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Senate Calendar

wednesday, april 12, 2006

100th DAY OF ADJOURNED SESSION

TABLE OF CONTENTS

                                                                                                                Page No.

UNFINISHED BUSINESS OF THURSDAY, APRIL 6, 2006

House Proposal of Amendment

S. 22       Off label use of prescription drugs for cancer................................... 1283

UNFINISHED BUSINESS OF TUESDAY, APRIL 11, 2006

Third Reading

H. 384    Medical ins. for seasonal emp. of Dept. of Forests, Parks & Rec..... 1287

H. 860    Vermont’s participation in the regional greenhouse gas initiative........ 1287

                  Sen. Coppenrath amendment....................................................... 1287

H. 876    Relating to management of exposure to mercury.............................. 1287

Second Reading

Favorable with Proposal of Amendment

H. 677    Standards board and licensing hearing panels for educators.............. 1287

                  Education Committee Report....................................................... 1287

                  Appropriations Committee Report............................................... 1304

NEW BUSINESS

Third Reading

H. 869    Relating to the state’s transportation program.................................. 1304

                  Sen. Shepard amendment............................................................ 1304

Second Reading

Favorable with Proposal of Amendment

H. 856    Sentences/preventing risks posed by dangerous sex offenders.......... 1305

                  Judiciary Committee Report......................................................... 1305

                  Appropriations Committee Report............................................... 1341

                  Sen. Sears amendment................................................................. 1341

House Proposal of Amendment

S. 117     Relating to state recognition of the Abenaki People.......................... 1342


NOTICE CALENDAR

Favorable

H. 310    Relating to employee ownership of businesses................................. 1344

                  Ec. Dev., Housing & General Affairs Committee Report............... 1344

H. 774    Relating to the Vermont economic development authority................. 1344

                  Agriculture Committee Report...................................................... 1344

H. 874    Relating to sentencing for first and second degree murder................. 1345

                  Judiciary Committee Report......................................................... 1345

Favorable with Proposal of Amendment

H. 456    Vermont products and nutrition education in schools........................ 1345

                  Agriculture Committee Report...................................................... 1345

                  Education Committee Report....................................................... 1350

H. 690    ID/documentation/advancement creative sector of state’s econ........ 1351

                  Ec. Dev., Housing & General Affairs Committee Report............... 1351

House Proposal of Amendment

S. 246     Relating to eminent domain.............................................................. 1353

ORDERED TO LIE

S. 112     Relating to the practice of optometry............................................... 1353

S. 157     Relating to rulemaking for Vermont origin........................................ 1353

S. 315     Relating to creation of the Vermont Land Bank program.................. 1353

S. 316     Relating to access to broadband services throughout Vermont......... 1353

S. 319     Relating to expanding the scope of the net metering program............ 1353




 

ORDERS OF THE DAY

ACTION CALENDAR

UNFINISHED BUSINESS OF THURSDAY, APRIL 6, 2006

House Proposal of Amendment

S. 22

An act relating to off-label use of prescription drugs for cancer.

The House proposes to the Senate to amend the bill by striking out all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  8 V.S.A. chapter 107, subchapter 9 is added to read:

Subchapter 9.  Off-Label Use of Prescription Drugs for Cancer

§ 4100e.  REQUIRED COVERAGE FOR OFF-LABEL USE

(a)  A health insurance plan that provides coverage for prescription drugs shall provide coverage for off-label use in cancer treatment in accordance with the following:

(1)  A health insurance plan contract may not exclude coverage for any drug used for the treatment of cancer on grounds that the drug has not been approved by the federal Food and Drug Administration, provided the use of the drug is a medically accepted indication for the treatment of cancer.

(2)  Coverage of a drug required by this section also includes medically necessary services associated with the administration of the drug.

(3)  This section shall not be construed to require coverage for a drug when the federal Food and Drug Administration has determined its use to be contraindicated for treatment of the current indication.

(4)  A drug use that is covered under subdivision (1) of this subsection may not be denied coverage based on a “medical necessity” requirement except for a reason unrelated to the legal status of the drug use.

(5)  A health insurance plan contract that provides coverage of a drug as required by this section may contain provisions for maximum benefits and coinsurance and reasonable limitations, deductibles, and exclusions to the same extent these provisions are applicable to coverage of all prescription drugs and are not inconsistent with the requirements of this section.

(b)  As used in this section, the following terms have the following meanings:

(1)  “Health insurance plan” means a health benefit plan offered, administered, or issued by a health insurer doing business in Vermont.

(2)  “Health insurer” is defined by subdivision 9402(9) of Title 18.  As used in this subchapter, the term includes the state of Vermont and any agent or instrumentality of the state that offers, administers, or provides financial support to state government, including Medicaid, the Vermont health access plan, the VScript pharmaceutical assistance program, or any other public health care assistance program.

(3)  “Medically accepted indication” includes any use of a drug that has been approved by the federal Food and Drug Administration and includes another use of the drug if that use is prescribed by the insured’s treating oncologist and supported by medical or scientific evidence.  For purposes of this subchapter, “medical or scientific evidence” means one or more of the following sources:

(A)  peer-reviewed scientific studies published in or accepted for publication by medical journals that meet nationally recognized requirements for scientific manuscripts and that submit most of their published articles for review by experts who are not part of the editorial staff.

(B)  peer-reviewed literature, biomedical compendia, and other medical literature that meet the criteria of the National Institutes of Health’s National Library of Medicine for indexing in Index Medicus, Excerpta Medicus (EMBASE), Medline, and MEDLARS database Health Services Technology Assessment Research (HSTAR).

(C)  medical journals recognized by the federal Secretary of Health and Human Services, under Section 1861(t)(2) of the federal Social Security Act.

(D)  the following standard reference compendia:  the American Hospital Formulary Service-Drug Information, the American Medical Association Drug Evaluation, and the United States Pharmacopoeia-Drug Information.

(E)  findings, studies, or research conducted by or under the auspices of federal government agencies and nationally recognized federal research institutes, including the Agency for Health Care Policy and Research, National Institutes of Health, National Cancer Institute, National Academy of Sciences, Center for Medicare and Medicaid Services, and any national board recognized by the National Institutes of Health for the purpose of evaluating the medical value of health services.

(F)  peer-reviewed abstracts accepted for presentation at major medical association meetings.

(4)  “Off-label use” means the prescription and use of drugs for medically accepted indications other than those stated in the labeling approved by the federal Food and Drug Administration.

(c)  A determination by a health insurer that an off-label use of a prescription drug under this section is not a medically accepted indication supported by medical or scientific evidence is eligible for review under section 4089f of this title.

Sec. 2.  8 V.S.A. § 4089f(b)(3) is amended to read:

(b)  An insured who has exhausted all applicable internal review procedures provided by the health benefit plan shall have the right to an independent external review of a decision under a health benefit plan to deny, reduce or terminate health care coverage or to deny payment for a health care service.  The independent review shall be available when requested in writing by the affected insured, provided the decision to be reviewed requires the plan to expend at least $100.00 for the service and the decision by the plan is based on one of the following reasons:

* * *

(3)  The health care treatment has been determined to be experimental, investigational or an off-label drug.  A health benefit plan that denies use of a prescription drug for the treatment of cancer as not medically necessary or as an experimental or investigational use shall treat any internal appeal of such denial as an emergency or urgent appeal, and shall decide such appeal within the time frames applicable to emergency and urgent internal appeals under regulations adopted by the commissioner.

Sec. 3.  APPLICATION

(a)  Sec. 1 of this act shall apply to all health insurance plans issued or offered on and after October 1, 2006 and to all other health insurance plans on and after October 1, 2006 upon renewal or their anniversary date, whichever is sooner, but in no event later than October 31, 2007.

(b)  Sec. 2 of this act is intended to clarify existing administrative regulations and shall apply to all appeals subject to 8 V.S.A. § 4089f (independent external review of health care service decisions) pending on and after the effective date of this act.

* * * Wholesale Drug Distributors:  Accreditation; Pedigrees * * *

Sec. 4.  26 V.S.A. § 2068 is amended to read:

§ 2068.  REQUIREMENTS; APPLICANTS; LICENSES

An applicant shall satisfy the board that it has, and licensees shall maintain, the following:

* * *

(10)  Compliance with standards and procedures which the board shall adopt by rule concerning provisions for initial and periodic on-site inspections, criminal and financial background checks, ongoing monitoring, reciprocity for out-of-state wholesale drug distributors inspected by a third party organization recognized by the board or inspected and licensed by a state licensing authority with legal standards for licensure that are comparable to the standards adopted by the board pursuant to this subdivision, protection of a wholesale drug distributor’s proprietary information, and any other requirements consistent with the purposes of this subdivision.  The board rules may recognize third party accreditation in satisfaction of some or all of the requirements of this subdivision.

Sec. 5.  ELECTRONIC PEDIGREE STUDY

The board of pharmacy shall study the feasibility of an electronic pedigree system that would verify the chain of distribution for all prescription drugs.  The board shall report its findings and recommendations to the general assembly not later than January 15, 2007.  The study shall include consultation with drug manufacturers, wholesale drug distributors, and pharmacies responsible for the sale and distribution of prescription drugs and consideration of any relevant national standards or initiatives.  The board shall include a proposed implementation date in the study.

* * * Drug and Medical Supply Repository Program:  Study * * *

Sec. 6.  DRUG AND MEDICAL SUPPLY REPOSITORY STUDY

The department of health, in consultation with the office of Vermont health access, the board of pharmacy, the department of disabilities, aging, and independent living, and the board of medical practice, shall study the feasibility of creating a repository program through which licensed facilities, wholesale drug distributors, and drug manufacturers can donate unused, unopened prescription drugs and medical supplies to pharmacies, hospitals, and clinics in order to dispense such drugs and supplies, for only a handling fee, to persons who are income‑eligible or uninsured.  The study shall include findings and recommendations concerning the cost the department would incur in creating and overseeing such a program, including any costs related to consultation with experts, the benefits of a repository program, and any other standards or procedures necessary for the development and implementation of the program.  The department of health shall report its findings and recommendations to the general assembly not later than January 15, 2007.

UNFINISHED BUSINESS OF TUESDAY, APRIL 11, 2006

Third Reading

H. 384

An act relating to medical insurance for seasonal employees of the department of forests, parks and recreation.

H. 860

An act relating to Vermont’s participation in the regional greenhouse gas initiative.

PROPOSAL OF AMENDMENT TO H. 860 TO BE OFFERED BY SENATOR COPPENRATH BEFORE THIRD READING

Senator Coppenrath moves that the Senate propose to the House to amend the bill in Sec. 1, 30 V.S.A., § 254(c)(2) by striking out subparagraph (F) in its entirety and inserting in lieu thereof a new subparagraph (F) to read as follows:

(F)  ensure that carbon credits allocated under this program and revenues associated with their sale remain power system assets managed for the benefit of electric consumers.  To that end, at least 50% of the revenues shall be used to directly mitigate electricity ratepayer impacts by reducing electric rates paid by consumers, and the remaining credits may be used for investments in energy efficiency and other low-cost, low-carbon power system investments;

H. 876

An act relating to management of exposure to mercury.

Second Reading

Favorable with Proposal of Amendment

H. 677

An act relating to a standards board and licensing hearing panels for professional educators.

Reported favorably with recommendation of proposal of amendment by Senator Collins for the Committee on Education.

The Committee recommends that the Senate propose to the House to amend the bill by striking out all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  16 V.S.A. § 212(14) is added to read:

(14)  Annually, convene a meeting of directors of Vermont educator preparation programs and representatives of school boards, superintendents, principals, educators, and the Vermont standards board to determine subject and geographic areas in which there is a critical need for educators and to discuss ways to meet the need.

Sec. 2.  16 V.S.A. chapter 51 is amended to read:

CHAPTER 51.  EXAMINATION AND LICENSING OF TEACHERS PROFESSIONAL EDUCATORS

§ 1691.  PURPOSE

The purpose of this chapter is to establish a board of professional educators to oversee the training, licensing, and professional standards of teachers and administrators and to establish hearing panels to determine compliance with those standards to help assure high caliber professionals and high quality public educational programs for Vermont students.

§ 1691a.  Definitions

As used in this chapter:

(1)  “Administrator” means an individual licensed under this chapter the majority of whose employed time in a public school, school district, or supervisory union is assigned to developing and managing school curriculum, evaluating and disciplining personnel, or supervising and managing a public school system or public school program.

(2)  “Applicant” means an individual applying for a license.

(3)  “Educator” means any teacher or administrator requiring a license under this chapter.

(4)  “Endorsement” means the grade level and field in which an educator is authorized to serve.  A license shall bear one or more endorsements.

(5)  “Hearing panel” means the persons assigned in individual cases to find facts, reach conclusions of law, and make decisions regarding compliance with standards for obtaining, retaining, and renewing licenses.

(6)  “License” means a license to engage in teaching or school administration, as the context requires, in the state and includes, unless the context requires otherwise, the endorsements the licensee has applied for or possesses.  “Licensee” means an individual licensed under this chapter.

(7)  “Licensing action” means action that suspends, revokes, limits, or conditions licensure or certification in any way and includes warnings, reprimands, probation, and administrative penalties.

(8)  “Office” means the office within the department of education responsible for professional standards and educator licensing.

(9)  “Standards board” means the Vermont standards board for professional educators established under section 1693 of this title.

(10)  “Teacher” means an individual licensed under this chapter the majority of whose employed time in a public school district or supervisory union is assigned to furnish to students direct instructional or other educational services, as defined by rule of the standards board, or who is otherwise subject to licensing as determined by the standards board.

§ 1692.  REQUIREMENT AS TO LICENSE; AGE LIMIT

A person shall not teach Except for a substitute teacher in accordance with rules adopted by the standards board, a person shall not be employed as a teacher or administrator in a public school without having a license then in force.  A license shall not be issued to a person under seventeen years of age.

§ 1693.  STANDARDS BOARD FOR PROFESSIONAL EDUCATORS

(a)  There is hereby established the Vermont standards board for professional educators comprising 13 members as follows:  seven teachers, two administrators, one public member, one school board member, one representative of educator preparation programs from a public institution of higher education, and one representative of educator preparation programs from a private institution of higher education.

(b)  Appointment and qualifications.  When a vacancy occurs, except in the case of the public member position, the state board of education shall solicit up to five nominations from any of the following organizations if their members may be eligible for the vacant position:  the Vermont national education association, the Vermont school boards association, the Vermont principals association, the Vermont superintendents association, the Vermont State Colleges, the University of Vermont, and the association of independent colleges.  The state board may add other names to the list but may not remove nominations submitted by the organizations and shall forward the list to the governor.  The governor shall appoint a person on the list or, in the case of the public position, the governor shall appoint a person of his or her choosing, for a term of three years which shall begin July 1 of the year of appointment.  No person shall be eligible for more than one sequential reappointment.  The governor shall appoint a replacement to fill any vacancy on the standards board for the remainder of the term.  Appointments shall be consistent with the following requirements:

(1)  Each member of the standards board shall be a citizen of the United States and a resident of Vermont.

(2)  The educator members shall be generally representative of elementary and secondary schools and of programs of study taught in Vermont public schools and of administrative positions in Vermont public schools.  Teacher members shall hold a license and have at least five years’ experience in public school teaching, at least three of which shall have been within the five years preceding appointment.  Administrator members shall hold a license and be endorsed as an administrator and have at least five years’ experience in public school administration, at least three of which shall have been within the five years preceding appointment.

(3)  The school board member shall be a current school district board member or have served on a school district board at some period during the three years prior to appointment.

(4)  The public member shall not be a member of the state board of education or an employee of any school and shall not derive primary livelihood in the field of public or independent education at any level of responsibility.

(c)  Standards board officers; meetings.  The standards board shall elect from its members a chair, vice chair, and secretary who shall serve for one year and until their successors are elected and seated.  The board shall meet at the request of the chair or at such other times and places as the board may determine.  Seven members of the board shall constitute a quorum for the transaction of business.

(d)  Compensation.  The department of education shall compensate standards board members for the performance of their duties and reimburse them for their actual and necessary expenses in accordance with section 1010 of Title 32.

(e)  Administration.  The standards board shall be attached for administrative purposes to the office.  With respect to the standards board, the commissioner shall:

(1)  with the advice of the standards board, employ a director, prepare an annual budget, and administer money appropriated to the standards board by the general assembly.  The budget of the standards board shall be part of the budget of the department;

(2)  employ administrative staff of the office;

(3)  incur such other expenses as the commissioner determines are necessary;

(4)  act as custodian of the records of the standards board; and

(5)  annually, conduct a training for members of the standards board and the hearing panels established in this chapter, which shall include workshops regarding the powers and duties of the standards board and the panels and an opportunity for the standards board and hearing panel members to discuss the practical application of standards in quasi-judicial proceedings.

§ 1694.  POWERS AND DUTIES OF THE STANDARDS BOARD FOR PROFESSIONAL EDUCATORS

In addition to any other powers and duties prescribed by law or incidental or necessary to the exercise of such lawful powers and duties, the standards board shall:

(1)  Adopt rules pursuant to chapter 25 of Title 3 with respect to the licensing of teachers and administrators, and of speech-language pathologists and audiologists as provided in chapter 87 of Title 26;

(2)  Establish standards for educator preparation programs in Vermont and approve those that meet the standards so that a person graduating from an approved program shall be eligible for a license to engage in teaching or school administration in accordance with standards board rules.  The standards board may accept accreditation of an educator preparation program in Vermont or another state from a national accreditation entity as sufficient for approval;

(3)  Establish standards, including endorsements, according to which individuals may obtain a license or have one renewed or reinstated;

(4)  Oversee and monitor the application and licensing process administered by the office; and

(5)  Develop a code of professional ethics and act as advisor to professional educators regarding its interpretation.

§ 1695.  CREDENTIALS GRANTED IN ANOTHER STATE REVIEW OF LICENSING STANDARDS

The board shall make regulations relating to the recognition of teachers’ licenses, diplomas and educational credentials granted in any other state, provided such other state shall recognize, by substantially reciprocal regulations or laws, such licenses, diplomas and educational credentials issued in this state.  Prior to the prefiling by the standards board of a licensing standard or procedure proposed for rulemaking pursuant to section 820 of Title 3, the commissioner may object to it before the state board of education on the grounds that it would have significant adverse financial or operational impact on the public school system.  If the state board of education agrees, it may remand the proposed rule to the standards board for further deliberations consistent with its written decision.  The commissioner may also object on the same grounds to a substantive change to a proposed rule, once initiated, before a final proposal is filed pursuant to section 841 of Title 3.

§ 1696.  LICENSING

(a)  Qualifications of applicants.  An applicant shall submit to the commissioner evidence satisfactory to the commissioner that the applicant either has completed all requirements of an approved educator preparation program or has otherwise acquired the knowledge and skills required for a license through coursework and experiences apart from an approved educator preparation program.

(b)  License by reciprocity.  By rule, the standards board shall establish standards according to which an applicant who meets the licensing standards of another state with standards substantially similar to Vermont’s may be accorded a license in this state, provided the other state recognizes, by substantially reciprocal regulations or laws, licenses issued in this state.

(c)  Temporary licenses.  By rule, the standards board may establish standards, if any, by which an applicant who otherwise does not meet the standards for a license may obtain, for a period not to exceed two years, a temporary license.

(d)  Junior Reserve Officer Training Corps instructors.  The board shall accept certification of a junior Reserve Officer Training Corps instructor by the federal Department of Defense as qualification for a license to provide junior Reserve Officer Training Corps instruction to a student enrolled in a junior Reserve Officer Training Corps program.

(e)  Denial of license.  The commissioner may deny a license for:

(1)  Failure to meet the conditions for issuance of a license or endorsement or renewal or reinstatement thereof; or

(2)  Failure of a licensee to demonstrate the competencies specified in the rules of the standards board.

(f)  Appeal.  An applicant aggrieved by a decision of the commissioner regarding the issuance or renewal of a license may appeal that decision by notifying the commissioner in writing within 30 days of receiving the decision.  The commissioner forthwith shall transmit notice of the appeal to the administrative officer for hearing panels to initiate the appeal process set forth in section 1700 of this title.

§ 1697.  FEES

(a)  Each applicant and licensee shall be subject to the following fees:

(1)  Initial processing of application                               $35.00

(2)  Issuance of initial license                                         $35.00 per year

                                                                                    for the term of the                                                                                         license

(3)  Renewal of license                                 $35.00 per year

                                                                    for the term of the renewal

(4)  Replacement of license                                           $10.00

(5)  Duplicate license                                                    $3.00

(6)  Peer review process                                               $1,200.00

                                                                                    one-time fee.

(b)  Fees collected under this section shall be credited to special funds established and managed pursuant to chapter 7, subchapter 5 of chapter 7 of Title 32, and shall be available to the department to offset the costs of providing those services.

§ 1698.  CAUSES FOR LICENSING ACTION

Any one of the following, or any combination of the following, constitutes potential cause for licensing action whether occurring within or outside the state:

(1)  Unprofessional conduct which means:

(A)  Grossly negligent conduct or greater, on or off duty, that places a student or students in meaningful physical or emotional jeopardy, or conduct that evidences moral unfitness to practice as an educator.

(B)  Conviction for a criminal offense in which the underlying circumstances, conduct, or behavior, by gross negligence or greater, places a student or students in meaningful physical or emotional jeopardy, or conviction of a crime that evidences moral unfitness to practice as an educator.

(C)  Conviction of grand larceny under 13 V.S.A. § 2501 or embezzlement as defined in subchapter 2 of chapter 57 of Title 13, provided charges were brought after July 1, 2006.

(D)  Conviction of a crime charged after July 1, 2006, which involves fraudulent misrepresentation, dishonesty, or deceit, including conviction for any of the following:  13 V.S.A. §§ 1101, 1102, 1103, 1104, 1106, 1107, 1108, 3006, or 3016, provided that conviction under 13 V.S.A. §§ 2002, 2502, 2561, 2575, 2582, and 2591, if the value or amount involved is $500.00 or less, shall not be considered a conviction under this subdivision unless it is part of a larger pattern of dishonesty, deceit, or fraud.

(E)  A pattern of willful misconduct or a single egregious act of willful misconduct in violation of duties and obligations of the position.

(F)  Falsification, misrepresentation, or misstatement of material information provided in connection with the application for or renewal or reinstatement of a license or endorsement.

(G)  With respect to a superintendent, the failure to maintain the confidentiality and privileged status of information provided pursuant to subsection 1700(c) and subdivision 1708(f)(3) of this title.

(2)  Incompetence, which means the inability or incapacity to perform the duties and competencies required by the license.

§ 1699.  REPORTS OF ALLEGED UNPROFESSIONAL CONDUCT OR INCOMPETENCE

(a)  An individual who has reasonable cause to believe a licensee has engaged in unprofessional conduct or is incompetent may, and a superintendent who has reasonable cause to believe a licensee has engaged in unprofessional conduct or is incompetent shall, submit a written report to the commissioner concerning allegations of unprofessional conduct or incompetence about a licensee.  A principal submitting a report under this section shall submit it to the superintendent and may also submit it to the commissioner.

(b)  Except as provided in section 1708 of this title, information provided the licensing office under this section shall be confidential.

(c)  A person who acts in good faith under the provisions of this section shall not be liable for damages in any civil action.

§ 1700.  INVESTIGATION

(a)  Investigation committee.  Upon receiving notice of either an applicant’s appeal of a licensing office decision or an allegation of unprofessional conduct or incompetence on the part of a licensee, the hearing panel administrative officer shall assign one or more of its licensee members to serve on an investigation committee with an investigator and prosecuting attorney assigned by the commissioner of education to investigate the licensing decision or allegation and make recommendations to the commissioner in accordance with subsections (b) and (d) of this section.  Teacher members shall be assigned to assist in the investigation of matters involving teachers and administrator members in matters involving administrators.  Members shall not serve on a hearing panel regarding any matter they assisted in investigating.  If the administrative officer is unable to assign one or more members to the investigation committee by reason of disqualification, resignation, vacancy, or necessary absence, the officer shall appoint ad hoc members who shall meet the requirements of subsection 1693(b) of this title.

(b)  Preliminary review.  After conducting a preliminary review of an allegation of unprofessional conduct or incompetence or of a denial of a license based on alleged unprofessional conduct or incompetence, the investigation committee shall make a recommendation to the commissioner regarding whether to conduct a formal investigation.

(c)  Formal investigation.  If the commissioner decides to conduct a formal investigation, the commissioner shall:

(1)  notify the educator and direct the investigation committee to proceed with a formal investigation; and

(2)  notify the superintendent of the school district in which the educator may be employed, or if the educator is currently employed as a superintendent, the chair of the board of the supervisory union or supervisory district that employs the superintendent, that the office has commenced a formal investigation of an allegation of unprofessional conduct or incompetence and shall specify the provisions of section 1698 of this title that best describe the allegation.

(d)  Recommendation.  Upon completing its investigation, the investigation committee shall recommend that the commissioner, with respect to a license application, affirm or reverse a licensing office decision or, with respect to alleged unprofessional conduct or incompetence, issue or not issue formal charges.

(e)  Professional guidance.  In its recommendation as to whether the commissioner should issue formal charges and, if so, what form they should take, the committee may consider the effect it believes its professional guidance may have in mitigating the need for and nature of licensing action.

§ 1701.  COMMISSIONER’S DETERMINATION

(a)  Matters involving denial of licensure.  With respect to an applicant’s appeal, the commissioner shall, within 10 days of receiving the committee’s recommendation, affirm or reverse the licensing decision and notify the applicant in writing.  If the commissioner reverses the decision, the office shall issue a license accordingly.  If the commissioner affirms the decision, the applicant may appeal by notifying the commissioner in writing within 10 days of receiving the commissioner’s decision.  The commissioner shall forthwith notify the hearing panel administrative officer of the appeal.

(b)  Matters involving alleged unprofessional conduct or incompetence.  With respect to a licensee alleged either incompetent or to have engaged in unprofessional conduct, the commissioner shall, within 10 days of receiving the investigation committee’s recommendation, determine whether to issue a formal charge and what, if any, licensing action should be imposed.  If the commissioner determines no formal charge is warranted, the commissioner shall notify in writing the licensee and, if the licensee is employed, the superintendent of the school district of employment.  If the commissioner determines a formal charge is warranted, the commissioner shall prepare a formal charge, file it with the hearing panel administrative officer, and cause a copy to be served upon the licensee charged together with a notice of hearing and procedural rights, as provided in this chapter.  The commissioner shall provide a copy of the formal charge to the superintendent of the school district, if any, in which the licensee is employed, or if the licensee is employed as a superintendent, to the chair of the supervisory union that employs the superintendent, provided the superintendent or board chair agrees to maintain the confidentiality and privileged status of the information as provided in subsection 1708(d) of this title.  If the commissioner finds that public health, safety, or welfare imperatively requires emergency action and incorporates a finding to that effect in the formal charge, the hearing panel may order summary suspension of a license pending proceedings for revocation or other action.  These proceedings shall be promptly instituted and determined.

§ 1702.  HEARING PANELS

(a)  Appointment.  The governor shall appoint seven teachers, four administrators, and three members of the public to serve on hearing panels for terms of three years beginning on July 1 of the year of appointment.  No person shall be eligible for more than one sequential reappointment.  The governor shall ensure appointments are consistent with the requirements found in subdivisions 1693(b)(1)–(3) of this title.  By appointment, the governor shall fill any vacancy for the remainder of its term.  Panel members shall be considered appointive officers for the purposes of chapter 29 of Title 3 and shall be compensated in accordance with section 1010 of Title 32.

(b)  Administration.  The hearing panels shall be attached for administrative purposes to the office.  Annually, the panel members shall meet collectively to:

(1)  elect an administrative officer for the purpose of assigning hearing panels in licensing matters;

(2)  approve a pool, based upon the commissioner’s recommendation, of impartial hearing officers who shall be attorneys admitted to practice in this state; and

(3)  plan professional development activities. 

(c)  Powers and duties of hearing panels.  Hearing panels shall have the authority to determine compliance by applicants, licensees, and the office with standards board standards according to which individuals may obtain, renew, and retain a license.  Upon notification that the applicant has appealed under subsection 1701(a) of this title or that the commissioner has issued a formal charge under subsection 1701(b) of this title, the administrative officer shall appoint a hearing officer and a panel, as well as a chair for the panel.  Panels hearing appeals of teachers shall comprise two teacher members and one public member.  Panels hearing appeals of administrators shall comprise two administrator members and one public member.  In the conduct of proceedings, the hearing officer, or the panel if it takes additional evidence under subsection 1706(a) of this title, may:

(1)  Issue subpoenas to compel the attendance of witnesses and the furnishing of evidentiary material in connection with a hearing;

(2)  Authorize depositions to be taken as needed in any investigation, hearing, or proceeding;

(3)  Conduct administrative hearings in accordance with this section, section 1705 of this title, and chapter 25 of Title 3 regarding appeals of licensing decisions and charges of unprofessional conduct or incompetence;

(4)  In the case of the hearing officer, recommend and, in the case of a hearing panel, make decisions regarding appeals of licensing decisions and formal charges; and

(5)  Undertake any other actions and procedures specified in or required or appropriate to carry out the provisions of this chapter.

§ 1703.  TIME AND NOTICE OF HEARING

The chair of the panel shall fix the time of hearing, which shall be between 30 and 60 days after, as applicable, filing of the license application appeal or service of the charge on the licensee.  The chair shall provide the applicant or licensee notice of the hearing, in it stating the following:  the time and place of the hearing; the right of the applicant or licensee charged to file with the chair a written response within 20 days of the date of service; the fact that a record of the proceeding will be kept; the rights of the applicant or licensee charged at the hearing to appear personally, to be represented by counsel, to produce witnesses and evidence, to cross-examine witnesses, and to examine such documentary evidence as may be produced; and, in the case of formal charges against the licensee, the range of licensing actions to which the licensee charged may be subject if the formal charges are substantiated.

§ 1704.  BURDEN OF PROOF

(a)  Denial of licensure.  Except as provided in subsection (b) of this section, the burden of proof in matters involving the denial of an initial license or the addition of an endorsement to a license once issued shall be on the applicant by a preponderance of the evidence.

(b)  Alleged unprofessional conduct or incompetence.  The burden of proof in matters involving alleged unprofessional conduct or incompetence, including denial of a license based on alleged unprofessional conduct or incompetence, shall be on the commissioner by a preponderance of the evidence, except that in the case of revocation or suspension for more than one year, the proof shall be by clear and convincing evidence.

§ 1705.  HEARING OFFICER RECOMMENDATION

The hearing officer shall conduct the hearing for the purpose of issuing recommended findings of fact, conclusions of law, and a proposed decision to the hearing panel.  The hearing officer may administer oaths and otherwise exercise the powers of a judicial officer regarding the conduct of a fair and impartial hearing.  Within 30 days of the hearing, the hearing officer shall recommend to the hearing panel findings of fact, conclusions of law, and a decision and by certified mail provide a copy to the applicant or licensee.

§ 1706.  DECISION AND ORDER

(a)  Hearing panel decision.  The hearing panel may take additional evidence and may accept, reject, or modify the recommendations of the hearing officer and shall issue findings of fact, conclusions of law, and an order within 30 days of receiving the recommendations, unless the hearing panel grants an extension for good cause.  The hearing panel shall provide a copy of the decision to the commissioner and, by certified mail, the applicant or licensee charged.  If formal charges are not substantiated, the hearing panel shall include in its order a statement that the charges were not substantiated by the evidence, and it shall dismiss the charges.

(b)  Charges substantiated.  If formal charges are substantiated, the hearing panel, in its order, may:  take no action; issue a warning; issue a private reprimand; issue a public reprimand; or condition, limit, suspend, or revoke the license to practice.  An administrative penalty not to exceed $1,000.00 may be imposed by itself or in connection with the issuance of a warning or of a private or public reprimand.

§ 1707.  APPEAL FROM PANEL ORDER

(a)  Appeal to state board of education.

(1)  A party aggrieved by a final decision of a hearing panel may, within 30 days of the decision, appeal that decision by filing a notice of appeal with the administrative officer of the hearing panel who shall refer the case to the state board of education.  The parties may agree to waive this review by written stipulation filed with the state board of education.  The state board of education shall conduct its review on the basis of the record created before the hearing panel, and it shall allow the presentation of evidence regarding alleged irregularities in hearing procedure not shown in the record.

(2)  The state board of education shall not substitute its judgment for that of the hearing panel as to the weight of the evidence on questions of fact.  It may affirm the decision or may reverse and remand the matter with recommendations if substantial rights of the appellant have been prejudiced because the hearing panel’s finding, inferences, conclusions, or decisions are:

(A)  in violation of constitutional or statutory provisions;

(B)  in excess of the statutory authority of the hearing panel;

(C)  made upon unlawful procedure;

(D)  affected by other error of law;

(E)  clearly erroneous in view of the evidence on the record as a whole;

(F)  arbitrary or capricious; or

(G)  characterized by abuse of discretion or clearly unwarranted exercise of discretion.

(b)  Following appeal or waiver of appeal to the state board of education, a party may appeal to the superior court in Washington County which shall review the matter de novo.

§ 1708.  ACCESSIBILITY AND CONFIDENTIALITY OF LICENSING MATTERS

(a)  It is the purpose of this section both to protect the reputation of licensees from public disclosure of unwarranted complaints and to fulfill the public’s right to know of any action taken against an applicant or a licensee when that action is based on a determination of unprofessional conduct or incompetence.

(b)  All meetings and hearings of the standards board and hearing panels shall be held in accordance with chapter 5 of Title 1.

(c)  The commissioner shall prepare and maintain a register of all complaints which shall be a public record and which shall show:

(1)  with respect to all complaints for which a formal investigation is initiated under subsection 1700(c) of this title, the following information:

(A)  the date and the nature of the complaint, but not the identity of the licensee or information that could be used to identify the licensee; and

(B)  a summary of the completed investigation; and

(2)  only with respect to complaints resulting in the filing of a formal charge under subsection 1701(b) of this title, the following additional information:

(A)  the name and business addresses of the licensee and the name of the complainant if disclosure is permitted under federal or state law and does not provide personally identifying information about a student;

(B)  formal charges, provided they have been served or a reasonable  effort to serve them has been made;

(C)  except as provided under chapter 5 of Title 1, the findings, conclusions, and order of the hearing panel; and

(D)  final disposition of the matter.

(d)  The hearing panel and the commissioner shall not disclose to anyone but the applicant or the licensee charged any information regarding a complaint, proceeding, or record, except the information required to be released under this section.

(e)  A licensee or applicant shall have the right to inspect and copy all  information in the possession of the department of education pertaining to the licensee or applicant, except investigatory files not resulting in formal charges and attorney work product.

(f)  Nothing in this section shall prohibit the disclosure of information:

(1)  Regarding complaints to state or federal law enforcement agencies in the course of an investigation, provided the agency agrees to maintain the confidentiality and privileged status of the information as provided in subsection (d) of this section;

(2)  Regarding denials of licensure for cause, and license suspensions or revocations, and including reinstatements of licenses, to the National Association of State Directors of Teacher Education and Certification, consistent with the member agreement executed between it and the state of Vermont.  For the purposes of this subdivision, “cause” includes any circumstance or activity also deemed to be a revocable offense; or

(3)  As is necessary in investigating a complaint, to the superintendent of a school district in which the licensee is employed or, if the licensee is employed as a superintendent, to the chair of the board that employs the superintendent, provided the superintendent or chair agrees to maintain the confidentiality and privileged status of the information as provided in subsection (d) of this section.  Where, in the judgment of the commissioner, the alleged unprofessional conduct or incompetence places the students in immediate physical or emotional jeopardy, the office shall inform the superintendent of the school district in which the licensee is employed.  The superintendent may take only such action as is both necessary to protect students and consistent with the rights of the licensee.  The superintendent shall not do anything which compromises the integrity of the investigation.

§ 1709.  REPORTS

The commissioner of education shall issue annually a report to the standards board which shall contain:

(1)  the number of new licensees and endorsements they receive, the number of licenses that have lapsed without renewal, and the total number of licensees;

(2)  a summary of all complaints requiring preliminary review, formal investigation and formal charges; and

(3)  an accounting of all fees and administrative penalties received by the office and all expenditures and costs of the office for the year.

Sec. 3.  16 V.S.A. § 1931(20) is amended to read:

(20)  “Teacher” shall mean any licensed teacher, principal, supervisor, superintendent, or any professional licensed by the state board of education Vermont standards board for professional educators regularly employed for the full normal working time for his or her position in a public day school within the state, or in any school or teacher-training institution located within the state, controlled by the state board of education, and supported wholly by the state; or any teacher, principal, supervisor, superintendent, or any professional regularly employed for the full normal working time for his or her position in any nonsectarian independent school which serves as a high school for the town or city in which the same is located, provided such school is not conducted for personal profit.  It shall also mean any person employed in a teaching capacity in certain public independent schools designated for such purposes by the board of trustees in accordance with section 1935 of this title. In all cases of doubt the board of trustees, herein defined, shall determine whether any person is a teacher as defined in this chapter.  It shall not mean a person who is teaching with an emergency license.

Sec. 4.  16 V.S.A. § 1981(1) and (5) are amended to read:

(1)  “Administrator” means any person so licensed by the state board of education Vermont standards board for professional educators, the majority of whose employed time in a school or a school district is devoted to serving as superintendent, assistant superintendent, assistant to the superintendent, supervisor, principal, or assistant principal.

(5)  “Teacher” means any person licensed employable as a teacher by the state board of education Vermont standards board for professional educators who is not an administrator as herein defined.

Sec. 5.  26 V.S.A. § 4451(3), (10), and (14) are amended to read:

(3)  “Board” means the state board of education Vermont standards board for professional educators unless the context clearly requires otherwise.

(10)  “Private practice” means any work performed by a licensed

speech-language pathologist or audiologist that is not within the jurisdiction of the state board of education.

(14)  “Within the jurisdiction of the state board of education” means conduct or work performed by a licensed speech-language pathologist or audiologist on behalf of a supervisory union or public school district in Vermont or an independent school approved for special education purposes, or conduct otherwise subject to discipline under the state board of education licensing rules of the board.

Sec. 6.  26 V.S.A. § 4454(b) is amended to read:

(b)  This chapter shall not be construed to limit the authority of the state board of education to determine and evaluate the qualifications of, issue licenses to, or discipline licensees who are within the jurisdiction of the state board of education or the Vermont standards board for professional educators.

Sec. 7.  26 V.S.A. § 4455(b) is amended to read:

(b)  The secretary shall seek the advice of the individuals appointed under this section in matters related to qualifications or alleged misconduct not within the jurisdiction of the state board of education.  The advisors shall be entitled to compensation and necessary expenses as provided in section 1010 of Title 32 for meetings called by the director.

Sec. 8.  26 V.S.A. § 4456(a)(6) is amended to read:

(6)  refer all complaints and disciplinary matters not within the jurisdiction of the state board of education to the secretary of state;

Sec. 9.  26 V.S.A. § 4457 is amended to read:

§ 4457.  LICENSURE; APPLICATIONS; ELIGIBILITY

Applicants for licenses under this chapter shall submit an application to the department on a form furnished by the department, along with payment of the specified fee and evidence of the eligibility qualifications established by the state board of education which shall include, at a minimum:

* * *

Sec. 10.  26 V.S.A. § 4458(a) is amended to read:

(a)  A license shall be renewed at an interval determined by the state board of education which shall be no fewer than every two years and no more than every seven years upon payment of the renewal fee, provided the person applying for renewal completes professional development activities in accord with the processes approved by the department or the Vermont standards board for professional educators, during the interval.  The board shall establish, by rule, guidelines and criteria for the renewal or reinstatement of licenses issued under this chapter.

Sec. 11.  VERMONT EDUCATORS; CRITICAL NEEDS

At the 2006 meeting convened pursuant to subdivision 212(14) of Title 16, the group shall discuss, at a minimum, the need for teachers of children with autism and for speech-language pathologists.  If the group determines that there is a need for speech-language pathologists in Vermont, it shall discuss whether a new level of licensure which does not require a master’s degree would help to meet the need.

Sec. 12.  REPEAL

16 V.S.A. § 164(5) is repealed.

Sec. 13.  TRANSITION; EFFECTIVE DATE

(a)  The current Vermont standards board for professional educators shall continue to perform its duties under existing state board of education rules and its appointed members shall continue in their positions during fiscal year 2007. Notwithstanding any state board rule to the contrary, the state board may reappoint current standards board members for fiscal year 2007.

(b)  Regulations and standards adopted by the state board of education which relate to the areas under the authority of the Vermont standards board for professional educators pursuant to this act shall remain in effect upon passage of this act until the standards board officially changes them.

(c)  During fiscal year 2007, the governor shall appoint members of the Vermont standards board for professional educators and the individuals to serve on the hearing panels for staggered terms commencing July 1, 2007.

(d)  This section shall become effective on passage.  The remainder of this act shall take effect on July 1, 2007.

and that after passage, the title be changed to read as follows:  “AN ACT RELATING TO A STANDARDS BOARD AND LICENSING HEARING PANELS FOR PROFESSIONAL PUBLIC EDUCATORS”

(Committee Vote: 5-0-0)

Reported favorably by Senator Miller for the Committee on Appropriations.

(Committee vote: 6-0-1)

(For House amendments, see House Journal for February 28, 2006, page 476; March 1, 2006, page 503.)

NEW BUSINESS

Third Reading

H. 869

An act relating to the state’s transportation program.

PROPOSAL OF AMENDMENT TO H. 869 TO BE OFFERED BY SENATOR SHEPARD BEFORE THIRD READING

Senator Shepard moves to amend the Senate proposal of amendment as follows:

     First:  By adding a new section to be numbered Sec. 42a to read as follows:

Sec. 42a.  MOTOR VEHICLE AND HIGHWAY USER FEES; CPI LIMIT

     Notwithstanding the amount of the increase in any motor vehicle or highway user fee set out in Secs. 24 through 42 of this act, no fee shall be increased by this act by a percentage greater than the accumulated increase in the consumer price index for the years 2001 through 2006 (11.4%).

     Second:  By adding a new section to be numbered Sec. 42b to read as follows:

Sec. 42b.  JTOC TRANSFER; LIMITATION IN FY 2007

     Notwithstanding any provision of this or any other act of the General Assembly, the amount of the transfer of transportation funds to the general fund (the “JTOC Transfer”) in fiscal year 2007 shall be reduced by an amount equal to the difference between the revenues from the fees raised by Secs. 24 through 42 of this act and the revenues from those fees as limited to the increase in the consumer price index by Sec. 42a of this act.

Second Reading

Favorable with Proposal of Amendment

H. 856

An act relating to enhancing sentences for and preventing risks posed by dangerous sexual offenders.

Reported favorably with recommendation of proposal of amendment by Senator Sears for the Committee on Judiciary.

The Committee recommends that the Senate propose to the House to amend the bill by striking out all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  SHORT TITLE

This act may be known as the “Sexual Violence Prevention Act.”

Sec. 2.  LEGISLATIVE INTENT

The General Assembly intends that any increase in the rate of incarceration of sexual offenders caused by this act be offset by a decrease in the rate of incarceration of non-violent offenders.

* * * Prevention * * *

Sec. 3.  SEXUAL VIOLENCE PREVENTION TASK FORCE

(a)  The general assembly acknowledges that many diverse organizations in Vermont currently provide sexual violence prevention education in Vermont schools with minimal financial support from the state.  In order to further the goal of comprehensive, collaborative statewide sexual violence prevention efforts, the anti-violence partnership at the University of Vermont shall convene a task force to identify opportunities for sexual violence prevention education in Vermont schools.  The task force shall conduct an inventory of  sexual violence prevention activities currently offered by Vermont schools and by nonprofit and other nongovernmental organizations, and shall provide information to them concerning the changes to law made by this act and concerning the consequences of sexual activity among minors.

(b)  The task force established by this section shall include representatives from:

(A)  The department of education.

(B)  The department of health.

(C)  The department of children and families.

(D)  The judiciary department.

(E)  An organization which works with youthful sex offenders.

(F)  Prevent child abuse-Vermont.

(G)  The Vermont network against domestic and sexual violence.

(H)  The Vermont center for prevention and treatment of sexual abuse.

(I)  The University of Vermont college of education and social services.

(c)  On or before January 15, 2007, and on or before January 15 for five years thereafter, the task force shall report on its activities during the preceding year to the house and senate committees on education and judiciary.  The task force shall cease to exist after it files the report due on January 15, 2012.

* * * Investigation * * *

Sec. 4.  24 V.S.A. § 1940 is amended to read:

§ 1940.  TASK FORCES; SPECIALIZED INVESTIGATIVE UNITS; BOARD; GRANTS

(a)  Pursuant to the authority established under section 1938 of this title, and in collaboration with law enforcement agencies, investigative agencies, victims advocates and social service providers, the department of state’s attorneys shall coordinate efforts to provide access in each region of the state to special investigative unit to investigate sex crimes, child abuse, domestic violence, or crimes against those with physical or developmental disabilities.  The general assembly intends that access to special investigative units be available to all Vermonters as soon as reasonably possible, but not later than July 1, 2009.

(b)  A task force or specialized investigative unit organized and operating under section 1938 of this title section may accept, receive, and disburse in furtherance of its duties and functions any funds, grants, and services made available by the state of Vermont and its agencies, the federal government and its agencies, any municipality or other unit of local government, or private or civic sources.  Any employee covered by an agreement establishing a special investigative unit shall remain an employee of the donor agency.

(b)(c)  A specialized investigative unit grants board is created which shall be comprised of the attorney general, the secretary of administration, the executive director of the department of state’s attorneys, the commissioner of the department of public safety, the executive director of the center for crime victim services, and the executive director of the Vermont League of Cities and Towns.  Specialized investigative units organized and operating under section 1938 of this title section for the investigation of sex crimes, child abuse, elder abuse, domestic violence, or crimes against those with physical or developmental disabilities may apply to the board for a grant or grants covering the costs of salaries and employee benefits to be expended during a given year for the performance of unit duties as well as unit operating costs for rent, utilities, equipment, training, and supplies.  Grants under this section shall be approved by a majority of the entire board and shall not exceed 50 percent of the yearly salary and employee benefit costs of the unit.  Preference shall be given to grant applications which include the participation of the department of public safety, the department of children and families, and municipalities within the region.  

(c)(d)  The board may adopt rules relating to grant eligibility criteria, processes for applications, awards, and reports related to grants authorized pursuant to this section.  The attorney general shall be the adopting authority.

* * * Sentencing * * *

Sec. 5.  13 V.S.A. § 1021(2) is amended to read:

§ 1021.  DEFINITIONS

For the purpose of this chapter:

* * *

(2)  “Serious bodily injury” means:

(A)  bodily injury which creates any of the following:

(i)  a substantial risk of death or which causes;

(ii)  a substantial loss or impairment of the function of any bodily member or organ or;

(iii)  a substantial impairment of health,; or

(iv)  substantial disfigurement; or

(B)  strangulation by intentionally impeding normal breathing or circulation of the blood by applying pressure on the throat or neck or by blocking the nose or mouth of another person.

Sec. 6.  13 V.S.A. § 1375 is amended to read:

§ 1375.  DEFINITIONS

As used in this chapter:

* * *

(5)  “Serious bodily injury” means bodily injury which creates a substantial risk of death or which causes substantial loss or impairment of the function of any bodily member or organ or substantial impairment of health, or substantial disfigurement shall have the same meaning as in subdivision 1021(2) of this title.

* * *

Sec. 7.  13 V.S.A. § 2602 is amended to read:

§ 2602.  LEWD OR LASCIVIOUS CONDUCT WITH CHILD

(a)(1)  No person shall wilfully and lewdly commit any lewd or lascivious act upon or with the body, or any part or member thereof, of a child under the age of 16 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of such person or of such child.

(2)  This section shall not apply if the child was 15 years old and the actor was no more than three years older than the child, and the conduct was consensual.

(b)  A person who violates subsection (a) of this section shall be:

(1)  For a first offense, imprisoned not less than one year and not more than 15 years or, and, in addition, may be fined not more than $5,000.00, or both.

(2)  For a second offense, imprisoned not less than two five years and not more than 30 years a maximum term of life  or, and, in addition, may be fined not more than $10,000.00 $25,000.00, or both.

(3)  For a third or subsequent offense, imprisoned not less than three ten years and up to and including a maximum term of life or, and, in addition, may be fined not more than $25,000.00, or both. 

(c)(1)  Except as provided in subdivision (2) of this subsection, a sentence ordered pursuant to subdivision (b)(2) of this section shall include at least a five-year term of imprisonment and a sentence ordered pursuant to subdivision (b)(3) of this section shall include at least a ten-year term of imprisonment.  The five-year and ten-year terms of imprisonment required by this subdivision shall be served and may not be suspended, deferred, or served as a supervised sentence.  The defendant shall not be eligible for probation, parole, furlough, or any other type of early release until the expiration of the five-year or ten-year term of imprisonment.

(2)  The court may depart downwardly from the five-year and ten-year terms of imprisonment required by subdivisions (b)(2) and (b)(3) of this section and impose a lesser term of incarceration if the court makes written findings on the record that the downward departure will serve the interests of justice and public safety.

(d)  A person convicted of violating subdivision (b)(2) or (b)(3) of this section shall be sentenced under section 3271 of this title.

Sec. 8.  13 V.S.A. § 2828 is amended to read:

§ 2828.  USE OF ELECTRONIC COMMUNICATION TO LURE LURING A CHILD

(a)  No person shall knowingly utilize an electronic communication to solicit, lure, or entice, or to attempt to solicit, lure, or entice, a child under the age of 16 or another person believed by the person to be a child under the age of 16, to engage in a sexual act as defined in section 3251 of this title or engage in lewd and lascivious conduct as defined in section 2602 of this title. 

(b)  This section applies to solicitation, luring, or enticement by any means, including in person, through written or telephonic correspondence or electronic communication.

(c)  This section shall not apply if the child was at least 15 years old and the actor was no more than three years older than the child, and the communication was consensual.

Sec. 9.  13 V.S.A. chapter 72 is amended to read:

CHAPTER 72.  SEXUAL ASSAULT

Subchapter 1.  Crimes; Trial

§ 3251.  DEFINITIONS

As used in this chapter:

* * *

(4)  “Serious bodily injury” means bodily injury which creates a substantial risk of death or which causes substantial loss or impairment of the function of any bodily member or organ or substantial impairment of health, or substantial disfigurement shall have the same meaning as in subdivision 1021(2) of this title;

* * *

§ 3252.  SEXUAL ASSAULT

(a)  A No person who engages shall engage in a sexual act with another person and

(1)  Compels compel the other person to participate in a sexual act:

(A)(1)  Without without the consent of the other person; or

(B)(2)  By by threatening or coercing the other person; or

(C)(3)  By by placing the other person in fear that any person will suffer imminent bodily injury; or.

(2)  Has impaired (b)  No person shall engage in a sexual act with another person and impair substantially the ability of the other person to appraise or control conduct by administering or employing drugs or intoxicants without the knowledge or against the will of the other person; or.

(3)  The other person (c)  No person shall engage in a sexual act with a child who is under the age of 16, except:

(1)  where the persons are married to each other and the sexual act is consensual; or

(2)  the child was at least 15 years old and the actor was no more than three years older than the child, and the sexual act was consensual.

(4)  The other person (d)  No person shall engage in a sexual act with a child who is under the age of 18 and is entrusted to the actor’s care by authority of law or is the actor’s child, grandchild, foster child, adopted child, or step-child;

shall be imprisoned for not more than 20 years, or fined not more than $10,000.00, or both stepchild.

(b)(e)  A No person who engages shall engage in a sexual act with another person a child under the age of 16 and if:

(1)  the victim is entrusted to the actor’s care by authority of law or is the actor’s child, grandchild, foster child, adopted child, or step-child stepchild; or

(2)  the actor is at least 18 years of age, resides in the victim’s household, and serves in a parental role with respect to the victim;

shall be imprisoned for not more than 35 years, or fined not more than $25,000.00, or both.

(f)(1)  A person who violates subsection (a), (b), (d), or (e) of this section shall be imprisoned not less than three years and for a maximum term of life, and, in addition, may be fined not more than $25,000.00.

(2)  A person who violates subsection (c) of this section shall be imprisoned for not more than 20 years, and, in addition, may be fined not more than $10,000.00.

(g)  A person convicted of violating subsection (a), (b), (d), or (e) of this section shall be sentenced under section 3271 of this title.

§ 3253.  AGGRAVATED SEXUAL ASSAULT

(a)  A person commits the crime of aggravated sexual assault if the person commits sexual assault under any one of the following circumstances:

(1)  At the time of the sexual assault, the actor causes serious bodily injury to the victim or to another.

(2)  The actor is joined or assisted by one or more persons in physically restraining, assaulting or sexually assaulting the victim.

(3)  The actor commits the sexual act under circumstances which constitute the crime of kidnapping.

(4)  The actor has previously been convicted in this state of sexual assault under subdivision 3252(a)(1) or (2) subsection 3252 (a) or (b) of this title or aggravated sexual assault or has been convicted in any jurisdiction in the United States or territories of an offense which would constitute sexual assault under subdivision 3252(a)(1) or (2) subsection 3252 (a) or (b) of this title or aggravated sexual assault if committed in this state.

(5)  At the time of the sexual assault, the actor is armed with a deadly weapon and uses or threatens to use the deadly weapon on the victim or on another.

(6)  At the time of the sexual assault, the actor threatens to cause imminent serious bodily injury to the victim or to another and the victim reasonably believes that the actor has the present ability to carry out the threat.

(7)  At the time of the sexual assault, the actor applies deadly force to the victim.

(8)  The victim is under the age of 10 12 and the actor is at least 18 years of age.

(9)  The victim is subjected by the actor to repeated nonconsensual sexual acts as part of the same occurrence or the victim is subjected to repeated nonconsensual sexual acts as part of the actor’s common scheme and plan.

(b)  A person who commits the crime of aggravated sexual assault shall be imprisoned up to and including not less than ten years and a maximum term of life or, and, in addition, may be fined not more than $50,000.00, or both.  No person who receives a minimum sentence under this section shall be eligible for early release or furlough until the expiration of the minimum sentence imposed.  A minimum sentence ordered pursuant to this section shall include at least a ten-year term of imprisonment which shall be served and may not be suspended, deferred, or served as a supervised sentence.  The defendant shall not be eligible for probation, parole, furlough, or any other type of early release until the expiration of the ten-year term of imprisonment.

(c)  A person convicted of violating this section shall be sentenced under section 3271 of this title.

* * *

Subchapter 2.  Sentencing, Treatment, and Supervision

§ 3271.  INDETERMINATE LIFE SENTENCE

(a)  A person who commits one of the following offenses shall be sentenced under this section:

(1)  Lewd and lascivious conduct with a child, second or subsequent offense, in violation of subdivision 2602(b)(2) of this title.

(2)  Sexual assault in violation of section 3252(a), (b), (d), or (e) of this title.

(3)  Aggravated sexual assault in violation of section 3253 of this title.

(b)  If a person is sentenced under this section, the person’s maximum sentence shall be imprisonment for life.

(c)  If a person sentenced under this section receives a sentence that is wholly or partially suspended, sex offender conditions and treatment shall be a condition of the person’s probation agreement.

(d)  If a person sentenced under this section receives a sentence for an unsuspended term of incarceration, the person shall not be released until the person successfully completes all sex offender treatment and programming required by the department of corrections, unless the department determines that the person poses a sufficiently low risk of reoffense to protect the community or that a program can be implemented which adequately supervises the person and addresses any risk the person may pose to the community.

Sec. 10.  28 V.S.A. § 204 is amended to read:

§ 204.  SUBMISSION OF WRITTEN REPORT; PROTECTION OF RECORDS

* * *

(c)  The report ordered by the court under this section or section 204a of this title shall be made not less than one week nor more than three weeks from the date of the order. This three week limit may be extended by order of the court.

* * *

(e)  The presentence report ordered by the court under this section or section 204a of this title shall include the comments or written statement of the victim, or the victim's guardian or next of kin if the victim is incompetent or deceased, whenever the victim or the victim's guardian or next of kin choose to submit comments or a written statement.

(f)  If the offense charged is aggravated sexual assault, sexual assault, lewd and lascivious behavior, lewd or lascivious behavior with a child, or sexual exploitation of children, the report shall address the issue of the availability of appropriate treatment programs within correctional facilities and on an outpatient basis in the community, including recommendation as to the defendant's eligibility for such treatment programs and shall include a statement of the relevant policies of the department of corrections regarding parole recommendations for the offense of which the offender was convicted.

Sec. 11.  28 V.S.A. § 204a is added to read:

§ 204a.  SEXUAL OFFENDERS; PRE-SENTENCE INVESTIGATIONS;

RISK ASSESSMENTS; PSYCHOSEXUAL EVALUATIONS

(a)  The department of corrections shall conduct a presentence investigation for all persons convicted of:

(1)  lewd and lascivious conduct in violation of section 2601 of this title;

(2)  lewd and lascivious conduct with a child in violation of section 2602 of this title;

(3)  sexual assault in violation of section 3252 of this title;

(4)  aggravated sexual assault in violation of section 3253 of this title; or

(5)  an offense involving sexual exploitation of children in violation of chapter 64 of this title.

(b)  A presentence investigation required by this section:

(1)  shall include an assessment of the offender’s risk of reoffense and a determination of whether the person is a high risk offender;

(2)  shall include a psychosexual evaluation if so ordered by the court; and

(3)  shall be completed before the defendant is sentenced.  Upon completion, the department shall submit copies to the court, the state’s attorney, and the defendant’s attorney.

(c)(1)  The department of corrections shall prepare a recommendation for programming and treatment for all persons for whom a presentence investigation is required under subsection (a) of this section.  The department shall consider the information contained in the presentence investigation when recommending the programming and treatment appropriate for the offender.

(2)  The recommendation required by this subdivision shall address the issue of the availability of appropriate treatment programs within correctional facilities and on an outpatient basis in the community, including recommendation as to the defendant's eligibility for such treatment programs, and shall include a statement of the relevant policies of the department of corrections regarding parole recommendations for the offense of which the offender was convicted.

(3)(A) The court may order the department to provide a report including:

(i)  the minimum and maximum sentences necessary to permit admission of the offender to any of the available treatment programs; and

(ii)  the results of a pre-assessment of the offender.

(B)  A pre-assessment under this subdivision shall consist of:

(i)  an interview with the defendant;

(ii)  an assessment of the offender’s risk level;

(iii)  completion of testing and any other steps necessary to make an appropriate programming decision for the defendant;

(iv)  identification of the treatment program within a correctional facility to which the offender will be referred based on the information available at the time of sentencing, provided the defendant agrees to treatment and is sentenced to a term which permits participation in the program.

(C)(i)  Except as provided in subdivision (ii) of this subdivision (C), the department shall provide a report to the court under this subdivision within 60 days after it is ordered.

(ii)  If the department requires a psychosexual evaluation in order to determine whether the offender will be admitted into any of the available treatment programs, the department shall complete the evaluation and provide it to the court along with its report within 90 days after the report is ordered.

(d)  The requirement that a presentence investigation be performed pursuant to subsection (a) of this section:

(1)  may be waived if the court finds that a report is not necessary for purposes of sentencing; and

(2)  shall not be interpreted to prohibit the performance of a presentence investigation, psychosexual evaluation, or risk assessment at any other time during the proceeding, including prior to the entry of a plea agreement or prior to sentencing for a violation of probation.

(e)  Nothing in this section shall be construed to infringe in any manner upon the department’s authority to make decisions about programming for defendants or to create a right on the part of the offender to receive treatment in a particular program. 

* * * Treatment * * *

Sec. 12.  REPORT

On or before January 15, 2007, the department of corrections shall report to the corrections oversight committee:

(1)  the total current resources and expenditures allocated for providing sex offender programming and treatment to incarcerated offenders;

(2)  the resources and expenditures necessary to provide sex offender programming and treatment to all incarcerated offenders who are amenable to treatment; and

(3)  any significant programmatic changes, including but not limited to elimination of a program. 

*** Vermont Sentencing Commission ***

Sec. 13.  13 V.S.A. chapter 169 is added to read:

Chapter 169.  VERMONT SENTENCING COMMISSION

§ 5451.  CREATION OF COMMISSION

(a)  The Vermont sentencing commission is established for the purpose of overseeing criminal sentencing practices in the state, reducing geographical disparities in sentencing,  and making recommendations regarding criminal sentencing to the general assembly.

(b)  The committee shall consist of the following members:

(1)  the chief justice of the Vermont supreme court, or designee;

(2)  the administrative judge, or designee, provided that the  designee is a sitting or retired Vermont judge;

(3)  a district or superior court judge with substantial criminal law experience appointed by the administrative judge;

(4)  the chair of the senate judiciary committee;

(5)  the chair of the house judiciary committee;

(6)  the attorney general or designee;

(7)  the defender general or designee;

(8)  the executive director of the department of state’s attorneys and sheriffs, or designee;

(9)  the appellate defender;

(10)  a state’s attorney appointed by the executive director of the department of state’s attorneys and sheriffs;

(11)  a staff public defender with experience in juvenile defense matters appointed by the defender general;

(12)  an attorney with substantial criminal law experience appointed by the Vermont bar association;

(13)  the commissioner of corrections or designee;

(14)  the commissioner of public safety or designee;

(15)  the executive director of  the Vermont center for crime victim services or designee;

(16)  the executive director of the Vermont center for justice research; and

(17)  one member of the public appointed by the governor.

(c)  The Chief Justice shall appoint a chair and vice chair of the commission.   Legislative members of the commission shall serve only while in office.  A substitute shall be appointed for a legislator who no longer serves in such capacity.  All other members of the commission shall serve on the committee for renewable two-year terms for as long as the member continues to hold the position which made the member eligible for appointment to or membership on the committee.  Vacancies shall be appointed in the same manner as original appointments.

(d)  The commission shall meet at least quarterly and at any additional times at the call of the chair.  The commission shall take minutes of its meetings and may hold public hearings.  Ten members of the commission shall constitute a quorum.

(e)  The commission shall have the assistance and cooperation of the department of public safety, the department of corrections, the department of social and rehabilitation services, the judiciary department, the department of sheriff’s and state’s attorneys, the office of defender general, the Vermont center for crime victim services, and all other state and local agencies and departments. 

(f)  Legislative members of the commission shall be entitled to per diem compensation and reimbursement for expenses in accordance with section 406 of Title 2.  Members of the commission who are not otherwise compensated by their employer shall be entitled to per diem compensation and reimbursement for expenses in the same manner as board members are compensated under section 1010 of Title 32.

§ 5452.  DUTIES

(a)  In addition to the general responsibilities set forth in subsection 5451 of this title, the commission shall:

(1)  Report on historical and existing sentencing practices in Vermont, including the frequency and duration of incarcerative and non-incarcerative sentences for particular offenses.

(2)  Report on geographical sentencing disparities which result in a defendant’s sentence for an offense varying substantially on the basis of the county in which it is committed.

(3)  Propose a system of statewide discretionary sentencing guidelines which take into account historical and existing sentencing practices and establish rational and consistent statewide sentencing standards. 

(4)  Review alternatives to the traditional prosecutorial model and make recommendations for alternative sentencing methods to the general assembly;

(5)  Review practices involving probation, parole, early or conditional release, pre-approved furlough, supervised community sentence, graduated sanctions, and the awarding of sentencing credits, and make recommendations concerning such practices to the department of corrections and the general assembly;

(6)  Review developments in criminal law, including statutory modifications and judicial decisions, and make recommendations to the general assembly when the commission determines that legislative changes are advisable;

(7)  Review proposed legislation and make recommendations concerning the proposals to the general assembly;

(8)  Consider any other issue the commission finds relevant to criminal sentencing and the criminal justice system.

(b)  The commission shall report its activities and recommendations, including any proposals for legislative action, to the general assembly and the governor no later than December 1, 2007, and no later than December 1 of each year thereafter.

*** Non-Violent Offenders ***

Global Positioning System

Sec. 14.  Sec. 23 of No. 63 of the Acts of 2005 is amended to read:

Sec. 23.  ELECTRONIC MONITORING

(a)  The department of corrections is authorized to implement a pilot program using a global positioning system (“GPS”) or other electronic monitoring within the community pursuant to the terms of the plan submitted by the department to the house committees on appropriations and institutions in January 2005 (the “pilot program”); provided that the pilot program may only involve:

(1)  20 100 offenders at any one time.

(2)  Offenders convicted of D.U.I. pursuant to Title 23 and nonviolent offenders who might otherwise be incarcerated for violating the conditions of their release

(b)  When the department of corrections determines that an offender shall be subject to electronic monitoring under this subdivision, the department shall provide notice of its determination to the victim of the offense, if the victim has filed a request for notification with the department.

(c)  On or before January 15, 2006, 2007, the commissioner of corrections shall report to the house and senate committees on appropriations and on judiciary regarding the department’s progress in implementing the pilot program.

Term Probation for Non-Violent Felons

Sec. 15.  28  V.S.A. § 205 is amended to read:

§ 205. PROBATION

(a)(1) After passing sentence, a court may suspend all or part of the sentence and place the person so sentenced in the care and custody of the commissioner upon such conditions and for such time as it may prescribe in accordance with law or until further order of court.

(2)  The term of probation for misdemeanors shall be for a specific term not to exceed two years unless the court, in its sole discretion, specifically finds that the interests of justice require a longer or an indefinite period of probation.

(3)(A)  The term of probation for non-violent felonies shall not exceed the statutory maximum term of imprisonment for the offense unless the court, in its sole discretion, specifically finds that the interests of justice require a longer or an indefinite period of probation.

(B)  As used in this subdivision, “non-violent felonies” means an offense which is not:

(i)  a listed crime as defined in subdivision 5301(7) of Title 13; or

(ii)  an offense involving sexual exploitation of children in violation of chapter 6 of Title 13.

(4)  Nothing in this subsection shall prevent the court from terminating the period of probation and discharging a person pursuant to section 251 of this title.

(5)  The probation officer of a person on probation for a specific term shall review the person's case file during probation and, not less than 45 days prior to the expiration of the probation term, may file a petition with the court requesting the court to extend the period of probation for a specific term not to exceed one year in order to provide the person the opportunity to complete programming consistent with special conditions of probation. A hearing on the petition for an extension of probation under this subsection shall comply with the procedures set forth in Rule 32.1 of the Vermont Rules of Criminal Procedure.

* * *

Non-Violent Felony Unit in Defender General’s Office

Sec. 16.  DEFENDER GENERAL; NON-VIOLENT FELONY UNIT

(a)  A non-violent felony unit dedicated to defending non-violent felonies is established within the office of the defender general.

(b)  As used in this section, “non-violent felonies” means an offense which is not:

(1)  a listed crime as defined in subdivision 5301(7) of Title 13; or

(2)  an offense involving sexual exploitation of children in violation of chapter 6 of Title 13.

*** Sex Offender Registry ***

Violent Offender Registry

Sec. 17.  13  V.S.A. § 5401 is amended to read:

§ 5401. DEFINITIONS

As used in this subchapter:

* * *

(17)   “Violent Offender” means a person who has been convicted of a violent offense as defined in subdivision 18 of this section.

(18)   “Violent Offense” means murder as defined in 13 V.S.A. § 2301, aggravated murder as defined in 13 V.S.A. § 2311, kidnapping as defined in 13 V.S.A. § 2405, arson causing death as defined in 13 V.S.A. § 501, any attempt to commit a crime listed herein or a comparable offense in another jurisdiction of the United States.

(19) “Violent Predator” means a person who has been convicted of a violent offense as defined in subdivision (18) of this section, and who suffers from a mental abnormality or personality disorder that makes the person likely to engage in predatory violent offenses.

Sec. 18.  13  V.S.A. § 5402 is amended to read:

§ 5402. SEX OFFENDER AND VIOLENT OFFENDER REGISTRY

(a) The department of public safety shall establish and maintain a sex offender and violent offender registry, which shall consist of the information required to be filed under this subchapter.

(b) All information contained in the registry may be disclosed for any purpose permitted under the law of this state, including use by:

(1) local, state and federal law enforcement agencies exclusively for lawful law enforcement activities;

(2) state and federal governmental agencies for the exclusive purpose of conducting confidential background checks;

(3) any employer, including a school district, who is authorized by law to request records and information from the Vermont criminal information center, where such disclosure is necessary to protect the public concerning persons required to register under this subchapter. The identity of a victim of an offense that requires registration shall not be released; and

(4) a person identified as a sex offender or violent offender in the registry for the purpose of reviewing the accuracy of any record relating to him or her. The identity of a victim of an offense that requires registration shall not be released.

* * *

Sec. 19.  13  V.S.A. § 5403 is amended to read:

§ 5403. REPORTING UPON CONVICTION

(a) Upon conviction and prior to sentencing, the court shall order the sex offender or violent offender to provide the court with the following information, which the court shall forward to the department forthwith:

(1) name;

(2) date of birth;

(3) general physical description;

(4) current address;

(5) Social Security number;

(6) fingerprints;

(7) current photograph;

(8) current employment; and

(9) name and address of any postsecondary educational institution at which the sex offender or violent offender is enrolled as a student.

(b) Within 10 days after sentencing, the court shall forward to the department the sex offender's or violent offender’s conviction record, including offense, date of conviction, sentence and any conditions of release or probation.

Sec. 20.  13 V.S.A. § 5404 is amended to read:

§ 5404. REPORTING UPON RELEASE FROM CONFINEMENT OR SUPERVISION

(a) Upon receiving a sex offender or violent offender from the court on a probationary sentence or any alternative sentence under community supervision by the department of corrections, or prior to releasing a sex offender or violent offender from confinement or supervision, the department of corrections shall forward to the department the following information concerning the sex offender or violent offender:

(1) an update of the information listed in subsection 5403(a) of this title;

(2) the address upon release;

(3) name, address, and telephone number of the local department of corrections office in charge of monitoring the sex offender or violent offender; and

(4) documentation of any treatment or counseling received.

(b) The department of corrections shall notify the department within 24 hours of the time a sex offender or violent offender changes his or her address or place of employment, or enrolls in or separates from any postsecondary educational institution. In addition, the department of corrections shall provide the department with any updated information requested by the department.

(c) The information required to be provided by subsection (a) of this section shall also be provided by the department of corrections to a sex offender's or violent offender’s parole or probation officer within three days of the time a sex offender or violent offender is placed on probation or parole by the court or parole board.

(d) If it has not been previously submitted, upon receipt of the information to be provided to the department pursuant to subsection (a) of this section, the department shall immediately transmit the conviction data and fingerprints to the Federal Bureau of Investigation.

Sec. 21.  13  V.S.A. § 5405 is amended to read:

§ 5405. COURT DETERMINATION OF SEXUALLY VIOLENT PREDATORS AND VIOLENT PREDATORS

(a) The general assembly finds that some sexual offenders and violent offenders should be subject to increased sex offender or violent offender registry and community notification procedures. It is the intent of the general assembly that state's attorneys utilize the provisions in this section to petition the court to designate those offenders who pose a greater risk to the public as sexually violent predators or violent predators to ensure that those offenders will be required to register as sex offenders or violent offenders for life, and that they will be among those offenders who are included on the state's internet sex offender and violent offender registry.

(b) Within 15 days after the conviction of a sex offender or violent offender, the state may file a petition with the court requesting that the person be designated as a sexually violent predator or violent predator.

(c) The determination of whether a person is a sexually violent predator or violent predator shall be made by the court at the time of sentencing.

(d) The court shall order a presentence investigation which, in the case of a sex offender, shall include a psychosexual evaluation of the offender.

(e) In making a determination of whether the person is a sexually violent predator or violent predator, the court shall examine the following:

(1) the person's criminal history;

(2) any testimony presented at trial, including expert testimony as to the person's mental state;

(3) the person's history of treatment for a personality disorder or mental abnormality connected with his or her criminal sexual behavior or violent behavior;

(4) any mitigating evidence, including treatment history, evidence of modified behavior, or expert testimony, which the convicted sex offender or violent offender wishes to provide to the court prior to the determination; and

(5) any other relevant evidence.

(f) The standard of proof when the court makes such a determination shall be clear and convincing evidence that the convicted sex offender or violent offender suffers from a mental abnormality or personality disorder that makes the person likely to engage in predatory sexually violent offenses or predatory violent offenses.

(g) The court shall determine whether the offender was eligible to be charged as a habitual offender as provided in section 11 of this title or a violent career criminal as provided in section 11a of this title and shall make findings as to such.

(h) After making its determinations, the court shall issue a written decision explaining the reasons for its determinations and provide a copy of the decision to the department within 10 days.

(i) A person who is determined to be a sexually violent predator or violent predator shall be subject to sex offender or violent offender lifetime registration and community notification and inclusion on the internet sex offender and violent offender registry as provided in this subchapter.

Sec. 22.  13  V.S.A. § 5406 is amended to read:

§ 5406. DEPARTMENT OF CORRECTIONS DUTY TO PROVIDE NOTICE

Upon receiving a sex offender or violent offender from the court on a probationary sentence or any alternative sentence under community supervision by the department of corrections, or upon the release of a sex offender or violent offender from a correctional facility, the department of corrections shall do each of the following:

(1) inform the sex offender or violent offender of the duty to register and keep the registration current as provided in section 5407 of this title;

(2) inform the sex offender or violent offender that if the sex offender or violent offender changes residence to another state, the sex offender or violent offender shall notify the department of the new address and shall also register with the designated law enforcement agency in the new state not later than three days after establishing residence in the new state, if the new state has a registration requirement;

(3) require the sex offender or violent offender to read and sign a form stating that the duty of the sex offender or violent offender to register under this section has been explained and is understood. The registration form shall be sent to the department without delay; and

(4) inform the sex offender or violent offender that if he or she crosses into another state for purposes of employment, carrying on a vocation, or being a student, the sex offender or violent offender must notify the department of the new address, and shall register with the designated law enforcement agency in the other state, if the other state has a registration requirement.

Sec. 23.  13  V.S.A. § 5407 is amended to read:

§ 5407. SEX OFFENDER'S AND VIOLENT OFFENDER’S DUTY TO REPORT

(a) A sex offender or violent offender shall report to the department as follows:

(1) if convicted of a registry offense in another state, within 10 days after either establishing residence in this state or crossing into this state for purposes of employment, carrying on a vocation, or being a student, the sex offender or violent offender shall provide the information listed in subsection 5403(a) of this title;

(2) annually within 10 days after the registrant's birthday, or if a person is determined to be a sexually violent predator or violent predator, that person shall report to the department every 90 days;

* * *

(b) If a sex offender or violent offender changes residence to another state, or crosses into another state for purposes of employment, carrying on a vocation, or being a student, the sex offender or violent offender shall notify the department of the new address and shall also register with the designated law enforcement agency in the new state not later than three days after establishing residence in the new state, if the new state has a registration requirement.

(c) Upon a sex offender's or violent offender’s change of residence to another state, the department shall immediately notify the designated law enforcement agency in the new state, if the new state has a registration requirement.

(d) The report required by this section shall include the information required by sections 5403 and 5404 of this chapter.

(e) Except as provided for in subsection (f) of this section, a person required to register as a sex offender or violent offender under this subchapter shall continue to comply with this section, except during periods of incarceration, until 10 years have elapsed since the person was released from prison or discharged from parole, supervised release, or probation, whichever is later. The 10-year period shall not be affected or reduced in any way by the actual duration of the offender's sentence as imposed by the court, nor shall it be reduced by the sex offender's or violent offender’s release on parole or ending of probation or other early release.

(f) A person required to register as a sex offender or violent offender under this subchapter shall continue to comply with this section for the life of that person, except during periods of incarceration, if that person:

(1) has at least one prior conviction for an offense described in subdivision 5401(10) or subdivision 5401(18) of this subchapter or a comparable offense in another jurisdiction of the United States;

(2) has been convicted of a sexual assault as defined in section 3252 of this title or aggravated sexual assault as defined in section 3253 of this title; however, if a person convicted under section 3252 is not more than six years older than the victim of the assault and if the victim is 14 years or older, then the offender shall not be required to register for life if the age of the victim was the basis for the conviction; or

(3)  has been convicted of  murder as defined in section 2301 of this title, aggravated murder as defined in section 2311 of this title , kidnapping as defined in section 2405 of this title, or arson causing death as defined in section 501 of this title; or

(4)  has been determined to be a sexually violent predator pursuant to section 5405 of this subchapter.

(g) The department shall adopt forms and procedures for the purpose of verifying the addresses of persons required to register under this subchapter in accordance with the requirements set forth in section (b)(3) of the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act and in accordance with federal violent offender registration laws.  Every 90 days for sexually violent predators and violent predators, and annually for other registrants, the department shall verify addresses of registrants by sending a nonforwardable address verification form to each registrant at the address last reported by the registrant. The registrant shall be required to sign and return the form to the department within 10 days of receipt.

(h) A registrant who has no permanent address shall report to the department to notify it as to his or her temporary residence. Temporary residence, for purposes of this section, need not include an actual dwelling or numbered street address, but shall identify a specific location. A registrant shall not be required to check in daily if he or she makes acceptable other arrangements with the department to keep his or her information current.

Sec. 24.  13  V.S.A. § 5410 is amended to read:

§ 5410. VICTIM NOTIFICATION

If requested by a victim, the department shall promptly notify the victim of the initial registration of a sex offender or violent offender and any time the sex offender or violent offender changes address, where such disclosure is necessary to protect the victim or the public concerning a person required to register under this subchapter.

Sec. 25.  13  V.S.A. § 5411 is amended to read:

§ 5411. NOTIFICATION TO LOCAL LAW ENFORCEMENT AND LOCAL COMMUNITY

(a) Upon receiving a sex offender's or violent offender’s registration materials from the department of corrections, notification that a nonresident sex offender or violent offender has crossed into Vermont for the purpose of employment, carrying on a vocation, or being a student, or a sex offender's or violent offender’s release or change of address, including changes of address which involve taking up residence in this state, the department shall immediately notify the local law enforcement agency of the following information, which may be used only for lawful law enforcement activities:

(1) name;

(2) general physical description;

(3) nature of offense;

(4) sentence;

(5) the fact that the registry has on file additional information, including the sex offender's or violent offender’s photograph and fingerprints;

(6) current employment;

(7) name and address of any postsecondary educational institution at which the sex offender or violent offender is enrolled as a student; and

(8) whether the offender complied with treatment recommended by the department of corrections.

(b)(1) Except as provided for in subsections (c) and (e) of this section, the department, the department of corrections, and any authorized local law enforcement agency shall release registry information concerning persons required to register under state law if the requestor can articulate a concern about the behavior of a specific person regarding the requestor's personal safety or the safety of another, or the requestor has reason to believe that a specific person may be a registered sex offender or violent offender and can articulate a concern regarding the requestor's personal safety or the safety of another. However, the identity of a victim of an offense shall not be released.

(2) The department, the department of corrections, and any authorized local law enforcement agency shall release the following registry information if the requestor meets the requirements in subdivision (1) of this subsection:

(A) a general physical description of the offender;

(B) date of birth;

(C) the date and nature of the offense;

(D) whether the offender complied with treatment recommended by the department of corrections; and

(E) whether there is an outstanding warrant for the offender's arrest.

(c)(1) Except as provided for in subsection (e) of this section, upon request of a member of the public about a specific person, the department, the department of corrections, and any authorized local law enforcement agency shall release registry information on the following registrants:

(A) Sex offenders who have been convicted of section 3253 of this title (aggravated sexual assault), subdivision 2405(a)(1)(D) of this title if a registrable offense (kidnapping and sexual assault of a child), or 33 V.S.A. § 6913(d)(sexual activity with a vulnerable adult).

(B) Violent offenders who have been convicted of a violation of section 2301 of this title (murder), section 2311 of this title (aggravated murder), section 501 of this title (arson causing death).

(B) (C) Sex offenders or violent offenders who have at least one prior conviction for an offense described in subdivision 5401(10) of this subchapter or a comparable offense in another jurisdiction.

(C) (D) Sex offenders or violent offenders who have failed to comply with sex offender or violent offender registration requirements and for whose arrest there is an outstanding warrant for such noncompliance.

(D) (E) Sex offenders or violent offenders who have been designated as sexual predators pursuant to section 5405 of this title.

(E) (F) Sex offenders or violent offenders who have been designated by the department of corrections, pursuant to section 5411b of this title, as high risk.

(2) The department, the department of corrections, and any authorized local law enforcement agency shall release the following registry information to a requestor in accordance with subdivision (1) of this subsection:

(A) the offender's known aliases;

(B) the offender's date of birth;

(C) a general physical description of the offender;

(D) the offender's town of residence;

(E) the date and nature of the offender's conviction;

(F) if the offender is under the supervision of the department of corrections, the name and telephone number of the local department of corrections office in charge of monitoring the offender;

(G) whether the offender complied with treatment recommended by the department of corrections;

(H) whether there is an outstanding warrant for the offender's arrest; and

(I) the reason for which the offender information is accessible under subdivision (1) of this subsection.

(d) The department, the department of corrections, and any local law enforcement agency authorized to release registry information shall keep a log of requests for registry information and follow the procedure for verification of the requestor's identity recommended by the department. Such log shall include the requestor's name, address, telephone number, the name of the person for whom the request was made, the reason for the request, and the date of the request. Information about requestors shall be confidential and shall only be accessible to criminal justice agencies.

(e) After 10 years have elapsed from the completion of the sentence, a person required to register as a sex offender or violent offender for life pursuant to section 5407 of this title may petition the district court for a termination of notification. The state shall make a reasonable attempt to notify the victim of the proceeding, and consider victim testimony regarding the petition. If the registrant was convicted of a crime which requires lifetime registration, there shall be a rebuttable presumption that the person is a high-risk sex offender or violent offender. Should the registrant present evidence that he or she is not a high-risk offender, the state shall have the burden of proof to establish by a preponderance of the evidence that the person remains a high risk to reoffend. The court shall consider whether the offender has successfully completed sex offender or violent offender treatment. The court may require the offender to submit to a psychosexual evaluation. If the court finds that there is a high risk of reoffense, notification shall continue. The Vermont Rules of Civil Procedure shall apply to these proceedings. A registrant may petition the court to be removed from the registry once every 60 months. The presumption under this section that a lifetime registrant is a high-risk offender shall not automatically subject the offender to increased public access to his or her status as a sex offender or violent offender and related information under subdivision (c)(1)(E) of this section or section 5411a of this title.

Sec. 26.  13  V.S.A. § 5411b is amended to read:

§ 5411B. DESIGNATION OF HIGH-RISK SEX OFFENDER OR VIOLENT OFFENDER

(a) The department of corrections may evaluate a sex offender or violent offender for the purpose of determining whether the offender is "high-risk" as defined in section 5401 of this title. The designation of high-risk under this section is for the purpose of identifying an offender as one who should be subject to increased public access to his or her status as a sex offender or violent offender and related information, including internet access.

(b) After notice and an opportunity to be heard, a sex offender or violent offender who is designated as high-risk shall have the right to appeal de novo to the superior court in accordance with Rule 75 of the Vermont Rules of Civil Procedure.

(c) The department of corrections shall adopt rules for the administration of this section. The department of corrections shall not implement this section prior to the adoption of such rules.

(d) The department of corrections shall identify those sex offenders and violent offenders under the supervision of the department as of the date of passage of this act who are high-risk and shall designate them as such no later than September 1, 2005.

Sec. 27.  13  V.S.A. § 5412 is amended to read:

§ 5412. ACTIVE COMMUNITY NOTIFICATION BY THE DEPARTMENT OF PUBLIC SAFETY, THE DEPARTMENT OF CORRECTIONS, AND LOCAL LAW ENFORCEMENT; IMMUNITY

(a) The department, the department of corrections, any authorized local law enforcement agency, and their employees shall be immune from liability in carrying out the provisions under this subchapter except in instances of gross negligence or willful misconduct, provided that the agencies complied with the rules adopted pursuant to this subchapter.

(b) The department, the department of corrections, and any authorized local law enforcement agency are authorized to notify members of the public who are likely to encounter a sex offender or violent offender who poses a danger under circumstances that are not enumerated in this subchapter.

(c) Notification of the community beyond those persons likely to encounter a sex offender or violent offender shall be authorized only under circumstances which constitute a compelling risk to public safety and only after consultation with the Vermont crime information center and the department of corrections.

(d) Active community notification regarding registered sex offenders and violent offenders who may pose a danger to members of the community is an important public safety tool which the general assembly intends for authorized agencies to use at their discretion in accordance with this subchapter.

Sec. 28.  13  V.S.A. § 5413 is amended to read:

§ 5413. EXPUNGEMENT OF RECORDS

A person whose conviction of a sex offense or violent offense is reversed and dismissed shall not be required to register for that conviction under the provisions of this subchapter and any information about that conviction contained in the registry shall be removed and destroyed. If any information about that conviction was provided to any person or agency under subsection 5402(b) of this subchapter, that person or agency shall be notified that the conviction was reversed and shall be required to remove and destroy the information. If the person whose conviction is reversed and dismissed has more than one entry in the registry, only the entry related to the dismissed case shall be removed and destroyed.

Sec. 29.  13  V.S.A. § 5414 is amended to read:

§ 5414. PARTICIPATION IN NATIONAL SEX OFFENDER AND VIOLENT OFFENDER REGISTRATION

The department shall participate in the National Sex Offender Registry Program managed by the Federal Bureau of Investigation in accordance with guidelines issued by the U.S. Attorney General, including transmission of current address information and other information on registrants to the extent provided by the guidelines. The department shall also participate in any violent offender registry program which may be managed by the Federal Bureau of Investigation, including transmission of current address information and other information on registrants to the extent provided by federal guidelines.

Violation of Registry Requirements (S.184)

Sec. 30.  Rule 3 of the Vermont Rules of Criminal Procedure is amended to read:

Rule 3.  Arrest Without A Warrant; Citation to Appear

* * *

(c)  Nonwitnessed Misdemeanor Offenses.  If an officer has probable cause to believe a person has committed or is committing a misdemeanor outside the presence of the officer, the officer may issue a citation to appear before a judicial officer in lieu of arrest.  The officer may arrest the person without a warrant if the officer has probable cause to believe: 

* * *

(17)  The person is a sex offender or violent offender who has failed to comply with the provisions of subchapter 3 of chapter 167 of Title 13 (sex offender and violent offender registration and notification).

Sec. 31.  13 V.S.A. § 5408 is amended to read:

§ 5408.  RECORD OF ADDRESSES; ARREST WARRANT

(a) The department shall maintain a record of the addresses of all sex offenders and violent offenders. The record shall be updated at least every three months. At any time, if the department is unable to verify the whereabouts and address of a sex offender or violent offender subject to this subchapter, it shall immediately notify the local law enforcement agency in writing that the sex offender's or violent offender’s whereabouts are unknown. The department shall also send a copy of the notification to the state's attorney of the county in which the sex offender's or violent offender’s most recent address is located.

(b)  A sex offender’s failure to report a change of address as required by this subchapter shall be grounds to issue a warrant for the arrest of the sex offender and the provisions of Rule 3 of the Vermont Rules of Criminal Procedure shall not apply to such an arrest.

Sec. 32.  13 V.S.A. § 5409 is amended to read:

§ 5409.  PENALTIES

(a)  A  Except as provided in subsection (b) of this section, a  sex offender or violent offender who knowingly fails to comply with any provision of this subchapter shall:

(1)  Be imprisoned for not more than two years or fined not more than $1,000.00, or both.  A sentence imposed under this subdivision shall run consecutively to any sentence being served by the sex offender or violent offender at the time of sentencing.

(2)  For the second or subsequent offense, be imprisoned not more than three years or fined not more than $5,000.00, or both.  A sentence imposed under this subdivision shall run consecutively to any sentence being served by the sex offender or violent offender at the time of sentencing.

(b)  A sex offender or violent offender who knowingly fails to comply with any provision of this subchapter for a period of more than five consecutive days shall be imprisoned not more than five years or fined not more than $5,000.00, or both.  A sentence imposed under this subsection shall run consecutively to any sentence being served by the sex offender or violent offender at the time of sentencing.

Addresses

Sec. 33.  13  V.S.A. § 5411(c)(3) is added to read:

(3)(A)  The department, the department of corrections, and any authorized local law enforcement agency may, at the discretion of an authorized law enforcement officer, release the current address of the offender. 

(B)  For purposes of this subdivision, “authorized law enforcement officer” means a sheriff, a chief of police, the commissioner of public safety, or a designee.  The designee shall be a certified law enforcement officer whose authority is granted or given by the sheriff, chief of police, or commissioner of public safety, either through explicit order or department policy.

Kidnapping With Intent to Commit Sexual Assault; Registration of Offenders Under Age 18 (S.202)

Sec. 34.  13 V.S.A. § 5401(10) is amended to read:

(10)  “Sex offender” means:

(A) A person who is convicted in any jurisdiction of the United States, including a state, territory, commonwealth, the District of Columbia, or military, federal, or tribal court of any of the following offenses:

* * *

(v) second or subsequent conviction for voyeurism as defined in 13 V.S.A. § 2638(b) or (c); and

(vi)  kidnapping with intent to commit sexual assault as defined in 13  V.S.A. § 2405(a)(1)(D); and

(vi) (vii) an attempt to commit any offense listed in this subdivision.

(B)  A person who is convicted of any of the following offenses against a victim who is a minor, except that, for purposes of this subdivision, conduct which is criminal only because of the age of the victim shall not be considered an offense for purposes of the registry if the perpetrator is under the age of 18 and the victim is at least 12 years old:

(i)  any offense listed in subdivision (A) of this subdivision (10);

* * *

High Risk Offender Duty to Report

Sec. 35.  13  V.S.A. § 5407(a)(3) is amended to read:

(3) within three days after any change of address, or if a person is designated as a high-risk sex offender or high-risk violent offender pursuant to section 5411b of this title, that person shall report to the department within 36 hours;

*** Internet Registry; Expansion and Repeat Offenders; Removal of Log-In Requirement ***

Sec. 36.  13  V.S.A. § 5411a is amended to read:

§ 5411A. ELECTRONIC POSTING OF THE SEX OFFENDER AND VIOLENT OFFENDER REGISTRY

(a) Notwithstanding sections 2056a-2056e of Title 20, the department shall electronically post information on the internet in accordance with subsection (b) of this section regarding the following sex offenders  and violent offenders , upon their release from confinement:

(1) Sex offenders who have been convicted of a violation of section 3253 of this title (aggravated sexual assault), section 2602 of this title (lewd or lascivious conduct with child), or subdivision 2405(a)(1)(D) of this title if a registrable offense (kidnapping and sexual assault of a child).

(2)  Violent offenders who have been convicted of a violation of section 2301 of this title (murder), section 2311 of this title (aggravated murder), section 501 of this title (arson causing death).

(2) (3) Sex offenders who are convicted of a violation of section 3252 (sexual assault) or 2602 (lewd or lascivious conduct with child) of this title, and who have a prior conviction of a violation of section 3252 (sexual assault) or 2602 (lewd or lascivious conduct with child) of this title. Comparable offenses in another jurisdiction shall be included in this subsection who have at least one prior conviction for an offense described in subdivision 5401(10) of this subchapter.

(3) (4) Sex offenders or violent offenders who have failed to comply with sex offender or violent offender registration requirements and for whose arrest there is an outstanding warrant for such noncompliance. Information on offenders shall remain on the internet only while the warrant is outstanding.

(4) (5) Sex offenders or violent offenders who have been designated as sexual predators or violent predators pursuant to section 5405 of this title.

(5) (6) Sex offenders or violent offenders who have not complied with sex offender or violent offender treatment recommended by the department of corrections or who are ineligible for sex offender or violent offender treatment. The department of corrections shall establish rules for the administration of this subdivision and shall specify what circumstances constitute noncompliance with treatment and criteria for ineligibility to participate in treatment. Offenders subject to this provision shall have the right to appeal the department of corrections' determination in superior court in accordance with Rule 75 of the Vermont Rules of Civil Procedure. This subdivision shall apply prospectively and shall not apply to those sex offenders or violent offenders who did not comply with treatment or were ineligible for treatment prior to March 1, 2005.

(6) (7) Sex offenders or violent offenders who have been designated by the department of corrections, pursuant to section 5411b of this title, as high-risk.

(b) The department shall electronically post the following information on sex offenders or violent offenders designated in subsection (a) of this section:

(1) the offender's name and any known aliases;

(2) the offender's date of birth;

(3) a general physical description of the offender;

(4) a digital photograph of the offender;

(5) the offender's town of residence;

(6) the date and nature of the offender's conviction;

(7) if the offender is under the supervision of the department of corrections, the name and telephone number of the local department of corrections office in charge of monitoring the sex offender or violent offender;

(8) whether the offender complied with treatment recommended by the department of corrections;

(9) a statement that there is an outstanding warrant for the offender's arrest, if applicable; and

(10) the reason for which the offender information is accessible under this section.

(c) The department shall have the authority to take necessary steps to obtain digital photographs of offenders whose information is required to be posted on the internet and to update photographs as necessary. An offender who is requested by the department to report to the department or a local law enforcement agency for the purpose of being photographed for the internet shall comply with the request within 30 days.

(d) An offender's street address shall not be posted electronically. The identity of a victim of an offense that requires registration shall not be released.

(e) Information regarding a sex offender shall not be posted electronically if the conduct that is the basis for the offense is criminal only because of the age of the victim and the perpetrator is within 38 months of age of the victim.

(f) Information regarding a sex offender shall not be posted electronically prior to the offender reaching the age of 18, but such information shall be otherwise available pursuant to section 5411 of this title.

(g) Information on sex offenders and violent offenders shall be posted on the internet for the duration of time for which they are subject to notification requirements under section 5401 et seq. of this title.

(h) Posting of the information shall include the following language: "This information is made available for the purpose of complying with 13 V.S.A. § 5401 et seq., which requires the Department of Public Safety to establish and maintain a registry of persons who are required to register as sex offenders or violent offenders and to post electronically information on sex offenders and violent offenders. The registry is based on the legislature's decision to facilitate access to publicly available information about persons convicted of sexual offenses. EXCEPT FOR OFFENDERS SPECIFICALLY DESIGNATED ON THIS SITE AS HIGH-RISK, THE DEPARTMENT OF PUBLIC SAFETY HAS NOT CONSIDERED OR ASSESSED THE SPECIFIC RISK OF REOFFENSE WITH REGARD TO ANY INDIVIDUAL PRIOR TO HIS OR HER INCLUSION WITHIN THIS REGISTRY AND HAS MADE NO DETERMINATION THAT ANY INDIVIDUAL INCLUDED IN THE REGISTRY IS CURRENTLY DANGEROUS. THE MAIN PURPOSE OF PROVIDING THIS DATA ON THE INTERNET IS TO MAKE INFORMATION MORE EASILY AVAILABLE AND ACCESSIBLE, NOT TO WARN ABOUT ANY SPECIFIC INDIVIDUAL. If you have questions or concerns about a person who is not listed on this site or you have questions about sex offender information listed on this site, please contact the Department of Public Safety or your local law enforcement agency. Please be aware that many nonoffenders share a name with a registered sex offender.  IF YOU HAVE QUESTIONS OR CONCERNS ABOUT A PERSON WHO IS NOT LISTED ON THIS SITE OR YOU HAVE QUESTIONS ABOUT SEX OFFENDER OR VIOLENT OFFENDER INFORMATION LISTED ON THIS SITE, PLEASE CONTACT THE DEPARTMENT OF PUBLIC SAFETY OR YOUR LOCAL LAW ENFORCEMENT AGENCY. PLEASE BE AWARE THAT MANY NONOFFENDERS SHARE A NAME WITH A REGISTERED SEX OFFENDER OR VIOLENT OFFENDER. Any person who uses information in this registry to injure, harass, or commit a criminal offense against any person included in the registry or any other person is subject to criminal prosecution."

(i) The department shall post electronically general information about the sex offender and violent offender registry and how the public may access registry information. Electronically posted information regarding sex offenders or violent offenders listed in subsection (a) of this section shall be organized and available to search by the sex offender's or violent offender’s name and the sex offender's or violent offender’s county of residence.

(j) Any member of the public who seeks to access information on specific sex offenders on the sex offender website shall register on the website. Registration information about site users shall not be public. The website shall require the person's name and address and shall require the person to acknowledge that he or she has read the following disclaimer: "THE IDENTIFYING INFORMATION REGARDING A REGISTERED USER OF THIS SITE IS MAINTAINED PURSUANT TO LAW AND IS CONFIDENTIAL AND NOT SUBJECT TO PUBLIC DISCLOSURE. THE INFORMATION IS COLLECTED TO IDENTIFY A PATTERN OR PRACTICE OF MISUSE OF SEX OFFENDER REGISTRATION INFORMATION SUCH AS THE COMMISSION OF A CRIME AGAINST A REGISTERED SEX OFFENDER OR ANY ATTEMPT TO PORTRAY FALSELY AN INDIVIDUAL AS A SEX OFFENDER. USING AND SHARING SEX OFFENDER INFORMATION RESPONSIBLY TO ENSURE THE SAFETY OF YOURSELF, YOUR FAMILY, AND YOUR COMMUNITY IS NOT A PATTERN OR PRACTICE OF MISUSE."

(k) The department shall adopt rules for the administration of this section and shall expedite the process for the adoption of such rules. The department shall not implement this section prior to the adoption of such rules.

( l ) (j)  If a sex offender's or violent offender’s information is required to be posted electronically pursuant to subdivision (a)(2) of this section, the department shall list the offender's convictions for any crime listed in subdivision 5401(10) of this title, regardless of the date of the conviction or whether the offender was required to register as a sex offender or violent offender based upon that conviction.

*** Approval of Residence ***

Sec.  37.  28  V.S.A. § 710 is added to read:

§ 710.  APPROVAL OF RESIDENCE

(a)  Before approving a residence for a sex offender who is being released from confinement or whom the court has released on a probationary sentence or an alternative sentence under community supervision by the department, the commissioner or the commissioner’s designee shall give careful consideration to the proximity of the residence to any risk group associated with the offender.

(b)  For purposes of this section, “sex offender” shall have the same meaning as in subdivision 5401(10)(B) of Title 13.

*** Rules of Evidence in Sex Offender Cases ***

Sec. 38.  Rule 413 of the Vermont Rules of Evidence is added to read:

RULE 413.  EVIDENCE OF SIMILAR CRIMES IN SEXUAL ASSAULT CASES

(a)  In a criminal case in which the defendant is accused of an offense of sexual assault, evidence of the defendant's commission of another offense or offenses of sexual assault is admissible and may be considered for its bearing on any matter to which it is relevant.

(b) In a case in which the state intends to offer evidence under this rule, the prosecutor disclose the evidence to the defendant, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, at least fifteen days before the scheduled date of trial or at such later time as the court may allow for good cause.

(c)  This rule shall not be construed to limit the admission or consideration of evidence under any other rule.

(d)  For purposes of this rule and Rule 415, "offense of sexual assault" means:

(1)  lewd and lascivious conduct in violation of section 2601 of this title;

(2)  lewd and lascivious conduct with a child in violation of section 2602 of this title;

(3)  sexual assault in violation of section 3252 of this title; or

(4)  aggravated sexual assault in violation of section 3253 of this title;

Sec. 39.  Rule 414 of the Vermont Rules of Evidence is added to read:

RULE 414.  EVIDENCE OF SIMILAR CRIMES IN CHILD MOLESTATION CASES

(a)  In a criminal case in which the defendant is accused of an offense of child molestation, evidence of the defendant's commission of another offense or offenses of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant.

(b)  In a case in which the state intends to offer evidence under this rule, the prosecutor shall disclose the evidence to the defendant, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, at least fifteen days before the scheduled date of trial or at such later time as the court may allow for good cause.

(c)  This rule shall not be construed to limit the admission or consideration of evidence under any other rule.

(d)  For purposes of this rule and Rule 415, "child" means a person below the age of fourteen, and "offense of child molestation" means:

(1)  lewd and lascivious conduct with a child in violation of section 2602 of this title;

(2)  sexual assault with a child in violation of section 3252 of this title; or

(3)  aggravated sexual assault in violation of section 3253 of this title;

Sec. 40.  Rule 415 of the Vermont Rules of Evidence is added to read:

RULE 415.  EVIDENCE OF SIMILAR ACTS IN CIVIL CASES CONCERNING SEXUAL ASSAULT OR CHILD MOLESTATION

(a)  In a civil case in which a claim for damages or other relief is predicated on a party's alleged commission of conduct constituting an offense of sexual assault or child molestation, evidence of that party's commission of another offense or offenses of sexual assault or child molestation is admissible and may be considered as provided in Rule 41 and Rule 414 of these rules.

(b)  A party who intends to offer evidence under this Rule shall disclose the evidence to the party against whom it will be offered, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, at least fifteen days before the scheduled date of trial or at such later time as the court may allow for good cause.

(c)  This rule shall not be construed to limit the admission or consideration of evidence under any other rule.

*** Appropriations; Positions Created ***

Sec. 42.  APPROPRIATIONS

(a)(1)  The amount of $130,000.00 is appropriated from the general fund in fiscal year 2007 to the University of Vermont to support implementation of “The Vermont Approach:  A Strategic Plan for Sexual Violence Prevention,” produced by the Vermont network against domestic and sexual violence, the Vermont department of health, and the anti-violence partnership at the University of Vermont.  The funds appropriated under this subsection shall be used to hire a coordinator and to support the statewide project safe choices program, with the goal of beginning a statewide, collaborative, comprehensive approach to ending sexual violence in our communities.

(2)  The General Assembly encourages and authorizes the acceptance of contributions on a matching or any other basis from non-state sources for the purposes of this subsection, but the amount appropriated by this subsection is not conditioned on the receipt of such contributions.

(b)(1)  The amount of $363,000.00 is appropriated in fiscal year 2007 from the general fund to the department of state’s attorneys to fund specialized investigative unit grants awarded by the specialized investigative unit grants board under section 1940 of Title 24.

(2)  Any amounts appropriated by this section not expended in fiscal year 2007 shall not revert but shall be carried forward for expenditure for specialized investigative unit grants in fiscal year 2008.

(c)(1)  $80,000.00 is appropriated from the general fund to the department of corrections for purposes of funding the pre-sentence investigations authorized by section 204a of Title 28.

(2)  Notwithstanding any other provision of law, the unused balance of the $50,000.00 appropriation made to the department of corrections pursuant to Sec. 11 of No. 79 of the Acts of 2005 shall be used by the department of sheriff’s and state’s attorneys for the purpose of funding the psycho-sexual evaluations authorized by section 204a of Title 28.

(3)  $50,000.00 is appropriated from the general fund to the defender general for purposes of funding psycho-sexual evaluations necessitated by section 204a of Title 28.

(4)  This appropriation made under this subsection shall be used only for the purposes defined in this subsection, and any unexpended balance of this appropriation shall carry forward and not be reverted to the general fund.  The department of corrections shall include in its annual budget proposal for fiscal year 2007 and thereafter an allocation to fund these investigations.  The annual allocation shall be estimated based on the need for such investigations experienced in the current and previous two fiscal years.

(d)  $190,000.00 is appropriated from the general fund for purposes of funding the global positioning system pilot program established by section 14 of this act.

(e)  $100,000.00 is appropriated from the general fund to the judiciary for purposes of funding salary, benefits and operating expenses associated with the position of executive director of the Vermont sentencing commission created by subsection (a) of section 43 of this act.  

(f)  $5,000.00 is appropriated from the general fund to the judiciary for purposes of funding the per diem compensation and reimbursement for expenses authorized by subsection 5451(f) of Title 13 for members of  the Vermont sentencing commission. 

(g)  $175,000.00 is appropriated from the general fund to the office of the defender general for purposes of funding the non-violent felony unit established by section 16 of this act.

Sec. 43.  POSITIONS CREATED

(a)  There is created within the judiciary one permanent position entitled executive director of the Vermont sentencing commission.  The executive director shall provide professional and administrative support to the Vermont sentencing commission established by section 5451 of Title 13, and shall provide any other assistance necessary for the commission to satisfy its statutory duties.

(b)  The following positions are created within the office of the defender general for purposes of staffing the non-violent felony unit established by section 5 of this act:

(1)  One level III, step 1 attorney.

(2)  One level II, step 2 attorney.

(3)  One support secretary.

Sec. 44.  EFFECTIVE DATE

This act shall take effect on passage.

(Committee Vote: 6-0-1)

Reported favorably with recommendation of proposal of amendment by Senator Kitchel for the Committee on Appropriations.

The Committee recommends that the bill be amended as recommended by the Committee on Judiciary, with the following amendments thereto:

     First:  In Sec. 42, subsection (b) by striking out subdivision (3) in its entirety and renumbering the remaining subdivision to be numerically correct

     Second:  In Sec. 42, by striking out subsection (g) in its entirety

     Third:  By striking out Sec. 43 in its entirety and inserting in lieu thereof a new Sec. 43 to read as follows:

Sec. 43.  POSITION CREATED

There is created within the judiciary one permanent position entitled executive director of the Vermont sentencing commission.  The executive director shall provide professional and administrative support to the Vermont sentencing commission established by section 5451 of Title 13, and shall provide any other assistance necessary for the commission to satisfy its statutory duties.

(Committee vote: 6-0-1)

(For House amendments, see House Journal for February 21, 2006, page 2006; February 22, 2006, page 394.)

PROPOSAL OF AMENDMENT TO H. 856 TO BE OFFERED BY SENATOR SEARS ON BEHALF OF THE COMMITTEE ON JUDICIARY

Senator Sears moves that the Senate propose to the House to amend the bill as follows:

First: In Sec. 7, 13  V.S.A. § 2602(a), by striking out subdivision (2) in its entirety and inserting in lieu thereof a new subdivision (2) to read as follows:

(2)  This section shall not apply if the person is less than 19 years old, the child is at least 15 years old, and the conduct is consensual.

Second: In Sec. 8, 13  V.S.A. § 2828, by striking out subsection (c) in its entirety and inserting in lieu thereof a new subsection (c) to read as follows:

(c)  This section shall not apply if the person is less than 19 years old, the child is at least 15 years old, and the conduct is consensual.

Third: In Sec. 9, 13  V.S.A. § 3252(c), by striking out subdivision (2) in its entirety and inserting in lieu thereof a new subdivision (2) to read as follows:

(2)  where the person is less than 19 years old, the child is at least 15 years old, and the sexual act is consensual.

House Proposal of Amendment

S. 117

An act relating to state recognition of the Abenaki People.

The House proposes to the Senate to amend the bill as follows:

Sec. 1.  1 V.S.A. chapter 23 is added to read:

CHAPTER 23.  ABENAKI PEOPLE

§ 851.  FINDINGS

The general assembly finds that:

(1)  At least 1,700 Vermonters claim to be direct descendants of the several indigenous Native American peoples, now known as Western Abenaki tribes, who originally inhabited all of Vermont and New Hampshire, parts of western Maine, parts of southern Quebec, and parts of upstate New York for hundreds of years, beginning long before the arrival of Europeans.

(2)  There is ample archaeological evidence that demonstrates that the Missisquoi Abenaki were indigenous to and farmed the river floodplains of Vermont at least as far back as the 1100s A.D.

(3)  The Western Abenaki, including the Missisquoi, have a very definite and carefully maintained oral tradition that consistently references the Champlain valley in western Vermont.

(4)  Many contemporary Abenaki families continue to produce traditional crafts and intend to continue to pass on these indigenous traditions to the younger generations.  In order to create and sell Abenaki crafts that may be labeled as Indian- or Native American-produced, the Abenaki must be recognized by the state of Vermont.

(5)  Federal programs may be available to assist with educational and cultural opportunities for Vermont Abenaki and other Native Americans who reside in Vermont.

§ 852.  VERMONT COMMISSION ON NATIVE AMERICAN AFFAIRS  ESTABLISHED; AUTHORITY

(a)  In order to recognize the historic and cultural contributions of Native Americans to Vermont, to protect and strengthen their heritage, and to address their needs in state policy, programs, and actions, there is hereby established the Vermont commission on Native American affairs (the “commission”). 

(b)  The commission shall comprise seven members appointed by the governor for two-year terms from a list of candidates compiled by the division for historic preservation.  The governor shall appoint a chair from among the members of the commission.  The division shall compile a list of candidates’ recommendations from the following:

(1)  Recommendations from the Missisquoi Abenaki and other Abenaki and other Native American regional tribal councils and communities in Vermont.

(2)  Applicants who apply in response to solicitations, publications, and website notification by the division of historical preservation.

(c)  The commission shall have the authority to assist Native American tribal councils, organizations, and individuals to:

(1)  Secure social services, education, employment opportunities, health care, housing, and census information.

(2)  Permit the creation, display, and sale of Native American arts and crafts and legally to label them as Indian- or Native American‑produced as provided in 18 U.S.C. § 1159(c)(3)(B) and 25 U.S.C. § 305e(d)(3)(B).

(3)  Receive assistance and support from the federal Indian Arts and Crafts Board, as provided in 25 U.S.C. § 305 et seq.

(4)  Become eligible for federal assistance with educational, housing, and cultural opportunities.

(5)  Establish and continue programs offered through the U.S. Department of Education Office on Indian Education pursuant to Title VII of the Elementary and Secondary Education Act established in 1972 to support educational and cultural efforts of tribal entities that have been either state or federally recognized.

(d)  The commission shall meet at least three times a year and at any other times at the request of the chair.  The agency of commerce and community development and the department of education shall provide administrative support to the commission.

(e)  The commission may seek and receive funding from federal and other sources to assist with its work.

§ 853.  RECOGNITION OF ABENAKI PEOPLE

(a)  The state of Vermont recognizes the Abenaki people and recognizes all Native American people who reside in Vermont as a minority population. 

(b)  Recognition of the Native American or Abenaki people provided in subsection (a) of this section shall be for the sole purposes specified in subsection 852(c) of this title and shall not be interpreted to provide any Native American or Abenaki person with any other special rights or privileges that the state does not confer on or grant to other state residents.

(c)  This chapter shall not be construed to recognize, create, extend, or form the basis of any right or claim to land or real estate in Vermont for the Abenaki people or any Abenaki individual and shall be construed to confer only those rights specifically described in this chapter.

Sec. 2.  Effective Date; Appointments To Commission

(a)  This act shall take effect on passage.

(b)  The governor shall make appointments to the commission no later than 90 days after the effective date of this act.

NOTICE CALENDAR

Favorable

H. 310

An act relating to employee ownership of businesses.

Reported favorably by Senator Dunne for the Committee on Economic Development, Housing and General Affairs.

(Committee vote: 4-0-2)

(For House amendments, see House Journal for March 30, 2006, page 789)

H. 774

An act relating to the Vermont economic development authority.

Reported favorably by Senator Starr for the Committee on Agriculture.

(For House amendments, see House Journal for March 15, 2006, page 652)

(Committee vote: 3-0-2)


H. 874

An act relating to sentencing for first and second degree murder.

Reported favorably by Senator Wilton for the Committee on Judiciary.

(Committee vote: 6-0-1)

(No House amendments)

Favorable with Proposal of Amendment

H. 456

An act relating to use of Vermont products and nutrition education in schools.

Reported favorably with recommendation of proposal of amendment by Senator White for the Committee on Agriculture.

The Committee recommends that the Senate propose to the House to amend the bill by striking out all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  FINDINGS; INTENT

(a)  The general assembly finds that it is in the best interests of Vermont children, farmers, and communities to empower schools, regulated child care programs, and state agencies to increase their use of local farm products in their food service programs, particularly school meals programs, because:

(1)  Research shows that children who exercise moderately and eat a healthy diet are less likely to be overweight and have less risk of heart disease, cancer, diabetes, or high blood pressure as adults.  Since a child can receive 55 percent of his or her daily nutritional requirements from the school breakfast and lunch program, it is important to encourage children to eat a healthy diet of fresh food at school.  This is particularly important for the 21,000 Vermont children who live in households unable to provide enough nutritious food in order to lead an active and healthy life.  Further, inadequate nutrition can prevent children from learning effectively; research shows an improvement in student behavior and academic performance and improved health scores when nutrition is improved.

(2)  Farmers gain an increased market for their products.  In school year 2002 - 2003, Vermont schools spent $13 million on food for their food service programs, yet less than five percent of the $13 million went for direct purchase of produce from local farms and other local producers.  Recent farm-to-school efforts in Vermont have demonstrated that when children and food service personnel have relationships with local farmers and producers, they are more likely to try new foods and use fresh and less-processed foods.

(3)  Support for Vermont farms benefits the entire community.  Food dollars spent locally benefit the community economically, the working landscape and open land crucial to Vermont’s quality of life and tourism industry are maintained, and the environment gains through less dependence on a large transportation system.

(4)  The Vermont economy benefits when the agricultural sector is strong.  Agriculture accounts for 14 percent of Vermont’s gross domestic product and 16 percent of Vermont jobs are in or related to agriculture.

(b)  Therefore, in order to encourage healthy and lifelong habits of eating nutritious local food as well as to foster relationships among farmers and schoolchildren, school personnel, and other adults in the Vermont community, it is the intent of this act to provide aid and incentives to local school districts, regulated child care providers, state agencies and farmers to:

(1)  serve food to Vermont students and adults that is as fresh and as nutritious as possible;

(2)  maximize use of fresh locally grown, produced, and processed food;

(3)  educate students about healthy eating habits through nutrition education, including using hands‑on techniques to make connections between farming and the foods that students consume;

(4)  increase the size and stability of farmers’ direct sales markets; and

(5)  increase school meal participation by increasing the selection of foods available to students.

Sec. 2.  LOCAL FOODS MINI-GRANT PROGRAM

(a)  There is created in the agency of agriculture, food and markets a local foods mini‑grant program for the purpose of helping Vermont schools develop relationships with local farmers and producers.

(b)  A school, a school district,  a consortium of schools, or a consortium of school districts may apply to the secretary of agriculture, food and markets for a mini-grant award to:

(1)  purchase equipment, resources, and materials that will help to increase use of local foods in the school food service program;

(2)  purchase items, including local farm products, that will help teachers to use hands-on educational techniques to teach children about nutrition and farm‑to‑school connections; and

(3)  provide professional development and technical assistance to help teachers educate students about nutrition and farm‑to‑school connections.

(c)  In making awards, the secretary shall work with the commissioner of education to develop specific criteria and application forms for the mini-grants.  The secretary shall make awards provided that there is significant interest in the school community and shall give priority consideration to schools and school districts that are in the early stages of developing farm‑to‑school connections and education and that are making progress toward the implementation of the Vermont nutrition and fitness policy guidelines developed by the agency of agriculture, food and markets, the department of education, and the department of health, dated November 2005 or the guidelines’ successor.  No award shall be greater than $15,000.00.

Sec. 3.  FARM ASSISTANCE; SECRETARY OF AGRICULTURE, FOOD AND MARKETS

(a)  The secretary of agriculture, food and markets shall work with existing programs and organizations to develop and implement educational opportunities for farmers to help them to increase their markets through selling their products to schools and state government agencies and participating in the federal food commodities program, including the federal Department of Defense Fresh program, and to regulated child care programs participating in the adult and child food program.  

(b)  The secretary of agriculture, food and markets shall award one-time funds to the Vermont food venture center or other food processing entity which:

(1)  processes locally grown farm products for school and institutional markets, thereby helping farmers to increase the size and stability of their markets; or

(2)  rents equipment to local farmers so that they can process their products for sale.

Sec. 4.  PROFESSIONAL DEVELOPMENT FOR FOOD SERVICE PERSONNEL

(a)  The commissioner of education shall offer expanded regional training sessions for public school food service personnel and child care resource development specialists during 2007.  Training shall include information about strategies for purchasing, processing, and serving locally grown foods, as well as information about nutrition, obesity prevention, coping with severe food allergies, and food service operations.  The commissioner may use a portion of the funds appropriated for this training session to pay a portion of or all expenses for attendees and to develop manuals or other materials to help in the training.

(b)  In 2007, the commissioner of education shall train people to provide technical assistance to school food service personnel and use a portion of the funds appropriated for this purpose to enable the trained people to provide technical assistance at the school and school district levels.

(c)  Training provided under this section shall promote the policies established in the Vermont nutrition and fitness policy guidelines developed by the agency of agriculture, food and markets, the department of education, and the department of health, dated November 2005 or the guidelines’ successor.

Sec. 5.  EXPANDING MARKETS FOR VERMONT FARMERS; NUTRITION POLICIES; REPORT

(a)  On or before January 15, 2007, the commissioner of education, secretary of agriculture, food and markets, and secretary of human services shall jointly make recommendations to the senate and house committees on agriculture, institutions, and education and the house committee on human services on the following:

(1)  Strategies the general assembly could adopt or encourage to increase use of locally grown foods in Vermont schools, regulated child care programs, and state agencies.  In developing recommendations under this subdivision, the commissioner and secretaries shall:

(A)  consider the benefit to the economy of Vermont and the rural farm economy compared to the impact on state spending of requiring the secretary of administration, the secretary of buildings and general services, and any state-funded institutions to purchase agricultural products grown or produced in Vermont when available at more than the cost of like products produced outside the state;

(B)  consult with farmers, food service personnel, state agency personnel involved in purchasing agricultural products, and representatives of organizations interested in creating strategies to increase use of locally grown foods in Vermont schools and state agencies; and

(C)  consider other strategies to increase use of locally grown foods in Vermont schools, regulated child care programs, and state agencies.

(2)  Whether moving administration of the U.S.D.A. food distribution program (the food commodities program) from the agency of human services to another department or agency such as the department of education or the agency of agriculture, food and markets would improve integration of the program with efforts to include more fresh foods in general and Vermont‑grown foods in particular and would result in more frequent delivery of foods in a timely fashion.  In developing recommendations under this subdivision, the commissioner and secretaries shall consult with people who work in and use or have the potential to use the food commodities program.

(3)  Ways to improve the effectiveness of the local foods mini-grant program created in Sec. 2 of this act.

(4)  Ways to improve the effectiveness of training for public school food service personnel conducted pursuant to Sec. 4 of this act.

(b)  On or before January 15, 2008, the commissioner of education shall report to the senate and house committees on agriculture and on education, the senate committee on health and welfare, and the house committee on human services regarding the number of school districts which have and have not adopted a policy pursuant to 16  V.S.A. § 136(b) and, based on a sample of 10 percent of those which have adopted a policy, approximately how many adopted a model policy developed by the commissioner, how many adopted the guidelines developed pursuant to in 16 V.S.A. § 136(a), and a description of how some of the policies adopted by the school boards differ from the model policy or the guidelines.

Sec. 6.  16 V.S.A. § 136 is added to read:

§ 136.  FITNESS AND NUTRITION POLICY

(a) The commissioner of education shall collaborate with the secretary of agriculture, food and markets and the secretary of human services to write a model school fitness and nutrition policy.  They shall review and update the policies every five years or sooner if needed due to availability of new research, data, or products.  The model policy shall include:

(1)  A definition of nutritious foods, nutritional guidelines, and, to the extent financially feasible, policies regarding purchasing of locally grown foods for food and beverages sold or served in the food service program, vending machines, snack bars, and school stores.

(2)  A model physical education curriculum which is a sequential, developmentally appropriate program that is an enjoyable experience for students and designed to help students develop the knowledge, skill,

self-management skills, attitudes, and confidence needed to adopt and maintain physical fitness throughout their lives.  The model program shall include an annual report to parents which describes their child’s performance on fitness and other wellness indicators.

(3)  Model physical activity policies which include, in addition to regular physical education classes, minimum daily physical activity for each student provided through programs such as recess and other recreation periods, and participation in athletics either during or after regular school hours.  In this subsection, “physical activity” means moderate and vigorous physical activities.

(4)  A process for implementing and enforcing nutrition and physical fitness policies.

(5)  A process for reporting to the community on the health status of students. 

(b)  On or before January 1, 2007, each Vermont public school district which operates a school and each Vermont approved independent school shall adopt a school nutrition policy, and on or before January 1, 2008, shall adopt a plan for implementing the policy.

(c)  The nutrition components of the Vermont nutrition and fitness policy guidelines developed pursuant to subsection (a) of this section shall become the policy of a school district or independent school which has not adopted a nutrition policy and plan for implementing the policy until the school district or independent school adopts a different policy and a plan.

Sec. 7.  APPROPRIATIONS

(a)  The amount of $125,000.00 is appropriated from the general fund to the secretary of agriculture, food and markets for the purpose of awarding local foods mini‑grants under Sec. 2 of this act.

(b)  The amount of $25,000.00 is appropriated on a one‑time basis from the general fund to the commissioner of education for training of food service personnel and child care resource development specialists pursuant to Sec. 4 of this act.

(c)  The amount of $15,000.00 is appropriated on a one-time basis from the general fund to the secretary of agriculture, food and markets for carrying out educational activities for farmers pursuant to Sec. 3(a) of this act.

(d)  The amount of $30,000.00 is appropriated from the general fund to the commissioner of education to provide farm‑to‑school education and teacher training services and to work with the secretary of agriculture, food and markets to carry out farmer and food service worker trainings pursuant to Secs. 3(a) and 4 of this act.

(Committee Vote: 5-0-0)

Reported favorably with recommendation of proposal of amendment by Senator Starr for the Committee on Education, upon commitment.

The Committee recommends that the Senate propose to the House to amend the bill as follows:

First:  In Sec. 5 by striking out subsection (b) in its entirety and inserting in lieu thereof the following:

(b)  On or before January 30, 2007, the commissioner of education shall report to the senate and house committees on agriculture and on education, the senate committee on health and welfare, and the house committee on human services regarding the number of school districts which have and have not adopted a nutrition policy and, based on a sample of a minimum of 10 percent of those which have adopted a policy:

(1)  approximately how many adopted a policy which is substantially the same as the nutrition components of the Vermont nutrition and fitness policy guidelines developed by the agency of agriculture, food and markets, the department of education, and the department of health, dated November 2005 or the guidelines' successor; and

(2)  a description of how some of the policies adopted by the school boards differ from the Vermont nutrition and fitness policy guidelines.

Second:  By striking out Sec. 6 in its entirety and renumbering Sec. 7 to be

Sec. 6

(Committee Vote: 4-0-1)

(For House amendments, see House Journal for January 23, 2006, page 454.)

H. 690

An act relating to the identification, documentation, and advancement of the creative sector of the state’s economy.

Reported favorably with recommendation of proposal of amendment by Senator Miller for the Committee on Economic Development, Housing and General Affairs.

The Committee recommends that the Senate propose to the House to amend the bill by striking out all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  Legislative Findings and Intent

(a)  The general assembly finds that the heritage, art, culture, innovation, and inventiveness of the people of Vermont are central to the fabric of each Vermont community, and, that collectively, they form the “creative economy” of the state, an economic sector that inspires innovation, creates jobs, and produces revenue throughout the state.

(b)  It is therefore the intent of the general assembly by this act to identify and document Vermont’s creative economy in order to engage and build the capacity of its cultural resources to reenergize communities, revitalize downtowns, and reactivate economic development that builds on heritage, preservation, creativity, innovation, and the entrepreneurial spirit.

Sec. 2.  IDENTIFICATION AND DOCUMENTATION OF THE CREATIVE ECONOMY SECTOR

(a)  The joint fiscal office, with the assistance of the legislative council, shall undertake an analysis of the creative economy sector concept as it applies to Vermont.  The analysis shall include:

(1)  A discussion and development of working definitions of creative economy in the state, identifying and aggregating the creative, artistic, inventive, and cultural enterprises, and other sectors that specialize in the creation of intellectual property such as media design, sustainable technologies, value-added manufacturing, natural resources industries, and environmental technologies that comprise the state’s creative economy.

(2)  A review of possible measures or indicators of economic benefits, costs, and contributions to the state from the creative economy sector.

(3)  A survey of initiatives that have been adopted in other jurisdictions to promote creative economy endeavors.

(b)  As part of the study, the fiscal office shall invite input from the agency of commerce and community development, the University of Vermont, the Vermont council on the arts, representatives of environmental consortiums, sustainable jobs initiatives, and others interested in creative economy initiatives.

(c)  The joint fiscal office and legislative council shall report to the house committee on commerce, the house committee on ways and means, the senate committee on economic development, housing and general affairs, and the senate committee on finance on or before January 15, 2007.

(d)  For the purposes of this study, in fiscal year 2007, there is appropriated the amount of $25,000.00 from the general fund to the joint fiscal office.  The funds appropriated may be expended to encourage contributions and leverage resources from private and nonprofit entities and to retain consulting services.

(Committee Vote: 4-0-2)

(For House amendments, see House Journal for March 17, 2006, page 701.)

House Proposal of Amendment

S. 246

An act relating to eminent domain.

The House proposes to the Senate to amend the bill as follows:

     In Sec. 1, 12 V.S.A. § 1040(b), by striking out the words “purposes of constructing, maintaining, or operating” and inserting in lieu thereof the words the following purposes

ORDERED TO LIE

S. 112

An act relating to the practice of optometry.

PENDING ACTION:  Second reading of the bill.

S. 157

An act relating to rulemaking for Vermont origin.

PENDING ACTION:  Second reading of the bill.

S. 315

An act relating to creation of the Vermont Land Bank program.

Pending Action:  Second Reading of the bill.

S. 316

An act to accelerate access to broadband services throughout Vermont.

Pending Action:  Second Reading of the bill.

S. 319

An act relating to expanding the scope of the net metering program.

Pending Action:  Second Reading of the bill.

CONFIRMATIONS

     The following appointments will be considered by the Senate, as a group, under suspension of the Rules, as moved by the President pro tempore, for confirmation together and without debate, by consent thereby given by the Senate.  However, upon request of any senator, any appointment may be singled out and acted upon separately by the Senate, with consideration given to the report of the Committee to which the appointment was referred, and with full debate; and further, all appointments for the positions of Secretaries of Agencies, Commissioners of Departments, Judges, Magistrates, and members of the Public Service Board shall be fully and separately acted upon.

     Robert Alberts of Bridport – Member of the Vermont Housing Finance Agency – By Sen. Ayer for the Committee on Finance.  (2/10)

     John Valente of Rutland – Member of the Vermont Municipal Bond Bank – By Sen. Maynard for the Committee on Finance.  (2/24)

     Paul Andrew of South Burlington – Member of the Vermont Municipal Bond Bank – By Sen. Ayer for the Committee on Finance.  (3/15)

     Thomas James of Essex Junction – Member of the State Board of Education – By Sen. Collins for the Committee on Education.  (3/15)

     Dagyne Canney of North Clarendon – Member of the Vermont Housing Finance Agency – By Sen. Maynard for the Committee on Finance.  (3/27)

     John Hall of St. Johnsbury – Commissioner of the Department of Housing and Community Affairs – By Sen. Gander for the Committee on Economic Development, Housing and General Affairs.  (4/11)

     Patricia McDonald of Berlin – Chair of the Vermont Employment Security Board (November 15, 2004-February 28, 2005)– By Sen. Miller for  the Committee on Economic Development, Housing and General Affairs.  (4/12)

     Patricia McDonald of Berlin – Chair of the Vermont Employment Security Board (March 1, 2005-February 28, 2007) – By Sen. Miller for  the Committee on Economic Development, Housing and General Affairs.  (4/12)

     Patricia McDonald of Berlin – Commissioner of the Department of Labor – By Sen. Miller for the Committee on Economic Development, Housing and General Affairs.  (4/12)

     Bruce Hyde of Granville – Commissioner of the Department of Tourism and Marketing – By Sen. Miller for the Committee on Economic Development, Housing and General Affairs.  (4/12)

     Michael A. Welch of St. Johnsbury – Member of the Valuation Appeals Board – By Sen. Ayer for the Committee on Finance.  (4/13)

     Sonia D. Alexander of Wilmington – Member of the Valuation Appeals Board – By Sen. Ayer for the Committee on Finance.  (4/13)

     Dawn Bugbee of St. Albans – Member of the Vermont Educational and Health Buildings Finance Agency Board – By Sen. Ayer for the Committee on Finance.  (4/13)

     Kevin Dorn of Essex Junction – Secretary of the Agency of Commerce and Community Development – By Sen. Illuzzi for the Committee on Economic Development, Housing and General Affairs.  (4/13)

     Michael W. Quinn of Essex Junction – Commissioner of the Department of Economic Development – By Sen. Miller for the Committee on Economic Development, Housing and General Affairs.  (4/13)



Published by:

The Vermont General Assembly
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Montpelier, Vermont


www.leg.state.vt.us