by Timothy McQuiston, Vermont Business Magazine A letter sent from ACLU Vermont to the Vermont Department of Health accuses VDH Commissioner Mark Levine, MD, of violating the Open Meeting Law in regard to the Opioid Settlement Advisory Committee. The ACLU maintains that Dr Levine changed the spending priorities after the committee had decided how to spend some $2.6 million of the opioid settlement funds. Governor Scott's office retorted that, "Health Commissioner Mark Levine, MD, was inappropriately smeared this week without any consultation with State statute to verify the facts."
In their letter dated February 15, the ACLU writes (see full text below): "We write to express our serious concerns regarding the Department's recent submission of Opioid Settlement Funding Recommendations for Fiscal Year 2025. Although your January 16, 2024, recommendations to the legislature were ostensibly on behalf of the Opioid Settlement Advisory Committee, public records Vermont reveal that, following the Committee's final meeting on December 22, 2023, you altered the Committee's recommendations regarding overdose prevention centers after consultation with the Governor's Office—without taking a formal vote; noticing a public meeting; receiving public comment; or publicly documenting the change. These recent actions as nonvoting Chair violated both Vermont's Open Meeting Law and the Committee's enabling legislation—and represent an unlawful usurpation of the Committee's harm reduction mandate."
The ACLU letter, signed by Harrison Stark, goes on to say, "These unilateral actions violated multiple provisions of Vermont’s Open Meeting Law and the Opioid Settlement Advisory Committee’s statutory mandate... Please consider this a written notice of specific violations."
Senate President Pro Tem Phil Baruth followed up that letter with his own blistering statement today:
"The recent allegations concerning alteration of the Opioid Settlement Advisory Committee's year-end spending recommendations are serious, in more ways than one. Of course, it is disturbing to think that the committee's decisions would be revised out of public view, by its non-voting chair. The stakes involved with the group's work are life and death, and more than one statute protects its integrity with the force of law. But beyond that, Commissioner Levine's logic does not pass the straight-face test: He removed the committee's priority $2.6 million recommendation for overdose prevention centers, he maintains, in anticipation of a bill later this session authorizing those centers – a bill that the Governor, at whose pleasure he serves, has publicly opposed. In this way, Commissioner Levine can at once claim to respect and support the Advisory Committee's will, spend the $2.6 million on other initiatives, and undermine the legislative path to overdose prevention centers simultaneously.
“The Senate looks to the Commissioner of Health for an unbiased perspective grounded in science. If the Administration is determined to undermine the authorization of overdose prevention centers – which data suggest will improve a seemingly insoluble public health crisis – then they must do so openly, in the light of day. No one is served by this sort of maneuvering."
Governor Scott's office subsequently issued its own trenchant rebuttal saying that:
"Health Commissioner Mark Levine, MD, was inappropriately smeared this week without any consultation with State statute to verify the facts. In January, Dr. Levine acted on his authority to make recommendations to the Legislature as part of Governor Scott’s budget recommendation on how to spend $4.9 million in funds available through an opioid settlement.
"State statute requires the Opioid Settlement Advisory Committee 'to provide advice and recommendations regarding remediation spending from the Opioid Abatement Special Fund,' and identify spending priorities related to 'opioid use disorder prevention, intervention, treatment and recovery services and harm reduction strategies for the purpose of advising the Governor, the Department of Health and the General Assembly on prioritizing spending…' The statute appropriately designates the Department of Health as the State lead agency and single point of contact with the national settlement fund administrator. The statute also requires the Department of Health to submit a spending plan 'informed by the recommendations of the Opioid Settlement Advisory Committee' as part of its annual budget submission.
"The statutory process, which leaves budgetary decisions in the hands of the Department of Health, was clearly followed. The budget recommendation was 'informed by' the Committee’s recommendations. Dr. Levine’s spending recommendations to the Legislature are each aligned with the priorities put forward by the Settlement Committee. One Committee recommendation was excluded, which Dr. Levine transparently disclosed in his January 16 letter to the Legislature’s Appropriations Chairs and was provided to the Settlement Committee in advance. 'One of the highest tier priority recommendations from the committee that does not appear in this letter is for the funding of two overdose prevention sites,' he stated, elaborating on his reasoning. He instead recommended the $2.6 million for additional Committee priorities, including expanding established, effective school prevention programs and support for students, re-entry and recovery services for those at high-risk of relapse, and harm reduction and care services through local providers.
"Despite the false accusations, the law does not limit Dr. Levine’s discretion in making his final recommendations to the Governor for his budget proposal or to the Legislature.
"State law was clearly followed, proper professional discretion was used, and the change to the Committee recommendations, which were discussed in public session in accordance with the Open Meeting law, was transparently disclosed.
Governor Phil Scott added: “Dr. Levine is a committed public servant who has dedicated his skills and expertise to public service. He has always acted in good faith and made these recommendations well within his authority under state law and followed through on his obligations to the Committee, my Administration, and – most importantly – to Vermonters. He cares deeply about preventing the tragic loss of life from the opioid epidemic and will continue to work to find solutions from all sides of this issue.”
“To see Legislative leadership hurl even more accusations at Dr. Levine, who demonstrated his integrity daily during the pandemic, is disheartening. But uncivil treatment of my secretaries and commissioners in this Legislature has unfortunately become increasingly common. We can have policy disagreements without hurling unfounded accusations and demeaning insults,” added Governor Scott.
In response to the governor's statement, ACLU Vermont Staff Attorney Harrison Stark said in rebuttal:
"Nobody contests that state statute authorizes the Department to present a spending plan to the Legislature "informed by the recommendations of the Opioid Settlement Advisory Committee." What it does not authorize Dr. Levine to do, however, is present that plan as the recommendations of the Committee after he unilaterally reallocated specifically earmarked funds without advance notice, public comment, or a formal vote.
"The Committee’s enabling legislation clearly says that the Committee must concurrently submit its recommendations to both the Department of Health and the legislature, 18 V.S.A. § 4772(e), so it is simply not correct to say that the Department (through Dr. Levine) can unilaterally speak for the Committee. And the law does not give the Commissioner discretion over the Committee’s ultimate submission; in fact, it explicitly makes him a “nonvoting” chair. In any event, Dr. Levine’s January 16 submission belies any claim that he was submitting his own suggestions; the written memo represented—repeatedly—that it spoke on behalf of the Committee as a whole. Finally, even if Dr. Levine did have discretion to reallocate specific funds proposed by the Committee (which he does not), all of the open meeting violations alleged in our letter would remain—these were substantive decisions made under the Committee’s charter that plainly fell under Vermont’s Open Meeting Law. That law requires “written notice” in the event of a violation, which was precisely what our letter provided.
"In short, the Department’s response does not hold water and does nothing to alleviate the open meeting violations alleged in our letter. We hope the Department will take this opportunity to remedy those violations as required by statute."
ACLU Vermont Letter
February 15, 2024
Dr. Mark Levine
Commissioner of Health
Department of Health
280 State Drive
Waterbury, VT 05671-8300
Re: Open Meeting Law Violation re: Opioid Settlement Advisory Committee ‘Funding Recommendations, FY 25 Commissioner Levine,
We write to express our serious concerns regarding the Department's recent submission of Opioid Settlement Funding Recommendations for Fiscal Year 2025. Although your January 16, 2024, recommendations to the legislature were ostensibly on behalf of the Opioid Settlement Advisory Committee, public records Vermont reveal that, following the Committee's final meeting on December 22, 2023, you altered the Committee's recommendations regarding overdose prevention centers after consultation with the Governor's Office—without taking a formal vote; noticing a public meeting; receiving public comment; or publicly documenting the change. These recent actions as nonvoting Chair violated both Vermont's Open Meeting Law and the Committee's enabling legislation—and represent an unlawful usurpation of the Committee's harm reduction mandate.
Although the Department has resisted transparency efforts from advocates, public records reveal the following: on December 22, 2023, the Opioid Settlement Advisory Committee held a public meeting to prioritize interventions and finalize its funding recommendations to the legislature for FY 2025. As you know, Vermont law requires that the “[p]riority for expenditures from the Opioid Abatement Special Fund” must be “aimed at reducing overdose deaths.” 18 V.S.A. § 4772(c). Consistent with that legal mandate, Committee members have long sought to prioritize funding for overdose prevention centers (OPCs). Going into the December 22 meeting, funding for OPCs carried broad support; although there were several questions during that meeting about whether OPC should be funded through the Opioid Abatement Special Fund or some other source—such as an appropriation through proposed legislation like H.72—numerous Committee members reiterated the importance of retaining specific funding for OPCs in the Committee's submission to the legislature. There can be little question that that view prevailed; as the Department's internal “tally” from that meeting reflects, Committee members overwhelmingly recommended prioritizing over $2.6M in funding for overdose prevention centers from the Special Fund. There was no formal vote at that meeting, however, as you made clear that Committee members would later take official action to formalize their submission to the legislature once you had codified their recommendations.
But the Committee did not get that chance, and their expert recommendation to allocate $2.6M for OPCs never reached the legislature. Public records suggest why: neither you nor other Administration officials wanted to include the Committee’s allocation. Just days after the December 22, 2023 meeting, you exchanged a series of emails entitled “Summary of opioid recommendations” with senior administration officials. These emails included a document entitled “High level OPC discussion.docx.”
The Department has refused to disclose these communications, first citing “attorney-client privilege” for communications that facially were not protected by that privilege, and then citing (but not justifying) “executive privilege” on behalf of the Governor. Even so, we were able to determine that, when you next emailed the Committee members on January 12, 2024—the Friday before a long weekend—you simply attached a “final” recommendation letter to be submitted the following business day, despite the fact that the Committee had not taken a vote. And sure enough, in the email containing the “final” proposal that allegedly memorialized the Committee’s recommendations, you stated that “OPCs are not included as a spending request,” ostensibly “because H.72”—legislation that has yet to be enacted or signed into law—“contains a provision for an alternate financing mechanism.” As that deletion “free[d] up $2.6 million,” you then unilaterally reallocated that funding to other programs, not harm reduction. “All of the above” recommendations, you noted, “enjoy support from the Governor.”
The Department then submitted those recommendations on January 16 without a specific funding proposal for OPCs. Although the cover letter mentioned that OPCs were “[o]ne of the highest tier priority recommendations from the committee,” the letter represented that “[i]t is clear that the legislature plans to fund these centers from a non-settlement source” and therefore the Committee “excluded this from the current set of recommendations for use of settlement funds,” even though the Committee itself had done no such thing.
These unilateral actions violated multiple provisions of Vermont’s Open Meeting Law and the Opioid Settlement Advisory Committee’s statutory mandate.
The Open Meeting Law—which is expressly incorporated into the Committee’s enabling legislation, see 18 V.S.A. § 4772(f)(4)—requires that any official action be fully public, see 1 V.S.A. § 310(3)(A). Your substantive changes to the Committee’s proposal—including the reallocation of specifically earmarked settlement funds—plainly constituted a “matter over which the [Advisory Committee] has supervision, control, jurisdiction, or advisory power,” id. § 310(1), and therefore was required to be “open to the public”—publicly noticed and open to public debate, not conducted in secret, see id. § 312, and certainly not exclusively via communications now withheld on an unvetted claim of executive privilege. Your email to the entire Committee explaining the unilateral change, moreover, was clearly a communication to a quorum of members “for the purpose of discussing the business of the public body”—and therefore was required to be a publicly noticed meeting of its own. Id. § 310(3)(A). And rather than document the Committee’s consensus to fund OPCs through the Special Fund, the Department’s recently posted minutes for the December 22 meeting simply state that “[t]he entire meeting was an open discussion about the funding proposals” and “[c]onsensus on the recommendations the committee rated highest priority was achieved”—but then link to the Department’s altered January 16 official recommendations. This appears to suggest, incorrectly, that the Committee arrived at the decision to omit OPCs at the December 22 meeting—and the failure to post accurate minutes is an independent violation of the law. See § 312(b)(1).
These actions would violate the Open Meeting Law even if they had been endorsed by the full Committee with a formal vote. But they are particularly egregious when taken unilaterally by the “nonvoting chair.” 18 V.S.A. § 4772(b)(1)(A). As explained above, no formal vote ever took place—presumably because, as the Committee’s proposed priorities reflected, it is unlikely the full Committee would have endorsed fully reallocating the $2.6M earmarked for OPCs. The Committee’s enabling legislation makes clear that it exists to leverage a particular array of expertise toward addressing Vermont’s opioid crisis, including the views of “individuals with lived experience of opioid use disorder and their family members whenever possible,” id. § 4772(b)(1); substituting the Chair’s views for the Committee as a whole undermines the group’s critical mandate and violates the statute’s directive that the Committee’s views—not the Commissioner’s—be presented to the legislature, see 18 V.S.A. § 4772(e).
As you know, under Vermont’s Open Meeting Law, “[n]o resolution, rule, regulation, appointment, or formal action shall be considered binding except as taken or made at such open meeting.” 1 V.S.A. § 312(a)(1). Because of the above violations and the lack of a formal vote, the recommendations sent to the legislature on January 16 do not—and cannot—currently reflect the official position of the Committee as contemplated by its enabling legislation.
Please consider this a written notice of specific violations under 1 V.S.A. § 314(b)(1). We look forward to your response within 10 business days, as required by law. Id. § 314(b)(3).
Sincerely,
Harrison Stark
ACLU of Vermont
CC:
Sen. Jane Kitchel, Chair, Senate Appropriations Committee
Rep. Diane Lanpher, Chair, House Appropriations Committee
Rep. Theresa Wood, Chair, House Committee on Human Services
p. 3posted minutes for the December 22 meeting simply state that “[t]he entire meeting was an open discussion about the funding proposals” and “[c]onsensus on the recommendations the committee rated highest priority was achieved”—but then link to the Department’s altered January 16 official recommendations. This appears to suggest, incorrectly, that the Committee arrived at the decision to omit OPCs at the December 22 meeting—and the failure to post accurate minutes is an independent violation of the law. See § 312(b)(1). These actions would violate the Open Meeting Law even if they had been endorsed by the full Committee with a formal vote. But they are particularly egregious when taken unilaterally by the “nonvoting chair.” 18 V.S.A. § 4772(b)(1)(A). As explained above, no formal vote ever took place—presumably because, as the Committee’s proposed priorities reflected, it is unlikely the full Committee would have endorsed fully reallocating the $2.6M earmarked for OPCs. The Committee’s enabling legislation makes clear that it exists to leverage a particular array of expertise toward addressing Vermont’s opioid crisis, including the views of “individuals with lived experience of opioid use disorder and their family members whenever possible,” id. § 4772(b)(1); substituting the Chair’s views for the Committee as a whole undermines the group’s critical mandate and violates the statute’s directive that the Committee’s views—not the Commissioner’s—be presented to the legislature, see 18 V.S.A. § 4772(e). As you know, under Vermont’s Open Meeting Law, “[n]o resolution, rule, regulation, appointment, or formal action shall be considered binding except as taken or made at such open meeting.” 1 V.S.A. § 312(a)(1). Because of the above violations and the lack of a formal vote, the recommendations sent to the legislature on January 16 do not—and cannot—currently reflect the official position of the Committee as contemplated by its enabling legislation. Please consider this a written notice of specific violations under 1 V.S.A. § 314(b)(1). We look forward to your response within 10 business days, as required by law. Id. § 314(b)(3). Sincerely, Harrison Stark ACLU of Vermont CC: Sen. Jane Kitchel, Chair, Senate Appropriations Committee Rep. Diane Lanpher, Chair, House Appropriations Committee Rep. Theresa Wood, Chair, House Committee on Human Services
Montpelier, VT - 2.16.2024. www.vermont.gov
