Journal of the House

________________

WEDNESDAY, APRIL 12, 2006

At nine o'clock and thirty minutes in the forenoon the Speaker called the House to order.

Devotional Exercises

Devotional exercises were conducted by Sister Lucille Bonvouloir, Sisters of Mercy, Burlington, VT.

Committee Assignments Announced

The Speaker announced that Rep. Houston of Ferrisburgh is assigned to the committee on Judiciary and Rep. Pearson of Burlington is assigned to the committee on Commerce.

Committees Granted Leave of the House

 to Meet During Session

Rep. Partridge of Windham moved that the committees on Appropriations, Agriculture, Commerce, General, Housing & Military Affairs, Natural Resources & Energy and Ways & Means be granted leave of the House to meet while the House is in session for the remainder of this session.

Pending the question, Shall the committees on Appropriations, Agriculture, Commerce, General, Housing and Military Affairs, Natural Resources and Energy and Ways and Means be granted leave of the House to meet while the House is in session for the remainder of this session? Rep. Partridge of Windham demanded the Yeas and Nays, which demand was sustained by the Constitutional number.  The Clerk proceeded to call the roll and the question, Shall the committees on Appropriations, Agriculture, Commerce, General, Housing and Military Affairs, Natural Resources and Energy and Ways and Means be granted leave of the House to meet while the House is in session for the remainder of this session?  was decided in the affirmative.  Yeas, 80.  Nays. 52.

Those who voted in the affirmative are:


Ancel of Calais

Aswad of Burlington

Atkins of Winooski

Audette of S. Burlington

Bohi of Hartford

Botzow of Pownal

Brooks of Montpelier

Chen of Mendon

Clarkson of Woodstock

Condon of Colchester

Copeland-Hanzas of Bradford

Corcoran of Bennington

Cross of Winooski

Darrow of Dummerston

Donovan of Burlington

Dostis of Waterbury

Emmons of Springfield

Evans of Essex

Fisher of Lincoln

Frank of Underhill

French of Randolph

Gervais of Enosburg

Grad of Moretown

Green of Berlin

Haas of Rochester

Head of S. Burlington

Heath of Westford

Hosford of Waitsfield

Howard of Rutland City

Howrigan of Fairfield

Hunt of Essex

Hutchinson of Randolph

Jerman of Essex

Jewett of Ripton

Johnson of South Hero

Keenan of St. Albans City

Keogh of Burlington

Kitzmiller of Montpelier

Klein of East Montpelier

Kupersmith of S. Burlington

Larson of Burlington

Leriche of Hardwick

Lippert of Hinesburg

Lorber of Burlington

Maier of Middlebury

Marek of Newfane

Martin of Wolcott

Masland of Thetford

McCullough of Williston

Milkey of Brattleboro

Miller of Shaftsbury

Minter of Waterbury

Monti of Barre City

Mook of Bennington

Nease of Johnson

Nitka of Ludlow

Nuovo of Middlebury

Obuchowski of Rockingham

Orr of Charlotte

Otterman of Topsham

Partridge of Windham

Pearson of Burlington

Pellett of Chester

Perry of Richford

Peterson of Williston

Pillsbury of Brattleboro

Potter of Clarendon

Pugh of S. Burlington

Randall of Troy

Rodgers of Glover

Rusten of Halifax

Seibert of Norwich

Severance of Colchester

Shand of Weathersfield

Sharpe of Bristol

Smith of Morristown

Sweaney of Windsor

Tracy of Burlington

Trombley of Grand Isle

Zuckerman of Burlington


Those who voted in the negative are:


Acinapura of Brandon

Allaire of Rutland City

Baker of West Rutland

Bartlett of Dover

Branagan of Georgia

Brennan of Colchester

Canfield of Fair Haven

Clark of St. Johnsbury

Clark of Vergennes

Dates of Shelburne

DePoy of Rutland City

Donaghy of Poultney

Donahue of Northfield

Dowland of Holland

Dunsmore of Georgia

Endres of Milton

Errecart of Shelburne

Fallar of Tinmouth

Flory of Pittsford

Helm of Castleton

Houston of Ferrisburgh

Hube of Londonderry

Hudson of Lyndon

Johnson of Canaan

Kennedy of Chelsea

Kilmartin of Newport City

Koch of Barre Town

Komline of Dorset

Krawczyk of Bennington

Larocque of Barnet

LaVoie of Swanton

Lawrence of Lyndon

Livingston of Manchester

Louras of Rutland City

Marcotte of Coventry

Marron of Stowe

McAllister of Highgate

McFaun of Barre Town

Morrissey of Bennington

Myers of Essex

Niquette of Colchester

O'Donnell of Vernon

Parent of St. Albans City

Peaslee of Guildhall

Shaw of Derby

Smith of New Haven

Sunderland of Rutland Town

Turner of Milton

Winters of Swanton

Winters of Williamstown

Wright of Burlington

Young of Orwell


Those members absent with leave of the House and not voting are:


Adams of Hartland

Allard of St. Albans Town

Barnard of Richmond

Bostic of St. Johnsbury

Deen of Westminster

Edwards of Brattleboro

Kainen of Hartford

Larrabee of Danville

Malcolm of Pawlet

Martin of Springfield

McLaughlin of Royalton

Miller of Elmore

Molloy of Arlington

Morley of Barton

Reese of Pomfret

Valliere of Barre City

Westman of Cambridge


 

     Rep. Fisher of Lincoln explained his vote as follows:

“Madam Speaker:

     I very much appreciate the attempt to make the House schedule fit in our lives.  Today is the first day of Passover.  This Friday is Good Friday.  We must be efficient in our work to support these allowances and to get out of here as soon as reasonable.  The committees must be allowed to work.”

     Rep. Houston of Ferrisburgh explained her vote as follows:

“Madam Speaker:

     Once again, Madam Speaker, the democratic process has been ignored in this State House.”

     Rep. Koch of Barre Town explained his vote as follows:

“Madam Speaker:

     We have just authorized nearly half of the members of the House to be in committee during debate on the floor of the House.  With normal absenteeism, this most likely deprives the House of a quorum.  This action is not good for democracy.”

     Rep. Nease of Johnson explained his vote as follows:

“Madam Speaker:

     I voted yes.  Yes to allowing discretionary judgment, yes to moving things along, yes to adjourning this body at a reasonable date.”

     Rep. Young of Orwell explained his vote as follows:

“Madam Speaker:

     I vote no.  Are we in such a hurry to get home that we don’t completely think through legislation in committee and then send it to the floor to be voted on by barely a quorum?  I would hope not!  Here’s hoping the Senate will fix the issues in the other body.”

Bill Amended; Third Reading Ordered

H. 723

Rep. French of Randolph, for the committee on Human Services, to which had been referred House bill, entitled

An act relating to home-and community-based care workforce issues;

Reported in favor of its passage when amended as follows:

First:  In Sec. 1, by striking subdivisions (3) and (4) in their entirety and inserting in lieu thereof new subdivisions (3) and (4):

(3)  Central to the delivery of quality long-term care services are the direct care workers who provide personal care such as feeding, bathing, toileting, help with other activities of daily living, skilled nursing for technology-dependent individuals, and support for additional personal care needs of children with disabilities and serious health conditions in a variety of institutional and community‑based settings.

(4)  National and local experts in long-term care delivery systems express concern that factors such as the aging of society, the increased lifespan of individuals born with complex disabilities, the rise in the incidence of children diagnosed with autism, and the personal and challenging nature of direct care work are combining to cause problems in both the quality and quantity of the direct care workforce, sometimes referred to as the “care gap.”

Second:  In Sec. 2, by striking subsection (b) and inserting a new subsection (b) to read:

(b)  The commissioner shall submit a report on the results of the needs assessment and recommendations to the house committee on human services and the senate committee on health and welfare no later than December 30, 2007.  No later than January 15, 2007, the commissioner shall submit an interim report to the committees, including an assessment of existing needs and recommendations for short-term strategies to address these needs.

Third:  In Sec. 3, by striking subsection (a) and inserting a new subsection (a) to read:

(a)  The commissioner shall appoint a direct care workforce advisory council consisting of 16 members.  The membership shall include one representative each of the community of Vermont elders (COVE), AARP Vermont, Vermont association of professional care providers (VAPCP), Vermont center for independent living (VCIL), Vermont health care association (VHCA), Vermont association of adult day services (VAADS), Vermont assembly of home health agencies (VAHHA), northern New England association of homes and services for the aging Vermont (NNEAHSA), the workforce development partners (WPD), parent to parent of Vermont (P2PVT), the state long-term care ombudsman, developmental service providers, the commissioner of labor or designee, and three at‑large appointees, at least two of whom shall be individuals who are employed providing direct personal care to Vermonters.

Third:  By adding a Sec. 4 to read:

Sec. 4.  APPROPRIATION

In fiscal year 2007, the sum of $50,000.00 is appropriated from the general fund to the department of disabilities, aging, and independent living for the needs assessment under Sec. 2 of this act.

Rep. Hunt of Essex, for the committee on Appropriations, recommended the bill be amended by striking all after the enacting clause and inserting in lieu thereof the following.

Sec. 1.  FINDINGS

The general assembly makes the following findings:

(1)  As set forth in No. 56 of the Acts of 2005 and the choices for care Medicaid waiver, Vermont has committed to developing a forward‑thinking, long-term care system that provides Vermonters with equal access to the full range of long-term care options, including nursing facility care, residential care services, and home- and community-based services.

(2)  Through the adoption of the choices for care Medicaid waiver and other long-term care policies, Vermont has further demonstrated its commitment to securing high quality long-term care services that maintain and improve the physical, mental, and social well‑being of Vermonters in need of long-term care services and supports.

(3)  Central to the delivery of quality long-term care services are the direct care workers who provide personal care such as feeding, bathing, toileting, help with other activities of daily living, skilled nursing for technology-dependent individuals, and support for additional personal care needs of children with disabilities and serious health conditions in a variety of institutional and community‑based settings.

(4)  National and local experts in long-term care delivery systems express concern that factors such as the aging of society, the increased lifespan of individuals born with complex disabilities, the rise in the incidence of children diagnosed with autism, and the personal and challenging nature of direct care work are combining to cause problems in both the quality and quantity of the direct care workforce, sometimes referred to as the “care gap.”

(5)  In order best to address these potential problems, Vermont needs to consolidate through a comprehensive study the present and emerging status and problem areas of the direct care workforce in all settings, including

home- and community‑based settings, nursing homes, adult day centers, residential care homes, and assisted living residences.

Sec. 2.  NEEDS ASSESSMENT

(a)  The commissioner of disabilities, aging, and independent living shall perform a needs assessment regarding present and future workforce issues of direct care workers in Vermont.  The assessment shall focus on potential problems regarding quantity, quality, stability, and availability of workers, specifically as they apply to long‑term care services and supports provided to Vermont’s elderly and disabled populations.  At a minimum, the assessment shall identify the potential problems and opportunities projected through 2030 and shall include recommendations for addressing these problems in the near and long term.  In preparing the assessment, the commissioner shall consult the advisory council established in Sec. 3 of this act.

(b)  The commissioner shall submit a report on the results of the needs assessment and recommendations to the house committee on human services and the senate committee on health and welfare no later than December 30, 2007.  No later than January 15, 2007, the commissioner shall submit an interim report to the committees, including an assessment of existing needs and recommendations for short-term strategies to address these needs.

Sec. 3.  DIRECT CARE WORKFORCE ADVISORY COUNCIL

(a)  The commissioner shall appoint a direct care workforce advisory council consisting of 16 members.  The membership shall include one representative each of the community of Vermont elders (COVE), AARP Vermont, Vermont association of professional care providers (VAPCP), Vermont center for independent living (VCIL), Vermont health care association (VHCA), Vermont association of adult day services (VAADS), Vermont assembly of home health agencies (VAHHA), northern New England association of homes and services for the aging Vermont (NNEAHSA), the workforce development partners (WDP), parent to parent of Vermont (P2PVT), Vermont Refugee Resettlement Program (VRRP) or similar organization representing Vermont's refugee and immigrant workforce, the state long-term care ombudsman, developmental service providers, the commissioner of labor or designee, and three at‑large appointees, at least two of whom shall be individuals who are employed providing direct personal care to Vermonters.

(b)  The advisory council shall meet monthly with the commissioner or designee and shall advise on the planning, implementation, and recommendations of the needs assessment required by Sec. 2 of this act.

The bill, having appeared on the Calendar one day for notice, was taken up and read the second time.

Thereupon, Rep. French of Randolph asked and was granted leave of the House to withdraw the report of the committee on Human Services and the report of the committee on Appropriations was agreed to and third reading ordered.

Third Reading; Bill Passed in Concurrence

With Proposals of Amendment

S. 310

Senate bill, entitled

An act relating to common sense initiatives in health care;

Was taken up, and pending third reading of the bill Rep. Maier of Middlebury moved to amend the House proposal of amendment as follows:

First:  In Sec.1, 8 V.S.A. § 4080a (healthy lifestyle insurance discount), in subdivision (h)(2)(B)(i), after “cost-sharing amounts to not more than” by inserting the words “a total of

Second:  In Sec.1, in subdivision (h)(2)(B)(i), before the colon, by inserting “, provided that the sum of any rate deviations under subdivision (2)(A) of section 4080a of this title does not exceed 30%

Third:  In Sec.2, 8 V.S.A. § 4080b (healthy lifestyle insurance discount), in subdivision (h)(2)(B)(i), after “cost-sharing amounts to not more than” by inserting the words “a total of

Fourth:  In Sec.2, in subdivision (h)(2)(B)(i), before the colon, by inserting “, provided that the sum of any rate deviation under subdivision (2)(A) of section 4080b of this title does not exceed 30%”

Fifth: In Sec. 7, 18 V.S.A. § 104b (community health and wellness grants), by striking subdivision (c)(2)

Sixth:  In Sec. 7, 18 V.S.A. §104b (community health and wellness grants), in subdivision (d)(7), by striking the words “no later than”, and by striking “, all of which shall b e done without participation from the legislative members of the committee.

Seventh:  In Sec. 15, 3 V.S.A. § 2222a (health care system reform; improving quality and affordability), in subsection (a), after the words “The secretary of administration” by striking “,working in collaboration with the general assembly,

Eighth:  In Sec. 20, 18 V.S.A. §10a (loan repayment for health care providers and health educators fund), by striking the words “health educator” wherever they appear and inserting in lieu thereof the words “health care educator

Ninth:  In Sec. 20, 18 V.S.A. §10a, in subdivision (f)(3),by striking the words “if appropriate” and inserting in lieu thereof the words “if applicable

Tenth:  In Sec. 20, 18 V.S.A. §10a, by striking subsection (i) and inserting in lieu thereof:

(i)  As used in this section:

(1)  “Health care educator” shall mean an individual employed by or contracted by an accredited postsecondary institution in Vermont to teach in a health care profession educational program.

(2)  “Health care provider” shall mean an individual licensed, certified, or authorized by law to provide professional health care service in this state to an individual during that individual’s medical or dental care, treatment, or confinement.   

Eleventh:  In Sec. 29b (Medicaid outreach), by striking the words “Medicaid advisory board” and inserting in lieu thereof the words “medical care advisory committee, established in section 1901c of Title 33,

Which was agreed to.

Thereupon, the bill was read the third time and passed in concurrence with proposals of amendment on a Division vote.  Yeas, 84.  Nays, 4.

Action on Bill Postponed

H. 678

House bill, entitled

An act relating to the department of banking, insurance, securities, and health care administration;

Was taken up and pending the question, Shall the House concur in the Senate proposal of amendment? on motion of Rep. Kitzmiller of Montpelier, action on the bill was postponed until Friday, April 14, 2006.

 Action on Bill Postponed

H. 841

House bill, entitled

An act relating to underground utility damage prevention system;

Was taken up and pending the question, Shall the House concur in the Senate proposal of amendment? on motion of Rep. Keenan of St. Albans City, action on the bill was postponed until Friday, April 14, 2006.

 

Senate Proposal of Amendment Not Concurred in;

Committee of Conference Requested and Appointed

H. 611

The Senate proposes to the House to amend House bill, entitled

An act relating to life threatening chronic allergies and illnesses in school;

     By striking all after the enacting clause and inserting in lieu thereof:

Sec. 1.  FINDINGS

(a)  The general assembly finds that every school district should expect at some point to enroll a student with a life‑threatening allergy or life‑threatening chronic illness and should be prepared to provide a safe and supportive environment because:

(1)  The incidence of many chronic life-threatening illnesses such as diabetes and asthma has recently increased.  In addition, the variety and prevalence of food allergies have increased in the last five years and continue to increase. 

(2)  A child with a chronic illness or allergy may respond to environmental conditions with a life-threatening reaction requiring an immediate response to save the child's life.  An allergic reaction, for example, may develop into anaphylaxis which is sudden and potentially fatal.

(b)  Therefore, it is the intent of this act to ensure that information to help school personnel and parents provide a safe and supportive environment for children with life-threatening allergies and life-threatening chronic illnesses is readily available.

Sec. 2.  16 V.S.A. § 212(14) is added to read:

(14)  Annually, in consultation with the commissioner of health, inform superintendents and principals of:

(A)  a school district’s legal obligations regarding students with life‑threatening allergies and life‑threatening chronic illnesses; and

(B)  technical assistance and other resources, such as guidelines, which may be available to help school personnel reduce the risk of injury to students with life‑threatening allergies and life-threatening chronic illnesses.

Sec. 3.  16 V.S.A. § 563(27) is added to read:

(27)  Assign an employee to annually:

(A)  inform parents of students with life-threatening allergies and life‑threatening chronic illnesses of their rights under Section 504 of the Rehabilitation Act of 1973 and other applicable federal statutes, state statutes, federal regulations, and state rules;

(B)  inform appropriate school staff of their responsibilities; and

(C)  provide necessary training to carry out these responsibilities.

Pending the question, Will the House concur in the Senate proposal of amendment? Rep. Mook of Bennington moved that the House refuse to concur and ask for a Committee of Conference, which was agreed to, and the Speaker appointed as members of the Committee of Conference on the part of the House:

Rep. Mook of Bennington

Rep. Kilmartin of Newport City

Rep. Cross of Winooski

Senate Proposal of Amendment Concurred in

H. 710

     The Senate proposed to the House to amend House bill, entitled

     An act relating to organization of supervisory districts;

     By striking all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  SUPERVISORY DISTRICT CONFIGURATION; GRANDFATHERING

Notwithstanding 16 V.S.A. § 261, a school district which offers schools in grades K-8 and was designated as a supervisory district prior to January 1, 2006 may remain a supervisory district.

     Which proposal of amendment was considered and concurred in.

Third Reading; Bill Passed

H. 883

House bill, entitled

An act relating to sustainable funding of the fish and wildlife department;

Was taken up, read the third time and passed.

 

 

 

Third Reading; Bill Passed in Concurrence

 with Proposal of Amendment

S. 106

Senate bill, entitled

An act relating to increasing the beverage container handler’s fee and an ongoing evaluation of the bottle redemption system;

Was taken up and pending third reading of the bill, Rep. Seibert of Norwich moved to propose to the Senate to amend the bill as follows:

In Sec. 2 10  V.S.A. §1522(b) by striking “three and one-half” and inserting in lieu thereof five.

Thereupon, Rep. Seibert of Norwich asked and was granted leave of the House to withdraw her amendment.

Pending third reading of the bill, Rep. Wright of Burlington moved the House propose to the Senate to amend the bill as follows:

In Sec. 2, 10 V.S.A. § 1522(b), by striking “three and one-half” and inserting in lieu thereof “four

Pending the question, Shall the House propose to the Senate to amend the bill as proposed by Rep. Wright of Burlington? Rep. Seibert of Norwich demanded the Yeas and Nays, which demand was sustained by the Constitutional number.  The Clerk proceeded to call the roll and the question, Shall the House propose to the Senate to amend the bill as proposed by Rep. Wright of Burlington?  was decided in the negative.  Yeas, 36.  Nays, 97.

Those who voted in the affirmative are:


Adams of Hartland

Aswad of Burlington

Barnard of Richmond

Bohi of Hartford

Clarkson of Woodstock

Cross of Winooski

Darrow of Dummerston

Donahue of Northfield

Donovan of Burlington

Dowland of Holland

Edwards of Brattleboro

Emmons of Springfield

Evans of Essex

Fisher of Lincoln

Frank of Underhill

Head of S. Burlington

Helm of Castleton

Kainen of Hartford

Komline of Dorset

Lorber of Burlington

Mook of Bennington

Nitka of Ludlow

Obuchowski of Rockingham

Orr of Charlotte

Partridge of Windham

Pearson of Burlington

Pellett of Chester

Pillsbury of Brattleboro

Potter of Clarendon

Randall of Troy

Reese of Pomfret

Seibert of Norwich

Shand of Weathersfield

Sharpe of Bristol

Wright of Burlington

Zuckerman of Burlington


Those who voted in the negative are:


Acinapura of Brandon

Allaire of Rutland City

Allard of St. Albans Town

Ancel of Calais

Atkins of Winooski

Audette of S. Burlington

Baker of West Rutland

Bartlett of Dover

Botzow of Pownal

Branagan of Georgia

Brooks of Montpelier

Canfield of Fair Haven

Chen of Mendon

Clark of St. Johnsbury

Clark of Vergennes

Condon of Colchester

Corcoran of Bennington

Dates of Shelburne

DePoy of Rutland City

Donaghy of Poultney

Dostis of Waterbury

Dunsmore of Georgia

Errecart of Shelburne

Fallar of Tinmouth

Flory of Pittsford

French of Randolph

Gervais of Enosburg

Grad of Moretown

Green of Berlin

Haas of Rochester

Heath of Westford

Hosford of Waitsfield

Houston of Ferrisburgh

Howard of Rutland City

Hube of Londonderry

Hudson of Lyndon

Hunt of Essex

Hutchinson of Randolph

Jerman of Essex

Jewett of Ripton

Johnson of South Hero

Johnson of Canaan

Keenan of St. Albans City

Kennedy of Chelsea

Keogh of Burlington

Kilmartin of Newport City

Kitzmiller of Montpelier

Klein of East Montpelier

Koch of Barre Town

Krawczyk of Bennington

Kupersmith of S. Burlington

Larocque of Barnet

Larson of Burlington

LaVoie of Swanton

Lawrence of Lyndon

Lippert of Hinesburg

Livingston of Manchester

Louras of Rutland City

Maier of Middlebury

Marek of Newfane

Martin of Wolcott

Masland of Thetford

McAllister of Highgate

McCullough of Williston

McFaun of Barre Town

Milkey of Brattleboro

Miller of Shaftsbury

Miller of Elmore

Minter of Waterbury

Monti of Barre City

Morley of Barton

Morrissey of Bennington

Myers of Essex

Nease of Johnson

Niquette of Colchester

Nuovo of Middlebury

O'Donnell of Vernon

Otterman of Topsham

Parent of St. Albans City

Peaslee of Guildhall

Perry of Richford

Peterson of Williston

Pugh of S. Burlington

Rodgers of Glover

Rusten of Halifax

Severance of Colchester

Shaw of Derby

Smith of New Haven

Smith of Morristown

Sunderland of Rutland Town

Sweaney of Windsor

Tracy of Burlington

Trombley of Grand Isle

Turner of Milton

Westman of Cambridge

Winters of Swanton

Winters of Williamstown


Those members absent with leave of the House and not voting are:


Bostic of St. Johnsbury

Brennan of Colchester

Copeland-Hanzas of Bradford

Deen of Westminster

Endres of Milton

Howrigan of Fairfield

Larrabee of Danville

Leriche of Hardwick

Malcolm of Pawlet

Marron of Stowe

Martin of Springfield

McLaughlin of Royalton

Molloy of Arlington

Valliere of Barre City

Young of Orwell


 

     Rep. Marcotte of Coventry abstained.  

     Rep. Donahue of Northfield explained her vote as follows:

“Madam Speaker:

     Our small general stores are on the brink of survival, and this is a public service they do.  The least we could do was give them a penny more after 18 years.”

     Rep. Zuckerman of Burlington explained his vote as follows:

“Madam Speaker:

     Once again we convince the little guy that a small compromise is all they can get.  Then politically we make it the reality through arm-twisting and walking out, not voting.  We should be raising this and the deposit level.”

     Thereupon, the bill was read the third time and passed in concurrence with proposal of amendment.

Third Reading; Bill Passed

H. 888

House bill, entitled

An act relating to sustainable funding of the fish and wildlife department;

Was taken up, read the third time and passed.

Third Reading; Bill Passed in Concurrence

 with Proposal of Amendment

S. 182

Senate bill, entitled

An act relating to advisement of immigration consequences of pleading guilty to a criminal offense;

Was taken up, read the third time and passed in concurrence with proposal of amendment.

Recess

At twelve o’clock and ten minutes in the afternoon, the Speaker declared a recess until the fall of the gavel.

At one o’clock and five minutes in the afternoon, the Speaker called the House to order.

Senate Proposal of Amendment Concurred in

with a Further Amendment Thereto

H. 33

     The Senate proposed to the House to amend House bill, entitled

     An act relating to the uniform mediation act;

     By striking all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  12 V.S.A. chapter 194 is added to read:

CHAPTER 194.  UNIFORM MEDIATION ACT

§ 5711.  SHORT TITLE

This chapter may be cited as the Vermont Uniform Mediation Act.

§ 5712.  UNIFORMITY OF APPLICATION

In applying and construing this chapter, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.  

§ 5713.  DEFINITIONS

As used in this chapter:

(1)  “Court” means a court of competent jurisdiction in Vermont.

(2)  “Mediation” means a process in which a mediator facilitates communication and negotiation between parties to assist them in reaching a voluntary agreement regarding their dispute.

(3)  “Mediation communication” means a statement, whether oral, in a record, verbal, or nonverbal, that is made or occurs during a mediation or for purposes of considering, conducting, participating in, initiating, continuing, or reconvening a mediation or retaining a mediator.

(4)  “Mediator” means an individual who conducts a mediation.

(5)  “Nonparty participant” means a person, other than a party or mediator, that participates in a mediation.

(6)  “Party” means a person that participates in a mediation and whose agreement is necessary to resolve the dispute.

(7)  “Person” means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, government, governmental subdivision, agency, instrumentality, public corporation, or any other legal or commercial entity.

(8)  “Proceeding” means a judicial, administrative, arbitral, or other adjudicative process, including related prehearing and posthearing motions, conferences, and discovery; or a legislative hearing or similar process.

(9)  “Record,” except in the phrase “record of proceeding,” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium, and is retrievable in perceivable form.

(10)  “Sign” includes:

(A)  executing or adopting a tangible symbol with the present intent to authenticate a record;

(B)  attaching or logically associating an electronic symbol, sound, or process to or with a record with the present intent to authenticate a record.

§ 5714.  SCOPE

(a)  Except as otherwise provided in subsection (b) or (c) of this section, this chapter applies to a mediation in which:

(1)  the parties are required to mediate by statute or court or administrative agency rule, or referred to mediation by a court, administrative agency, or arbitrator;

(2)  the parties and the mediator agree to mediate in a record that demonstrates an expectation that mediation communications will be privileged against disclosure; or

(3)  the parties utilize as a mediator a person that holds himself or herself out as providing mediation services.

(b)  This chapter does not apply to a mediation:

(1)  relating to the establishment, negotiation, administration, or termination of a collective bargaining relationship;

(2)  relating to a dispute that is pending under or is part of the processes established by a collective bargaining agreement, except that this chapter applies to a mediation arising out of such a dispute that has been filed with a court or with a public agency other than the federal mediation and conciliation service or the Vermont labor relations board;

(3)  conducted under the auspices of a primary or secondary school where all the parties are students, or under the auspices of a correctional institution for youths where all the parties are residents of that institution; or

(4)  conducted by a judge who might make a ruling on the case.

(c)  If the parties agree in advance that all or part of a mediation is not privileged, the privileges under sections 5715 through 5717 of this title do not apply to the mediation or part agreed upon.  The agreement must be in a signed record or reflected in the record of a proceeding.  However, sections 5715 through 5717 of this title apply to a mediation communication made by a person who has not received actual notice of the agreement before the communication is made.

§ 5715.  PRIVILEGE AGAINST DISCLOSURE; ADMISSIBILITY; DISCOVERY

(a)  A mediation communication is privileged and is not subject to discovery or admissible in evidence in a proceeding.

(b)  In a proceeding, the following privileges apply:

(1)  A party may refuse to disclose, and may prevent any other person from disclosing, a mediation communication.

(2)  A mediator may refuse to disclose a mediation communication and may prevent any other person from disclosing a mediation communication of the mediator.

(3)  A nonparty participant may refuse to disclose, and may prevent any other person from disclosing, a mediation communication of the nonparty participant.

(c)  Evidence or information that is otherwise admissible or subject to discovery does not become inadmissible or protected from discovery solely by reason of its disclosure or use in a mediation.

§ 5716.  WAIVER AND PRECLUSION OF PRIVILEGE

(a)  A privilege under section 5715 of this title may be waived in a record or orally during a proceeding, if it is expressly waived by all parties to the mediation, and:

(1)  in the case of the privilege of a mediator, it is expressly waived by the mediator; and

(2)  in the case of the privilege of a nonparty participant, it is expressly waived by the nonparty participant.

(b)  A person who discloses or makes a representation about a mediation communication which prejudices another person in a proceeding is precluded from asserting a privilege under section 5715 of this title to the extent necessary for the person prejudiced to respond to the representation or disclosure.

(c)  A person who intentionally uses a mediation to plan, attempt to commit, or commit a crime, or conceal an ongoing crime or ongoing criminal activity, may not assert a privilege under section 5715 of this title.

§ 5717.  EXCEPTIONS TO PRIVILEGE

(a)  There is no privilege under section 5715 of this title for a mediation communication that is:

(1)  in an agreement evidenced by a record signed by all parties to the agreement;

(2)  available to the public under subchapter 3 of chapter 5 of Title 1, or made during a session of a mediation which is open, or is required by law to be open, to the public;

(3)  a threat or statement of a plan to inflict bodily injury or commit a crime of violence;

(4)  intentionally used to plan, attempt to commit, or commit a crime, or conceal an ongoing crime or ongoing criminal activity;

(5)  sought or offered to prove or disprove abuse, neglect, abandonment, or exploitation in a proceeding in which a child or adult protective services agency is a party, but this exception does not apply where a child or adult protection case is referred by a court to mediation and a public agency participates in the mediation;

(6)  sought or offered to prove or disprove a claim or complaint of professional misconduct or malpractice filed against a mediator; or

(7)  sought or offered to prove or disprove a claim or complaint of professional misconduct or malpractice filed against a party, nonparty participant, or representative of a party based on conduct occurring during a mediation, except as otherwise provided in subsection (c) of this section.

(b)  There is no privilege under section 5715 of this title if a court, administrative agency, or arbitration panel finds, after a hearing in camera, that the party seeking discovery or the proponent of the evidence has shown that the evidence is not otherwise available, that there is a need for the evidence that substantially outweighs the interest in protecting confidentiality, and the mediation communication is sought or offered in:

(1)  a criminal proceeding in district court; or

(2)  a proceeding to prove a claim to rescind or reform, or a defense to avoid liability on, a contract arising out of the mediation, except as otherwise provided in subsection (c) of this section.

(c)  A mediator may not be compelled to provide evidence of a mediation communication referenced in subdivision (a)(7) or (b)(2) of this section.

(d)  If a mediation communication is not privileged under subsection (a) or (b) of this section, only the portion of the communication necessary for the application of the exception from nondisclosure may be admitted.  Admission of evidence under subsection (a) or (b) of this section does not render the evidence or any other mediation communication discoverable or admissible for any other purpose.

§ 5718.  MEDIATOR REPORT; DISCLOSURE; BACKGROUND

(a)  A mediator may not make a report, assessment, evaluation, recommendation, finding, or other communication regarding a mediation to a court, agency, or other authority that may make a ruling on the dispute that is the subject of the mediation, but a mediator may disclose:

(1)  whether the case is not appropriate for mediation, whether the mediation occurred or has terminated, whether a settlement was reached, and attendance;

(2)  a mediation communication as permitted under section 5717 of this title; or

(3)  a mediation communication evidencing abuse, neglect, abandonment, or exploitation of a child or vulnerable adult to a public agency responsible for protecting such individuals against such mistreatment.

(b)  A communication made in violation of subsection (a) of this section may not be considered by a court or other tribunal.

(c)  Subsections (d), (e), (f), and (g) of this section do not apply to an individual acting as a judge.

(d)  Before accepting a mediation, an individual who is requested to serve as a mediator shall:

(1)  make an inquiry that is reasonable under the circumstances to determine whether there are any known facts that a reasonable individual would consider likely to affect the impartiality of the mediator, including a financial or personal interest in the outcome of the mediation and an existing or past relationship with a party or foreseeable participant in the mediation; and

(2)  disclose as soon as is practicable before accepting a mediation any such fact known.

(e)  If a mediator learns any fact described in subdivision (d)(1) of this section after accepting a mediation, the mediator shall disclose as soon as is practicable.

(f)  A mediator shall be impartial, unless, after disclosure of the facts required in subsections (d) and (e) of this section, the parties agree otherwise.

(g)  A person who is requested to serve as a mediator shall disclose the mediator’s qualifications to mediate a dispute if requested to do so by a party.

(h)  A person who violates subsection (d), (e), or (f) of this section is precluded from asserting a privilege under section 5715 of this title.

(i)  Unless otherwise required by law, no special qualification by background or profession is necessary to be a mediator under this chapter.

§ 5719.  NONPARTY PARTICIPATION IN MEDIATION 

An attorney or other individual designated by a party may accompany the party to and participate in a mediation.  A waiver of participation given before the mediation may be rescinded.

§ 5720.  CONFIDENTIALITY 

Unless subject to subchapter 2 or 3 of chapter 5 of Title 1, mediation communications are confidential to the extent agreed to by the parties or provided by law.

§ 5721.  RELATION TO ELECTRONIC SIGNATURE IN GLOBAL AND NATIONAL COMMERCE ACT  

This chapter modifies, limits, and supersedes the federal Electronic Signatures in Global and National Commerce Act (Act), 15 U.S.C. § 7001(c), except that nothing in this chapter modifies, limits, or supersedes Section 101(c) of the Act, nor authorizes electronic delivery of any of the notices described in Section 103(b) of the Act.

§ 5722.  SEVERABILITY CLAUSE 

If any provision of this chapter or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this chapter which can be given effect without the invalid provision or application, and, to this end, the provisions of this chapter are severable.

§ 5723.  APPLICATION TO EXISTING AGREEMENTS OR REFERRALS

(a)  This chapter governs a mediation pursuant to a referral or an agreement to mediate made on or after July 1, 2006.

(b)  On or after July 1, 2008, this chapter governs an agreement to mediate whenever made.

     Pending the question, Shall the House concur in the Senate proposal of amendment? Rep. Jewett of Ripton moved that the House concur with the Senate proposal of amendment with a further amendment thereto as follows:

In Sec. 1, 12 V.S.A. § 5717, by striking out subsection (b) in its entirety and inserting in lieu thereof a new subsection (b) to read as follows:

(b)  There is no privilege under section 5715 of this title if a court, administrative agency, or arbitration panel finds, after a hearing in camera, that the party seeking discovery or the proponent of the evidence has shown that the evidence is not otherwise available, that there is a need for the evidence that substantially outweighs the interest in protecting confidentiality, and the mediation communication is sought or offered in:

(1)  a criminal proceeding in district court;

(2)  a child protection proceeding under chapter 49 or chapter 55 of Title 33;

(3)  a protection proceeding involving a vulnerable adult under chapter 69 of Title 33; or

(4)  a proceeding to prove a claim to rescind or reform, or a defense to avoid liability on, a contract arising out of the mediation, except as otherwise provided in subsection (c) of this section.

     Which was agreed to.

Third Reading; Bill Passed in Concurrence

With Proposals of Amendment

S. 103

Senate bill, entitled

An act relating to lawsuits arising from exercise of right to freedom of speech or to petition government for redress of grievances;

Was taken up and pending third reading of the bill, Reps. Helm of Castleton and Johnson of Canaan moved to further propose to the Senate to amend the bill as follows:

By adding two new Secs. to read:

Sec. 4.  FINDINGS

The general assembly finds:

(1)  Families and friends have a substantial interest in organizing and attending funerals for deceased relatives.

(2)  The interest of families to be able to mourn privately and peacefully the loss of deceased relatives is violated when a funeral becomes the target of picketing and other public demonstrations.

(3)  Picketing disrupts funerals and causes emotional distress to the grieving families during a difficult and private time.

(4)  There is still ample opportunity to exercise freedom of speech and other constitutional rights other than during and within two hours before and after a funeral.

Sec. 5.  13 V.S.A. § 3771 is added to read:

§ 3771.  PICKETING AT FUNERALS

(a)  As used in this section:

(1)  “Funeral” means the ceremonies, rituals, processions, and memorial services held in connection with the burial or cremation of a dead person.

(2)  “Picketing” means protests, demonstrations, and other related activities.

(b)  No person shall engage in picketing within 500 feet of a cemetery, church, or mortuary under either or both of the following conditions:

(1)  When a funeral is taking place.

(2)  Within two hours before and after a funeral is held. 

(c)  A person who violates this section shall be imprisoned not more than 30 days or fined not more than $500.00, or both.

Rep. Lippert of Hinesburg raised a Point of Order that the amendment was not germane to the bill, which Point of Order the Speaker ruled well taken.

     Thereupon, Rep. Flory of Pittsford moved to suspend the rules to permit consideration of a non-germane amendment.

Pending the question, Shall the House suspend the rules to permit consideration of a non-germane amendment? Rep. Partridge of Windham demanded the Yeas and Nays, which demand was sustained by the Constitutional number.  The Clerk proceeded to call the roll and the question, Shall the House suspend the rules to permit consideration of a non-germane amendment?  was decided in the negative.  Yeas, 55.  Nays, 73.  A ¾ vote of 96 needed.

Those who voted in the affirmative are:


Acinapura of Brandon

Adams of Hartland

Allaire of Rutland City

Allard of St. Albans Town

Baker of West Rutland

Bartlett of Dover

Branagan of Georgia

Canfield of Fair Haven

Clark of St. Johnsbury

Clark of Vergennes

Dates of Shelburne

DePoy of Rutland City

Donaghy of Poultney

Donahue of Northfield

Dowland of Holland

Dunsmore of Georgia

Endres of Milton

Errecart of Shelburne

Flory of Pittsford

Helm of Castleton

Houston of Ferrisburgh

Hube of Londonderry

Hudson of Lyndon

Johnson of Canaan

Kainen of Hartford

Kennedy of Chelsea

Kilmartin of Newport City

Koch of Barre Town

Komline of Dorset

Krawczyk of Bennington

Larocque of Barnet

LaVoie of Swanton

Lawrence of Lyndon

Livingston of Manchester

Louras of Rutland City

Marron of Stowe

McAllister of Highgate

McFaun of Barre Town

Miller of Elmore

Mook of Bennington

Morrissey of Bennington

Myers of Essex

Niquette of Colchester

O'Donnell of Vernon

Otterman of Topsham

Parent of St. Albans City

Peaslee of Guildhall

Shaw of Derby

Smith of New Haven

Sunderland of Rutland Town

Turner of Milton

Westman of Cambridge

Winters of Swanton

Winters of Williamstown

Wright of Burlington


Those who voted in the negative are:


Ancel of Calais

Atkins of Winooski

Barnard of Richmond

Bohi of Hartford

Botzow of Pownal

Brooks of Montpelier

Chen of Mendon

Clarkson of Woodstock

Copeland-Hanzas of Bradford

Corcoran of Bennington

Cross of Winooski

Darrow of Dummerston

Deen of Westminster

Donovan of Burlington

Dostis of Waterbury

Edwards of Brattleboro

Emmons of Springfield

Evans of Essex

Fallar of Tinmouth

Fisher of Lincoln

Frank of Underhill

French of Randolph

Grad of Moretown

Green of Berlin

Haas of Rochester

Head of S. Burlington

Heath of Westford

Hosford of Waitsfield

Howard of Rutland City

Howrigan of Fairfield

Hunt of Essex

Hutchinson of Randolph

Jerman of Essex

Jewett of Ripton

Johnson of South Hero

Keenan of St. Albans City

Keogh of Burlington

Klein of East Montpelier

Larson of Burlington

Lippert of Hinesburg

Lorber of Burlington

Maier of Middlebury

Malcolm of Pawlet

Marek of Newfane

Martin of Wolcott

Masland of Thetford

McCullough of Williston

Milkey of Brattleboro

Miller of Shaftsbury

Minter of Waterbury

Nease of Johnson

Nitka of Ludlow

Nuovo of Middlebury

Obuchowski of Rockingham

Orr of Charlotte

Partridge of Windham

Pearson of Burlington

Pellett of Chester

Perry of Richford

Peterson of Williston

Potter of Clarendon

Pugh of S. Burlington

Randall of Troy

Reese of Pomfret

Rodgers of Glover

Rusten of Halifax

Shand of Weathersfield

Sharpe of Bristol

Smith of Morristown

Sweaney of Windsor

Tracy of Burlington

Trombley of Grand Isle

Zuckerman of Burlington


Those members absent with leave of the House and not voting are:


Aswad of Burlington

Audette of S. Burlington

Bostic of St. Johnsbury

Brennan of Colchester

Condon of Colchester

Gervais of Enosburg

Kitzmiller of Montpelier

Kupersmith of S. Burlington

Larrabee of Danville

Leriche of Hardwick

Marcotte of Coventry

Martin of Springfield

McLaughlin of Royalton

Molloy of Arlington

Monti of Barre City

Morley of Barton

Pillsbury of Brattleboro

Seibert of Norwich

Severance of Colchester

Valliere of Barre City

Young of Orwell


 

    

     Rep. Branagan of Georgia explained her vote as follows:

“Madam Speaker:

     I believe this item is germane.  Free speech is one of our fundamental rights and so is the right to peaceably assemble.  However, when the exercise of these rights interferes with someone else’s ability to do the same, we need to draw the line.”

     Rep. Flory of Pittsford explained her vote as follows:

“Madam Speaker:

     Isn’t it ironic that on a bill designed to protect free speech, we are being denied that right?”

     Rep. Helm of Castleton explained his vote as follows:

“Madam Speaker:

     This is a very important issue to veteran’s groups and constituency.  Therefore, to quote the Governor of California, “I’ll be back”.”

     Pending third reading of the bill, Rep. Clarkson of Woodstock moved to further propose to the Senate to amend the bill as follows:

In Sec. 2, subsection (h), after the words “enforcement action” by adding the words “or criminal proceeding

     Which was agreed to.

     Thereupon, the bill was read the third time and passed in concurrence with proposals of amendment.

Message from the Senate No. 51

     A message was received from the Senate by Mr. Marshall, its Assistant Secretary, as follows:

Madam Speaker:

I am directed to inform the House the Senate has considered a bill originating in the House of the following title:

H. 869.  An act relating to state’s transportation program.

And has passed the same in concurrence with proposals of amendment in the adoption of which the concurrence of the House is requested.

The Governor has informed the Senate that on the eleventh day of April, 2006, he approved and signed a bill originating in the Senate of the following title:

S. 190.  An act relating to the number of witnesses required to attest to a will.

Message from Governor

A message was received from His Excellency, the Governor, by Mr. Neale Lunderville, Secretary of Civil and Military Affairs, as follows:

Madam Speaker:

I am directed by the Governor to inform the House that on the eleventh day of April, 2006, he approved and signed a bill originating in the House of the following title:

H. 655    An act relating to the towns and gores of Essex county

Message from Governor

A message was received from His Excellency, the Governor, by Mr. Neale Lunderville, Secretary of Civil and Military Affairs, as follows:

Madam Speaker:

I am directed by the Governor to inform the House that on the twelfth day of April, 2006, he approved and signed a bill originating in the House of the following title:

H. 862    An act relating to home study programs

Adjournment

At one o’clock and fifty minutes in the afternoon, on motion of Rep. Sunderland of Rutland Town, the House adjourned until tomorrow at one o’clock and fifteen minutes in the afternoon.