Download this document in MS Word format


AutoFill Template

Journal of the Senate

________________

Tuesday, April 15, 2008

The Senate was called to order by the President.

Devotional Exercises

A moment of silence was observed in lieu of devotions.

Pledge of Allegiance

Pages Mikaela Osler and Rebecca Westcom then led the members of the Senate in the pledge of allegiance.

Message from the House No. 50

     A message was received from the House of Representatives by Ms. Wrask, its Second Assistant Clerk, as follows:

Mr. President:

I am directed to inform the Senate the House has passed a bill of the following title:

H. 755.  An act relating to economic development of the forestry and forest products industries.

In the passage of which the concurrence of the Senate is requested.

The House has considered a bill originating in the Senate of the following title:

S. 146.  An act relating to advertising and producing musical performances.

And has passed the same in concurrence with proposal of amendment in the adoption of which the concurrence of the Senate is requested.

The House has considered Senate proposal of amendment to House bill of the following title:

H. 616.  An act relating to farm-fresh raw milk.

And has concurred therein.

The Governor has informed the House of Representatives that on the tenth day of April, 2008, he approved and signed a bill originating in the House of the following title:

H. 563.  An act relating to the Uniform Commercial Code.

Bill Referred to Committee on Appropriations

House bill of the following title, appearing on the Calendar for notice, and carrying an appropriation or requiring the expenditure of funds, under the rule, was referred to the Committee on Appropriations:

H. 776.

An act relating to computation of the basic needs budget and the livable wage.

Bill Referred

House bill of the following title was read the first time and referred:

H. 755.

An act relating to economic development of the forestry and forest products industries.

To the Committee on Natural Resources and Energy.

Consideration Postponed

S. 278.

Senate bill entitled:

     An act relating to financing campaigns.

Was taken up.

Thereupon, without objection consideration of the bill was postponed until tomorrow.

Bill Amended; Third Reading Ordered

S. 369.

Senate committee bill entitled:

An act relating to recognition of tribes and bands of native Americans by the Vermont commission on native American affairs.

Having been called up, was taken up.

Thereupon, the bill was read the second time by title only pursuant to Rule 43, and pending the question, Shall the bill be read the third time?, Senator Illuzzi, on behalf of the Committee on Economic Development, Housing and General Affairs, moved to amend the bill by striking out all after the enacting clause and inserting in lieu thereof the following:


Sec. 1.  1 V.S.A. § 852(b) is amended to read:

(b)  The commission shall comprise seven members appointed by the governor for two-year staggered three-year terms from a list of candidates compiled by the division for historic preservation.  All members of the commission shall be Vermont citizens residentsThe governor shall appoint a chair from among the members of the commission.  The division shall compile a list of candidates' recommendations from the following  The commission shall be organized in accordance with the following provisions:

(1)  Recommendations from the Missisquoi Abenaki and other Abenaki and other Native American regional tribal councils and communities in Vermont.  Applicants The commission shall comprise a broad representation of Native American tribes and bands.

(2)  The commission shall comprise the following members:

(A)  Beginning August 3, 2008 one member each from the Koasek Traditional Band of the Sovereign Abenaki Nation (led by Chief Brian Chenevert and Chief Nancy Millette), the Sovereign Abenaki Nation of Missisquoi St. Francis/Sokoki Band (led by Chief April St. Francis), and the Nulhegan Band of the Abenaki Nation (led by Chief Luke Willard), appointed by the governor from a list of three candidates put forth by each band.

(B)  Four members who do not belong to the three groups recognized in subdivision (A) of this subsection appointed from a list of applicants who apply in response to solicitations, publications, and website notification by the division of historical preservation.  Beginning August 3, 2008 two such members shall be appointed for two-year terms and two such members shall be appointed for one-year terms; upon the expiration of which, subsequent appointments shall be for three years in accordance with this subsection.

(3)  The governor shall appoint a chair from among the members of the commission.

(4)  No member shall serve more than two consecutive terms.

(5)  All members of the commission shall be Vermont residents.

(6)  The commission shall not comprise more than one member from any Native American tribe or band.

Sec. 2.  1 V.S.A. § 852(f) is added to read:

(f)  The commission shall have the authority to:

(1)  On behalf of the state of Vermont, formally recognize tribes and bands of Native Americans.

(2)  Establish rules for applications, subject to the criteria set forth in section 854 of this chapter, for state recognition of unrecognized tribes and bands of Native Americans for the sole purposes specified in subsection (c) of this section.

Sec. 3.  1 V.S.A. § 853 is amended to read:

§ 853.  recognition of abenaki people

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

(b)  The state of Vermont recognizes the Koasek Traditional Band of the Sovereign Abenaki Nation (led by Chief Brian Chenevert and Chief Nancy Millette), the Sovereign Abenaki Nation of Missisquoi St. Francis/Sokoki Band (led by Chief April St. Francis), and the Nulhegan Band of the Abenaki Nation (led by Chief Luke Willard) as original Native American tribes who reside in Vermont.

(c)  Recognition of the Native American or Abenaki people as provided in subsection (a) of this section, recognition of bands of the Abenaki Nation as provided in subsection (b) of this section, or recognition of tribes or bands of the Abenaki Nation by the Vermont commission on Native American affairs in accordance with section 854 of this title, 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)(d)  Recognition of additional bands and tribes of Abenaki people may be obtained by act of the general assembly or by the procedure for recognition set forth in section 854 of this chapter.

(e)  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. 4.  CONDITIONAL RECOGNITION

(a)  The recognition of each band identified in subsection 853(b) of Title 1 is conditioned on each band submitting, no later than March 1, 2010, information to the commission as required by subsection 854(f) of Title 1.

(b)  Within six months of receiving an application pursuant to subsection (a) the commission shall review the application materials submitted pursuant to subsection (a) of this section and, if necessary, request supplemental or clarifying information from each band.

(c)  An applicant shall receive a minimum of two months to supplement, clarify, or amend its application in response to any request for additional information or clarification made by the commission pursuant to subsection (b).

(d)  Within eight months of receiving an application for recognition pursuant to subsection (a) or two months of receiving supplemental or clarifying information pursuant to subsection (b), if such is requested, the commission shall hear oral argument and decide whether state recognition of each of the bands identified in subsection 853(b) of Title 1 shall be revoked.

(e)  From the effective date of this act until the commission acts pursuant to the provisions of this section, the bands identified in subsection 853(b) of Title 1 shall be state‑recognized for the purposes of the Indian Arts and Crafts Act of 1990, public law 101-644 (104 stat 4663-64), as amended.

(f)  The division for historic preservation of the department of housing and general affairs shall provide administrative support to the Vermont commission on Native American affairs in carrying out the requirements of Sec. 4 of this act.

(g)  The commission shall be entitled to receive per diem compensation and actual and necessary expenses in accordance with section 1010 of Title 32 for work performed under Sec. 4 of this act.

Sec. 5.  1 V.S.A. § 854 is added to read:

§ 854.  CRITERIA AND PROCEDURE FOR RECOGNITION OF TRIBES AND BANDS

(a)  Definitions.  For the purposes of this section:

(1)  “Applicant” means an interested party seeking formal state recognition of a tribe or band.

(2)  “Commission” means the Vermont commission on Native American affairs.

(3)  “Nation,” “tribe,” or “band” means an assembly of Native American/Indian people who are related to each other by blood and kinship, and who trace their ancestry to a kinship group and which has historically maintained influence and authority over its members.

(4)  “Recognized” means acknowledged as an Abenaki tribe or band by the Vermont general assembly.

(5)  “State” means the state of Vermont.

(b)  Process for state recognition of Abenaki tribes or bands in the state of Vermont.  The commission shall establish rules pursuant to chapter 25 of Title 3 for applicants who seek recognition as a tribe or band.  Applications shall be reviewed by the commission.  Recognition shall be granted if a two-thirds majority of the commission members eligible to vote determine that an applicant meets the criteria set forth in this section.  A commission member who is also a member of an applicant group shall be disqualified from hearing and deciding the application for recognition.

(c)  Commission proceedings.  Once a complete application is received by the commission, it shall provide public notice that the application has been received and shall hold at least one public hearing on the application.  All proceedings of the commission on an application shall be public and materials not exempt pursuant to 1 V.S.A § 317 submitted for the commission’s consideration shall be made part of the application record.

(d)  The division for historic preservation of the department of housing and community affairs shall provide administrative support to the Vermont commission on Native American affairs in carrying out the requirements of this section 854.

(e)  The commission shall be entitled to receive per diem compensation and actual and necessary expenses in accordance with section 1010 of Title 32 for work performed under this section.

(f)  Groups ineligible for recognition.  Any group or entity, or successors in interests thereof, that has previously applied for and has been denied or refused recognition under this chapter unless the group or entity has new evidence in support of the application that was not reasonably available at the time of the prior application, shall be ineligible to apply for state recognition under this chapter.

(g)  Commission assistance to applicants.  A group or entity seeking recognition as a tribe or band under this chapter shall request technical assistance from the commission.  The commission shall explain the administrative process for applying for recognition.  The assistance provided by the commission shall be limited to technical assistance and an explanation of the process.

(h)  Criteria for recognition as a tribe or band.

(1)  An application for state recognition shall include a signed statement from the applicant’s leaders affirming that the information provided is true and accurate.  Any individual seeking recognition on behalf of a tribe or band shall be a citizen of Vermont.  The application must demonstrate the following to the satisfaction of the commission:

(A)  That the applicant’s members are related to each other by blood and kinship or trace their ancestry to a kinship group;

(B)  That the applicant group has maintained a connection with Abenaki tribes or bands that have historically inhabited Vermont; and

(C)  That the applicant group has historically maintained influence and authority over its members.

(2)  The applicant may provide the following information, along with any other information the applicant deems relevant to meeting the recognition criteria, for consideration by the commission:

(A)  Written history that documents a connection with its geographic area and the historical Abenaki homeland.

(B)  Letters, statements, oral stories, and documents from band, city, county, state, or federal authorities and other reliable sources that document a history of a connection with applicant’s geographic areas.

(C)  Documentation of genealogy demonstrating relationships among the kinship groups to which the applicant belongs.

(D)  Documented traditions, customs, oral stories, and histories that demonstrate the group’s Abenaki cultural heritage.

(E)  Other compelling documentation acceptable to the commission that shows the heritage and kinship relationships of the applicant.

(F)  Documentation of the structure, membership criteria, and methods through which the applicant conducts its affairs.

(3)  The commission shall consider all of the information submitted by the applicant and determine whether the applicant meets the criteria for state recognition.  The commission may consult with an historian or anthropologist, genealogist, or other experts in reviewing and determining applications for recognition.

(4)  Incorporation as a for-profit or nonprofit organization does not in and of itself satisfy the recognition criteria set forth in this act.

(i)  Material misrepresentation.  The recognition of any tribe or band may be revoked or an application for recognition rejected if the commission finds that an application submitted under this section contains any material misrepresentation.

(j)  Rulemaking authority.  The commission may adopt rules to implement the provisions of this chapter.


Sec. 6.  SUNSET

Sec. 4 of this act (conditional recognition) shall be repealed on January 15, 2012.

Sec. 7.  EFFECTIVE DATE

This act shall take effect upon passage.

Which was agreed to.

Thereupon, third reading of the bill was ordered.

House Proposal of Amendment Concurred In with Amendment

S. 45.

House proposal of amendment to Senate bill entitled:

An act relating to the right to attend town meeting.

Was taken up.

     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.  21 V.S.A. § 472b is added to read:

§ 472b.  TOWN MEETING LEAVE; EMPLOYEES; STUDENTS

(a)  Subject to the essential operation of a business or entity of state or local government, which shall prevail in any instance of conflict, an employee shall have the right to take unpaid leave from employment under this section or subsection 472(b) of this title for the purpose of attending his or her annual town meeting, provided the employee notifies the employer at least seven days prior to the date of the town meeting.  An employer shall not discharge or in any other manner retaliate against an employee for exercising the right provided by this section.

(b)  A student of voting age shall have the right to attend his or her annual town meeting, and the school shall not penalize or report the student as a truant for exercising the right provided by this section.

Thereupon, pending the question, Shall the Senate concur in the House proposal of amendment?, Senator White moved that the Senate concur in the House proposal of amendment with an amendment as follows:

In Sec. 1. 21 V.S.A. §472b by adding two new subsections, to be subsections (c) and (d), to read as follows:

(c)  The requirement of subsection (b) shall not apply to a student who is in state custody in a secure facility.

(d)  The requirement of subsection (b) shall not create an obligation for any parent, guardian or custodian to take any affirmative action to enable the student to attend an annual town meeting.

Which was agreed to.

Bill Passed in Concurrence with Proposals of Amendment

House bills of the following titles were severally read the third time and passed in concurrence with proposal of amendment:

H. 636.

An act relating to embezzlement by a public official.

H. 862.

An act relating to approval of amendments to the charter of the village of Waterbury.

H. 883.

An act relating to miscellaneous amendments to Vermont’s public retirement systems.

Third Reading Ordered; Rules Suspended; Bill Passed in Concurrence

H. 764.

Senator Doyle, for the Committee on Government Operations, to which was referred House bill entitled:

An act relating to expanded eligibility for Vermont veterans’ medal.

Reported that the bill ought to pass in concurrence.

Thereupon, the bill was read the second time by title only pursuant to Rule 43, and third reading of the bill was ordered.

Thereupon, on motion of Senator Shumlin, the rules were suspended and the bill was placed on all remaining stages of its passage in concurrence forthwith.

     Thereupon, the bill was read the third time and passed in concurrence.

Proposal of Amendment; Third Reading Ordered; Rules Suspended; Bill Passed in Concurrence with Proposal of Amendment

H. 641.

Senator Miller, for the Committee on Economic Development, Housing and General Affairs, to which was referred House bill entitled:

An act relating to nursing mothers in the workplace.

Reported recommending 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.  21 V.S.A. § 302 is amended to read:

§ 302.  Definitions

For the purposes of this subchapter:

"Employer" as used in this subchapter shall mean and include an individual, a partnership, an association, a corporation, a legal representative, trustee, receiver, trustee in bankruptcy, and any common carrier by rail, motor, water, air or express company doing business in or operating within the state.  means any individual, organization, or governmental body including any partnership, association, trustee, estate, corporation, joint stock company, insurance company, or legal representative, whether domestic or foreign, or the receiver, trustee in bankruptcy, trustee or successor thereof, and any common carrier by mail, motor, water, air or express company doing business in or operating within this state, and any agent of such employer, which has one or more individuals performing services for it within this state.

"Employee" shall mean and include every person who may be permitted, required or directed by any employer, as defined in this section in consideration of direct or indirect gain or profit, to engage in any employment.  means every person who may be permitted, required or directed by any employer, in consideration of direct or indirect gain or profit, to perform services.

Sec. 2.  21 V.S.A. § 305 is added to read:

§ 305.  NURSING MOTHERS IN THE WORKPLACE

(a)  For an employee who is a nursing mother, the employer shall for three years after the birth of a child:

(1)  provide reasonable time, either compensated or uncompensated, throughout the day to express breast milk for her nursing child.  The decision to provide compensated time shall be in the sole discretion of the employer, unless modified by a collective bargaining agreement; and

(2)  make a reasonable accommodation to provide appropriate private space that is not a bathroom stall.

(b)  An employer may be exempted from the provisions of subsection (a) of this section if providing time or an appropriate private space for expressing breast milk would substantially disrupt the employer’s operations.

(c)  An employer shall not retaliate or discriminate against an employee who exercises the right provided under this section. 

(d)  In lieu of an enforcement action through the Vermont Judicial Bureau, the attorney general or a state’s attorney may enforce the provisions of this subchapter by bringing a civil action for temporary or permanent injunctive relief, economic damages, including prospective lost wages for a period not to exceed one year, investigative and court costs.  The attorney general or a state’s attorney may conduct an investigation of an alleged violation and enter into a settlement agreement with the employer.  Such investigation shall not be a prerequisite to bringing a court action.

Sec. 3.  21 V.S.A. § 303 is amended to read:

§ 303. PENALTY; JUDICIAL BUREAU

Any employer who violates the provisions of this subchapter shall be fined assessed a civil penalty of not more than $100.00 for each and every violation.

Sec. 4.  4 V.S.A. § 1102 is amended to read:

§ 1102. JUDICIAL BUREAU; JURISDICTION

* * *

(b) The judicial bureau shall have jurisdiction of the following matters:

* * *

(14)  Violations of 21 V.S.A. chapter 5, subchapter 1, relating to conditions for employment.

And that the bill ought to pass in concurrence with such proposal of amendment.

Thereupon, the bill was read the second time by title only pursuant to Rule 43, the proposal of amendment was agreed to, and third reading of the bill was ordered.

Thereupon, on motion of Senator Shumlin, the rules were suspended and the bill was placed on all remaining stages of its passage in concurrence with proposal of amendment forthwith.

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

Proposals of Amendment; Third Readings Ordered

H. 884.

Senator Nitka, for the Committee on Education, to which was referred House bill entitled:

An act relating to ensuring quality in prekindergarten education programs offered by or through school districts.

Reported recommending that the Senate propose to the House to amend the bill as follows:

First:  In Sec. 2, subsection (a) by striking out the words “any prekindergarten education program offered by a school district” and inserting in lieu thereof the words any prekindergarten education program operated by a school district or by a private provider on behalf of a school district

Second:  By adding a new section to be Sec. 3 to read:

Sec. 3.  Sec. 15 of No. 62 of the Acts of 2007 is amended to read:

Sec. 15.  EFFECTIVE DATES

This act shall take effect on July 1, 2007, except that the rules required by Sec. 3 of this act shall apply beginning in the 2008–2009 academic year.  A prekindergarten education program operated by a school district or by a private provider on behalf of a school district that was operating on or before
October 1, 2008 shall have one year from the effective date of the rules required by Sec. 3 of this act to achieve full compliance with provisions in the rules related to conducting child development assessments and governing the manner in which school districts and private providers establish and negotiate contract payments.

And that the bill ought to pass in concurrence with such proposals of amendment.

Thereupon, the bill was read the second time by title only pursuant to Rule 43, the proposals of amendment were collectively agreed to, and third reading of the bill was ordered.

Rules Suspended; Third Reading Ordered; Rules Suspended; Bill Passed in Concurrence

H. 664.

Appearing on the Calendar for notice, on motion of Senator Shumlin, the rules were suspended and House bill entitled:

An act relating to unemployment insurance.

Was taken up for immediate consideration.

Senator Illuzzi, for the Committee on Economic Development, Housing and General Affairs, to which the bill was referred, reported that the bill ought to pass in concurrence.

Thereupon, the bill was read the second time by title only pursuant to Rule 43, and third reading of the bill was ordered.

Thereupon, on motion of Senator Shumlin, the rules were suspended and the bill was placed on all remaining stages of its passage in concurrence forthwith.

     Thereupon, the bill was read the third time and passed in concurrence.

Rules Suspended; Bills Messaged

On motion of Senator Shumlin, the rules were suspended, and the following bills were ordered messaged to the House forthwith:

     S. 45; H. 636; H. 641; H. 664; H. 764; H. 862; H. 883.

Adjournment

On motion of Senator Shumlin, the Senate adjourned until twelve o’clock noon.

 

 



Published by:

The Vermont General Assembly
115 State Street
Montpelier, Vermont


www.leg.state.vt.us