Journal of the Senate
Wednesday, April 25, 2007
The Senate was called to order by the President.
A moment of silence was observed in lieu of devotions.
Message from the House No. 62
A message was received from the House of Representatives by Ms. Wrask, its Second Assistant Clerk, as follows:
I am directed to inform the Senate the House has considered Senate proposal of amendment to House bill of the following title:
H. 400. An act relating to recapture of health insurance benefits by Group C members of the Vermont state retirement system.
And has concurred therein.
The House has considered Senate bills of the following titles:
S. 13. An act relating to the idling of motor vehicle engines on school property.
S. 173. An act relating to the awarding of high school diplomas to veterans of the Vietnam era.
And has passed the same in concurrence with proposals of amendment in the adoption of which the concurrence of the Senate is requested.
The Governor has informed the House of Representatives that on the twenty-third day of April, 2007, he approved and signed bills originating in the House of the following titles:
H. 156. An act relating to approval of an amendment to the charter of the Town of Brattleboro.
H. 254. An act relating to the transfer of payroll functions from the department of human resources to the department of finance and management.
H. 525. An act relating to the Vermont fire service training council and the division of fire safety.
Message from the Governor
A message was received from His Excellency, the Governor, by Kiersten Bourgeois, Secretary of Civil and Military Affairs, as follows:
I am directed by the Governor to inform the Senate that on the twenty-fourth day of April, 2007, he did not approve and allowed to become law without his signature bill originating in the Senate of the following title:
S. 124. An act relating to planning and evaluating options for inpatient psychiatric hospital services.
Text of Communication from Governor
The text of the communication to the Senate from His Excellency, the Governor, setting forth his reasons for refusing to sign and allowing to become law without his signature, Senate Bill No. 124, is as follows:
“April 24, 2007
The Honorable David A. Gibson
Secretary of the Senate
115 State St., Drawer 33
Montpelier, VT 05633
Dear Mr. Secretary:
Pursuant to Chapter II, Section 11 of the Vermont Constitution, I will allow S.124, An Act Relating to Planning and Evaluating Options for Inpatient Psychiatric Hospital Services, to become law without my signature.
S.124 is an infringement by the legislative branch of government on the duties and powers of the executive branch relative to Vermont’s Certificate of Need (CON) law. 18 V.S.A., ch. 221, sub. 5. S.124 constitutes a counterproductive exercise in micro-management, and is not in keeping with the traditional separation of powers principles of Vermont's constitutional frame of government, Vt. Const., Ch. I, Section 5, and delegates the authority of the full General Assembly to a few of its members.
The CON process is set forth in statute for the purpose of reviewing certain health care expenditures. As a quasi-judicial proceeding, CON review must be an independent, unbiased decision-making process that is not subject to influence, or the appearance of influence, from competing public policy, partisan or economic interests.
Under 18 V.S.A. §9434(e), a conceptual development phase CON must be obtained before an applicant may make expenditures for architectural services, engineering design services and other planning services needed in connection with a health care facility. The State of Vermont was legally required to obtain a conceptual CON before it could expend funds to evaluate available options and analyze projected costs—steps that S.124 complains are lacking and inadequate to date.
Similarly, S.124 criticizes the State’s planning as not including project cost estimates, project financing, partnering arrangements, governance, sustainability, facility design and development, and community impacts. Again, these issues were not ripe for consideration until Phase II of the CON process and the findings in S.124 illustrate either the legislature’s lack of understanding of the statutory CON requirements and process or a deliberate decision to ignore that process.
A conceptual CON was formally issued by BISHCA on April 12, 2007. With this CON in hand, the State can now proceed with Phase II of the planning process. Many of the issues raised in S.124 were addressed in significant detail by the Public Oversight Commission and the Commissioner’s designee in the recently issued conceptual CON and will be considered in Phase II of the CON application process that VDH is currently preparing and which must be completed within a 2-year timeframe.
The Legislature had an opportunity to exempt the planning for the Vermont State Hospital from the conceptual review process last session as the State was concerned that this process would further hamper and delay development of a replacement plan for the grossly inadequate Vermont State Hospital. The Legislature chose not to do so and now, when faced with the reality of that prediction, the Legislature has decided to instead impose further reporting timelines through an independent consultant that conflict with the ongoing work of the Futures planning team and will only result in further delay.
Rather than allow the legally mandated CON process to move forward independently, the Legislature has instead decided to hire a legislative consultant, paid with funds diverted from the appropriation earmarked for CON planning, to shadow and second-guess the work of the Futures planning group. It is difficult to understand how such a consultant can be truly independent given the biased and prejudicial findings in S.124 and public statements that suggest that the consultant’s conclusions have been pre-determined. At least one legislative leader has publicly prejudged the outcome in recent comments to the press, calling “the Fletcher Allen plan fiscally untenable” and stating that the outcome of the legislative study “will reveal two options, neither of which will include Burlington: a new or rebuilt facility in Waterbury or 16-bed satellite facilities around the state.” (Lawmakers OK new study of State Hospital,” The Barre-Montpelier Times Argus, March 29, 2007.)
Fletcher Allen is but one option that will be evaluated under the terms and conditions of the conceptual CON. It appears, however, that it will be the one option rejected out-of-hand by the consultant without regard for its merits.
The retaining of a consultant for the purpose of compiling, analyzing, and reviewing the planning that has been done to date and to investigate and make recommendations about many of the project components is duplicative and potentially in conflict with activities that the applicant has been directed to pursue in the conceptual CON. It is further unclear as to what impact, if any, the required consultant report would have on the CON application process itself. These provisions will inject delay and expense into a project that is already underway in its planning for the needs of current and future patients of the Vermont State Hospital.
With its conceptual CON in hand, the Vermont Department of Health (the Department) is now authorized to move forward and make expenditures not to exceed $4.355 million for specific planning activities listed in the CON. S.124, however, will further hamper the State’s efforts to move forward with the planning that the Legislature clearly finds important. It will now make expenditure of the current appropriation that the State is authorized to use to complete Phase II evaluations and analyses contingent upon further Legislative approval. It is an inappropriate infringement for the Legislature to control the expenditure it has previously authorized by requiring yet another layer of approval where clear jurisdiction and oversight at this stage clearly rests with BISHCA.
The Conditions and Requirements attached to the CON, based on the evidence submitted to the Public Oversight Committee, obligate the Department to explore a broad range of alternatives for replacement of the Vermont State Hospital. This final, quasi-judicial adjudication was reached after notice and public hearing, after extensive comments from the public, and after great time, effort and expense by the applicant and the interested parties to the CON proceeding.
Despite the existence of a regulatory CON process designed to approve the expenditure of funds by any health care provider, public or private, the Legislature has reserved for itself the power to direct or limit the Department in its planning activities. It does so by delegating approval of use of funds for “work authorized by a conceptual CON” to the Joint Mental Health Oversight Committee and the Joint Fiscal Committee. This requirement for further legislative approval by two legislative committees and the delegation of that approval authority to just a few of its members raises constitutional concerns as well as creates the potential for placing the Department in an untenable position. Should these legislative committees disapprove planning activities by the Vermont Department of Health which are expressly authorized by, or even required by the conceptual CON, the Department could be forced to choose between violating the legislative committee’s requirements or violating the requirements of the conceptual CON.
Vermonters widely agree that Vermont State Hospital must be replaced. Vermonters also agree that we must create new programs and a new facility. Vermonters with mental illness and their families deserve to have high quality treatment and support services in both hospital and community care as soon as practicable.
Contrary to recent legislative assertions, I am very pleased to report progress towards realizing the vision of the Futures plan. The first residential program, Second Spring will begin transitioning patients from Vermont State hospital in a few weeks. The first crisis stabilization beds will be opening this summer. The Planning CON has been granted by BISHCA allowing us to begin accelerated work to complete the next phase of development, which itself requires a full evaluation of different options.
Although a veto of S.124 would underscore my objection to the infringement of the legislature on the executive through its micro-management of an executive branch process, it would only serve to perpetuate the unnecessarily politicized atmosphere surrounding the Futures project, and mistakenly focus our attention on the process rather than the difficult policy choices we face.
The Vermont Department of Health will move forward under the terms and conditions of the conceptual CON as required by law. Should there be unwarranted legislative intervention or untenable conflicts that interfere with an orderly, cost-effective and timely development of plans under Phase II, there will be adequate opportunity to challenge the legislature’s actions at that time.
/s/James H. Douglas
Bill Called Up
Senate bill of the following title was called up by Senator Illuzzi, and, under the rule, placed on the Calendar for action tomorrow:
An act relating to wine tastings and farmers’ markets.
Rules Suspended; Bill Committed
Pending entry on the Calendar for notice, on motion of Senator Illuzzi, the rules were suspended and House bill entitled:
An act relating to establishing the Vermont telecommunications authority to advance broadband and wireless communications infrastructure throughout the state.
Was taken up for immediate consideration.
Thereupon, pending the reading of the report of the Committee on Economic Development, Housing and General Affairs, Senator Illuzzi moved that Senate Rule 49 be suspended in order to commit the bill to the Committee on Finance with the report of the Committee on Economic Development, Housing and General Affairs intact,
Which was agreed to.
Bill Passed in Concurrence with Proposal of Amendment
House bill of the following title was read the third time and passed in concurrence with proposal of amendment:
An act relating to the child abuse registry.
Proposal of Amendment; Bill Passed in Concurrence with Proposal of Amendment
House bill entitled:
An act relating to stormwater management.
Was taken up.
Thereupon, pending third reading of the bill, Senator Scott, on behalf of the Committee on Institutions, moved that the Senate proposal of amendment be amended as follows:
First: In Sec. 4, by designating the existing paragraph as subsection (a) and adding a new subsection (b) to read as follows:
(b) On or before January 15, 2008, the agency of natural resources shall report to the senate and house committee on institutions, the house committee on fish, wildlife and water resources, and the senate committee on natural resources and energy regarding methods for and the cost of reducing phosphorus discharges from wastewater treatment facilities in the Lake Champlain basin. The report required by this section may be combined with the report required under subsection (a) of this section regarding agency progress in establishing and implementing the TMDL for Lake Champlain. The report required by this subsection shall include:
(1) An analysis and summary of the existing phosphorus treatment practices at each wastewater treatment facility in the Lake Champlain basin;
(2) An analysis of each wastewater treatment facility in the Lake Champlain basin in order to determine the feasibility of each facility reducing the amount of phosphorus it discharges to state waters, including the treatment processes that each facility could implement in order to reduce additional phosphorus discharges;
(3) An estimate of the capital cost to each wastewater treatment facility in the Lake Champlain basin of implementing the phosphorus reduction treatment processes identified under subdivision (2) of this subsection; and
(4) Recommended incentives that would encourage wastewater treatment facilities in the Lake Champlain basin to reduce voluntarily phosphorus discharges.
Second: In Sec. 5, 10 V.S.A. § 1385, by striking out subdivision (a)(1)(C) in its entirety and inserting in lieu thereof the following:
(C) Ensure that the total, annual phosphorus discharged by all wastewater treatment facilities in the aggregate does not exceed the total phosphorus load discharged to Lake Champlain by all wastewater treatment facilities in the aggregate in 2006 and to adjust aggregate total phosphorus load allocations to Lake Champlain accordingly; and
Which was agreed to.
Thereupon, the bill was read the third time and passed in concurrence with proposal of amendment.
Bill Amended; Third Reading Ordered
Senator White, for the Committee on Government Operations, to which was referred Senate bill entitled:
An act relating to election for statewide and national offices by the instant runoff voting method.
Reported recommending that the bill be amended by striking out all after the enacting clause and inserting in lieu thereof the following:
Sec. 1. FINDINGS
The general assembly finds that:
(1) The principle of majority rule is fundamental to the concept of democracy. When possible, election laws should be structured to uphold and facilitate this basic principle.
(2) In a multicandidate race, when no candidate receives a majority, the candidate with the most votes (the plurality) may actually be the candidate most opposed by the majority of voters.
(3) On 22 occasions in Vermont history, the governor was elected by the general assembly rather than by the voters.
(4) In 35 percent of all election years in Vermont, one or more federal or statewide races had a result with no majority.
(5) In one election with no majority winner in the governor’s race, the general assembly deadlocked and elected no governor, forcing the lieutenant governor to serve as acting governor.
(6) In another election, with no majority in the treasurer’s race, the general assembly elected the candidate who came in third with just three percent of the popular vote, and who subsequently refused to serve, leaving the state with no treasurer.
(7) It would be desirable, and there is a popular preference, to have a direct popular election by majority vote in all elections for the offices of U.S. senator and U.S. representative.
(8) A voting system known as “preferential voting” in Robert’s Rules of Order Newly Revised, and popularly known as “instant runoff voting,” which has been used for governmental elections for over 80 years in Australia, as well as in the Republic of Ireland, can fulfill these goals of majority rule, with direct popular election.
Sec. 2. 17 V.S.A. § 2103(43) and (44) are is added to read:
(43) “Instant runoff method” means a method of casting, sorting, and counting votes as set forth in sections 2473a and 2593 of this title that accomplishes the same effect as all voters participating in a runoff election, whereby the two candidates with the greatest number of first choices advance to a runoff count, and the ballots of voters who chose nonadvancing candidates as their first choice are re-examined so that their votes are counted during the runoff count for whichever of the final candidates is ranked higher on that ballot.
Sec. 3. 17 V.S.A. § 2473a is added to read:
§ 2473a. INSTANT RUNOFF METHOD; APPLICATION; BALLOTS; RULES
(a) Notwithstanding the provisions of section 2472 of this title to the contrary, the instant runoff method shall be used in all general election contests for the offices of U.S. senator and U.S. representative.
(b) For the purposes of subsection (a) of this section, the secretary of state shall supervise the counting of votes conducted by the instant runoff voting method which may take place at regional centers, and shall adopt procedures, in consultation with the Vermont municipal clerks and treasurers association, for implementing this section, including those involving:
(1) the possible use of mechanical, electronic, or other devices for marking, sorting, and counting ballots and results;
(2) modification of the form of the ballots and the directions to voters;
(3) details with respect to the method of marking, sorting, counting, invalidating, and the counting of votes, provided that no change shall be made which will alter the intent or principles embodied in this chapter; and
(4) a reasonable stipend for regional clerks and assistant election workers conducting an instant runoff count.
(c) Ballots approved under this section shall allow a voter to rank up to five candidates for an office in order of choice. If practical, ballots shall be designed such that voters may mark their first choices in the same manner as that for offices not elected by the instant runoff method.
(d) Instructions on the ballot shall include a statement to inform voters that they may choose to rank up to a total of five candidates, and that the marking of additional choices will not count against their first choice candidate. Sample ballots to illustrate voting procedures, using fictitious names, shall be posted in or near the voting booth and included in the instruction materials for absentee ballots. Prior to each general election, the secretary of state shall conduct a voter education campaign to educate voters on the use and purpose of the instant runoff voting method. The secretary shall use public service announcements, as well as seek other media cooperation to the maximum extent practicable.
Sec. 4. 17 V.S.A. § 2587(b) is amended to read:
(b) If the voter marks more names than there are persons to be elected to an office, except as provided in section 2473a of this title, or marks contradictory sides on any public question, his or her ballot shall not be counted for that office or public question.
Sec. 5. 17 V.S.A. § 2592 is amended to read:
§ 2592. canvassing committees; canvass of votes in general or special elections
* * *
The In the case of candidates other than candidates for
the offices of U.S. senator and U.S. representative, the canvassing
committee shall declare the person receiving the largest number of votes for
each office to be elected, and it shall issue a certificate of election, signed
by a majority of the canvassing committee, in substantially the following form:
State of Vermont )
................ County )
At ...................., on the ............ day of .................... 20 .........., a canvassing committee appointed by law completed a canvass of the returns cast at a general election held on the ................ day of ...................., 20 ........ for the office of ..................... The committee hereby certifies that .................... of .................... was duly elected to the office by the voters present and voting.
(2) The committee shall send or deliver the certificate to the candidate elected. In the case of representatives to the general assembly, the committee shall also send or deliver a copy of each certificate to the secretary of state.
* * *
(k) In the case of the offices of governor, lieutenant governor,
treasurer, secretary of state, attorney general, and auditor of accounts, the
canvassing committee shall prepare a certificate of election but shall not sign
it. The prepared certificate shall be presented to the official canvassing
committee appointed by the general assembly, pursuant to Chapter II,
§ 47 of the Vermont Constitution of the State of Vermont,
for their its use if they desire it desires.
Sec. 6. 17 V.S.A. § 2593 is added to read:
§ 2593. INSTANT RUNOFF METHOD; INSTRUCTIONS FOR COUNTING VOTES
(a) The provisions of sections 2584 and 2587 of this title shall apply to elections conducted by the instant runoff method unless inconsistent with the provisions of this section.
(b) The following procedures shall be used to determine the winners in elections conducted by the instant runoff method:
(1) Ballots shall be counted initially by the election officials according to the first choice marked on each ballot. If one candidate receives a majority of the votes cast, the canvassing committee for U.S. senator and U.S. representative shall issue a certificate of election in the manner provided in section 2592 of this title.
(2) If, at the end of the initial count, no candidate receives a majority of first choices, the canvassing committee established in section 2592 of this title shall forthwith petition the secretary of state to determine the candidate who received the major part of the votes by conducting instant runoff counts in the manner provided in this section. The petition shall be supported by a statement that no candidate is the first choice of a majority of voters. Upon receipt of the petition, the secretary of state shall issue a certification declaring the names of the advancing candidates and appoint an instant runoff count committee in the manner provided for under the procedures adopted by the secretary of state.
(3) The instant runoff count committee shall count votes for candidates pursuant to procedures adopted by the secretary of state. All candidates shall be eliminated except the two candidates with the greatest number of first choices. Ballots which rank eliminated candidates and which indicate one of the final candidates as an alternate choice shall be counted as votes for whichever of the final candidates is ranked higher for that office on each ballot. Each ballot is counted as one vote for the highest ranked advancing candidate on that ballot.
(4) The secretary of state shall prepare and sign the certificate that declares the winner.
(5) The report and the counts performed by the committee shall be forwarded to the secretary of state who shall issue a certificate of election to whichever of the two remaining candidates received the greatest number of votes at the conclusion of the instant runoff count.
(c) The following general provisions shall apply whenever the instant runoff method is used:
(1) If after the first choice candidate is eliminated, a ballot does not indicate one of the advancing candidates as an alternate choice, the ballot is exhausted.
(2) The fact that a voter gives more than one ranking to the same candidate shall not invalidate the vote. The highest ranking given a particular candidate shall count as long as the candidate is not eliminated.
(3) If there is a tie between candidates so that two or more candidates have an equal number of first choices and more than two candidates would advance to the runoff count, all of those candidates shall advance to the runoff count.
Sec. 7. 17 V.S.A. § 2601 is amended to read:
§ 2601. RECOUNTS
(a) If the difference between the number of votes cast for a winning candidate and the number of votes cast for a losing candidate is less than five percent of the total votes cast for all the candidates for an office, divided by the number of persons to be elected, that losing candidate shall have the right to have the votes for that office recounted.
(b) In an election conducted by the instant runoff voting method, if the difference between the number of votes cast for a candidate advancing to the final round and the number of votes cast for a nonadvancing candidate is less than one half of one percent of the total votes cast for all the candidates for that office, the nonadvancing candidate shall have the right to have the votes for that office recounted. The candidate requesting a recount shall do so within 24 hours of the secretary of state issuing a certification declaring the names of the advancing candidates pursuant to section 2593 of this title. If a recount is requested in a timely manner, the instant runoff count shall be delayed until the completion of the recount.
Sec. 8. EFFECTIVE DATE
This act shall take effect on January 1, 2008 and shall apply to the 2008 general election and subsequent general elections.
The Committee further recommends that after passage of the bill the title be amended to read as follows:
AN ACT RELATING TO THE ELECTION OF U.S. REPRESENTATIVE AND U.S. SENATOR BY THE INSTANT RUNOFF VOTING METHOD.
And that when so amended the bill ought to pass.
Thereupon, the bill was read the second time by title only pursuant to Rule 43, and the recommendation of amendment was agreed to on a roll call, Yeas 16, Nays 13.
Senator Shumlin having demanded the yeas and nays, they were taken and are as follows:
Those Senators who voted in the affirmative were: Ayer, Bartlett, Campbell, Carris, Collins, Condos, Cummings, Flanagan, Giard, Kittell, Lyons, MacDonald, McCormack, Racine, Shumlin, White.
Those Senators who voted in the negative were: Coppenrath, Doyle, Hartwell, Kitchel, Maynard, Mazza, Miller, Mullin, Nitka, Scott, Sears, Snelling, Starr.
The Senator absent and not voting was: Illuzzi.
Thereupon, third reading of the bill was ordered on a roll call, Yeas 15, Nays 13.
Senator Sears having demanded the yeas and nays, they were taken and are as follows:
Those Senators who voted in the affirmative were: Ayer, Bartlett, Campbell, Carris, Collins, Condos, Cummings, Flanagan, Giard, Kittell, Lyons, MacDonald, McCormack, Racine, White.
Those Senators who voted in the negative were: Coppenrath, Doyle, Hartwell, Kitchel, Maynard, Mazza, Miller, Mullin, Nitka, Scott, Sears, Snelling, Starr.
Those Senators absent and not voting were: Illuzzi, Shumlin.
On motion of Senator Campbell, the Senate adjourned until eleven o’clock in the morning.
The Vermont General Assembly
115 State Street