicit photographs or videos of individuals online without their consent, even if the subject had consented to the taking of the photograph or video (H.105 as amended). A third bill would make it easier to prosecute home improvement fraud (H.483).

The Judiciary Committee took testimony on a bill passed out of the Senate that would modify procedures related to placement on the Sex Offender Registry (S.13). Currently, the Department of Public Safety administers the Registry, making decisions as to the posting of an offender’s information to the Registry before his release from incarceration. The bill would instead have the court make determinations related to an offender’s inclusion on the Registry at the time of sentencing, deciding whether the offender should be placed on the Registry and, if so, for how long. In addition, the bill provides a procedure to allow individuals to challenge the information on, or to request removal from, the Registry. These changes were prompted by audits of Registry’s error-rate, which were performed to determine whether address information would be included on the Internet version of the Registry. The Committee is considering what Registry error rates would be acceptable to allow an individual’s address information to be placed on the Internet Registry, which would be widely available to the public.

In addition, the Committee has taken up a bill relating to criminal justice reform (H.221). This bill would, among other changes, reduce the number of crimes punishable as felonies; eliminate jail time for non-violent offenders; prevent people from being kept in jail at the end of their sentence due to lack of housing; expand parole eligibility for individuals who have serious medical conditions, were sentenced for an offense committed as a juvenile, or are 65 years of age or older; and eliminate incarceration for violations of parole conditions that are not new crimes. The overall aim of the bill is to reduce unnecessary incarceration and thus reduce Vermont’s prison population and its associated costs. It represents a start in updating the 19th and 20th century solutions in Vermont’s criminal code that are currently used to address our 21st century problems.

Judiciary also took testimony on the enforcement provisions of the water bill (H.35). It has made recommendations to the Committee on Fish, Wildlife, and Water Resources suggesting changes to those provisions of the bill. In addition, Judiciary started its consideration of the Child Protection Bill, (S.9), participating in a joint hearing with the Human Services Committee.

Judiciary took testimony from and worked with the State Court Administrator and Chief Superior Judge to evaluate efficiencies that could lead to savings in the Justice System. For example, the state courts are considering an initiative to start conducting arraignments by video conferencing, which would produce savings from decreased need to transport defendants and for Court security. The Committee provided its various proposals related to Court savings to the Committees on Ways and Means and Appropriations.

False Claims and Young Dems

lalonde

It has been a busy week in the legislature after returning from the Town Meeting Week recess. The House passed a bill, H.40, that sets a renewable energy standard for Vermont, with emphasis on utilities meeting goals for renewable energy and efficiency. The Judiciary heard extensive testimony on enforcement provisions included in the water cleanup bill, H.35. In addition, Judiciary passed out of committee three bills: H.95, which makes incremental progress toward having cases against juvenile offenders brought more often in the family rather than the criminal division of Superior Court; H.105, which makes it a misdemeanor to disclose sexually explicit images without consent (so called revenge porn); and a committee bill that strengthens the ability of the Attorney General to bring cases against contractors for home improvement fraud.

Today, the House passed a bill, H.120, that I helped report out on the House floor yesterday.

Reporting Out H.120

The bill proposes to create a Vermont False Claims Act — an anti-fraud law modeled on the Federal False Claims Act (“FFCA”). The FFCA was first enacted in 1863 to combat fraud by suppliers of goods to the Union Army during the Civil War. Since that time, the FFCA has been amended several times to broaden its scope and enhance its ability to combat fraud against government funds in all sectors. Starting in 2009, the federal government has used the FFCA to recover over $23 billion in cases related to government programs.

The Vermont False Claims Act would provide for penalties for anyone who knowingly submits false or fraudulent claims to the State’s government. It would also authorize a person who has evidence of fraud, called the relator, to bring action on behalf of the State against those who commit fraud against government programs. Any recovery is refunded to the State, and in certain circumstances such as those involving Medicaid, to the federal government. Relators are eligible to collect a percentage of the funds recovered as an award for having rooted out such fraud.

The federal government has had such success in combating fraud and abuse with the FFCA that it created incentives in the Deficit Reduction Act (“DRA”) of 2005 for states to enact anti-fraud legislation of their own. These incentives relate specifically to recovery in cases of Medicaid fraud. The Medicaid program is funded jointly by the federal government and each state’s governments. Normally any recovery of funds fraudulently obtained under the Medicaid program are returned to the federal and state governments proportionally to the shares that each pay into the program. States that enact DRA-compliant legislation are qualified to receive a ten percent increase in their share of any amounts recovered under these laws. As a result, the majority of states have enacted some form of a False Claims Act.

If H.120 is ultimately enacted, Vermont’s share of Medicaid fraud recovery will increase from 46% to 56%. The financial incentive would allow Vermont to compensate Relators, while ideally detecting, enforcing, and recovering a greater percentage of the fraudulent claims filed in the state.
Enactment of the bill would have a positive impact on revenue for the State. The Joint Fiscal Office estimated that, through the law, Vermont could recover at least $280,000 dollars annually.

Earlier this week, we were visited by members of the South Burlington High School Young Democrats. I introduced the group from the floor of the House and the four South Burlington representatives chatted with them about our work. Here we are with the Young Dems.

Young Dems Visit the Statehouse

Town Meeting Day 2015

lalonde

Today is Town Meeting Day in South Burlington, and tomorrow is Election Day.  I prepared a summary of my Committee’s activities so far, as well as other relevant legislative updates, as a handout for my constituents on Election Day.

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