Hoffer: The Vermont Supreme Court dealt a serious blow to government transparency and accountability

Vermont Business Magazine The Court’s decision cloaks the use of hundreds of millions of Vermont taxpayer dollars in secrecy, allowing Vermont state agencies to protect themselves and their contractors from independent performance and spending oversight.

Two years ago, my office requested some documents from OneCare Vermont, the state’s only Accountable Care Organization. For context, OneCare was accountable at that time for $1.2 billion in State, Federal and insurer payments to Vermont hospitals and providers. Our request was for payroll records so we could better understand two elements concerning their use of state funds. First, OneCare had provided state regulators with conflicting information about the salaries they were paying staff. We wanted to understand why. Second, OneCare requested an alarming 33% increase in total salary costs in just one year. Vermont taxpayers pay a large portion of those salaries through OneCare’s contract with the Department of Vermont Health Access (DVHA) and we wanted to know why they sought such a large increase.

As State Auditor, my job is to make sure that Vermont tax dollars are not wasted and that government-funded programs are performing as intended and at the level Vermonters deserve. My office has made similar requests of state contractors like OneCare many times over the years. Never before had we been rebuffed. Despite assurances that we would not disclose any personally identifiable information, OneCare argued that my office simply did not have the right to access their records. This despite two explicit provisions in OneCare’s contract with the state. The first appears in standard contract Attachment A, Specifications of Work to be Performed.

“Authorized representatives or agents of State of Vermont and the federal government shall have access to Contractor's accounting records and the accounting records of its subcontractors upon reasonable notice and at reasonable times during the performance and/or retention period of the Contract for purposes of review, analysis, inspection, audit and/or reproduction.” [1]

The second is the audit provision that appears in contract Attachment C, a clause contained in all State contracts.

Records Available for Audit: The Party shall maintain all records pertaining to performance under this agreement… The records described shall be made available at reasonable times during the period of the Agreement and for three years thereafter or for any period required by law for inspection by any authorized representatives of the State or Federal Government.” [2]

There is no real ambiguity here. The language authorizing the State Auditor to access records has never been in doubt before the Supreme Court’s ruling today. In their opinion, they write that my office is not explicitly listed as an “authorized representative” of the State, and therefore this standard contract provision (which every one of the hundreds of state contracts includes) does not apply to the State Auditor. Well, if access to records was restricted only to those explicitly listed than no entity would qualify because none are listed in that critical contract language. And if not the State Auditor, who?

The Supreme Court also argues that if anyone does have the right to access such records it would be the state agency who contracted with the outside party. But what if that agency would prefer certain facts not come to light? What if the agency is worried about how they themselves would be viewed if the Auditor’s Office accessed certain contractual records? Should DVHA (or any other state agency) be able to thwart the work of the State Auditor this way? If so, it is a betrayal of any sense of true government accountability and will encourage the outsourcing of state tax dollars to shield performance from independent scrutiny.

The whole point of an independently elected State Auditor is to hold state agencies accountable. We cannot do that if we need to seek permission from those we wish to evaluate. Those with something to hide will effectively be unpoliceable.

This is truly a dark day for Vermonters, since the sun will no longer shine on the use of hundreds of millions of dollars of your tax dollars.

I look forward to working with advocates of government accountability and transparency to find a remedy to today’s regressive ruling.

[1] Section 2.7, Amendment 4, Contract # 32318.

[2] Bulletin 3.5, Attachment C: Standard State Provisions for Contracts and Grants, #13,