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Journal of the Senate

________________

Friday, April 25, 2008

The Senate was called to order by the President.

Devotional Exercises

Devotional exercises were conducted by Senior Buddhist Teacher Michael Greenleaf of Barnet.

Message from the House No. 60

     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. 896.  An act relating to balancing the transportation budget and repairing deteriorating roads.

In the passage 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. 884.  An act relating to ensuring quality in prekindergarten education programs offered by or through school districts.

And has concurred therein with proposal of amendment in the adoption of which the concurrence of the Senate is requested.

Pursuant to the requests of the Senate for Committees of Conference upon the disagreeing votes of the two Houses on Senate bills of the following titles, the Speaker has appointed as members of such committees on the part of the House:

S. 241.  An act relating to the special veteran and gold star registration plates.

                                         Rep. Masland of Thetford

                                         Rep. Scheuermann of Stowe

                                         Rep. Fitzgerald of St. Albans City

S. 342.  An act relating to Lake Champlain commemorative motor vehicle plates.

                                         Rep. Brennan of Colchester

                                         Rep. Potter of Clarendon

                                         Rep. Audette of South Burlington

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. 812.

An act relating to ensuring educational continuity for pregnant and parenting students.

Bill Referred

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

H. 896.

An act relating to balancing the transportation budget and repairing deteriorating roads.

To the Committee on Rules.

Message from the Governor

Appointments Referred

     A message was received from the Governor, by Dennise R. Casey, Secretary of Civil and Military Affairs, submitting the following appointments, which were referred to committees as indicated:

     David A. Jenkins of Burlington - Member of the Board of Medical Practice, - from April 21, 2008, to December 31, 2008.

     To the Committee on Health and Welfare.

     Ragon Willmuth, MD of Burlington - Member of the Board of Health, - from April 22, 2008, to February 28, 2011.

     To the Committee on Health and Welfare.

     Willima K. Hoser, PA-C of Chester - Member of the Board of Health, - from April 22, 2008, to December 31, 2009.

     To the Committee on Health and Welfare.


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

H. 599.

Senator Sears, for the Committee on Judiciary, to which was referred House bill entitled:

An act relating to boating while intoxicated and driving while intoxicated.

     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.  LEGISLATIVE INTENT

It is the intent of the general assembly in this act to address, among other issues, the Vermont supreme court’s decisions in State v. LaBounty, 2005 VT 124, and State v. Martin, 2007 VT 96.  In LaBounty, the court held that if more than one person was injured, an offender could be charged with only one count of grossly negligent operation of a motor vehicle with injury resulting.  Similarly, the court held in Martin that if more than one person was killed, an offender could be charged with only one count of boating while intoxicated with death resulting.  In this act, the general assembly responds to Martin and LaBounty by amending several motor vehicle statutes to permit an offender to be charged with a separate count of violating the statute for each person who was killed or injured as a result of the offense.

Sec. 2.  23 V.S.A. § 1091(b) is amended to read:

(b)  Grossly negligent operation.

(1)  A person who operates a motor vehicle on a public highway in a grossly negligent manner shall be guilty of grossly negligent operation.

(2)  The standard for a conviction for grossly negligent operation in violation of this subsection shall be gross negligence, examining whether the person engaged in conduct which involved a gross deviation from the care that a reasonable person would have exercised in that situation.

(3)  A person who violates this subsection shall be imprisoned not more than two years or fined not more than $5,000.00, or both.  If the person has previously been convicted of a violation of this section, the person shall be imprisoned not more than four years or fined not more than $10,000.00, or both.  If serious bodily injury as defined in section 1021 of Title 13 or death of any person other than the operator results, the person shall be imprisoned for not more than 15 years or fined not more than $15,000.00, or both.  If serious bodily injury or death results to more than one person other than the operator, the operator may be convicted of a separate violation of this subdivision for each decedent or person injured.

Sec. 3.  23 V.S.A. § 1133 is amended to read:

§ 1133.  ATTEMPTING TO ELUDE A POLICE OFFICER

(a)  No operator of a motor vehicle shall fail to bring his or her vehicle to a stop when signaled to do so by an enforcement officer:

(1)  displaying insignia identifying him or her as such; or

(2)  operating a law enforcement vehicle sounding a siren and displaying a flashing blue or blue and white signal lamp.

(b)(1)  A person who violates subsection (a) of this section shall be imprisoned for not more than one year or fined not more than $1,000.00, or both.

(2)(A)  In the event that death or serious bodily injury to any person other than the operator is proximately caused by the operator’s knowing violation of subsection (a) of this section, the operator shall be imprisoned for not more than five years or fined not more than $3,000.00, or both.

(B)  If death or serious bodily injury to more than one person other than the operator is proximately caused by the operator’s knowing violation of subsection (a) of this section, the operator may be convicted of a separate violation of this subdivision for each decedent or person injured.

(c)  In a prosecution under this section, the operator may raise as an affirmative defense, to be proven by a preponderance of the evidence, that the operator brought his or her vehicle to a stop in a manner, time, and distance that was reasonable under the circumstances.

* * *

Sec. 4.  23 V.S.A. § 1201 is amended to read:

§ 1201.  OPERATING VEHICLE UNDER THE INFLUENCE OF INTOXICATING LIQUOR OR OTHER SUBSTANCE; CRIMINAL REFUSAL

(a)  A person shall not operate, attempt to operate, or be in actual physical control of any vehicle on a highway:

(1)  when the person’s alcohol concentration is 0.08 or more, or 0.02 or more if the person is operating a school bus as defined in subdivision 4(34) of this title; or

(2)  when the person is under the influence of intoxicating liquor; or

(3)  when the person is under the influence of any other drug or under the combined influence of alcohol and any other drug to a degree which renders the person incapable of driving safely; or

(4)  when the person’s alcohol concentration is 0.04 or more if the person is operating a commercial motor vehicle as defined in subdivision 4103(4) of this title.

* * *

(e)  A person may not be convicted of more than one offense under violation of subsection (a) of this section arising out of the same incident.

* * *

Sec. 5.  23 V.S.A. § 1210 is amended to read:

§ 1210.  PENALTIES

* * *

(e)(1)  Death resulting.  If the death of any person results from a violation of section 1201 of this title, the person convicted of the violation shall be fined not more than $10,000.00 or imprisoned not less than one year nor more than 15 years, or both.  The provisions of this subsection do not limit or restrict prosecutions for manslaughter.

(2)  If the death of more than one person results from a violation of section 1201 of this title, the operator may be convicted of a separate violation of this subdivision for each decedent.

(f)(1)  Injury resulting.  If serious bodily injury, as defined in 13 V.S.A. § 1021(2), results to any person other than the operator from a violation of section 1201 of this title, the person convicted of the violation shall be fined not more than $5,000.00, or imprisoned not less than one year nor more than 15 years, or both.

(2)  If serious bodily injury as defined in 13 V.S.A. § 1021(2) results to more than one person other than the operator from a violation of section 1201 of this title, the operator may be convicted of a separate violation of this subdivision for each person injured.

* * *

Sec. 6.  23 V.S.A. § 3317 is amended to read:

§ 3317.  PENALTIES

* * *

(d)  Boating while intoxicated; privilege suspension.  Any person who is convicted of violating section 3323 of this title shall have his or her privilege to operate a vessel, except a nonmotorized canoe and a nonmotorized rowboat, suspended for a period of one year and until the person complies with section 1209a of this title.

(e)  Boating while intoxicated; criminal penalty.  Any person who violates a provision of section 3323 of this title shall be imprisoned for not more than one year and subject to the following fines:

(1)  for a first offense, not less than $200.00 nor more than $750.00;

(2)  for a second or subsequent offense, not less than $250.00 nor more than $1,000.00.

(f)(1)(A)  Boating while intoxicated; death resulting.  If the death of any person results from the violation of section 3323 of this title, the person convicted shall, instead of any other penalty imposed in this section, be imprisoned not less than one year nor more than five 15 years or fined not more than $2,000.00 $10,000.00,or both; but the provisions of this section shall not be construed to limit or restrict prosecutions for manslaughter.

(B)  If the death of more than one person results from a violation of section 3323 of this title, the operator may be convicted of a separate violation of this subdivision for each decedent.

(2)(A)  Boating while intoxicated; serious bodily injury resulting.  If serious bodily injury, as defined in 13 V.S.A. § 1021(2), results to any person other than the operator from a violation of section 3323 of this title, the person convicted of the violation shall be fined not more than $5,000.00 or imprisoned not more than 15 years, or both.

(B)  If serious bodily injury as defined in 13 V.S.A. § 1021(2) results to more than one person other than the operator from a violation of section 3323 of this title, the operator may be convicted of a separate violation of this subdivision for each person injured. 

* * *

Sec. 7.  23 V.S.A. § 3323 is amended to read:

§ 3323.  OPERATING UNDER THE INFLUENCE OF INTOXICATING LIQUOR OR DRUGS; B.W.I.

(a)  A person shall not operate, attempt to operate, or be in actual physical control of a vessel on the waters of this state while:

(1)  there is 0.08 percent or more by weight of alcohol in his or her blood, as shown by analysis of his or her breath or blood; or

(2)  under the influence of intoxicating liquor; or

(3)  under the influence of any other drug or under the combined influence of alcohol and any other drug to a degree which renders the person incapable of operating safely.

* * *

(e)  A person may not be convicted of more than one offense under violation of subsection (a) of this section arising out of the same incident.

Sec. 8.  9 V.S.A. chapter 82 is added to read:

CHAPTER 82.  SCRAP METAL PROCESSORS

§ 3021.  DEFINITIONS

As used in this chapter:

(1)  “Authorized scrap seller” means a licensed plumber, electrician, HVAC contractor, building or construction contractor, demolition contractor, construction and demolition debris contractor, public utility, transportation company, licensed peddler or broker, an industrial and manufacturing company; marine, automobile, or aircraft salvage and wrecking company, or a government entity.

(2)  “Ferrous scrap” means any scrap metal consisting primarily of iron, steel, or both, including large manufactured articles such as automobile bodies that may contain other substances to be removed and sorted during normal processing operations of scrap metal.

(3)  “Metal article” means any manufactured item consisting of metal that is usable for its originally intended purpose without processing, repair, or alteration, including railings, copper or aluminum wire, copper pipe and tubing, bronze cemetery plaques, urns, markers, plumbing fixtures, and cast‑iron radiators.

(4)  “Nonferrous scrap” means any scrap metal consisting primarily of metal other than iron or steel, and does not include aluminum beverage cans, post-consumer household items, items removed during building renovations or demolitions, or large manufactured items containing small quantities of nonferrous metals such as automobile bodies and appliances.

(5)  “Proprietary article” means any of the following:

(A)  Any metal article stamped, engraved, stenciled, or marked as being or having been the property of a governmental entity, public utility, or a  transportation, shipbuilding, ship repair, mining, or manufacturing company.

(B)  Any hard-drawn copper electrical conductor, cable, or wire greater than 0.375 inches in diameter, stranded or solid.

(C)  Any aluminum conductor, cable, or wire greater than 0.75 inches in diameter, stranded or solid.

(D)  Metal beer kegs.

(E)  Manhole covers.

(6)  “Scrap metal” means any manufactured item or article that contains metal.

(7)  “Scrap metal processor” means a person authorized to conduct a business that processes and manufactures scrap metal into prepared grades for sale as raw material to mills, foundries, and other manufacturing facilities.

§ 3022.  PURCHASE OF NONFERROUS SCRAP, METAL ARTICLES, AND PROPRIETARY ARTICLES

(a)  A scrap metal processor may purchase nonferrous scrap, metal articles, and proprietary articles directly from an authorized scrap metal seller or the seller’s authorized agent or employee.

(b)  A scrap metal processor may purchase nonferrous scrap, metal articles, and proprietary articles from a person who is not an authorized scrap metal seller or the seller’s authorized agent or employee, provided the scrap processor complies with all the following procedures:

(1)  At the time of sale, requires the seller to provide a current government-issued photographic identification that indicates the seller’s full name, current address, and date of birth, and records in a permanent ledger the identification information of the seller, the time and date of the transaction, the license number of the seller’s vehicle, and a description of the items received from the seller.  This information shall be retained for at least five years at the processor’s normal place of business or other readily accessible and secure location.  On request, this information shall be made available to any law enforcement official or authorized security agent of a governmental entity who provides official credentials at the scrap metal processor’s business location during regular business hours.

(2)  Requests documentation from the seller of the items offered for sale, such as a bill of sale, receipt, letter of authorization, or similar evidence that establishes that the seller lawfully owns the items to be sold.

(3)  After purchasing an item from a person who fails to provide documentation pursuant to subdivision (2) of this subsection, submits to the local law enforcement agency no later than the close of the following business day a report that describes the item and the seller’s identifying information required in subdivision (1) of this subsection, and holds the proprietary article for at least 15 days following purchase.

§ 3023.  PENALTIES

(a)  A scrap metal processor who violates any provision of this chapter for the first time may be assessed a civil penalty not to exceed $1,000.00 for each transaction.

(b)  A scrap metal processor who violates any provision of this chapter for a second or subsequent time shall be fined not more than $25,000.00 for each transaction.

Sec. 9.  4 V.S.A. § 1102(b) is amended to read:

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

* * *

(14)  Violations of 9 V.S.A. § 3023(a), relating to the purchase and sale of scrap metal.

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, and pending the question, Shall the Senate propose to the House to amend the bill as recommended by the Committee on Judiciary?, Senator Illuzzi moved to amend the report of the Committee on Judiciary in Sec. 8, 9 V.S.A. § 3021(5), by adding a new subparagraph (F), to read as follows:

               (F)  Catalytic converters.

Which was agreed to.

Thereupon, the pending question, Shall the Senate propose to the House to amend the bill as recommended by the Committee on Judiciary, as amended?, was agreed to.

Thereupon, 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.

Bill Passed in Concurrence with Proposal of Amendment

H. 700.

House bill of the following title was read the third time and passed in concurrence with proposal of amendment:

An act relating to sale of bottles of wine at festivals.

Proposal of Amendment; Bill Passed in Concurrence with Proposal of Amendment; Rules Suspended; Bill Passed in Concurrence with Proposal of Amendment

H. 887.

House bill entitled:

An act relating to health care reform.

Was taken up.

Thereupon, pending third reading of the bill, Senator Illuzzi moved to amend the bill in Sec. 23,  22  V.S.A. § 903(c)(2) by striking out subsection (2) in its entirety and inserting in lieu thereof the following:

(2)(a) VITL shall be designated in the plan to operate the exclusive statewide health information exchange network for this state, notwithstanding the provisions of subsection (g) of this section requiring the recommendation of the commissioner and the approval of the general assembly before the plan can take effect.

(b)  To the extent of its involvement with the operation of the network, VITL shall be immune from any claim: 

(1) alleging negligence  based on alleged breach of confidentiality resulting from an isolated instance of the inadvertent disclosure of identifiable health care information, provided VITL has in place and follows reasonable procedures designed to avoid an inadvertent disclosure; or

(2) alleging negligence or gross negligence based on an alleged breach of confidentiality resulting from an isolated instance of the inadvertent disclosure of non-identifiable health care information, provided VITL has in place and follows reasonable procedures designed to avoid an inadvertent disclosure.  

Nothing in this section shall impede local community providers from the exchange of electronic medical data. 

Thereupon, pending the question, Shall the Senate propose to the House to amend the bill as proposed by Senator Illuzzi, Senator Illuzzi requested and was granted leave to withdraw the proposal of amendment.

Thereupon, pending third reading of the bill, Senator Illuzzi moved that the Senate propose to the House to amend the bill in Sec. 23, § 903(c)(2) by striking out subdivision (2) in its entirety.

Which was agreed to.

Thereupon, the bill was read the third time and passed in concurrence with proposals of amendment, on a roll call, Yeas 29, Nays 0.

Senator Racine having demanded the yeas and nays, they were taken and are as follows:

Roll Call

Those Senators who voted in the affirmative were: Ayer, Bartlett, Campbell, Carris, Collins, Condos, Coppenrath, Cummings, Doyle, Flanagan, Giard, Hartwell, Illuzzi, Kitchel, Kittell, Lyons, MacDonald, Maynard, Mazza, McCormack, Miller, Nitka, Racine, Scott, Sears, Shumlin, Snelling, Starr, White.

Those Senators who voted in the negative were: None.

The Senator absent and not voting was: Mullin.

Proposal of Amendment; Third Reading Ordered

H. 112.

Senator Flanagan, for the Committee on Health and Welfare, to which was referred House bill entitled:

An act relating to protection of health care and public safety personnel from communicable disease.

     Reported recommending that the Senate propose to the House to amend the bill in Sec. 1, 18 V.S.A. § 1141, subsection (e), before the period, by adding the following: , and may be considered unprofessional conduct under applicable licensing, certification, and registration laws 

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.


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

H. 685.

Senator MacDonald, for the Committee on Natural Resources and Energy, to which was referred House bill entitled:

An act relating to the enforcement of environmental laws.

     Reported recommending that the Senate propose to the House to amend the bill by striking out Sec. 9 in its entirety and inserting in lieu thereof the following:

Sec. 9.  10 V.S.A. § 8017 is amended to read:

§ 8017.  ANNUAL REPORT

The secretary and the attorney general shall report annually to the president pro tempore of the senate, the speaker of the house, the house committee on fish, wildlife and water resources, and the chairs of the senate and house committees on natural resources and energy.  The report shall be filed no later than January 15, on the enforcement actions taken under this chapter, and on the status of citizen complaints about environmental problems in the state.  The report shall describe, at a minimum, the number of violations, the actions taken, disposition of cases, the amount of penalties collected, and the cost of administering the enforcement program.

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.

Consideration Postponed

J.R.H. 59.

Joint House resolution entitled:

Joint resolution urging secondary school and postsecondary educators and administrators to collaborate on accelerated learning opportunities for Vermont high school students.

Was taken up.

Thereupon, without objection consideration of the joint resolution was postponed until the next legislative day.

Rules Suspended; Third Readings Ordered; Rules Suspended; Bills Passed in Concurrence

H. 659.

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

An act relating to approval of the adoption of the charter of the town of Enosburg.

Was taken up for immediate consideration.

Senator White, for the Committee on Government Operations, 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.

H. 892.

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

An act relating to approval of amendments to the charter of the village of Enosburg Falls.

Was taken up for immediate consideration.

Senator White, for the Committee on Government Operations, 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.

H. 893.

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

An act relating to approval of amendments to the charter of the city of Rutland.

Was taken up for immediate consideration.

Senator White, for the Committee on Government Operations, 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.

House Proposal of Amendment Not Concurred In; Committee of Conference Requested; Committee of Conference Appointed

S. 322.

House proposal of amendment to Senate bill entitled:

An act relating to the Vermont Dairy Promotion Council.

Was taken up.

Thereupon, pending the question, Shall the Senate concur in the House proposal of amendment?, on motion of Senator Kittell, the Senate refused to concur in the House proposal of amendment and requested a Committee of Conference.

Thereupon, pursuant to the request of the Senate, the President announced the appointment of


                                         Senator Giard

                                         Senator Maynard

                                         Senator Kittell

as members of the Committee of Conference on the part of the Senate to consider the disagreeing votes of the two Houses.

Rules Suspended; Action Reconsidered; Senate Proposal of Amendment to House Proposal of Amendment

S. 226.

Assuring the Chair that he voted with the majority whereby the Senate concurred in the House proposal of amendment with an amendment, Senator Shumlin moved that the rules be suspended so that the Senate could reconsider its action on Senate bill entitled:

An act relating to requiring the installation of photoelectric only smoke alarms.

Which was agreed to.

Thereupon, pending the recurring question, upon reconsideration, Shall the Senate concur in the House proposal of amendment with an amendment? Senator Illuzzi moved to substitute the Senate proposal of amendment to the House proposal of amendment as follows:

     In Sec. 1, subsection (a) by striking out subdivision (10) in its entirety and inserting in lieu thereof a new subdivision (10) to read as follows:

(10)  Photoelectric-type smoke detectors provide earlier detection and warning than ionization-type smoke detectors in smoldering fires by tens of minutes.  Ionization-type smoke detectors provide earlier detection and warning than photoelectric-type smoke detectors in flaming fires by seconds or tens of seconds.  Therefore, although this act requires photoelectric-only-type smoke detectors for the reasons set forth in these findings, the general assembly does not discourage the use of either battery operated/lpowered ionization type smoke detectors in addition to the photoelectric-only-type smoke detectors required by this act.  In any event, combination smoke detection is not accepted in place of photoelectric-only-type detection.

Which was agreed to.

Thereupon, the recurring question, Shall the Senate concur in the House proposal of amendment with an amendment?, was agreed to.


Committees of Conference Appointed

H. 11.

An act relating to the commissioner of health.

Was taken up.  Pursuant to the request of the House, the President announced the appointment of

                                         Senator White

                                         Senator Flanagan

                                         Senator Racine

as members of the Committee of Conference on the part of the Senate to consider the disagreeing votes of the two Houses.

H. 290.

An act relating to underground utility damage prevention system.

Was taken up.  Pursuant to the request of the House, the President announced the appointment of

                                         Senator Miller

                                         Senator Scott

                                         Senator Illuzzi

as members of the Committee of Conference on the part of the Senate to consider the disagreeing votes of the two Houses.

H. 432.

An act relating to establishing Juneteenth national freedom day.

Was taken up.  Pursuant to the request of the House, the President announced the appointment of

                                         Senator Miller

                                         Senator Carris

                                         Senator Racine

as members of the Committee of Conference on the part of the Senate to consider the disagreeing votes of the two Houses.

H. 515.

An act relating to the collection and disposal of mercury-added thermostats.

Was taken up.  Pursuant to the request of the House, the President announced the appointment of


                                         Senator McCormack

                                         Senator Hartwell

                                         Senator Snelling

as members of the Committee of Conference on the part of the Senate to consider the disagreeing votes of the two Houses.

H. 617.

An act relating to guardianships.

Was taken up.  Pursuant to the request of the House, the President announced the appointment of

                                         Senator Nitka

                                         Senator Cummings

                                         Senator Sears

as members of the Committee of Conference on the part of the Senate to consider the disagreeing votes of the two Houses.

H. 711.

An act relating to agricultural, forestry, and horticultural education.

Was taken up.  Pursuant to the request of the House, the President announced the appointment of

                                         Senator Starr

                                         Senator Campbell

                                         Senator Illuzzi

as members of the Committee of Conference on the part of the Senate to consider the disagreeing votes of the two Houses.

H. 806.

An act relating to public water systems.

Was taken up.  Pursuant to the request of the House, the President announced the appointment of

                                         Senator Hartwell

                                         Senator Snelling

                                         Senator McCormack

as members of the Committee of Conference on the part of the Senate to consider the disagreeing votes of the two Houses.


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. 226, S. 322, H. 599, H. 659, H. 685, H. 700, H. 887, H. 892, H. 893.

Rules Suspended; Action on Action on Bills Messaged

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

H. 11, H. 290, H. 432, H. 515, H. 617, H. 711, H. 806.

Recess

On motion of Senator Shumlin the Senate recessed until 3:30 P.M.

Called to Order

At 3:45 P.M. the Senate was called to order by the President.

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

H. 890.

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

An act relating to compensation for certain state employees.

Was taken up for immediate consideration.

Senator White, for the Committee on Government Operations, to which the bill was referred, 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.  32 V.S.A. § 1003 is amended to read:

§ 1003.  STATE OFFICERS

(a)  Each elective officer of the executive department is entitled to an annual salary as follows:

                                        Annual Salary           Annual Salary

                                        as of                                as of 

                                         July 8, 2007              July 5, 2009

   Governor                        $150,067                    $157,494

   Lieutenant Governor          63,701                         68,105

   Secretary of State               95,156                      100,661

   State Treasurer                   95,156                      100,661

   Auditor of Accounts           95,156                      100,661

   Attorney General              113,915                      120,077

(b)  The governor may appoint each officer of the executive branch listed in this subsection at a starting salary ranging from the base salary stated for that position to a salary which does not exceed the maximum salary unless otherwise authorized by this subsection.  The maximum salary for each appointive officer shall be 50 percent above the base salary.  Annually, the governor may grant to each of those officers an annual salary adjustment subject to the maximum salary.  The annual salary adjustment granted to officers under this subsection shall not exceed the average of the total rate of adjustment available to classified employees under the collective bargaining agreement then in effect.  In addition to the annual salary adjustment specified in this subsection, the governor may grant a special salary increase subject to the maximum salary, or a bonus, to any officer listed in this subsection whose job duties have significantly increased, or whose contributions to the state in the preceding year are deemed especially significant.  Special salary increases or bonuses granted to any individual shall not exceed the average of the total rate of adjustment available to classified employees under the collective bargaining agreement then in effect.

(1)  Heads of the following departments, offices, and agencies:

                                                                   Base Salary           Base Salary

                                                                         as of                     as of

                                                                  July 8, 2007           July 5, 2009

   (A)           Administration                           $90,745                  $93,921

   (B)           Agriculture, food and markets     90,745                     93,921

   (C)           Banking, insurance, securities,

                   and health care administration      84,834                 87,803

   (D)          Buildings and general services      84,834                     87,803

   (E)           Children and families                    84,834                    87,803

   (F)           Commerce and community                      

                     development                                    90,745                93,921

   (G)           Corrections                                    84,834                87,803             

   (H)           Defender general                           76,953                79,646  

   (I)            Disabilities, aging, and

                    independent living                        84,834                   87,803         

   (J)            Economic development                 76,953                   79,646

   (K)           Education                                       84,834                 87,803 

   (L)           Environmental conservation          84,834                    87,803   

   (M)          Finance and management              84,834                   87,803    

   (N)           Fish and wildlife                           76,953                   79,646    

   (O)           Forests, parks and recreation        76,953                  79,646   

   (P)           Health                                            84,834                  87,803     

   (Q)           Housing and community affairs    76,953                     79,646

   (R)           Human resources                           84,834                  87,803   

   (S)           Human services                              90,745                93,921

   (T)           Information and innovation           84,834                    87,803

   (U)           Labor                                             84,834                 87,803 

   (V)           Libraries                                        76,953                  79,646   

   (W)          Liquor control                                76,953                 79,646   

   (X)            Lottery                                          76,953                 79,646  

   (Y)            Mental health                                  84,834                87,803         

   (Z)            Military                                         76,953 84,834    87,803 

   (Z)(AA)    Motor vehicles                              76,953                  79,646 

   (AA)(BB)  Natural resources                         90,745                93,921    

   (BB)(CC)   Natural resources board

                      chairperson                                  76,953                 79,646  

   (CC)(DD)   Public Safety                               84,834                 87,803      

   (DD)(EE)   Public service                              84,834                  87,803      

   (EE)(FF)    Taxes                                           84,834                 87,803   

   (FF)(GG)   Tourism and marketing               76,953                    79,646     

   (GG)(HH)  Transportation                             90,745                  93,921    

   (HH)(II)     Vermont health access                84,834                   87,803  

   (II)(JJ)        Veterans Veterans’ home           76,953                   79,646   

(2)  The secretary of administration may include the director of the office of professional regulation in any pay plans which may be established under the authority of subsection 1020(c) of this title, provided the minimum hiring rate does not fall below a base salary, as of July 8, 2007, of $65,239.00 and, as of July 5, 2009, of $67,522.00.

* * *

Sec. 2.  32 V.S.A. § 1003(c) is amended to read:

(c)  The annual salaries of the officers of the judicial branch named below shall be as follows:

                                                      Annual Salary   Annual Salary Annual Salary

                                                             as of                    as of               as of

                                                          July 8, 2007      July 6, 2008   July 5, 2009

   (1)           Chief justice of supreme court  $135,421    $137,522      $142,335

   (2)           Each associate justice                 129,245       131,346          135,943

   (3)           Administrative judge                  129,245       131,346           135,943

   (4)           Each superior judge                    122,867          124,968       129,342

   (5)           Each district judge                      122,867       124,968          129,342

   (6)           Each magistrate                            92,641            94,742         98,058

   (7)           Each judicial bureau hearing

officer                                             92,641     94,742              98,058

Sec. 3.  32 V.S.A. § 1141(a) is amended to read:

(a)  The compensation of each assistant judge of the superior court, which shall be paid by the state, shall be $136.28 a day as of July 9, 2006 and $142.04 a day as of July 8, 2007, $147.01 a day as of July 6, 2008, and $152.16 as day as of July 5, 2009 for time spent in the performance of official duties and necessary expenses as allowed to classified state employees.  Compensation under this section shall be based on a half-day minimum and hourly thereafter.

Sec. 4.  32 V.S.A. § 1142(a) is amended to read:

(a)  The annual salaries of the judges of probate in the several probate districts, which shall be paid by the state in lieu of all fees or other compensation, shall be as follows:

                                                    Annual Salary   Annual Salary  Annual Salary

                                                          as of                   as of                 as of

                                                       July 8, 2007    July 6, 2008      July 5, 2009

(1)        Addison                   $59,321               $61,397           $63,546

(2)       Bennington                51,559                   53,364             55,232

(3)       Caledonia                   59,321                 61,397             63,546

(4)       Chittenden                  91,402                 93,503             96,776

(5)       Essex                          28,853                 29,863             30,908

(6)       Fair Haven                  43,594                 45,120             46,699

(7)       Franklin                        59,321               61,397             63,546

(8)       Grand Isle                     28,853               29,863             30,908

(9)        Hartford                       59,321               61,397             63,546

(10)      Lamoille                       43,594               45,120             46,699

(11)      Manchester                  43,594              45,120             46,699

(12)      Marlboro                      51,559               53,364             55,232

(13)      Orange                         51,559               53,364             55,232

(14)      Orleans                       51,559               53,364             55,232

(15)      Rutland                         75,859               77,960             80,689 

(16)      Washington                  75,859               77,960             80,689  

(17)      Westminster                 43,594               45,120             46,699

(18)      Windsor                       51,559               53,364             55,232

Sec. 5.  32 V.S.A. § 1181 is amended to read:

§ 1181.  COUNTY CLERKS

The annual salaries of the county clerks in the respective counties which shall be paid by the state in lieu of all fees or other compensation paid by the state, shall be as follows:

                                                        Annual Salary Annual Salary Annual Salary

                                                               as of                 as of              as of

                                                         July 8, 2007    July 6, 2008     July 5, 2009

   (1)      Addison County          $64,627           $66,728           $69,063

   (2)      Bennington County       64,627              66,728             69,063

   (3)      Caledonia County         64,627             66,728             69,063

   (4)      Chittenden County        78,189             80,290             83,100

   (5)      Essex County                35,119             36,348             37,620

   (6)      Franklin County            64,627             66,728             69,063

   (7)      Grand Isle County         35,119             36,348             37,620

   (8)      Lamoille County           64,627              66,728             69,063

   (9)      Orange County              64,627            66,728             69,063

   (10)     Orleans County             64,627            66,728             69,063

   (11)     Rutland County            71,921             74,022             76,613

   (12)     Washington County      71,921             74,022             76,613

   (13)     Windham County          64,627            66,728             69,063

   (14)      Windsor County           68,539           70,640             73,112

Sec. 6.  32 V.S.A. § 1182(a) is amended to read:

(a)  The annual salaries of the sheriffs of all counties except Chittenden shall be $65,812.00 as of July 8, 2007 and $70,290.00 as of July 5, 2009.  The annual salary of the sheriff of Chittenden County shall be $69,646.00 as of July 8, 2007 and $74,258.00 as of July 5, 2009.

Sec. 7.  32 V.S.A. § 1183(a) is amended to read:

(a)  The annual salaries of state’s attorneys shall be:

                                                     Annual Salary          Annual Salary

                                                           as of                         as of

                                                       July 8, 2007           July 5, 2009

   (1)  Addison County          $89,020                    $94,310

   (2)  Bennington County       89,020                      94,310

   (3)  Caledonia County          89,020                     94,310

   (4)  Chittenden County         93,069                     98,501

   (5)  Essex County                 66,766                     71,277

   (6)  Franklin County             89,020                     94,310

   (7)  Grand Isle County          66,766         71,277

   (8)  Lamoille County            89,020                      94,310

   (9)  Orange County               89,020        94,310

   (10)  Orleans County            89,020                     94,310

   (11)  Rutland County            89,020        94,310

   (12)  Washington County      89,020         94,310


   (13)  Windham County         89,020         94,310

   (14)  Windsor County           89,020         94,310

Sec. 8.  2 V.S.A. § 63(a) is amended to read:

(a)  The base salary for the sergeant at arms shall be $42,675.00 as of

July 8, 2007 and $44,169.00 as of July 5, 2009.

Sec. 9.  RATE OF ADJUSTMENT

For purposes of determining annual salary adjustments, special salary increases, and bonuses under subsections 1003(b) and 1020(b) of Title 32, “the total rate of adjustment available to classified employees under the collective bargaining agreement” shall be deemed to be 3.5 percent for those earning up to and including $28.85/hour for fiscal year 2009, but in no case shall an adjustment result in an annual salary exceeding $60,000.00, and 3.5 percent for fiscal year 2010.

Sec. 10.  PAY ACT APPROPRIATIONS

(a)  Executive branch.  The two-year agreements between the state of Vermont and the Vermont state employees’ association for the defender general, nonmanagement, supervisory, state police, and corrections bargaining units, for the period July 1, 2008 through June 30, 2010, shall be funded as follows:

(1)  Fiscal year 2009:

(A)  General fund.  The amount of $538,094.00 is appropriated from the general fund to the secretary of administration for proportional distribution to the departments of corrections, defender general, state’s attorneys and sheriffs, and public safety to fund the fiscal year 2009 collective bargaining agreement and the requirements of this act.

(B)  Transportation fund.  The amount of $1,210,258.00 is appropriated from the transportation fund to the secretary of administration for distribution to the agency of transportation and the department of public safety to fund the fiscal year 2009 collective bargaining agreement and the requirements of this act.

(C)  Other funds.  The administration shall provide additional spending authority to departments through the existing process of excess receipts to fund the fiscal year 2009 collective bargaining agreement and the requirements of this act.  The estimated amounts are $1,205,810.00 from special fund sources and $4,016,461.00 from federal and other sources.    

(2)  Fiscal year 2010:

(A)  General fund.  The amount of $6,297,693.00 is appropriated from the general fund to the secretary of administration for distribution to departments for the fiscal year 2010 collective bargaining agreement and the requirements of this act.

(B)  Transportation fund.  The amount of $2,180,510.00 is appropriated from the transportation fund to the secretary of administration for distribution to the agency of transportation and the department of public safety to fund the fiscal year 2010 collective bargaining agreement and the requirements of this act.

(C)  Other funds.  The administration shall provide additional spending authority to departments through the existing process of excess receipts to fund the fiscal year 2010 collective bargaining agreement and the requirements of this act.  The estimated amounts are $1,230,031.00 from special fund sources and $4,095,444.00 from federal and other sources.

(b)  Judicial branch.  

(1)  For all exempt employees with annual salaries of $60,000.00 or more as of July 5, 2008, the implementation of salary increases as of July 6, 2008, and for all employees whose salaries are specified in Secs. 2, 3, 4, and 5 of this act, shall be postponed unless the general assembly determines the economic situation in fiscal year 2009 no longer merits the postponement of these salary increases, which shall become effective on a date determined by the general assembly.

(2)  The annual salary of an exempt employee who earns an annual salary of less than $60,000.00 as of July 5, 2008 shall not be increased to a salary greater than $60,000.00.

(3)  The two-year agreements between the state of Vermont and the Vermont state employees’ association for the judicial bargaining unit for the period July 1, 2008 through June 30, 2010, and salary increases for exempt employees earning annual salaries of less than $60,000.00 as of July 5, 2008, shall be funded as follows:

(1)  Fiscal year 2009; general fund.  The amount of $330,000.00 is appropriated from the general fund to the judiciary to fund the fiscal year 2009 collective bargaining agreement and the requirements of this act.

(2)  Fiscal year 2010; general fund.  The amount of $706,615.00 is appropriated from the general fund to the judiciary to fund the fiscal year 2010 collective bargaining agreement and the requirements of this act.

(c)  Legislative branch.  

(1)  For the period July 1, 2009 through June 30, 2010, shall be funded as follows:  Fiscal year 2010; general fund.  The amount of $143,670.00 is appropriated from the general fund to the legislature to fund the fiscal year 2010 requirements of this act.  This appropriation shall be allocated to the respective legislative appropriation units as determined by the chief legislative counsel and the chief legislative fiscal officer.

(2)  The annual salary of an exempt employee who earns $60,000.00 shall receive no adjustment.  The annual salary of an exempt employee who earns an annual salary of less than $60,000.00 as of July 5, 2008 shall not be increased to a salary greater than $60,000.00.

(d)  With due regard to the possible availability of other funds, for fiscal year 2009, the secretary of administration may transfer from the various appropriations and various funds and from the receipts of the liquor control board such sums as the secretary may determine to be necessary to carry out the purposes of this act to the various agencies supported by state funds.

(e)  This section shall include sufficient funding to ensure administration of exempt attorney pay plans, including deputy state’s attorneys and public defenders, subject to the approval of the secretary of administration.

Sec. 11.  APPROPRIATION REDUCTIONS

(a)  Position reductions.  The secretary of administration shall reduce fiscal year 2009 general fund appropriations in the executive branch of state government by $1,834,728.00 consistent with reductions in positions in the executive branch.  The secretary shall provide a report to the general assembly in January 2009 that lists all appropriation reductions, transfers, and substitutions within fiscal year 2009 appropriated funds that are proposed to achieve the general fund savings in this subsection.

(b)  Reductions in contractual services and temporary positions.  The secretary of administration shall reduce fiscal year 2009 general fund appropriations budgeted for contractual services and temporary positions in the executive branch of state government by $2,300,000.00.  The secretary shall provide a report to the general assembly in January 2009 that lists all appropriation reductions, transfers, and substitutions within fiscal year 2009 appropriated funds that are proposed to achieve the general fund savings in this subsection.

Sec. 12.  STATE GOVERNMENT LEGISLATIVE OVERSIGHT COMMITTEE

(a)  There is created a joint state government legislative oversight committee whose membership shall be appointed each biennial session of the general assembly.  The committee shall oversee changes in state government with a commitment to the provision of quality public service in a cost-efficient and effective manner, and work with and provide assistance to other legislative committees on matters related to state government.  In particular, the committee shall analyze public services required by law and establish an ongoing process to align financial and staff resources to provide those services.  The committee shall also review models of state government from other states.

(b)  The committee shall comprise eight members:  four members of the house of representatives, two from the committee on government operations and two from the committee on appropriations, who shall not all be from the same party, appointed by the speaker of the house; and four members of the senate, two from the committee on government operations and two from the committee on appropriations, who shall not all be from the same party, appointed by the committee on committees.

(c)  The committee shall elect a chair, vice chair, and clerk from among its members and shall adopt rules of procedure.  The chair shall rotate biennially between the house and the senate members.  The committee shall keep minutes of its meetings and maintain a file thereof.  A quorum shall consist of five members.

(d)  When the general assembly is in session, the committee shall meet at the call of the chair.  The committee may meet four times during adjournment, and may meet more often subject to approval of the speaker of the house and the president pro tempore of the senate.

(e)  When state employee positions are eliminated, the secretary of administration shall submit to the committee and the joint fiscal committee a report that shall include:

(1)  Total financial implications by department of the position eliminations, including specific savings by fund type.

(2)  For each specific position:

(A)  The department organizational chart for each division affected, including identification of the position eliminated and all other positions that are vacant at the start of fiscal year 2009;

(B)  The title, position number, and date the position was vacated;

(C)  The reason that the position is available for elimination;

(D)  Position classification:  exempt; classified; applicable bargaining unit, if any;

(E)  The projected fiscal year 2009 savings attributable to the position by funding source and appropriations by name and unit.

(F)  A statement on how the service or activity with which that position was involved will be addressed.

(f)  For attendance at a meeting when the general assembly is not in session, members of the committee shall be entitled to compensation for services and reimbursement of expenses as provided under subsection 406(a) of Title 2.

(g)  The professional and clerical services of the joint fiscal office and the legislative council shall be available to the committee.

(h)  At least annually, the committee shall report its activities, together with recommendations, if any, to the general assembly.

Sec. 13.  PAY ACT FUNDING

(a)  The commissioner of finance and management shall submit a preliminary plan to the joint fiscal committee at its September/October 2008 meeting on levels of funding for the pay act for fiscal year 2009 funding.  The plan shall outline the funds available and any additional offsets the commissioner is planning to offer to meet pay act requirements.  The Committee shall hear any testimony it deems necessary on the service impact of the pay act funding for fiscal year 2009. 

(b)  At the November meeting of the joint fiscal committee, the commissioner shall submit a  report, including the following:

(1)  The allocation by department and section from the fiscal year 2008 pay act appropriation and the appropriation for pay act needs in Sec. 10 of this act and any other offsets to meet pay act needs;

(2)  The source of funds and the specific percentage of need being met in each department from the allocation;

(3)  Any proposed transfers between departments to meet pay act needs;

(4)  A summary of fiscal impacts by department in fiscal year 2009 due to shortfalls in pay act funds and added assessments of internal service funds;

(5)  A preliminary assessment of the administration’s intention to meet departmental pay act expense roll‑outs for fiscal year 2010.

Sec. 13a.  3 V.S.A. § 2222(i) is amended to read:

(i)  The secretary of administration is authorized to transfer vacant positions throughout the executive branch of state government, and to adjust appropriations in the executive branch in accordance with the secretary's statewide vacancy savings plan that reflects realistic savings due to vacant positions. Such appropriation adjustments shall result in no change to the total statewide legislative appropriations to the executive branch. This authority is separate from the secretary's authority provided in section 706 of Title 32. A report of all actions taken during the preceding fiscal year pursuant to this authority shall be furnished to the legislature no later than January 15 of each year.  The report shall include a list of all authorized filled and vacant positions by department and all positions subject to this subdivision and shall indicate whether each position is classified, exempt, or temporary.  In addition, the secretary shall periodically furnish the legislature with a report of accomplishments and recommendations concerning improvements in better managing resources on a statewide basis.

Sec. 13b.  SECRETARY OF ADMINISTRATION; REPORT; STATE EMPLOYEE POSITIONS

(a)  The general assembly finds that the goal in reducing state employee positions is to meet certain financial targets and not to simply reduce positions.  Because the general assembly needs detailed information to evaluate the specific actions required to meet these financial targets, the reports required by this section and 3 V.S.A. § 2222(i) are necessary for the general assembly to perform its constitutional responsibilities.

(b)  The secretary of administration shall submit the report required under 3 V.S.A. § 2222(i) to the joint fiscal committee and chairs of every legislative standing committee on July 1, 2008, September 1, 2008, and November 1, 2008.  In addition to the information required by 3 V.S.A. § 2222(i), the secretary shall also report on the number of positions eliminated since January 1, 2008 by department and indicate whether each position is classified, exempt, or temporary.  The secretary shall also recommend positions for elimination that are necessary to meet the financial targets and explain the projected fiscal year savings attributable to the position by funding source and appropriations by name and unit.

Sec. 13c.  POSITIONS ELIMINATIONS

Notwithstanding 3 V.S.A. § 327(b), no position shall be eliminated or abolished unless by act of the general assembly.

Sec. 14.  REPEAL

(a)  Sec. 12 of this act shall be repealed on July 1, 2013.

(b)  Sec. 13c of this act shall be repealed on July 1, 2009.

Senator Bartlett, for the Committee on Appropriations, to which the bill was referred, reported recommending that the bill be amended by striking out all after the enacting clause and inserting in lieu thereof the following:

Sec. 1, 32 V.S.A. § 1141(a) is amended to read:

(a)  The compensation of each assistant judge of the superior court, which shall be paid by the state, shall be $136.28 a day as of July 9, 2006 and $142.04 a day as of July 8, 2007, and $147.01 a day as of July 6, 2008, for time spent in the performance of official duties and necessary expenses as allowed to classified state employees.  Compensation under this section shall be based on a half-day minimum and hourly thereafter.

Sec. 2.  32 V.S.A. § 1142(a) is amended to read:

(a)  The annual salaries of the judges of probate in the several probate districts, which shall be paid by the state in lieu of all fees or other compensation, shall be as follows:

                                                    Annual Salary   Annual Salary 

                                                          as of                   as of                

                                                       July 8, 2007    July 6, 2008     

(1)        Addison                   $59,321               $60,000          

(2)       Bennington                51,559                   53,364          

(3)       Caledonia                   59,321                 60,000          

(4)       Chittenden                  91,402                 91,402          

(5)       Essex                          28,853                 29,863          

(6)       Fair Haven                  43,594                 45,120            

(7)       Franklin                        59,321               60,000          

(8)       Grand Isle                     28,853               29,863

(9)        Hartford                       59,321               60,000          

(10)      Lamoille                       43,594               45,120          

(11)      Manchester                  43,594               45,120          

(12)      Marlboro                      51,559               53,364          

(13)      Orange                         51,559               53,364

(14)      Orleans                       51,559               53,364          

(15)      Rutland                         75,859               75,859

(16)      Washington                  75,859               75,859          

(17)      Westminster                 43,594               45,120          

(18)      Windsor                       51,559               53,364          


Sec. 3.  32 V.S.A. § 1181 is amended to read:

§ 1181.  COUNTY CLERKS

The annual salaries of the county clerks in the respective counties which shall be paid by the state in lieu of all fees or other compensation paid by the state, shall be as follows:

                                                        Annual Salary Annual Salary

                                                               as of                 as of             

                                                         July 8, 2007    July 6, 2008    

   (1)      Addison County          $64,627           $64,627          

   (2)      Bennington County       64,627              64,627            

   (3)      Caledonia County         64,627             64,627            

   (4)      Chittenden County        78,189             78,189            

   (5)      Essex County                35,119             36,348            

   (6)      Franklin County            64,627             64,627            

   (7)      Grand Isle County         35,119             36,348            

   (8)      Lamoille County           64,627              64,627            

   (9)      Orange County              64,627            64,627            

   (10)     Orleans County             64,627            64,627            

   (11)     Rutland County            71,921             71,921            

   (12)     Washington County      71,921             71,921                         

   (13)     Windham County          64,627            64,627            

   (14)      Windsor County           68,539            68,539            

Sec. 4.  RATE OF ADJUSTMENT

(a)  For purposes of determining annual salary adjustments, special salary increases, and bonuses under subsections 1003(b) and 1020(b) of Title 32, “the total rate of adjustment available to classified employees under the collective bargaining agreement shall be deemed to be 3.5 percent for those earning up to and including $28.85/hour for fiscal year 2009, but in no case shall an adjustment result in an annual salary exceeding $60,000.00 for fiscal year 2009.

(b)  For the purposes of determining salary adjustments, special salary increases, and bonuses for managerial and confidential exempt employees the rate of adjustment shall be deemed to be 3.5 percent for those earning up to and including $28.85/hour for fiscal year 2009, but in no case shall an adjustment result in an annual salary exceeding $60,000.00 for fiscal year 2009.


Sec. 5.  PAY ACT APPROPRIATIONS

(a)  Executive branch.  The two-year agreements between the state of Vermont and the Vermont state employees’ association for the defender general, nonmanagement, supervisory, state police, and corrections bargaining units, for the period July 1, 2008 through June 30, 2010, shall be funded as follows:

(1)  Fiscal year 2009:

(A)  General fund.  The amount of $538,094.00 is appropriated from the general fund to the secretary of administration for proportional distribution to the departments of corrections, defender general, state’s attorneys and sheriffs, and public safety to fund the fiscal year 2009 collective bargaining agreement and the requirements of this act.

(B)  Transportation fund.  The amount of $1,210,258.00 is appropriated from the transportation fund to the secretary of administration for distribution to the agency of transportation and the department of public safety to fund the fiscal year 2009 collective bargaining agreement and the requirements of this act.

(C)  Other funds.  The administration shall provide additional spending authority to departments through the existing process of excess receipts to fund the fiscal year 2009 collective bargaining agreement and the requirements of this act.  The estimated amounts are $1,205,810.00 from special fund sources and $4,016,461.00 from federal and other sources.

(D)  With due regard to the possible availability of other funds, for fiscal year 2009, the secretary of administration may transfer from the various appropriations and various funds and from the receipts of the liquor control board such sums as the secretary may determine to be necessary to carry out the purposes of this act to the various agencies supported by state funds.

(2)  Fiscal year 2010:

(A)  General fund.  The amount of $6,297,693.00 is appropriated from the general fund to the secretary of administration for distribution to departments for the fiscal year 2010 collective bargaining agreement and the requirements of this act.

(B)  Transportation fund.  The amount of $2,180,510.00 is appropriated from the transportation fund to the secretary of administration for distribution to the agency of transportation and the department of public safety to fund the fiscal year 2010 collective bargaining agreement and the requirements of this act.

(C)  Other funds.  The administration shall provide additional spending authority to departments through the existing process of excess receipts to fund the fiscal year 2010 collective bargaining agreement and the requirements of this act.  The estimated amounts are $1,230,031.00 from special fund sources and $4,095,444.00 from federal and other sources.

(3)  This section shall include sufficient funding to ensure administration of exempt attorney pay plans, including deputy state’s attorneys and public defenders, subject to the approval of the secretary of administration.

(b)  Judicial branch. 

(1)  For all exempt employees with annual salaries of $60,000.00 or more as of July 5, 2008 and for all employees whose salaries are specified in Secs. 2, 3, 4, and 5 of this act, the implementation of salary increases as of July 6, 2008 shall be postponed unless the general assembly determines the economic situation in fiscal year 2009 no longer merits the postponement of these salary increases, which shall become effective on a date determined by the general assembly.

(2)  The annual salary of an exempt employee who earns an annual salary of less than $60,000.00 as of July 5, 2008 shall not be increased to a salary greater than $60,000.00 for fiscal year 2009.

(3)  The two-year agreements between the state of Vermont and the Vermont state employees’ association for the judicial bargaining unit for the period July 1, 2008 through June 30, 2010, and salary increases for exempt employees earning annual salaries of less than $60,000.00 as of July 5, 2008, shall be funded as follows:

(1)  Fiscal year 2009; general fund.  The amount of $330,000.00 is appropriated from the general fund to the judiciary to fund the fiscal year 2009 collective bargaining agreement and the requirements of this act.

(2)  Fiscal year 2010; general fund.  The amount of $706,615.00 is appropriated from the general fund to the judiciary to fund the fiscal year 2010 collective bargaining agreement and the requirements of this act.

(c)  Legislative branch. 

(1)  For the period July 1, 2009 through June 30, 2010, shall be funded as follows:   Fiscal year 2010; general fund.  The amount of $143,670.00 is appropriated from the general fund to the legislature to fund the fiscal year 2010 requirements of this act.  This appropriation shall be allocated to the respective legislative appropriation units as determined by the chief legislative counsel and the chief legislative fiscal officer.

(2)  The annual salary of an exempt employee who earns $60,000.00 or more shall receive no adjustment in fiscal year 2009.  The annual salary of an exempt employee who earns an annual salary of less than $60,000.00 as of July 5, 2008 shall not be increased to a salary greater than $60,000.00 in fiscal year 2009.

(d)  The sum of $25,000.00 is appropriated from the general fund to the secretary of human services to provide a grant to Vermont Legal Aid for cost of living adjustments to salaries of its employees.

Sec. 6.  APPROPRIATION REDUCTIONS

(a)  Position reductions.  The secretary of administration shall reduce fiscal year 2009 general fund appropriations in the executive branch of state government by $3,670,000.00 consistent with reductions in positions in the executive branch.  In order to maintain direct services to Vermonters, the secretary shall give preference to reducing those positions which do not provide those direct services.  The secretary shall provide a report to the house and senate committees on appropriations and government operations in January 2009 that lists all appropriation reductions, transfers, and substitutions within fiscal year 2009 appropriated funds that are proposed to achieve the general fund savings in this subsection.

(b)  Reductions in contractual services and temporary positions.  The secretary of administration shall reduce fiscal year 2009 general fund appropriations budgeted for contractual services and temporary positions in the executive branch of state government by $2,300,000.00.  The secretary shall provide a report to the house and senate committees on appropriations and government operations in January 2009 that lists all appropriation reductions, transfers, and substitutions within fiscal year 2009 appropriated funds that are proposed to achieve the general fund savings in this subsection.

(c) Additional specific position reductions.  The secretary of administration shall reduce fiscal year 2009 general fund appropriations by $250,000.00 by eliminating up to four exempt positions. The positions to be eliminated shall be limited to those titled executive assistant, principal assistant or special assistant and whose duties include providing public information, issuing press releases, communicating with media, and promoting the policies of the governor and his or her appointees. 

Sec. 7.  STATE GOVERNMENT LEGISLATIVE OVERSIGHT COMMITTEE

(a)  There is created a joint state government legislative oversight committee whose membership shall be appointed each biennial session of the general assembly.  The committee shall oversee changes in state government with a commitment to the provision of quality public service in a cost-efficient and effective manner, and work with and provide assistance to other legislative committees on matters related to state government.  In particular, the committee shall analyze public services required by law and establish an ongoing process to align financial and staff resources to provide those services.  The committee shall also review models of state government from other states.

(b)  The committee shall comprise eight members:  four members of the house of representatives who shall not all be from the same party, one from the committee on government operations, one from the committee on appropriations, and two other members, appointed by the speaker of the house; and four members of the senate who shall not all be from the same party, one from the committee on government operations, one from the committee on appropriations, and two other members, appointed by the committee on committees.

(c)  The committee shall elect a chair, vice chair, and clerk from among its members and shall adopt rules of procedure.  The chair shall rotate biennially between the house and the senate members.  The committee shall keep minutes of its meetings and maintain a file thereof.  A quorum shall consist of five members.

(d)  When the general assembly is in session, the committee shall meet at the call of the chair.  The committee may meet four times during adjournment, and may meet more often subject to approval of the speaker of the house and the president pro tempore of the senate.

(e)  When the number of state employees or their positions are proposed to be eliminated or reduced, the secretary of administration shall first submit to the committee and the joint fiscal committee a report that shall include:

(1)  Total financial implications by department of the position eliminations, including specific savings by fund type.

(2)  For each specific position:

(A)  The department organizational chart for each division affected, including identification of the position eliminated and all other positions that are vacant at the start of fiscal year 2009;

(B)  The title, position number, and date the position was vacated;

(C)  The reason that the position is available for elimination;

(D)  Position classification:  exempt; classified; applicable bargaining unit, if any;

(E)  The projected fiscal year 2009 savings attributable to the position by funding source and appropriations by name and unit.

(F)  A statement on how the service or activity with which that position was involved will be addressed.

(f)  For attendance at a meeting when the general assembly is not in session, members of the committee shall be entitled to compensation for services and reimbursement of expenses as provided under subsection 406(a) of Title 2.

(g)  The professional and clerical services of the joint fiscal office and the legislative council shall be available to the committee.

(h)  At least annually, the committee shall report its activities, together with recommendations, if any, to the general assembly.

Sec. 8.  PAY ACT FUNDING

(a)  The commissioner of finance and management shall submit a preliminary plan to the joint fiscal committee at its September/October 2008 meeting on levels of funding for the pay act for fiscal year 2009 funding.  The plan shall outline the funds available and any additional offsets the commissioner is planning to offer to meet pay act requirements.  The Committee shall hear any testimony it deems necessary on the service impact of the pay act funding for fiscal year 2009. 

(b)  At the November meeting of the joint fiscal committee, the commissioner shall submit a  report, including the following:

(1)  The allocation by department and section from the fiscal year 2008 pay act appropriation and the appropriation for pay act needs in Sec. 10 of this act and any other offsets to meet pay act needs;

(2)  The source of funds and the specific percentage of need being met in each department from the allocation;

(3)  Any proposed transfers between departments to meet pay act needs;

(4)  A summary of fiscal impacts by department in fiscal year 2009 due to shortfalls in pay act funds and added assessments of internal service funds;

(5)  A preliminary assessment of the administration’s intention to meet departmental pay act expense roll‑outs for fiscal year 2010.

Sec. 9.  3 V.S.A. § 2222(i) is amended to read:

(i)  The secretary of administration is authorized to transfer vacant positions throughout the executive branch of state government, and to adjust appropriations in the executive branch in accordance with the secretary's statewide vacancy savings plan that reflects realistic savings due to vacant positions. Such appropriation adjustments shall result in no change to the total statewide legislative appropriations to the executive branch. This authority is separate from the secretary's authority provided in section 706 of Title 32. A report of all actions taken during the preceding fiscal year pursuant to this authority shall be furnished to the legislature no later than January 15 of each year.  The report shall include a list of all authorized filled and vacant positions by department and all positions subject to this subdivision and shall indicate whether each position is classified, exempt, or temporary.  In addition, the secretary shall periodically furnish the legislature with a report of accomplishments and recommendations concerning improvements in better managing resources on a statewide basis.

Sec. 10.  SECRETARY OF ADMINISTRATION; REPORT; STATE EMPLOYEE POSITIONS

(a)  The general assembly finds that the goal in reducing state employee positions is to meet certain financial targets and not to simply reduce positions.  Because the general assembly needs detailed information to evaluate the specific actions required to meet these financial targets, the reports required by this section and 3 V.S.A. § 2222(i) are necessary for the general assembly to perform its constitutional responsibilities.

(b)  The secretary of administration shall submit the report required under 3 V.S.A. § 2222(i) to the joint fiscal committee and chairs of every legislative standing committee on July 1, 2008, September 1, 2008, and November 1, 2008.  In addition to the information required by 3 V.S.A. § 2222(i), the secretary shall also report on the number of positions eliminated since January 1, 2008 by department and indicate whether each position is classified, exempt, or temporary.  The secretary shall also recommend positions for elimination that are necessary to meet the financial targets and explain the projected fiscal year savings attributable to the position by funding source and appropriations by name and unit.

Sec. 11.  VIDEO PRODUCTION POTENTIAL SAVINGS

The secretary of administration, in consultation with the commissioner of buildings and general services and the chief marketing officer, shall examine the potential for saving state funds by establishing a video production service within state government and reducing expenditures by departments on these services.  Recommendations resulting from this examination may be included in fiscal year 2010 budget presentations.


Sec. 12.  POSITIONS ELIMINATIONS

Notwithstanding 3 V.S.A. § 327(b), no position shall be eliminated or abolished unless by act of the general assembly.

Sec. 13.  21 V.S.A. §§ 342 and 343 are amended to read:

§ 342.  WEEKLY PAYMENT OF WAGES

(a)  Any person having employees in his service doing and transacting business within the state shall pay:

(1)  Pay to those employees each week, in lawful money or checks, each of his employees, the wages earned by such each employee to a day not more than six days prior to the date of such payment.

(b)(2)  After giving written notice to his the employees, any person having employees in his service doing and transacting business within the state may, notwithstanding subsection (a) of this section, pay bi-weekly or semi-monthly in lawful money or checks, each of his employees, employee the wages earned by the employee to a day not more than six days prior to the date of the payment.  If a collective bargaining agreement so provides, the payment may be made to a day not more than 13 days prior to the date of payment.

(c)(1)(b)  An employee who voluntarily:

(1)  Voluntarily leaves his employment shall be paid on the last regular pay day, or if there is no regular pay day, on the following Friday.

(2)  An employee who is Is discharged from employment shall be paid within 72 hours of his discharge.

(3)  If an employee is Is absent from his or her regular place of employment on the employer’s regular scheduled date of wages or salary payment such employee shall be entitled to such payment upon demand.

(d)(c)  With the written authorization of an employee, an employer may pay wages due the employee by deposit:

(1)  Deposit through electronic funds transfer or other direct deposit systems to a checking, savings, or other deposit account maintained by or for the employee in any financial institution within or without the state.

(2)  Credit to a payroll card account directly or indirectly established by an employer to which electronic fund transfers of the employee’s wages, salary, or other employee compensation is made on a recurring basis, other than a checking, savings, or other deposit account described in subdivision (1) of this subsection, provided:

(A)  the employer provides the employee written disclosure in plain language, in at least 10-point type, of all the employee’s wage payment options;

(B)  the employer provides the employee written disclosure in plain language, in at least 10-point type, of the terms and conditions of the payroll card account option including a complete list of all known fees that may be deducted from the employee’s payroll card account by the employer or the card issuer and whether third parties may assess fees in addition to the fees assessed by the employer or issuer;

(C)  the employee voluntarily consents in writing to receipt of payment by payroll card account after receiving the disclosures described in subdivisions (A) and (B) of this subdivision (2);

(D)  consent to payment of wages by electronic fund transfer to a payroll card account shall not be a condition of hire or a condition of continued employment;

(E)  the employer shall provide the employee at least one free means to withdraw the full amount of the employee’s balance on the employee’s payroll card during each pay period at a financial institution, credit union, or other location convenient to the place of employment; additionally, the employer shall provide the employee with one free ATM transaction each pay period to access funds from the payroll card account without incurring any fees;

(F)  none of the employer’s costs associated with the payroll card account shall be passed on to the employee;

(G)  the employer provides prior written notice in plain language, in at least 10 point type, of any change to any of the terms and conditions of the payroll card account, including any change in the itemized list of fees, and obtains voluntary written consent from the employee to continue receiving wages on the payroll card account subject to the changes.  The employer shall be responsible for any increase in fees charged to the employee before the employer provides written notice of such changes to the employee;

(H)  in no event, shall the employer provide payment to a payroll card that has an expiration date, unless the employer agrees to provide a replacement payroll card at no cost to the employee before the expiration date;

(I)  the employer provides the employee the option to discontinue receipt of wages by a payroll card account at any time, without penalty to the employee;

(J)  the payroll card issued to the employee is a branded type payroll card that can be used at PIN-based and signature-based outlets;

(K)  the payroll card account shall be set up so that the account cannot be overdrawn;

(L)  the payroll card issuer has filed a notice with the commissioner of the department of labor containing the entity’s true name, any other names under which the entity conducts business, the entity’s address, which address cannot be a post office box, and the entity’s telephone number.

§ 343.  FORM OF PAYMENT

Such An employer shall not pay its employees with any form of evidence of indebtedness, including, without limitation, all scrip, vouchers, due bills, or store orders, unless:

(1)  the employer is a cooperative corporation in which the employee is a stockholder.  However, such a cooperative corporation shall, upon request of any such shareholding employee, pay him the shareholding employee as provided in section 342 of this title; or

(2)  payment is made by check as defined in Title 9A or by electronic fund transfer as provided in section 342 of this title.

Sec. 14.  8 V.S.A. § 2707(6) is added to read:

(6)  a payroll card account issued pursuant to and in full compliance with 21 V.S.A. § 342(c).

Sec. 15.  SECRETARY OF ADMINISTRATION;

For fiscal year 2009, the secretary of administration shall initiate a program which requires state employees to receive paperless notification and receipt of their paychecks.

Sec. 16.  REPEAL

(a)  Sec. 7 of this act shall be repealed on July 1, 2013.

(b)  Sec. 12 of this act shall be repealed on July 1, 2009.

Sec. 17.  EFFECTIVE DATE

Secs. 13, 14, and 15 of this act shall take effect upon passage.

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, and the recommendation of proposal of amendment of the Committee on Government Operations was amended as recommended by the Committee on Appropriations.

Thereupon, the proposal of amendment recommended by the Committee on Government Operations, as amended, 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.

Rules Suspended; Bill Passed in Concurrence with Proposals of Amendment; Rules Suspended; Bill Passed in Concurrence with Proposal of Amendment

H. 112.

Pending entry on the Calendar for action tomorrow, on motion of Senator Shumlin, the rules were suspended and House bill entitled:

An act relating to protection of health care and public safety personnel from communicable disease.

Was placed on all remaining stages of its passage in concurrence with proposal of amendment forthwith.

Thereupon, pending third reading of the bill, Senator Kittell moved to amend the bill in Sec. 2, 18 V.S.A. § 1001(k) by striking out the word “limited” and following “chapter 21 of this title”, by inserting the following and such other information as the department of health determines to be necessary and appropriate

Which was agreed to.

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

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

H. 353.

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

An act relating to employee free choice for bargaining representatives.

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 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.  3 V.S.A. § 941(g) and (h) are amended to read:

(g)(1)  In determining the representation of state employees in a collective bargaining unit the board shall conduct a secret ballot of the employees and certify the results to the interested parties and to the state employer.  The original ballot shall be so prepared as to permit a vote against representation by anyone named on the ballot.  No representative will be certified with less than a majority of the votes cast.

* * *

(4)  Notwithstanding subdivisions (1), (2), and (3) of this subsection, if the board determines that the petition filed is supported by the valid signature cards of 70 percent or more of the employees in the bargaining unit deemed appropriate by the board, it shall certify the petitioner as the bargaining representative.  Certification under this subdivision applies only when no other individual or labor organization is currently certified or recognized as the exclusive representative of any of the employees in the unit.  An exclusive bargaining representative shall be decertified if the board determines that a decertification petition is supported by valid signature cards of 70 percent or more of the employees in the existing bargaining unit. If the 70 percent threshold is not met, decertification petitions shall be governed by subdivisions (1), (2), and (3) of this subsection. A petitioner shall not be certified as exclusive bargaining representative pursuant to this subdivision unless the petitioner has notified the employer at the outset that the petitioner has commenced a campaign to organize employees of the employer and that the petitioner may seek to file a petition to represent employees without an election pursuant to this subdivision.  The board shall develop rules of practice to implement this subdivision.  The rules shall include model language for signature cards to ensure that the purpose of the card will be clearly understood by employees, including a provision that the card may be used to gain recognition of or decertify an exclusive bargaining representative without the board’s conducting an election.  The rules also shall include procedures that the board shall use to determine the validity of signature cards.  A card is invalid if it is coerced, obtained by fraud, or inauthentic.

(h)  A representative chosen by secret ballot for the purposes of collective bargaining by a majority of the votes cast or certified by the board pursuant to subdivision (g)(4) of this section shall be the exclusive representative of all the employees in such the unit for a minimum of one year.  Such The representative shall be eligible for reelection or recertification pursuant to subdivision (g)(4) of this section.

Thereupon, the bill was read the second time by title only pursuant to Rule 43, the proposal of amendment was agreed to on a division of the Senate Yeas 13, Nays 8.

Thereupon, 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 proposals of amendment forthwith.

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

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

H. 691.

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

An act relating to executive and judicial branch fees.

Was taken up for immediate consideration.

Senator MacDonald, for the Committee on Finance, to which the bill was referred, 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:

* * * Department of Public Safety * * *

Sec. 1.  20 V.S.A § 39(a) is amended to read:

(a)  Every person required to report the use or storage of hazardous chemicals or substances pursuant to EPCRA shall pay the following annual fees for each hazardous chemical or substance, as defined by the state emergency response commission, that is present at the facility:

(1)  $33.00 $35.00 for quantities between 100 and 999 pounds.

(2)  $50.00 $55.00 for quantities between 1,000 and 9,999 pounds.

(3)  $80.00 $90.00 for quantities between 10,000 and 99,999 pounds.

(4)  $250.00 $265.00 for quantities between 100,000 and 999,999 pounds.

(5)  $750.00 $800.00 for quantities exceeding 999,999 pounds.

(6)  An additional fee of $150.00 $175.00 will be assessed for each extremely hazardous chemical or substance as defined in 42 U.S.C. § 11002.

Sec. 2.  23 V.S.A. § 1203(k) is amended to read:

(k)  A copy of a videotape made of the alleged offense shall be provided to the defendant within ten days after the defendant requests the copy and pays a $15.00 $45.00 fee for its reproduction.  No fee shall be charged to a defendant whom the court has determined to be indigent.

* * * Department of Environmental Conservation * * *

Sec. 3.  3 V.S.A. § 2822(i) is amended to read:

(i)  The secretary shall not process an application for which the applicable fee has not been paid unless the secretary specifies that the fee may be paid at a different time or unless the person applying for the permit is exempt from the permit fee requirements pursuant to section 710 of Title 32.  In addition, the persons who are exempt under section 710 of Title 32 are also exempt from the application fees for stormwater operating permits specified in subdivisions (j)(2)(A)(iii)(I) and (II) of this section if they otherwise meet the requirements of section 710.  Municipalities shall be exempt from the payment of fees under this section except for those fees prescribed in subdivisions (j)(1), (2), (7), (8), (14), and (15) of this section for which a municipality may recover its costs by charging a user fee to those who use the permitted services, except that a municipality shall also be exempt from those fees for orphan stormwater systems prescribed in subdivision subdivisions (j)(2)(A)(iii) and (2)(B)(iv)(I) or (II) of this section when the municipality agrees to become an applicant or co-applicant for an orphan stormwater system under section 1264c of Title 10.  Applicants operating under SIC codes 2411, 2421, 2426, and 2429 shall be exempt from administrative processing fees pursuant to subdivision (j)(2) of this section and application review fees pursuant to subdivision (j)(2)(A)(iii)(IV) of this section.

Sec. 4.  Sec. 30b of Act 76 of the Acts of 2007 is amended to read:

Sec. 30b.  IMPLEMENTATION AND REVERSION

(a)  Sec. 30a (exclusion from general permit fees) shall take effect upon passage and shall be effective retroactively back to August 1, 2006.  The department of environmental conservation shall refund any fees collected from applicants operating under SIC codes 2411, 2421, 2426 and 2429 pursuant to 3 V.S.A. § 2822(j)(2)(A)(iii)(IV) between August 1, 2006 and the effective date of this section June 30, 2008.

(b)  Sec. 30a (exclusion from general permit fees) shall expire on July 1, 2008 and, on that date, the content of 3 V.S.A. § 2822(i) shall revert to the content that existed before the amendment contained in this act.

* * * Sheriffs * * *

Sec. 5.  32 V.S.A. § 1591(1)(A) is amended to read:

(A)  For serving each process, the fees shall be as follows:

* * *

(ii)  $30.00 $50.00 upon presentation of each return of service for the service of papers relating to divorce, annulments, separations, or support complaints;

(iii)  $30.00 $50.00 upon presentation of each return of service for the service of papers relating to civil suits except as provided in subdivisions 1591(1)(A)(ii) and 1591(1)(A)(vii) of this title;

(iv)  $30.00 $50.00 upon presentation of each return of service for the service of a subpoena and shall be limited to that one fee for each return of service;

* * *

* * * Department of Labor * * *

Sec. 6.  21 V.S.A. § 711(a) is amended to read:

(a)  A worker’s compensation administration fund is created pursuant to subchapter 5 of chapter 7 of Title 32 to be expended by the commissioner for the administration of the worker’s compensation and occupational disease programs.  The fund shall consist of contributions from employers made at a rate of 0.42 0.81 percent of the direct calendar year premium for worker’s compensation insurance, one percent of self-insured worker’s compensation losses, and one percent of worker’s compensation losses of corporations approved under the chapter 9 of this title.  Disbursements from the fund shall be on warrants drawn by the commissioner of finance and management in anticipation of receipts authorized by this section.

* * * Department of Motor Vehicles * * *

Sec. 7.  23 V.S.A § 7 is added to read:

§ 7.  ENHANCED DRIVER LICENSE; MAINTENANCE OF DATABASE INFORMATION; FEE

(a)  The face of an enhanced license shall contain the individual’s name, date of birth, gender, a unique identification number, full facial photograph or imaged likeness, address, signature, issuance and expiration dates, and citizenship.  The back of the enhanced license shall have a machine readable zone.  A Gen 2 vicinity Radio Frequency Identification chip shall be imbedded in the enhanced license in compliance with the security standards of the Department of Homeland Security.

(b)  In addition to any other requirement of law or rule, before an enhanced license may be issued to a person, the person shall present for inspection and copying satisfactory documentary evidence to determine identity and United States citizenship.  An application shall be accompanied by: a photo identity document, documentation showing the person’s date and place of birth, proof of the person’s Social Security account number, and documentation showing the person’s principal residence address.  Before an application may be processed, the documents and information shall be verified as determined by the commissioner.

(c)  No person shall compile or maintain a database of electronically readable information derived from an operator’s license, junior operator’s license, enhanced license, learner permit, or nondriver identification card.  This prohibition shall not apply to a person who accesses, uses, compiles, or maintains a database of the information for law enforcement or governmental purposes.

(d)  The fee for an enhanced license shall be $25.00 in addition to the fees otherwise established by this title.

Sec. 8.  23 V.S.A. § 1402(e) is added to read:

(e)  Pilot project allowing annual permits for low bed trailers.

(1)  The commissioner may issue an annual permit to allow the transportation of a so-called “low-bed” trailer.  A “low-bed” trailer is defined as a trailer manufactured for the primary purpose of carrying heavy equipment on a flat-surfaced deck, which deck is at a height equal to or lower than the top of the rear axle group.

(2)  A blanket permit may be obtained for an annual fee of $250.00 per unit, provided the total vehicle length does not exceed 75 feet, does not exceed a loaded width of 12’6”, does not exceed a total weight of 108,000 lbs., and has a height not exceeding 14 feet.

(3)  Warning signs and flags shall be required if the vehicle exceeds 75 feet in length, or exceeds 8’6” in width.

(4)  This subsection shall expire on June 30, 2010.  No later than January 15, 2010, the department of motor vehicles, after consultation with the agency of transportation, Vermont League of Cities and Towns, and Vermont Truck and Bus Association, shall report to the house and senate committees on transportation on the results of this two year pilot project.  The report shall include recommendations on extending this provision on low bed trailers, as well as other recommendations relating to longer vehicle lengths.

Sec. 9.  33 V.S.A. chapter 78 is added to read:

Chapter 78.  INDIVIDUALS WITH TRAUMATIC BRAIN INJURY (TBI)

§ 7801.  VERMONT BRAIN INJURY Fund

(a)  The Vermont brain injury fund is established in the office of the state treasurer as a special fund to be a source of financing for services for individuals with TBI and for programs for the prevention of brain injuries established by or through contracts with the agency of human services.

(b)  Into the fund shall be deposited:

(1)  revenues from the 2008 increase in vehicle registration fees; and

(2)  proceeds from grants, donations, contributions, taxes, and any other sources of revenue as may be provided by statute, rule, or act of the general assembly.

(c)  The fund shall be administered pursuant to subchapter 5 of chapter 7 of Title 32, except that interest earned on the fund and any remaining balance shall be retained in the fund.

(d)  All monies received by or generated to the fund shall be used only as allowed by appropriation of the general assembly for the administration and delivery of services for individuals with TBI and for programs for the prevention of brain injuries established by or through contracts with the agency of human services.

(e)  Monies generated from the 2008 increase in vehicle registration fees shall be used by the department of motor vehicles to offset the costs incurred in increasing the fee and all monies generated above that amount shall be utilized in accordance with the provisions of this chapter.

Sec. 10.  23 V.S.A. § 361 is amended to read:

§ 361.  PLEASURE CARS

The annual fee for registration of any motor vehicle of the pleasure car type, and all vehicles powered by electricity, shall be $59.00 $60.00, and the biennial fee shall be $108.00 $110.00.


* * * Criminal Justice Training Council * * *

Sec. 11.  20 V.S.A. § 2355(f)(1) is amended to read:

(1)  The tuition fee for basic training required under section 2358 of this title shall be $5,847.00 $6,417.00.  This fee shall not be charged for persons employed by police agencies at the time of training.

* * * Agency of Agriculture, Food and Markets * * *

Sec. 12.  6 V.S.A. § 2964(a) is amended to read:

(a)  A producer or packer of agricultural products produced in Vermont annually may apply to the secretary for an identification label which may be applied to his or her products to indicate that they have been produced in Vermont and have met standards of quality as have been or may be established by the secretary.  The person requesting the labels shall annually pay a fee based on the volume of sales for each category of products in the previous year according to the following fee schedule:  $20.00 $25.00 for a prior annual sales volume less than $20,000.00 $25,000.00; $50.00 for a prior annual sales volume from $20,000.00 $25,000.00 to under $100,000.00; $150.00 $100.00 for a prior annual sales volume from $100,001.00 to $500,000.00; $250.00 for a prior annual sales volume from $500,001.00 to $1,000,000.00 $100,000.00 to $250,000.00; and $500.00 for a prior annual sales volume greater than $1,000,000.00 $250,000.00.  The applicant shall also pay for the cost of all labels requested.

Sec. 13.  20 V.S.A. § 4301(4) is added to read:

(4)  “Animal vendor” means a person permitted under this chapter to advertise for the sale or exchange for value of one or more animals. 

Sec. 14.  20 V.S.A. § 4303a is added to read:

§ 4303a.  ANIMAL VENDOR PERMIT; PROHIBITIONS

(a)  A person may apply for an animal vendor’s permit in a manner prescribed by the commissioner, accompanied by a permit fee of $50.00.  A permit shall be valid for 60 days from the date of issuance by the  commissioner.

(b)  A person may not advertise in print, on television or radio, or on the Internet the sale or exchange for value of one or more animals unless the person:

(1)  Holds a valid animal vendor permit pursuant to subsection (a) of this section;

(2)  Is a registered animal shelter pursuant to section 3903 of this title;

(3)  Holds a kennel permit issued pursuant to 3681 of this title; or

(4)  Holds a pet dealer license issued pursuant to section 3906 of this title.

(c)  Any person permitted to advertise the sale of an animal under this  section shall include the title of the permit and the permit number in any  printed sale material, including websites, advertisements in periodicals, brochures, signs, and in any advertisement on television or radio.  This permit information also shall be provided to a purchaser of an animal from the permit holder.

(d)  A person who violates this section shall be assessed a civil penalty of $300.00 for each day the person fails to comply with this section.

(e)  Any monies generated by the permit fees or the penalties assessed under this section shall be used to fund the Vermont spay neuter incentive program administered by the agency of agriculture, food and markets and shall be used only for:

(1)  Costs associated with animal sterilization and associated procedures;

(2)  Enforcement of this section; and

(3)  Costs of administration of this section.

Sec. 15.  4 V.S.A. § 1102 is amended to read:

§ 1102.  JUDICIAL BUREAU; JURISDICTION

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

* * *

(14)  Violations of 20 V.S.A. § 4303a, relating to animal vendor permits.

* * *

Sec. 16.  ADMINISTRATION

The agency of agriculture, food and markets  may contract the administration of the requirements created by Sec. 13 of this act with the contract administrator of the Vermont spay and neuter incentive program; provided that no more than five hours per week will be authorized for this purpose; and provided that the contractor shall be responsible for contacting individuals in violation of this chapter in an attempt to bring them into compliance.


* * * Judiciary * * *

Sec. 17.  4 V.S.A. § 1105 is amended to read:

§ 1105.  Answer to complaint; default

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(b)  A person who is charged with a violation shall have 20 days from the date the complaint is issued to admit or deny the allegations or to state that he or she does not contest the allegations in the complaint.  The judicial bureau shall assess against a defendant a fee of $10.00 $20.00 for failure to answer a complaint within the time allowed.  The fee shall be assessed in the default judgment and deposited in the court technology special fund established pursuant to section 27 of this title.

* * *

Sec. 18.  4 V.S.A. § 1109 is amended to read:

§ 1109.  Remedies for failure to pay

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(b)  A judicial bureau judgment shall provide notice that a $15.00 $30.00 fee shall be assessed for failure to pay within 30 days.  If the defendant fails to pay the amount due within 30 days, the fee shall be added to the judgment amount and deposited in the court technology special fund established pursuant to section 27 of this title.

* * *

Sec. 19.  32 V.S.A § 1431 is amended to read:

§ 1431.  Fees in supreme, superior, district, family, and environmental courts

(a)  Prior to the entry of any cause in the supreme court there shall be paid to the clerk of the court for the benefit of the state a fee of $225.00 $250.00 in lieu of all other fees not otherwise set forth in this section.

(b)(1)  Prior to the entry of any cause in the superior court or environmental court there shall be paid to the clerk of the court for the benefit of the state a fee of $225.00 $250.00 in lieu of all other fees not otherwise set forth in this section.

(2)  Prior to the entry of any divorce or annulment proceeding in the family court there shall be paid to the clerk of the court for the benefit of the state a fee of $225.00 $275.00 in lieu of all other fees not otherwise set forth in this section; however, if the divorce or annulment complaint is filed with a stipulation for a final order acceptable to the court, the fee shall be $75.00.

* * *

(4)  Prior to the entry of any motion or petition to vacate, modify or enforce an order for parental rights and responsibilities, parent-child contact, or maintenance in the family court there shall be paid to the clerk of the court for the benefit of the state a fee of $75.00 in lieu of all other fees not otherwise set forth in this section; however,.  Prior to the entry of any motion or petition to vacate or modify an order for parental rights and responsibilities, parent-child contact, or maintenance in the family court, there shall be paid to the clerk of the court for the benefit of the state a fee of $100.00 in lieu of all other fees not otherwise set forth in this section.  However, if the motion or petition is filed with a stipulation for an order acceptable to the court, the fee shall be $25.00.  All motions or petitions filed by one party at one time shall be assessed one fee.

* * *

(c)  Prior to the entry of a small claims action there shall be paid to the clerk for the benefit of the state county in lieu of all other fees not otherwise set forth in this section, a fee of $60.00 $75.00 if the claim is for more than $500.00 $1,000.00 and $35.00 $50.00 if the claim is for $500.00 $1,000.00 or less.  The filing fee for civil suspension proceedings filed pursuant to 23 V.S.A § 1205 shall be $75.00, which shall be taxed in the bill of costs in accordance with sections 1433 and 1471 of this title  Prior to the entry of any postjudgment motion in a small claims action, there shall be paid to the clerk for the benefit of the county a fee of $50.00.  The fee for every counterclaim in small claims’ proceedings shall be $25.00, payable to the county, if the counterclaim is for more than $500.00, and $15.00 if the counterclaim is for $500.00 or less.

(d)  Prior to the entry of any subsequent pleading which sets forth a claim for relief in the supreme court or the superior, environmental, or district court, there shall be paid to the clerk of the court for the benefit of the state a fee of $100.00 for every appeal, cross-claim, or third-party claim and a fee of $75.00 for every counterclaim in the superior or environmental court in lieu of all other fees not otherwise set forth in this section.  The fee for every counterclaim in small claims’ proceedings shall be $25.00 if the counterclaim is for more than $500.00 and $15.00 if the counterclaim is for $500.00 or less.  The fee for an appeal of a magistrate’s decision in the family court shall be $100.00.  The filing fee for civil suspension proceedings filed pursuant to 23 V.S.A § 1205 shall be $75.00, which shall be taxed in the bill of costs in accordance with sections 1433 and 1471 of this title.

(e)  Prior to the filing of any postjudgment motion in the superior, environmental, or district court, including motions to reopen civil suspensions, there shall be paid to the clerk of the court for the benefit of the state a fee of $50.00 $75.00 except for small claims actions for which the fee shall be $25.00 in lieu of all other fees not otherwise set forth in this section.

(f)  The filing fee for all actions filed in the judicial bureau shall be $30.00 $50.00; the state or municipality shall not be required to pay the fee; however, if the respondent denies the allegations on the ticket, the fee shall be taxed in the bill of costs in accordance with sections 1433 and 1471 of this title and shall be paid to the clerk of the bureau for the benefit of the state.

(g)  Prior to the filing of any postjudgment motion in the judicial bureau there shall be paid to the clerk of the bureau, for the benefit of the state, a fee of $25.00 $35.00.  Prior to the filing of any appeal from the judicial bureau to the district court there shall be paid to the clerk of the court, for the benefit of the state, a fee of $75.00 $100.00.

(g)(h)  Pursuant to Vermont Rules of Civil Procedure 3.1, Vermont Rules of Appellate Procedure 24(a), or District Court Civil Rules 3.1, part or all of the filing fee may be waived if the court finds that the applicant is unable to pay it.  The clerk of the court or the clerk's designee shall establish the in forma pauperis fee in accordance with procedures and guidelines established by administrative order of the supreme court.

Sec. 20.  32 V.S.A. § 1434(a) is amended to read:

(a)  The following entry fees shall be paid to the probate court for the benefit of the state, except for subdivision (13)(17) of this subsection which shall be for the benefit of the county in which the fee was collected:

(1)  Estates of $10,000.00 or less                                 $35.00        $25.00

(2)  Estates of more than $10,000.00 to

not more than $150,000.00 $50,000.00                                                     $75.00

(3)  Estates of more than $50,000.00 to

not more than $150,000.00                                                                      $200.00

(4)  Estates of more than $150,000.00 to

not more than $500,000.00                                                    $150.00    $375.00

(4)(5)  Estates of more than $500,000.000 to

not more than $1,000,000.00                                $325.00    $625.00

(6)  Estate of more than $1,000,000.00 to

not more than $5,000,000.00                                                   $1,000.00

(7)  Estates of more than $5,000,000.00 to

not more than $10,000,000.00                                                              $1,500.00

(8)  Estates of more than $10,000,000.00                                   $1,750.00

(5)(9)  Testamentary trusts of $20,000.00 or less                              $50.00

(6)(10)  Testamentary trusts of more than $20,000.00        $100.00

(7)(11)  Annual accounts on testamentary trusts of

more than $20,000.00                                                              $25.00      $30.00

(8)(12)  Annual accounts on decedents’ estates

filed for any period ending more than one year

following the opening of the estate                                                               $25.00

(9)(13)  Adoptions                                                                           $75.00

(10)(14)  Guardianships for minors                                                   $35.00

(11)(15)  Guardianships for adults                                                    $50.00

(12)(16)  Petitions for change of name                  $50.00 $75.00

(13)(17)  Filing of a will for safekeeping, except

that there shall be no fee for the filing of subsequent

wills in that district for the same person                                           $20.00

(14)(18)  Corrections for vital records                                  $25.00

(15)(19)  Orders of authorization                                                      $25.00

(16)(20)  Conveyances of title to real estate pursuant

to section 1801 of Title 14                                                                          $50.00

(17)(21)  Petitions for the removal of a trustee pursuant

to 14 V.S.A. § 2314(c) of trusts of $20,000.00 or less                               $50.00

(18)(22)  Petitions for removal of a trustee pursuant

to 14 V.S.A. § 2314(c) of trusts more than $20,000.00                           $100.00

(19)(23)  Petitions concerning advance directives pursuant

to 18 V.S.A. § 9718                                                                                 $75.00

(20)(24)  Civil actions brought pursuant to subchapter 3

of chapter 107 of Title 18.                                                                          $50.00

Sec. 21.  32 V.S.A. § 1751 is amended to read:

§ 1751.  Fees when not otherwise provided

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(b)  Whenever probate, district, environmental, family, or superior court officers and employees or officers and employees of the judicial bureau furnish copies or certified copies of records, the following fees shall be collected for the benefit of the state:

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(5)  For a response to a request for a record of criminal history of a person based upon name and date of birth, $10.00 $30.00.

(6)  For appointment as an acting judge pursuant to 4 V.S.A § 22(b) for the purpose of performing a marriage, $150.00.

However, the fees provided for in this subsection shall not be assessed by these officers and employees in furnishing copies or certified copies of records to any agency of any municipality, state, or federal government or to veterans honorably discharged from the armed forces of the United States, their dependents or beneficiaries, in the prosecution of any claim for benefits from the United States government, or any state agency.

Sec. 22.  32 V.S.A. chapter 7, subchapter 6 is amended to read:

Subchapter 6.  Executive and Judicial Branch Fees

§ 601.  STATEMENT OF PURPOSE

It is the purpose of this subchapter to establish a uniform policy on the creation and review of executive and judicial branch fees, and to require that any such fee be created solely by the general assembly.

§ 602.  DEFINITIONS

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(2)  "Fee":

(A)  Means a monetary charge by an agency or the judiciary for a service or product provided to, or the regulation of, specified classes of individuals or entities.

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§ 605.  CONSOLIDATED EXECUTIVE BRANCH ANNUAL FEE REPORT AND REQUEST

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§ 605a.  CONSOLIDATED JUDICIAL BRANCH FEE REPORT AND REQUEST

(a)  The justices of the supreme court or the court administrator if one is appointed pursuant to 4 V.S.A. § 21, in consultation with the justices of the supreme court, shall submit a consolidated judicial branch fee report and request no later than the third Tuesday of the legislative session of 2011 and every three years thereafter.  The report shall be submitted to the house committee on ways and means, the senate committee on finance, and the house and senate committees on government operations.

(b)  A fee report shall contain for each fee in existence on the preceding July 1:

(1)  Its statutory authorization and termination date if any.

(2)  Its current rate or amount and the date this was last set or adjusted by the general assembly or by the joint fiscal committee.

(3)  The fund into which its revenues are deposited.

(4)  The revenues derived from it in each of the two previous fiscal years.

(c)  A fee request shall contain any proposal to:

(1)  Create a new fee, or change, reauthorize, or terminate an existing fee, which shall include a description of the services provided or the function performed.

(2)  Set a new or adjust an existing fee rate or amount.  Each new or adjusted fee rate shall be accompanied by information justifying the rate, which may include:

(A)  The relationship between the revenue to be raised by the fee or change in the fee and the cost or change in the cost of the service, product, or regulatory function supported by the fee, with costs construed pursuant to subdivision 603(2) of this title.

(B)  The inflationary pressures that have arisen since the fee was last set.

(C)  The effect on budgetary adequacy if the fee is not increased.

(D)  The existence of comparable fees in other jurisdictions.

(E)  Policies that might affect the acceptance or the viability of the fee amount.

(F)  Other considerations.

(3)  Designate, or redesignate, the fund into which revenue from a fee is to be deposited.

(d)  For the purpose of the review and report a "fee" shall mean any source of state revenue classified by the department of finance and management accounting system as "fees."

§ 606.  LEGISLATIVE FEE REVIEW PROCESS; FEE BILL

When the consolidated fee report reports and request is requests are submitted to the general assembly pursuant to section sections 605 and 605a of this title, it they shall immediately be forwarded to the house ways and means committee, which shall consult with other standing legislative committees having jurisdiction of the subject area of a fee contained in the report reports and request requests.  As soon as possible, the ways and means committee shall prepare and introduce a "consolidated fee bill" proposing:

(1)  The creation, change, reauthorization, or termination of any fee.

(2)  The amount of a newly created fee, or change in amount of an existing or reauthorized fee.

(3)  The designation, or redesignation, of the fund into which revenue from a fee is to be deposited.

* * * Department of Buildings and General Services * * *

Sec. 23.  3 V.S.A. § 2476 is amended to read:

§ 2476.  DEPARTMENT OF TOURISM AND MARKETING

(a)  The department of tourism and marketing of the agency is created, as successor to the department of travel.  The department shall be administered by a commissioner.

(b)  The department of tourism and marketing shall be responsible for the promotion of Vermont goods and services as well as the promotion of Vermont's travel, recreation and cultural attractions through advertising and other informational programs, and for provision of travel and recreation information and services to visitors to the state, in coordination with other agencies of state government, chambers of commerce and travel associations, and the private sector.

(c)  A special fund is established to be administered as provided under subchapter 5 of chapter 7 of Title 32, and to be known as the brochure distribution special fund for the purposes of ensuring that the fees collected under this subsection are utilized to fund travel destination promotion and information at the state's travel information centers. Revenues to the fund shall be those fees collected for the placement and distribution of brochures of businesses in the state travel information centers and in other locations deemed appropriate by the department.

(d)  The department of tourism and marketing is authorized to accept brochure distribution fees, and to enter into agreements with other state agencies and departments to provide marketing, promotion and advertising services.  On and after July 1, 1997, all departments engaging in marketing activities shall submit to and coordinate marketing plans with the commissioner of the department of tourism and marketing.

(e)(d)  The department shall annually prepare a report, to be included in the report of the agency required by section 2422 of this title, on the status of the Connecticut River valley tourism district, and how it is meeting the goals of the department.

Sec. 24.  29 V.S.A. § 169 is added to read:

§ 169.  BROCHURE DISTRIBUTION FEES

(a)  The department of buildings and general services is authorized to accept brochure distribution fees, and to enter into agreements with other state agencies and departments to provide marketing, promotion, and advertising services.

(b)  A special fund is established to be administered as provided under subchapter 5 of chapter 7 of Title 32, and to be known as the brochure distribution special fund for the purposes of ensuring that the fees collected under this section are utilized to fund travel destination promotion and information at the state's travel information centers.  Revenues to the fund shall be those fees collected for the placement and distribution of brochures of businesses in the state travel information centers and in other locations deemed appropriate by the department.

(c)  Brochure distribution fees authorized under subsection (a) of this section shall be set by the department and shall be based on the location or locations of distribution, the size of the brochures, and the number of brochures distributed.  The department shall report the details of the fees established under this section every three years pursuant to 32 V.S.A. § 605.

Sec. 25.  32 V.S.A § 603 is amended to read:

§ 603.  FEE CREATION, AMOUNT AND ADJUSTMENT OF AMOUNT

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(3)  Fees for transcripts, reproductions not covered by subsection 316(d) of Title 1, conferences, forms for commercial use, publications and costs of distribution, advertising, training, charges to attend one-time agency events, and sales of products are hereby authorized, and the following, unless otherwise specified by law, may be set by the department providing the service or product, and shall be reasonably and directly related to their costs, as provided in subdivision (2) of this section:

(A)  transcripts;

(B)  reproductions not covered by subsection 316(d) of Title 1;

(C)  conferences;

(D)  forms for commercial use;

(E)  publications of the department;

(F)  costs of distribution of department materials;

(G)  advertising for department services or products;

(H)  training;

(I)  charges to attend one-time department events; and

(J)  sales of department products.

(4)  Fees collected under this subdivision (3) of this section shall be credited to special funds established and managed pursuant to subchapter 5 of chapter 7 of this title, and shall be available to the charging departments to offset the costs of providing these services or products.  However, for purposes of fees established under this subdivision for copies of public records, the fees shall be calculated as provided in 1 V.S.A. § 316.  These fees shall be reported in accordance with section 605 of this title.

* * * Department of Corrections * * *

Sec. 26.  28 V.S.A § 801 is amended to read:

§ 801.  Medical care of inmates

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(d)  The department is authorized to deduct a fee of up to $5.00 from inmate accounts for each request for sick call initiated by an inmate.  The fee shall be deposited into a special fund administered pursuant to subchapter 5 of chapter 7 of Title 32 and used to offset the department’s costs of medical services.  If the department implements a program to collect fees pursuant to this subsection it shall do so in accordance with the most recent National Commission on Correctional Health Care recommendations on charging inmates a fee for health care services.

(e)  The department shall establish and maintain policies for the delivery of health care in accordance with the above standards.

* * * Vermont State Archives * * *

Sec. 27.  32 V.S.A. § 1715(a) is amended to read:

(a)  Upon payment of a $10.00 fee, the commissioner of health or the commissioner of buildings and general services Vermont state archives and records administration shall provide certified copies of vital records or shall ascertain and certify what the vital records available to the commissioners show, except that the commissioners shall not copy the word "illegitimate" from any birth certificate furnished.  The fee for the search of the vital records is $3.00 which is credited toward the fee for the first certified copy based upon the search.

* * * Attorney General * * *

Sec. 28.  3 V.S.A. § 163(c)(9) is amended to read:

(9)  Each participant shall pay a fee to the local juvenile court diversion project.  The amount of the fee shall be determined by project officers based upon the financial capabilities of the participant.  The fee shall not exceed $50.00 $150.00.  The fee shall be a debt due from the participant, but shall not be grounds for exclusion from participation in the program.  Fees under this subdivision shall be paid to the court diversion fund and shall be used solely for the purpose of the court diversion program.

* * * Department of Banking, Insurance, Securities, and Health Care Administration * * *

Sec. 29.  9 V.S.A. § 5302(e) is amended to read:

(e)  At the time of the filing of the information prescribed in subsections (a), (b), (c), or (d) of this section, the issuer shall pay to the commissioner a fee of $1.00 for each $1,000.00 of the aggregate amount of the offering of the securities to be sold in this state for which the issuer is seeking to perfect a notice filing under this section, but in no case shall such fee be less than $400.00 nor more than $1,250.00 $600.00.  If the notice filing is withdrawn or otherwise terminated, the commissioner shall retain the fee paid.  Open-end investment companies subject to 15 U.S.C. § 80a-1 et seq. shall pay an initial notice filing fee and annual renewal fee for each portfolio or class of investment company securities for which a notice filing is submitted.

Sec. 30.  9 V.S.A. § 5305(b) is amended to read:

(b)  A person filing a registration statement shall pay a filing fee of $1.00 for each $1,000.00 of the aggregate amount of the offering of the securities to be sold in this state for which the applicant is seeking registration, but in no case shall such fee be less than $400.00 nor more than $1,250.00 $600.00.  Open-end investment companies shall pay a registration fee and an annual renewal fee for each portfolio as long as the registration of those securities remains in effect.  If a registration statement is withdrawn before the effective date or a preeffective stop order is issued under section 5306 of this chapter, the commissioner shall retain the fee.

Sec. 31.  9 V.S.A. § 5410(b) is amended to read:

(b)  The fee for an individual is $55.00 $60.00 when filing an application for registration as an agent, $55.00 $60.00 when filing a renewal of registration as an agent, and $55.00 $60.00 when filing for a change of registration as an agent.  If the filing results in a denial or withdrawal, the commissioner shall retain the fee.

* * * Secretary of State * * *

Sec. 32.  9A V.S.A. § 9-525(a)(1) and (2) are amended to read:

(1)  $20.00 $25.00 if the record is communicated in writing; and

(2)  $20.00 $25.00 if the record is communicated by another medium authorized by filing office rule.

Sec. 33.  11 V.S.A. § 1625(a) is amended to read:

(a)  A person, copartnership, association, limited liability company, or corporation required by the provisions of this chapter to file a return, shall, at the time of filing as provided, pay a registration fee of $40.00 $50.00 to the secretary of state for the benefit of the state.

Sec. 34.  11 V.S.A. § 3013(a) (1), (15), and (16) are amended to read:

(1)  Articles of organization $ 75.00 $100.00

(15)  Annual report of a domestic limited liability company 20.00 25.00

(16)  Annual report of a foreign limited liability company 100.00 125.00

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Sec. 35.  11A  V.S.A. § 1.22(a)(16) and (17) are amended to read:

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(16)  Annual report of a foreign corporation 150.00 175.00

(17)  Annual report of a domestic corporation 25.00 $35.00

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Sec. 36.  CORPORATIONS FEE INCREASE TO GENERAL FUND

All monies generated from the fee increase for the filing of annual reports by foreign and domestic business corporations in Sec. 35 of this act shall be deposited into the general fund.

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

Senator Bartlett, for the Committee on Appropriations, to which the bill was referred, reported recommending that the bill be amended as recommended by the Committee on Finance with the following amendments thereto:

First:  By striking out Sections 9 and 10 in their entirety

Second:  In Sec. 26, after the last sentence in (d) by adding the following: The department shall report on a quarterly basis the development and implementation of an inmate co-payment system to the Joint Corrections Oversight Committee. 

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, and the recommendation of proposal of amendment of the Committee on Finance was amended as recommended by the Committee on Appropriations.  At the request of Senator MacDonald the question was divided.

Thereupon, the pending question, Shall the report of the Committee on Finance be amended as firstly recommended by the Committee on Appropriations?, was decided in the affirmative on a roll call, Yeas 15, Nays 12.

Senator Flanagan having demanded the yeas and nays, they were taken and are as follows:

Roll Call

Those Senators who voted in the affirmative were: Bartlett, Collins, Coppenrath, Doyle, Hartwell, Illuzzi, Kitchel, Kittell, Mazza, Miller, Nitka, Scott, Sears, Shumlin, Snelling.

Those Senators who voted in the negative were: Ayer, Campbell, Carris, Condos, Cummings, Flanagan, Giard, Lyons, MacDonald, Maynard, McCormack, White.

Those Senators absent and not voting were: Mullin, Racine, Starr.

Thereupon, the pending question, Shall the report of the Committee on Finance be amended as secondly recommended by the Committee on Appropriations?, was decided in the affirmative.

Thereupon, pending question, Shall the Senate propose to the House to amend the bill as recommended by the Committee on Finance, as amended?, Senator Cummings and MacDonald moved to amend the bill by striking out Sec. 36 in its entirety.

Which was agreed to.

Thereupon, pending the question, Shall the Senate propose to the House to amend the bill as recommended by the Committee on Finance, as amended?, Senator Mazza, on behalf of the Committee on Transportation, moved to amend the proposal of amendment of the Committee on Finance, as amended, by adding nine new sections to be numbered Secs. 37 through 45 to read as follows:

Sec. 37.  23 V.S.A. § 4(78) is added to read:

(78)  “Enhanced license” shall mean an operator’s license, commercial driver license, junior operator’s license, or nondriver identification card that denotes identity and citizenship, and includes facilitative technology identified by the Department of Homeland Security.

Sec. 38.  23 V.S.A. § 102(d) is amended to read:

(d)  The commissioner may authorize background investigations for potential employees that may include criminal, traffic, and financial records checks; provided, however, that the potential employee is notified and has the right to withdraw his or her name from application.  Additionally, employees who are authorized to manufacture or produce operators’ licenses and identification cards, including enhanced licenses, may be subject to appropriate security clearance if required by federal law, including background investigations that may include criminal and traffic, records checks, and providing proof of United States citizenship.  The commissioner may, in connection with a formal disciplinary investigation, authorize an appropriate a criminal or traffic record background investigation of a current employee; provided, however, that the background review is necessary and relevant to the issue under disciplinary investigation.  Information acquired through a background the investigation that may be shall be provided to the commissioner or designated division director, and must be maintained in a secure manner.  If the information acquired is used as a basis for any disciplinary action, it must be given to the employee during any pre‑termination hearing or contractual grievance hearing to allow the employee an opportunity to respond to or dispute the information.  If no disciplinary action is taken against the employee, the information acquired through the background check shall be destroyed.
Sec. 39.  23 V.S.A. § 7 is added to read: 
§ 7.  ENHANCED DRIVER LICENSE; MAINTENANCE OF DATABASE INFORMATION; FEE
(a)  The face of an enhanced license shall contain the individual’s name, date of birth, gender, a unique identification number, full facial photograph or imaged likeness, address, signature, issuance and expiration dates, and citizenship.  The back of the enhanced license shall have a machine-readable zone.  A Gen 2 vicinity Radio Frequency Identification chip shall be embedded in the enhanced license in compliance with the security standards of the Department of Homeland Security.

(b)  In addition to any other requirement of law or rule, before an enhanced license may be issued to a person, the person shall present for inspection and copying satisfactory documentary evidence to determine identity and United States citizenship.  An application shall be accompanied by:  a photo identity document, documentation showing the person’s date and place of birth, proof of the person’s Social Security number, and documentation showing the person’s principal residence address.  To be issued, an enhanced license must meet the same requirements as those for the issuance of a United States passport.  Before an application may be processed, the documents and information shall be verified as determined by the commissioner.

(c)  No person shall compile or maintain a database of electronically readable information derived from an operator’s license, junior operator’s license, enhanced license, learner permit, or nondriver identification card.  This prohibition shall not apply to a person who accesses, uses, compiles, or maintains a database of the information for law enforcement or governmental purposes.

(d)  The fee for an enhanced license shall be $25.00 in addition to the fees otherwise established by this title.

Sec. 40.  23 V.S.A. § 601(a) is amended to read:

(a)  A resident who intends to operate motor vehicles shall procure a proper license.  A resident who has moved into the state from another jurisdiction with a valid license to operate motor vehicles under section 411 of this title shall procure a license within 60 days of moving into the state.  Operators’ licenses shall not be issued to nonresidents.  All operator licenses issued under this chapter shall expire every four years at midnight on the eve of the anniversary of the date of birth of the applicant at the end of the term for which they were issued.  All junior operator licenses shall expire at midnight on the eve of the anniversary of the date of birth of the applicant at the end of the term for which they were issued.  A person born on February 29 shall, for the purposes of this section, be considered as born on March 1. 

Sec. 41.  REPEAL

The following in Title 23 are repealed:

(1)  § 618 (anatomical gifts); and

(2)  § 4111(a)(10) (commercial driver license form regarding anatomical gifts).

Sec. 42.  18 V.S.A. § 5238(3) is amended to read:

(3)  “Document of gift” means an organ donor card, a statement attached to or imprinted on the reverse side of a Vermont motor vehicle operator’s license, a will, or other writing used to make an anatomical gift.

Sec. 43.  18 V.S.A. § 5239 is amended to read:

§ 5239.  MAKING, AMENDING, REVOKING, AND REFUSING TO MAKE ANATOMICAL GIFTS BY AN INDIVIDUAL

(a)  An individual who is at least 18 years of age may:

(1)  Make an anatomical gift for any of the purposes stated in

section 5242 of this title.

(2)  Limit an anatomical gift to one or more of those purposes.

(3)  Refuse to make an anatomical gift.

(b)  An anatomical gift may be made only by a document of gift signed by the donor.  If the donor cannot sign, the document of gift must be signed by another individual and by two witnesses, all of whom have signed at the direction and in the presence of the donor and of each other, and state that it has been so signed.

(c)  If a document of gift is attached to or imprinted on a donor’s motor vehicle operator’s license, the document of gift must comply with subsection (b) of this section. Revocation, suspension, expiration or cancellation of the license does not invalidate the anatomical gift.

(d)  An anatomical gift by will takes effect upon death of the testator, whether or not the will is probated.  If, after death, the will is declared invalid for testamentary purposes, the validity of the anatomical gift is unaffected.

(e)(d)  A donor may amend or revoke an anatomical gift, not made by will, only by one of the following methods:

(1)  A signed statement.

(2)  An oral statement made in the presence of two individuals.

(3)  Any form of communication during a terminal illness or injury addressed to a physician.

(4)  The delivery of a signed statement to a specified donee to whom a document of gift had been delivered.

(f)(e)  The donor of an anatomical gift made by will may amend or revoke the gift in the manner provided for amendment or revocation of wills or as provided in subsection (e)(d) of this section.

(g)(f)  An anatomical gift that is not revoked by the donor before death is irrevocable and does not require the consent or concurrence of any person after the donor’s death.

(h)(g)  An individual may refuse to make an anatomical gift of the individual’s body or part by any one either of the following:

(1)  A writing signed in the same manner as a document of gift.

(2)  A statement attached to or imprinted on the donor’s Vermont motor vehicle operator’s license.

(3)  Any other writing used to identify the individual as refusing to make an anatomical gift.  During a terminal illness or injury, the refusal may be an oral statement or other form of communication. 

Sec. 44.  AUTHORITY FOR LIMITED SERVICE POSITIONS FOR THE DEPARTMENT OF MOTOR VEHICLES

Three limited service positions are created within the department of motor vehicles.  These shall be used for the administration of the enhanced license program and shall be for a period of three years. 

Sec. 45.  EFFECTIVE DATE

This act shall take effect on passage, except for Sec. 3 which shall not take effect until the commissioner of motor vehicles determines that the systems necessary to operate the program are available.

Which was agreed to.

Thereupon, pending the question, Shall the Senate propose to the House to amend the bill as recommended by the Committee on Finance, as amended?, Senator Cummings moved to amend the proposal of amendment as follows:

First:  By inserting a new Sec. 6a to read as follows:


Sec. 6a.  21 V.S.A. § 144(a) is amended to read:

(a)  The elevator safety review board is established within the department, and shall consist of five seven members, one of whom shall be the commissioner or the commissioner’s designee, one of whom shall be the commissioner of labor or the commissioner of labor’s designee, and four five members to be appointed by the governor as follows: one representative from a major elevator manufacturing company; one representative from an elevator servicing company; an owner or manager of a multistoried building, in which a conveyance is installed; an elevator inspector; and an individual who actually installs, maintains and repairs conveyances.  The members appointed by the governor shall be appointed for staggered terms of three years, and shall be entitled to compensation and expenses as provided in 32 V.S.A. § 1010.

Second:  By inserting a new Sec. 6b to read as follows:

Sec. 6b.  21 V.S.A. § 152 is amended to read:

§ 152.  NEW INSTALLATIONS; ANNUAL INSPECTIONS AND REGISTRATIONS

(a)  A new conveyance shall not be placed in operation until it has been inspected by an elevator inspector other than the installer, and a certificate of operation has been issued.

(b)  Every conveyance subject to this subchapter shall be inspected annually by an elevator inspector who may charge a fee for the service as established by the board by rule.  Rules adopted by the board under this subsection shall take into account the degree of difficulty required by the inspection, the frequency of use of the conveyance, and the mode of operation of the conveyance, such as cable, traction, hydraulic, light use, or platform liftAn inspector may charge a fee not to exceed $100.00 for each inspection.  The inspector shall notify the department if a conveyance is found to be in violation of this subchapter or any rule adopted under this subchapter.

(c)  An elevator inspector shall issue a certificate of operation after the inspector has inspected a new or existing conveyance, and has determined that the conveyance is in compliance with this subchapter.  A certificate of operation shall be renewed annually.  An owner of a conveyance shall ensure that the required inspections and tests are performed at intervals that comply with rules adopted by the board.  Certificates of operation shall be clearly displayed on or in each conveyance or in each machinery room.

(d)  The department may issue a conditional certificate of operation for a conveyance that is not in complete compliance, provided the conveyance has been inspected and determined to be safe for temporary operation.  This conditional certificate of operation permits shall permit a conveyance to operate for no more than 30 180 days or until the conveyance is in compliance, whichever occurs first.

(e)  The inspector shall submit $25.00 of the fee charged for each inspection to the department for each certificate of operation issued under this subchapter.

(f)  As established by the board by rule, an inspector may charge a fee not to exceed $250.00 for each inspection, and this fee shall be subject to the provisions of subchapter 6 of chapter 7 of Title 32.

(g)  Until rules are adopted under subsection (f) of this section, an inspector may charge a fee not to exceed $100.00, and this fee shall be subject to the provisions of subchapter 6 of chapter 7 of Title 32.

Third:  By adding a new Sec. 6c to read as follows:

Sec. 6c.  COMMISSIONER OF PUBLIC SAFETY; REPORT

By January 15, 2009, the commissioner of public safety shall file a report with the house and senate committees on government operations that identifies barriers to adequate training of elevator inspectors, elevator mechanics, and lift mechanics.

Fourth:  By adding a new Sec. 6d to read as follows:

Sec. 6d.  REPEAL

21 V.S.A. § 152(g) (inspector fee cap of $100.00) shall be repealed on the effective date of rules adopted pursuant to 21 V.S.A. § 152.

Fifth:  By adding a new Sec. 6e to read as follows:

Sec. 6e.  ELEVATOR SAFETY REVIEW BOARD; RULEMAKING

The general assembly finds that there exists an imminent peril to the public health, safety, or welfare that necessitates the adoption of emergency rules pursuant to 3 V.S.A. § 844 by the elevator safety review board as required by 21 V.S.A. § 152.  Emergency rules shall be filed as soon as possible after notice and an opportunity to be heard by persons who may be affected by them.  The board shall propose a permanent rule on the same subject at the same time that it adopts an emergency rule.

Which was agreed to.

Thereupon, the proposal of amendment recommended by the Committee on Finance, as amended, was agreed to and third reading of the bill was ordered.

Thereupon, Senator Illuzzi moved that a letter to the Senate Committee on Finance from Robert D. Hofmann, Commissioner of Vermont Department of Corrections, be ordered enter in the Journal, which was agreed to.

Said letter is as follows:

“TO:                 Senate Finance Committee

“FROM:           Robert D. Hofmann,

Commissioner, Vermont DOC DATE: March 27, 2008

“SUBJ:             2008 DOC Fee Bill Submission: Offender Medical Co-Pay

“The VT Department of Corrections (DOC) continues to spend increasingly large sums of taxpayer money on inmate medical expenses. Inmate medical costs continue to escalate based on high levels of inmate usage and rapidly increasing medical costs (especially salaries). With the change in contract structure implemented by Prison Health Services (PHS) in early 2007 (to self-insured cost-plus), the DOC has determined that a tool currently in place throughout the country would be appropriate to help manage inmate health care in VT. This tool is the implementation of a limited inmate $5 co-payment fee for sick call visits.

“If used appropriately, an inmate co-payment system would help discourage abuse of the inmate sick call process. Because of their current circumstance, offenders may misuse the sick call process to experience a break from boredom or to receive personal attention from a compassionate person, such as a healthcare professional. This increased use of the inmate health system drives-up costs and reduces the amount of attention received by inmates with more serious health needs.

“As noted by DOC's medical professionals, asking inmates to contribute toward their medical care is a "pro-social" request. It mirrors the community standard and reminds inmates they have responsibilities, like the rest of Vermonters. There is data from the mental health field that paying for treatment actually improves clinical outcomes. People seem to value things they work for and pay for. Although other Vermonters do pay for chronic care visits in the community, we do not plan to have inmates pay for routine follow-up visits for chronic conditions we monitor in accordance with the National Commission on Correctional Health Care (NCCHC) standards (diabetes, heart disease/hypertension, asthma, seizures, HIV/hepatitis C, etc.). Thus, our focus on chronic Care in accordance with the Vermont Blueprint would not be impacted. Already our pay for performance initiative with PHS is showing improvements in diabetes care.

“In addition to chronic care, all inmates would continue to receive the following services without being expected to make a co-payment:

§                          “An initial screening within 24 hours by a nurse


§                          “An initial complete history and physical exam by a physician, nurse practitioner, or physician assistant within 5-7 days of admission

§                          “Emergency care, off-site specialty care, and on-site diagnostics (e.g. x-ray, blood tests)

§                          “Mental health services

§                          “Prescription medications

“In the event of an occurrence of a potentially contagious disease affecting the whole community, (for example, scabies) we would treat the whole at-risk population without requiring any inmate to submit a sick call slip. Other safeguards to ensure access and quality would not be compromised would include:

§                          “No one would be refused services because of inability to pay

§                          “The program would follow the recommendations of NCCHC

§                          “Ongoing monitoring by the Health Department through its Quality Oversight function

§                          “Automatic enrollment in the chronic care clinics on entry to jail or prison

“The Department of Corrections needs to be continually looking for opportunities for incarcerated inmates to develop a greater sense of responsibility if we really want them to succeed in the community. Sharing the cost of medical care in even this token way is one small step in that direction. We believe it would strengthen, not weaken, health care services within Corrections.

“The average inmate account receives two monthly deposits of $50 each. Inmates currently spend over $700,000/year on non-essential commissary items, such as chips and soda. Requiring an aggregate co-pay contribution of $55,000 is quite reasonable.

“Given the difficult fiscal and program choices you are facing, asking inmates to contribute to the costs of their care is long overdue. This proposal has the full support of the present and former DOC Health Services Directors. We look forward to consideration by the Vermont Senate.

“Cc: Dr. Delores Burroughs-Biron, MD, Health Services Director”


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 proposals of amendment forthwith.

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

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

H. 881.

Senator McCormack, for the Committee on Finance, to which was referred House bill entitled:

An act relating to the role of electric and gas utilities in facilitating the deployment of communications facilities throughout the state.

     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.  FINDINGS AND PURPOSE

The general assembly finds that:

(1)  As found in 30 V.S.A. § 8060(a)(1): “ The availability of mobile telecommunications and broadband services is essential for promoting the economic development of the state, the education of its young people and life‑long learning, the delivery of cost-effective health care, the public safety, and the ability of citizens to participate fully in society and civic life.”

(2)  Electric and gas companies have networks that extend throughout the state.  Some of these networks can be leveraged to improve the economics of deploying mobile telecommunications and broadband service throughout the state.

(3)  Electric and gas companies hold easements that allow for specific utility use, but certain of these easements may not allow for the attachment or the installation of communications facilities.

(4)  Therefore, the goals of the general assembly in this act are to ensure that electric and gas utilities allow and enable access to their facilities and easements to communications companies as a necessary element of serving the public good in a flexible manner that is fair to both the utilities’ ratepayers and customers of communications service providers.


Sec. 2.  30 V.S.A. chapter 92 is added to read:

CHAPTER 92.  ACCESS FOR THE INSTALLATION AND MAINTENANCE OF COMMUNICATIONS FACILITIES

§ 8090.  DEFINITIONS

For the purposes of this chapter:

(1)  “Communications facilities” shall mean facilities that are used to send and receive audio, images, data, or other information via any electromagnetic media, including wires, cables, microwaves, radio waves, light waves, or any combination of these or similar media.

(2)  “Communications service provider” shall mean the Vermont telecommunications authority, a company subject to the jurisdiction of the public service board under subdivision 203(5) or section 502 of this title, or a broadband service provider who is considered to be an “attaching entity” pursuant to subsection 209(g) of this title.

(3)  “Company” or “companies” shall mean an electric or gas utility subject to the jurisdiction of the public service board.

§ 8091.  ACCESS TO FACILITIES

(a)  Any company shall allow and enable access to its plant and equipment where possible for the installation and maintenance of communications facilities by communications service providers.

(b)  When constructing or substantially reconstructing lines or structures used for electric or gas transmission or electric distribution, a company shall allow for the construction and maintenance of communications facilities thereupon if requested by a communications service provider.

(c)  Access and services required by this section shall be subject to regulation by the public service board and department of public service and shall be offered on rates, terms, and conditions, including terms of ownership of facilities, established in section 8092 of this chapter, except that services under tariffs developed pursuant to public service board rules regarding pole attachments shall be governed by those rules.

(d)  Owners of self-generation facilities, those not connected to the electric grid and net-metered generators, shall not be obligated to comply with this section.

(e)  If a communications service provider requests services from a company pursuant to this title, then the communications service provider shall be responsible for all of the costs the company incurs to obtain any easements or limited rights in property necessary to provide those services to the communications service provider, including compensation, legal fees, and the administrative costs of the utility.

§ 8092.  RATES; TERMS; CONDITIONS

(a)  Any company providing electric or gas service under public service board jurisdiction pursuant to this title shall prepare and file with the public service board, with a copy provided to the commissioner of the department of public service and the director for public advocacy, a statement of generally available rates, terms, and conditions for attachments and installations required under section 8091 of this chapter.  The nature and specificity of such statement may take into account the nature and size of the company, an assessment of the types of communications facilities for which requests are most likely, and such other factors as necessary to ensure that the rates, terms, and conditions set forth in the statement are sufficiently flexible to meet the capacities of the company, the interests of the company’s ratepayers, and the goal of facilitating broadband and wireless service.

(b)  The department and the board shall review the statement of generally available rates, terms, and conditions filed by each company.  In the event that the board or the department has grounds to believe that the rates, terms, or conditions are not just and reasonable, the board may open an investigation into the statement.  In the absence of an investigation, or while such an investigation is pending, the company’s filed statement of rates, terms, and conditions shall take effect or shall remain in effect without requiring the approval of the board.  Changes to any company’s filed statement of rates, terms, and conditions shall not take effect until 45 days after the statement has been filed with the board and the department.

(c)  In the event of a board investigation into a company’s statement of rates, terms, and conditions pursuant to this chapter, the board may alter or change the rates, terms, or conditions in effect for attachments and installations after notice and hearing, upon a finding that the company’s rates, terms, or conditions are not just and reasonable.  In making its determination, the board shall consider evidence that may be presented regarding the commercial reasonableness of the rates given the local market and the public interest in reasonable rates for electric or gas service and availability of communications services in the state.  Any change in rates, terms, and conditions required as a result of a board investigation shall be effective as of the date of the board’s order without any refund.

(d)  The statement shall include rates, terms, and conditions for services for which the company may reasonably expect to receive requests, including at a minimum:

(1)  For wireline communications facilities:

(A)  Attachment of communications facilities to electric transmission facilities and maintenance of these communications facilities.

(B)  Contribution to construction for communications facilities installed concurrently with the construction or reconstruction of electric and gas company facilities when requested by a communications service provider.

(2)  For wireless communication facilities:

(A)  Attachment of communications facilities to electric transmission and generation facilities and maintenance of these communications facilities.

(B)  Contribution to construction for communications facilities installed concurrently with the construction or reconstruction of electric company facilities when requested by a communications service provider.

(e)  Rates, terms, and conditions for contributions to construction and for maintenance of communications facilities installed concurrently when companies are constructing or substantially reconstructing electric transmission or distribution lines or structures or gas transmission lines shall be based on the incremental cost of adding the communications facility to the project, as long as the communications facilities will provide service in the municipality in which they are located and surrounding municipalities.

(f)  The company may negotiate rates, terms, and conditions of service that deviate from the statement of rates, terms, and conditions on file, but the company may not refuse a request to provide service in accordance with the rates, terms, and conditions on file.  Section 229 of this title does not apply to deviations from the statement of rates, terms, and conditions, unless a company provides service pursuant to this chapter to an affiliate of the company that is not an electric or gas utility. 

(g)  Companies with facilities meeting the requirements of this section shall submit their statement of rates, terms, and conditions within 150 days of the date of the enactment of this legislation.

(h)  A company may limit wireline attachments on electric transmission structures exclusively carrying voltages of 110 kV or higher to fiber-optic facilities attached and maintained by the company, if the company allows communications service providers to use fiber-optic facilities installed and maintained by the company and offers to install such fiber-optic facilities on such electric transmission structures where there are not sufficient facilities for use by communications service providers.  Rates, terms, and conditions for access to such company-attached and company-maintained facilities shall be made available consistent with the requirements of this section.

(i)  The public service board may establish rules to implement this chapter.  Such rules may include default rates, terms, and conditions to implement subsections (c) and (h) of this section.  As part of the implementation of this chapter, the board shall establish rules to require, to the extent the board is not preempted, communications providers to extend their facilities as far as the board’s authority permits.

§ 8093.  NOTIFICATION

(a)  For cases of gas transmission projects, and for projects involving electric transmission lines requiring approval pursuant to section 248 of this title, companies shall provide notice to the Vermont telecommunications authority at the same time that they provide notice pursuant to subdivision 248(a)(4)(C) of this title.

(b)  In cases of projects involving electric transmission or distribution lines which do not require approval pursuant to section 248 of this title, and which are greater than 2,500 feet, companies under the jurisdiction of the public service board shall notify the Vermont telecommunications authority of the project at least 90 days prior to planned commencement of construction for company-initiated projects, or as soon as possible for customer-initiated projects or projects required for urgent reasons of service quality or reliability.

(c)  The notice shall include:

(1)  The location of the project, including the town and a description of the route to be followed;

(2)  The nature of the project;

(3)  The date the project is planned to commence;

(4)  The contact person for the project and his or her contact information.

(d)  For good cause shown by a company, the public service board may shorten or eliminate the notice period required under this section.

(e)  In the alternative to filing notice under subsection (b) of this section, a company may file with the public service board, the department of public service, and the Vermont telecommunications authority its capital plan or construction work plan, describing the location of linear projects which do not require approval pursuant to section 248 of this title, and in the case of a multi-year plan, the year in which a linear project is scheduled to commence.  No construction called for under the capital plan or construction work plan shall commence until the plan has been on file for at least 90 days, unless the construction is required for customer-initiated projects or for urgent reasons of service quality or reliability.

(f)  A company may specify in its statement of rates, terms, and conditions a deadline or procedure for requests to attach or add communications facilities to a project.  Unless otherwise specified by the company in its statement of rates, terms, and conditions, a company shall provide a period for responses of not less than either 45 days after notice is provided, if the company provides notice pursuant to subsection (b) of this section, or 45 days before the planned construction commences, if the company provides notice pursuant to subsection (e) of this section.  If a company does not receive a response by the deadline or according to the procedure established for responding to the notice required by this section, it may commence construction of a project prior to the end of the notice period required under subsection (b) or (e) of this section.

§ 8094.  EVALUATION OF COMMERCIAL WIRELESS NETWORKS

(a)  No company subject to public service board jurisdiction and providing electric service shall begin construction of a two-way point-to-multipoint mobile wireless communication network for the purpose of communication between its facilities for its own personnel unless:

(1)  The company has solicited proposals from commercial wireless service providers; and

(2)  For solicitations issued after July 1, 2008, the company has provided notice prior to the solicitation to the Vermont telecommunications authority and to the commissioner of the department of public service and the director for public advocacy.

(b)  Nothing in this section shall be construed to authorize or disallow the costs of such a network for the purpose of a rate proceeding for the company.

§ 8095.  LIMITATION

Nothing in this chapter limits the existing rights and obligations of entities currently authorized to attach to poles and other facilities pursuant to board rule 3.700. 

§ 8096.  LEGISLATIVE INTENT

The general assembly intends that this chapter will result in improved and increased access to mobile telecommunications and broadband services for all underserved Vermont households and businesses.

Sec. 3.  30 V.S.A. § 110a is added to read:

§ 110a. INCLUSION OF COMMUNICATIONS FACILITIES

When a gas or electric utility subject to the jurisdiction of the board files a petition to condemn an easement or limited right in property, there shall be a rebuttable presumption that access to the utility’s facilities provided pursuant to chapter 92 of this title shall be a necessary component of the utility’s rendering of adequate service to the public.

Sec. 4.  30 V.S.A. § 111a is added to read:

§ 111a.  PREEXISTING UTILITY LINES

(a)  When a corporation seeks to condemn property or an easement or other right over property where a currently existing utility line capable of operating at 100 kilovolts or less that has not been abandoned and was in place on July 1, 1993, there is a rebuttable presumption that the condemnation of the property right authorizing the existing utility line or lines is necessary in order that the petitioner may render service to the public, provided that the property right is limited to that which is required to allow the operation, maintenance, and repair of the existing line or lines, and does not (1) significantly alter the capabilities or capacity of the line or lines, (2) materially alter the degree of land use associated with the presence of the line or lines, and (3) authorize the company to perform replacements or upgrades that would have a significant impact under the criteria set forth in section 248 of this title. 

(b)  When a corporation seeks to condemn property or establish an easement or other right over property where a utility line, that has not been abandoned, was in place on July 1, 1993, the corporation shall present a petition to the public service board and to the department of public service describing the property or right, and why the action is necessary.  The property or right shall be limited to that which is required to allow the operation, maintenance, and repair of the existing line or lines, subject to the limitations set forth in subsection (a) of this section.  The board shall issue a citation upon each person whose property or right the petitioner proposes to condemn and each municipality and each planning body where the property is located, or on absent persons in such manner as the supreme court may by rule provide for service of process in civil actions, including by publication. 

(c)  Upon the filing of the petition with the board and department, any pending actions and proceedings against the petitioner affecting its right to use and enjoy the subject property are stayed for the pendency of the condemnation proceeding before the board, and the petitioner may enter upon the property to be condemned for the purposes of examination and obtaining necessary information in order to proceed with the taking and to conduct the minimum amount of maintenance and repairs necessary to provide service.

(d)  The board shall fix the time and the place for hearing.

(e)  If the utility line for which the corporation seeks to acquire easements through condemnation under this section crosses more than one property, the corporation may petition the board to hold a single hearing to determine necessity for all persons subject to condemnation under subsection (b) of this section.

(f)  A person owning or having an interest in lands or rights to be taken may stipulate as to the necessity of the taking.  The stipulation shall be filed with the board.  The board shall issue an order on necessity within 45 days upon receiving the stipulation.

(g)  A stipulation under subsection (f) of this section shall be accompanied by an affidavit sworn to before a person authorized to take acknowledgments.  The stipulation shall include the following:

(1)  a recital that the person or persons executing the stipulation have examined the proposed easement, which includes a description of the property or rights to be taken; and

(2)  an explanation of the legal and property rights affected.

(h)  If a hearing is required, the board shall hear all persons whose property or right is the subject of the condemnation petition and who wish to be heard at the time and place appointed for the hearing.  The board shall make findings of fact, and by its order, determine whether necessity requires the taking of the land and rights as set forth in the petition.

(i)  Following a determination of necessity pursuant to subsection (f) or (h) of this section, the board shall expeditiously appoint a time and place for examining the premises and provide an opportunity for a hearing on the issue of compensation, giving at least 10 days’ notice in writing to the persons that are subject to the condemnation petition.

(j)  There shall be rebuttable presumptions that compensation for the taking or use of property rights under the provision of this section shall be the diminution of value caused by the existence of such utility lines across the property at the time the petition was filed with the board and that, where a property owner acquired the property with the utility line already in place, the diminution in value was reflected in the terms of acquiring the property.  Upon rebuttal of either of these presumptions under the standard set forth in subsection (m) of this section, the board shall determine compensation pursuant to the criteria established by subdivision 112(3) of this title.

(k)(1)  When the board renders judgment, it shall send by registered mail to each of the parties in interest or their attorneys, within 30 days thereafter, a certified copy of such judgment.  If the judgment is in favor of the petitioner, the board, in the same manner, shall send to such parties a certified copy of the findings which shall include a description of the property or right to be condemned.  The petitioner shall cause a certified copy of the judgment and findings to be recorded in the clerk’s office of the town or towns in which such property is located within 30 days after the clerk receives the copies.

(2)  Upon the payment or deposit of the amounts awarded by the board, with interest, in accordance with its order, the petitioner shall be the owner of the property or right described in the findings.  However, when an appeal is taken as provided in section 12 of this title, such ownership shall be an equitable title only with right of possession until the judgment of the supreme court is complied with.

(l)  Section 112 of this title does not apply to petitions filed under this section except as provided in subsection (j) of this section.  An appeal or review relating to an action under this section shall be to the supreme court pursuant to section 12 of this title.

(m)  The presumptions arising under subsections (a) and (j) of this section shall operate in accordance with the provisions of Vermont Rule of Evidence 301(a).  These presumptions shall shift only the burden of production, and shall lose their effect as soon as any evidence to support a finding of the nonexistence of the presumed fact is introduced.

(n)  Nothing in this section shall impact any permitting or regulatory requirements that may apply to the corporation.

Sec. 5.  INVESTIGATION INTO SUBSTATION NETWORKS

The public service board shall conduct an investigation into the benefits and costs of construction of fiber-optic or other telecommunications facility networks linking electric company substations and submit a report to the committees of jurisdiction of the general assembly on or before January 15, 2009.  In addition to other information it deems appropriate, the public service board shall require from each electric company an analysis of the likely cost of connecting its substations with fiber-optic facilities and other alternative means, and the benefits to electric company operations, including benefits for system management and reliability.  If it finds good cause to do so, the board may excuse companies without more than one substation and companies which have already connected all company substations with fiber-optic facilities.  In the event that the public service board determines that the benefit of such a network exceeds its costs, it shall recommend an implementation schedule for construction of such a network and include the schedule in its report.  The board may issue an implementation schedule for individual companies prior to January 15, 2009.

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.

Senator Condos recused himself from voting on the bill, pursuant to Senate Rule 71.

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 proposals of amendment forthwith.

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

Rules Suspended; House Proposal of Amendment; Consideration Postponed

S. 114.

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

An act relating to enhancing mental health parity.

Was taken up for immediate consideration.

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. § 4089b is amended to read:

(a)  It is the goal of the general assembly that treatment for mental health conditions be recognized as an integral component of health care, that health insurance plans cover all necessary and appropriate medical services without imposing practices that create barriers to receiving appropriate care, and that integration of health care be recognized as the standard for care in this state.

(a)(b) As used in this section:

(1) "Health insurance plan" means any health insurance policy or health benefit plan offered by a health insurer, as defined in 18 V.S.A. § 9402(7). Health insurance plan includes any health benefit plan offered or administered by the state, or any subdivision or instrumentality of the state.

(2) "Mental health condition" means any condition or disorder involving mental illness or alcohol or substance abuse that falls under any of the diagnostic categories listed in the mental disorders section of the international classification of disease, as periodically revised.

(3) "Rate, term or condition" means any lifetime or annual payment limits, deductibles, copayments, coinsurance and any other cost-sharing requirements, out-of-pocket limits, visit limits, and any other financial component of health insurance coverage that affects the insured.

(b)(c)  A health insurance plan shall provide coverage for treatment of a mental health condition and shall:

(1)  not establish any rate, term, or condition that places a greater financial burden on an insured for access to treatment for a mental health condition than for access to treatment for a physical other health conditions;

(2) not exclude from its network or list of authorized providers any licensed mental health or substance abuse provider located within the geographic coverage area of the health benefit plan if the provider is willing to meet the terms and conditions for participation established by the health insurer; and

(3) make any deductible or out-of-pocket limits required under a health insurance plan comprehensive for coverage of both mental health and physical health conditions.

(c)(d)(1)(A) A health insurance plan that does not otherwise provide for management of care under the plan, or that does not provide for the same degree of management of care for all health conditions, may provide coverage for treatment of mental health conditions through a managed care organization provided that the managed care organization is in compliance with the rules adopted by the commissioner that assure that the system for delivery of treatment for mental health conditions does not diminish or negate the purpose of this section.  In reviewing rates and forms pursuant to section 4062 of this title, the commissioner shall consider the compliance of the policy with the provisions of this section.

(B)  The rules adopted by the commissioner shall assure that:

(i)  timely and appropriate access to care is available; that

(ii)  the quantity, location and specialty distribution of health care providers is adequate; and that

(iii)  administrative or clinical protocols do not serve to reduce access to medically necessary treatment for any insured;

(iv)  utilization review and other administrative and clinical protocols do not deter timely and appropriate care, including emergency hospital admissions;

(v)  in the case of a managed care organization which contracts with a health insurer to administer the insurer’s mental health benefits, the portion of a health insurer’s premium rate attributable to the coverage of mental health benefits is reviewed under sections 4062, 4513, 4584, or 5104 of this title to determine whether it is excessive, inadequate, unfairly discriminatory, unjust, unfair, inequitable, misleading or contrary to the laws of this state;

(vi)  the health insurance plan is consistent with the Blueprint for Health with respect to mental health conditions, as determined by the commissioner under section 9414(b)(2) of Title 18;

(vii)  a quality improvement project is completed annually as a joint project between the health insurance plan and its mental health managed care organization to implement policies and incentives to increase collaboration among providers that will facilitate clinical integration of services for medical and mental health conditions, including:

(I)  evidence of how data collected from the quality improvement project are being used to inform the practices, policies, and future direction of care management programs for mental health conditions; and

(II)  demonstration of how the quality improvement project is supporting the incorporation of best practices and evidence-based guidelines into the utilization review of mental health conditions;

(viii)  an up-to-date list of active mental health care providers in the plan’s network who are available to the general membership is available on the health insurer’s and managed care organization’s websites and provided to consumers upon request; and

(ix)  the health insurers and managed care organizations make accessible to consumers the toll-free telephone number for the Vermont health care administration’s consumer protection help line.

(C)  Prior to the adoption of rules pursuant to this subdivision, the commissioner shall consult with the commissioner of mental health and the task force established pursuant to subsection (h) of this section concerning:

(i)  developing incentives and other measures addressing the availability of providers of care and treatment for mental health conditions, especially in medically underserved areas;

(ii)  incorporating nationally recognized best practices and evidence-based guidelines into the utilization review of mental health conditions; and

(iii)  establishing benefit design, infrastructure support, and payment methodology standards for evaluating the health insurance plan’s consistency with the Blueprint for Health with respect to the care and treatment of mental health conditions.

(2)  A managed care organization providing or administering coverage for treatment of mental health conditions on behalf of a health insurance plan shall comply with this section, sections 4089a and 4724 of this title, and section 9414 of Title 18, with rules adopted pursuant to those provisions of law, and with all other obligations, under Title 18 and under this title, of the health insurance plan and the health insurer on behalf of which the review agent is providing or administering coverage.  A violation of any provision of this section shall constitute an unfair act or practice in the business of insurance in violation of section 4723 of this title.

(3)  A health insurer that contracts with a managed care organization to provide or administer coverage for treatment of mental health conditions is fully responsible for the acts and omissions of the managed care organization, including any violations of this section or a rule adopted pursuant to this section.

(4)  In addition to any other remedy or sanction provided for by law, if the commissioner, after notice and an opportunity to be heard, finds that a health insurance plan or managed care organization has violated this section or any rule adopted pursuant to this section, the commissioner may:

(A)  Assess a penalty on the health insurer or managed care organization under section 4726 of this title;

(B)  Order the health insurer or managed care organization to cease and desist in further violations;

(C)  Order the health insurer or managed care organization to remediate the violation, including issuing an order to the health insurer to terminate its contract with the managed care organization; and

(D)  Revoke or suspend the license of a health insurer or managed care organization, or permit continued licensure subject to such conditions as the commissioner deems necessary to carry out the purposes of this section.

(5)  As used in this subsection, the term “managed care organization” includes any of the following entities that provide or administer the coverage of mental health benefits on behalf of a health insurance plan:

(A)  a review agent as defined in section 4089a of this title;

(B)  a health insurer or an affiliate of a health insurer as defined in section 9402 of Title 18;

(C)  a managed care organization or an affiliate of a managed care organization as defined in section 9402 of Title 18; and

(D)  a person or entity that should be licensed as a managed care organization.

(d)(e)  Notwithstanding the provisions of subdivision (c)(1) of this section, a A health insurance plan shall be construed to be in compliance with this section if at least one choice for treatment of mental health conditions provided to the insured within the plan has rates, terms and conditions that place no greater financial burden on the insured than for access to treatment of physical other health conditions. The commissioner may disapprove any plan that the commissioner determines to be inconsistent with the purposes of this section.

(e)(f) To be eligible for coverage under this section the service shall be rendered:

(1) For treatment of mental illness:

(A) by a licensed or certified mental health professional; or

(B) in a mental health facility qualified pursuant to rules adopted by the secretary of human services or in an institution, approved by the secretary of human services, that provides a program for the treatment of a mental health condition pursuant to a written plan. A nonprofit hospital or a medical service corporation may require a mental health facility or licensed or certified mental health professional to enter into a contract as a condition of providing benefits.

(2) For treatment of alcohol or substance abuse:

(A) by a substance abuse counselor or other person approved by the secretary of human services based on rules adopted by the secretary that establish standards and criteria for determining eligibility under this subdivision; or

(B) in an institution, approved by the secretary of human services, that provides a program for the treatment of alcohol or substance dependency pursuant to a written plan.

(f)(g)  On or before July 15 of each year, health insurance companies doing business in Vermont, and whose individual share of the commercially-insured Vermont market, as measured by covered lives, comprises at least five percent of the commercially-insured Vermont market, shall file with the commissioner, in accordance with standards, procedures, and forms approved by the commissioner:

(1) A report card on the health insurance plan's performance in relation to quality measures for the care, treatment, and treatment options of mental health and substance abuse conditions covered under the plan, pursuant to standards and procedures adopted by the commissioner by rule, and without duplicating any reporting required of such companies pursuant to Rule 10 of the division of health care administration, "Quality Assurance Standards and Consumer Protections for Managed Care Plans," and regulation 95-2, "Mental Health Review Agents," of the division of insurance, as amended, including:

(A) the discharge rates from inpatient mental health and substance abuse care and treatment of insureds;

(B) the average length of stay and number of treatment sessions for insureds receiving inpatient and outpatient mental health and substance abuse care and treatment;

(C) the percentage of insureds receiving inpatient and outpatient mental health and substance abuse care and treatment;

(D) the number of insureds denied mental health and substance abuse care and treatment;

(E) the number of denials appealed by patients reported separately from the number of denials appealed by providers;

(F) the rates of readmission to inpatient mental health and substance abuse care and treatment for insureds with a mental health condition;

(G) the level of patient satisfaction with the quality of the mental health and substance abuse care and treatment provided to insureds under the health insurance plan; and

(H) any other quality measure established by the commissioner.

(2) [Repealed.]  The health insurance plan’s revenue loss and expense ratio relating to the care and treatment of mental health conditions covered under the health insurance plan.  The expense ratio report shall list amounts paid in claims for services and administrative costs separately.

(g)(h)  The commissioner shall establish a task force to develop performance quality measures, and address oversight issues for managed behavioral health care organizations, and review the results of any quality improvement projects not otherwise confidential or privileged, undertaken by managed care organizations for mental health and substance abuse care and treatment under subdivision (d)(1)(A)(vii) of this section and section 9414(i) of Title 18.  The task force shall report to the senate committees on health and welfare of the senate and the house of representatives committees on health care and on human services on or before January 15 of each year with a report on the activities and recommendations of the task force.  The task force shall include the following:

(1)  the commissioner of developmental and mental health services or a designee;

(2)  the director of the office of Vermont health access or a designee;

(3)  the commissioner of banking, insurance, securities, and health care administration or a designee;

(4)  the deputy commissioner of the department of health for alcohol and drug abuse programs or a designee;

(4)(5)  fourteen additional members appointed by the commissioner of banking, insurance, securities, and health care administration, including:

(A)  four representatives of the health insurance and behavioral managed care organization industry;

(B)  two consumers, after consultation with the health care ombudsman;

(C)  one psychologist, after consultation with the Vermont psychological association;

(D)  one psychiatrist, after consultation with the Vermont psychiatric association;

(E)  one social worker, after consultation with the National Association of Social Workers, Vermont Chapter;

(F)  one mental health counselor, after consultation with the Vermont mental health counselors association;

(G)  one drug and alcohol counselor, after consultation with the Vermont association of drug and alcohol counselors;

(H)  one representative from a consumer or citizen's organization;

(I)  one representative from the business community; and

(J)  one representative of community mental health centers.

Sec. 2.  18 V.S.A. § 9414(g) is amended to read:

(g)(1)  If In addition to any other remedy or sanction provided by law, after notice and an opportunity to be heard, if the commissioner determines that a managed care organization has violated or failed to comply with any of the provisions of this section or any rule adopted pursuant to this section, the commissioner may:

(A)  sanction the violation or failure to comply as provided in Title 8, including sanctions provided by or incorporated in sections 5108 and 5109 of Title 8 and section 4726 of Title 8, and may use any information obtained during the course of any legal or regulatory action against a managed care organization;

(B)  order the managed care organization to cease and desist in further violations; and

(C)  order the managed care organization to remediate the violation, including issuing an order to the managed care organization to terminate its contract with any person or entity which administers claims or the coverage of benefits on behalf of the managed care organization.

(2)  A managed care organization that contracts with a person or entity to administer claims or provide coverage of health benefits is fully responsible for the acts and omissions of such person or entity.  Such person or entity shall comply with all obligations, under this title and Title 8, of the health insurance plan and the health insurer on behalf of which the such person or entity is providing or administering coverage.

(3)  A violation of any provision of this section or a rule adopted pursuant to this section shall constitute an unfair act or practice in the business of insurance in a violation of section 4723 of Title 8.

Sec. 3.  18 V.S.A. § 9414(i) is added to read:

(i)  Upon review of the managed care organization’s clinical data, or after consideration of claims or other data, the commissioner may:

(1)  identify quality issues in need of improvement; and

(2)  direct the managed care organization to propose quality improvement initiatives to remediate those issues.

Sec. 4.  EFFECTIVE DATE; LEGISLATIVE INTENT; APPLICABILITY

(a)  This act shall take effect upon passage.

(b)  The provisions of 8 V.S.A. § 4089b(d)(2) and (3), and 18 V.S.A. § 9414(g)(2) and (3) are intended to clarify existing law.  The remedies provided for in 8 V.S.A. § 4089b(d)(4), and 18 V.S.A. § 9414(g)(1) shall apply to legal or regulatory violations that occur before and after passage of this act.

And after passage, the title of the bill is to be amended to read:

     AN ACT RELATING TO ENHANCING REGULATION OF MENTAL HEALTH SERVICES.

Thereupon, pending the question, Shall the Senate concur in the House proposal of amendment?, on motion of Senator Shumlin, consideration was postponed until the next legislative day.

Rules Suspended; House Proposal of Amendment Not Concurred In; Committee of Conference Requested; Committee of Conference Appointed

S. 336.

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

An act relating to juvenile proceedings.

Was taken up for immediate consideration.

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

First:  In Sec. 1, 33 V.S.A., by striking out chapter 51 in its entirety and inserting in lieu thereof a new chapter 51 to read as follows:

Chapter 51.  GENERAL PROVISIONS

§ 5101.  Purposes  

(a)  The juvenile judicial proceedings chapters shall be construed in accordance with the following purposes:

(1)  To provide for the care, protection, education, and healthy mental, physical, and social development of children coming within the provisions of the juvenile judicial proceedings chapters.

(2)  To remove from children committing delinquent acts the taint of criminality and the consequences of criminal behavior and to provide supervision, care, and rehabilitation which assure:

(A)  balanced attention to the protection of the community;

(B)  accountability to victims and the community for offenses; and

(C)  the development of competencies to enable children to become responsible and productive members of the community.

(3)  To preserve the family and to separate a child from his or her parents only when necessary to protect the child from serious harm or in the interests of public safety.

(4)  To assure that safety and timely permanency for children are the paramount concerns in the administration and conduct of proceedings under the juvenile judicial proceedings chapters.

(5)  To achieve the foregoing purposes, whenever possible, in a family environment, recognizing the importance of positive parent-child relationships to the well-being and development of children.

(6)  To provide judicial proceedings through which the provisions of the juvenile judicial proceedings chapters are executed and enforced and in which the parties are assured a fair hearing, and their constitutional and other legal rights are recognized and enforced.

(b)  The provisions of the juvenile judicial proceedings chapters shall be construed as superseding the provisions of the criminal law of this state to the extent the same are inconsistent with this chapter.

§ 5102.  Definitions and provisions of general application  

As used in the juvenile judicial proceedings chapters, unless the context otherwise requires:

(1)  “Care provider” means a person other than a parent, guardian, or custodian who is providing the child with routine daily care but to whom custody rights have not been transferred by a court.

(2)  “Child” means any of the following:

(A)  An individual who is under the age of 18 and is a child in need of care or supervision as defined in subdivision (3)(A), (B), or (D) of this section (abandoned, abused, without proper parental care, or truant).

(B)(i)  An individual who is under the age of 18, is a child in need of care or supervision as defined in subdivision (3)(C) of this section (beyond parental control), and was under the age of 16 at the time the petition was filed; or

(ii)  an individual who is between the ages of 16 to 17.5, is a child in need of care or supervision as defined in subdivision (3)(C) of this section (beyond parental control), and who is at high risk of serious harm to himself or herself or others due to problems such as substance abuse, prostitution, or homelessness.

(C)  An individual who has been alleged to have committed or has committed an act of delinquency after becoming ten years of age and prior to becoming 18 years of age; provided, however:

(i)  that an individual who is alleged to have committed an act specified in subsection 5204(a) of this title after attaining the age of 10 but not the age of 14 may be treated as an adult as provided therein;

(ii)  that an individual who is alleged to have committed an act specified in subsection 5204(a) of this title after attaining the age of 14 but not the age of 16 shall be subject to criminal proceedings as in cases commenced against adults, unless transferred to the court in accordance with the juvenile judicial proceedings chapters;

(iii)  that an individual who is alleged to have committed an act before attaining the age of 10 which would be murder as defined in section 2301 of Title 13 if committed by an adult may be subject to delinquency proceedings; and

(iv)  that an individual may be considered a child for the period of time the court retains jurisdiction under section 5104 of this title.   

(3)  “Child in need of care or supervision (CHINS)” means a child who:

(A)  has been abandoned or abused by the child’s parent, guardian, or custodian.  A person is considered to have abandoned a child if the person is: unwilling to have physical custody of the child; unable, unwilling, or has failed to make appropriate arrangements for the child’s care; unable to have physical custody of the child and has not arranged or cannot arrange for the safe and appropriate care of the child; or has left the child with a care provider and the care provider is unwilling or unable to provide care or support for the child, the whereabouts of the person are unknown, and reasonable efforts to locate the person have been unsuccessful.

(B)  is without proper parental care or subsistence, education, medical, or other care necessary for his or her well-being;

(C)  is without or beyond the control of his or her parent, guardian, or custodian; or

(D)  is habitually and without justification truant from compulsory school attendance.

(4)  “Commissioner” means the commissioner of the department for children and families or the commissioner’s designee.

(5)  “Conditional custody order” means an order issued by the court in a juvenile proceeding conferring legal custody of a child to a parent, guardian, relative, or a person with a significant relationship with the child subject to such conditions and limitations as the court may deem necessary to provide for the safety and welfare of the child.

(6)  “Court” means the Vermont family court.

(7)  “Custodial  parent” means a parent who, at the time of the commencement of the juvenile proceeding, has the right and responsibility to provide the routine daily care and control of the child.  The rights of the custodial parent may be held solely or shared and may be subject to the court-ordered right of the other parent to have contact with the child.

(8)  “Custodian” means a person other than a parent or legal guardian to whom legal custody of the child has been given by order of a Vermont family or probate court or a similar court in another jurisdiction.

(9)  “Delinquent act” means an act designated a crime under the laws of this state, or of another state if the act occurred in another state, or under federal law.  A delinquent act shall include 7 V.S.A. §§ 656 and 657; however, it shall not include:

(A)  Snowmobile offenses in subchapter 1 and motorboat offenses in subchapter 2 of chapter 29 of Title 23, except for violations of sections 3207a, 3207b, 3207c, 3207d, and 3323.

(B)  Motor vehicle offenses committed by an individual who is at least 16 years of age, except for violations of subchapter 13 of chapter 13 and of section 1091 of Title 23.        

(10)  “Delinquent child” means a child who has been adjudicated to have committed a delinquent act.

(11)  “Department” means the department for children and families.

(12)  “Guardian” means a person who, at the time of the commencement of the juvenile judicial proceeding, has legally established rights to a child pursuant to an order of a Vermont probate court or a similar court in another jurisdiction.

(13)  “Judge” means a judge of the family court.

(14)  “Juvenile judicial proceedings chapters” means this chapter and chapters 52 and 53 of this title.

(15)  “Juvenile proceeding” means a proceeding in the family court under the authority of the juvenile judicial proceedings chapters.

(16)(A)  “Legal custody” means the legal status created by order of the court under the authority of the juvenile judicial proceedings chapters which invests in a party to a juvenile proceeding or another person the following rights and responsibilities:

(i)  The right to routine daily care and control and to determine where and with whom the child shall live.

(ii)  The authority to consent to major medical, psychiatric, and surgical treatment for a child.

(iii)  The responsibility to protect and supervise a child and to provide the child with food, shelter, education, and ordinary medical care. 

(iv)  The authority to make decisions which concern the child and are of substantial legal significance, including the authority to consent to marriage and enlistment in the armed forces of the United States, and the authority to represent the child in legal actions.

(B)  If legal custody is transferred to a person other than a parent, the rights, duties, and responsibilities so transferred are subject to the residual parental rights of the parents.

(17)  “Listed crime” means the same as defined in 13 V.S.A. § 5301.

(18)  “Noncustodial parent” means a parent who is not a custodial parent at the time of the commencement of the juvenile proceeding.

(19)  “Officer” means a law enforcement officer, including a state police officer, sheriff, deputy sheriff, municipal police officer, or constable who has been certified by the criminal justice training council pursuant to section 2358 of Title 20.

(20)  “Parent” means a child’s biological or adoptive parent, including custodial parents, noncustodial parents, parents with legal or physical responsibilities or both and parents whose rights have never been adjudicated.

(21)  “Parent-child contact” means the right of a parent to have visitation with the child by court order.

(22)  “Party” includes the following persons:

(A)  The child with respect to whom the proceedings are brought.

(B)  The custodial parent, the guardian, or the custodian of the child in all instances except a hearing on the merits of a delinquency petition. 

(C)  The noncustodial parent for the purposes of custody, visitation, and such other issues  which the court may determine are proper and necessary to the proceedings, provided that the noncustodial parent has entered an appearance.

(D)  The state’s attorney.

(E)  The commissioner.

(F)  Such other persons as appear to the court to be proper and necessary to the proceedings.

(23)  “Probation” means the legal status created by order of the family court in proceedings involving a violation of law whereby a delinquent child is subject to supervision by the department under conditions specified in the court’s juvenile probation certificate and subject to return to and change of legal status by the family court for violation of conditions of probation at any time during the period of probation.

(24)  “Protective supervision” means the authority granted by the court to the department in a juvenile proceeding to take reasonable steps to monitor compliance with the court’s conditional custody order, including unannounced visits to the home in which the child currently resides.

(25)  “Reasonable efforts” means the exercise of due diligence by the department to use appropriate and available services to prevent unnecessary removal of the child from the home or to finalize a permanency plan.  When making the reasonable efforts determination, the court may find that no services were appropriate or reasonable considering the circumstances.  If the court makes written findings that aggravated circumstances are present, the court may make, but shall not be required to make, written findings as to whether reasonable efforts were made to prevent removal of the child from the home.  Aggravated circumstances may exist if:

(A)  a court of competent jurisdiction has determined that the parent has subjected a child to abandonment, torture, chronic abuse, or sexual abuse;

(B)  a court of competent jurisdiction has determined that the parent has been convicted of murder or manslaughter of a child;

(C)  a court of competent jurisdiction has determined that the parent has been convicted of a felony crime that results in serious bodily injury to the child or another child of the parent; or

(D)  the parental rights of the parent with respect to a sibling have been involuntarily terminated.

(26)  “Residual parental rights and responsibilities” means those rights and responsibilities remaining with the parent after the transfer of legal custody of the child, including the right to reasonable contact with the child, the responsibility for support, and the right to consent to adoption.

(27)  “Shelter” means a shelter designated by the commissioner where a child taken into custody pursuant to subdivision 5301(3) of this title may be held for a period not to exceed seven days.

(28)  “Youth” shall mean a person who is the subject of a motion for youthful offender status or who has been granted youthful offender status.

§ 5103.  Jurisdiction  

(a)  The family court shall have exclusive jurisdiction over all proceedings concerning a child who is or who is alleged to be a delinquent child or a child in need of care or supervision brought under the authority of the juvenile judicial proceedings chapters, except as otherwise provided in such chapters.

(b)  Orders issued under the authority of the juvenile judicial proceedings chapters shall take precedence over orders in other family court proceedings and any order of another court of this state, to the extent they are inconsistent.  This section shall not apply to child support orders in a divorce, parentage, or relief from abuse proceedings until a child support order has been issued in the juvenile proceeding.

(c)  Except as otherwise provided by this title, jurisdiction over a child shall not be extended beyond the child’s 18th birthday.

(d)  The court may terminate its jurisdiction over a child prior to the child’s 18th birthday by order of the court.  If the child is not subject to another juvenile proceeding, jurisdiction shall terminate automatically in the following circumstances:

(1)  Upon the discharge of a child from juvenile probation, providing the child is not in the legal custody of the commissioner.

(2)  Upon an order of the court transferring legal custody to a parent, guardian, or custodian without conditions or protective supervision.

(3)  Upon the adoption of a child following a termination of parental rights proceeding.

§ 5104.   Retention of jurisdiction over youthful offenders    

(a)  The family court may retain jurisdiction over a youthful offender up to the age of 22.

(b)  In relation to the retention of jurisdiction provision of subsection (a) of this section, any party may request, or the court on its own motion may schedule, a hearing to determine the propriety of extending the jurisdictional time period.  This hearing shall be held within the three-month time period immediately preceding the child’s 18th birthday, and the order of continued jurisdiction shall be executed by the court on or before that birthday. In determining the need for continued jurisdiction, the court shall consider the following factors:

(1)  the extent and nature of the child’s record of delinquency;

(2)  the nature of past and current treatment efforts and the nature of the child’s response to them;

(3)  the prospects for reasonable rehabilitation of the child by use of procedures, services, and facilities currently available to the court; and

(4)  whether the safety of the community will best be served by a continuation of jurisdiction.

(c)  A hearing under subsection (b) of this section shall be held in accordance with the procedures provided in section 5113 of this title.

§ 5105.  Venue and Change of Venue 

(a)  Proceedings under the juvenile judicial proceedings chapters may be commenced in the county where:

(1)  the child is domiciled;

(2)  the acts constituting the alleged delinquency occurred; or

(3)  the child is present when the proceedings commenced, if it is alleged that a child is in need of care or supervision.

(b)  If a child or a parent, guardian, or custodian changes domicile during the course of a proceeding under the juvenile judicial proceedings chapters or if the petition is not brought in the county in which the child is domiciled, the court may change venue upon the motion of a party or its own motion, taking into consideration the domicile of the child and the convenience of the parties and witnesses.

§ 5106.  Powers and duties of commissioner

Subject to the limitations of the juvenile judicial proceedings chapters or those imposed by the court, and in addition to any other powers granted to the commissioner under the laws of this state, the commissioner has the following authority with respect to a child who is or may be the subject of a petition brought under the juvenile judicial proceedings chapters: 

(1)  To undertake assessments and make reports and recommendations to the court as authorized by the juvenile judicial proceedings chapters.

(2)  To investigate complaints and allegations that a child is in need of care or supervision for the purpose of considering the commencement of proceedings under the juvenile judicial proceedings chapters.

(3)  To supervise and assist a child who is placed under the commissioner’s supervision or in the commissioner’s legal custody by order of the court.

(4)  To place a child who is in the commissioner’s  legal custody in a family home or a treatment, rehabilitative, detention, or educational facility or institution subject to the provisions of sections 5292 and 5293 of this title.  To the extent that it is appropriate and possible siblings in the commissioner’s custody shall be placed together. 

(5)  To make appropriate referrals to private or public agencies.

(6)  To perform such other functions as are designated by the juvenile judicial proceedings chapters.

§ 5107.  Contempt power   

Subject to the laws relating to the procedures therefor and the limitations thereon, the court has the power to punish any person for contempt of court for disobeying an order of the court or for obstructing or interfering with the proceedings of the court or the enforcement of its orders.

§ 5108.  Authority to issue warrants  

(a)  The court may order a parent, guardian, or custodian to appear at any hearing or to appear at the hearing with the child who is the subject of a petition.

(b)  If, after being summoned, cited, or otherwise notified to appear, a party fails to do so, the court may issue a warrant for the person’s appearance.  If the child is with the parent, guardian, or custodian, the court may issue a warrant for the person to appear in court with the child or, in the alternative, the court may issue an order for an officer to pick up the child and bring the child to court.

(c)  If a summons cannot be served or the welfare of the child requires that the child be brought forthwith to the court, the court may issue a warrant for the parent, guardian, or custodian to appear in court with the child.  In the alternative, the court may issue an order for an officer to pick up the child and bring the child to court during court hours.

(d)  A person summoned who fails to appear without reasonable cause may be found in contempt of court.

§ 5109.  Subpoena 

Upon application of a party or on the court’s own motion, the clerk of the court shall issue subpoenas requiring attendance and testimony of witnesses and production of papers at any hearing under the juvenile judicial proceedings chapters.

§ 5110.  Conduct of hearings 

(a)  Hearings under the juvenile judicial proceedings chapters shall be conducted by the court without a jury and shall be confidential.  

(b)  The general public shall be excluded from hearings under the juvenile judicial proceedings chapters, and only the parties, their counsel, witnesses, persons accompanying a party for his or her assistance, and such other persons as the court finds to have a proper interest in the case or in the work of the court, may be admitted by the court.  This subsection shall not prohibit a victim’s exercise of his or her rights under sections 5333 and 5234 of this title, and as otherwise provided by law. 

(c)  There shall be no publicity given by any person to any proceedings under the authority of the juvenile judicial proceedings chapters except with the consent of the child, the child’s guardian ad litem, and the child’s parent, guardian, or custodian.  A person who violates this provision may be subject to contempt proceedings pursuant to Rule 16 of the Vermont Rules for Family Proceedings.

§ 5111.  Noncustodial Parents    

(a)  If a child is placed in the legal custody of the department and the identity of a parent has not been legally established at the time the petition is filed, the court may order that the mother, the child, and the alleged father submit to genetic testing and may issue an order establishing parentage pursuant to subchapter 3A of Title 15.  A parentage order issued pursuant to this subsection shall not be deemed to be a confidential record.

(b)  If a child is placed in the legal custody of the department, the department shall make reasonably diligent efforts to locate a noncustodial parent as early in the proceedings as possible, and notify the court of the noncustodial parent’s address.  A hearing shall not be delayed by reason of the inability of the department to locate or serve a noncustodial parent. 

(c)  The court may order a custodial parent to provide the department with information regarding the identity and location of a noncustodial parent.

(d)  As soon as his or her address is known, a noncustodial parent shall be served with the petition and a copy of the summons.  Thereafter, the court shall mail notices of the hearing to the noncustodial parent.  The noncustodial parent shall be responsible for providing the court with information regarding any changes in address.

§ 5112.  Attorney and guardian ad litem for child  

(a)  The court shall appoint an attorney for a child who is a party to a proceeding brought under the juvenile judicial proceedings chapters. 

(b)  The court shall appoint a guardian ad litem for a child who is a party to a proceeding brought under the juvenile judicial proceedings chapters.  In a delinquency proceeding, a parent, guardian, or custodian of the child may serve as a guardian ad litem for the child, providing his or her interests do not conflict with the interests of the child.  The guardian ad litem appointed under this section shall not be a party to that proceeding or an employee or representative of such party.

§ 5113.  Modification or vacation of orders 

(a)  An order of the court may be set aside in accordance with Rule 60 of the Vermont Rules of Civil Procedure.

(b)  Upon motion of a party or the court’s own motion, the court may amend, modify, set aside, or vacate an order on the grounds that a change in circumstances requires such action to serve the best interests of the child.  The motion shall set forth in concise language the grounds upon which the relief is requested.

(c)  Any order under this section shall be made after notice and hearing; however, the court may waive the hearing upon stipulation of the parties.  All evidence helpful in determining the questions presented, including hearsay, may be admitted and relied upon to the extent of its probative value, even though not competent in a hearing on the petition.

§ 5114.  Best interests of the child 

(a)  At the time of a permanency review under section 5321 of this title, a modification hearing under section 5113 of this title, or at any time a petition or request to terminate all residual parental rights of a parent without limitation as to adoption is filed by the commissioner or the attorney for the child, the court shall consider the best interests of the child in accordance with the following:

(1)  The interaction and interrelationship of the child with his or her parents, siblings, foster parents, if any, and any other person who may significantly affect the child’s best interests.

(2)  The child’s adjustment to his or her home, school, and community.

(3)  The likelihood that the parent will be able to resume or assume parental duties within a reasonable period of time.

(4)  Whether the parent has played and continues to play a constructive role, including personal contact and demonstrated love and affection, in the child’s welfare.

(b)  Except in cases where a petition or request to terminate all residual parental rights of a parent without limitation as to adoption is filed by the commissioner or the attorney for the child, the court shall also consider whether the parent is capable of playing a constructive role, including demonstrating love and affection, in the child’s welfare.

§ 5115.  Protective order 

(a)  On motion of a party or on the court’s own motion, the court may make an order restraining or otherwise controlling the conduct of a person if the court finds that such conduct is or may be detrimental or harmful to a child.

(b)  The person against whom the order is directed shall be served with notice of the motion and the grounds therefor and be given an opportunity to be heard.

(c)  Upon a showing that there is a risk of immediate harm to a child, the court may issue a protective order ex parte.  A hearing on the motion shall be held no more than 10 days after the issuance of the order.

(d)  The court may review any protective order at a subsequent hearing to determine whether the order should remain in effect.

(e)  A person who is the subject of an order issued pursuant to this section who violates a provision of the order that concerns contact between the child and that person shall be punished in accordance with 13 V.S.A. § 1030.

§ 5116.  Costs and expenses for care of child 

(a)  The commissioner may incur such expenses for the proper care, maintenance, and education of a child, including without limitation, the expenses of medical, surgical, or psychiatric examination or treatment, as the commissioner considers necessary in connection with proceedings under the juvenile judicial proceedings chapters.

(b)  The costs of any proceeding under the juvenile judicial proceedings chapters incurred under the provisions of Title 33 shall be borne by the court.

(c)  The court may, in any order of disposition under the juvenile judicial proceedings chapters, make and enforce by levy and execution an order of child support to be paid by the parent of the child.

(d)  The court may delegate to the office of magistrate its authority to make and enforce an order of child support to be paid by the parent of a child.

(e)  A child support order shall only remain in effect as long as the child who is the subject of the support order is in the legal custody of the commissioner and placed with someone other than the parent or parents responsible for support.

(f)  Except as otherwise provided in section 5119 of this title, orders issued pursuant to this section shall not be confidential.

(g)  Notwithstanding subsection 5103(b) of this title, an order terminating a parent’s residual parental rights ends that parent’s obligation to pay child support.  However, in no event shall an order terminating residual parental rights terminate an obligation for child support arrearages accrued by the parent prior to the date of the termination of parental rights order.

§ 5117.  records OF JUVENILE JUDICIAL PROCEEDINGS  

(a)  Except as otherwise provided, court and law enforcement reports and files concerning a person subject to the jurisdiction of the court shall be maintained separate from the records and files of other persons.  Unless a charge of delinquency is transferred for criminal prosecution under chapter 52 of this title or the court otherwise orders in the interests of the child, such records and files shall not be open to public inspection nor their contents disclosed to the public by any person.  However, upon a finding that a child is a delinquent child by reason of commission of a delinquent act which would have been a felony if committed by an adult, the court, upon request of the victim, shall make the child’s name available to the victim of the delinquent act.  If the victim is incompetent or deceased, the child’s name shall be released, upon request, to the victim’s guardian or next of kin.

(b)(1)  Notwithstanding the foregoing, inspection of such records and files by the following is not prohibited:

(A)  A court having the child before it in any juvenile judicial proceeding.

(B)  The officers of public institutions or agencies to whom the child is committed as a delinquent child.

(C)  A court in which a person is convicted of a criminal offense for the purpose of imposing sentence upon or supervising the person, or by officials of penal institutions and other penal facilities to which the person is committed, or by a parole board in considering the person’s parole or discharge or in exercising supervision over the person.

(D)  Court personnel, the state’s attorney or other prosecutor authorized to prosecute criminal or juvenile cases under state law, the child’s guardian ad litem, the attorneys for the parties, probation officers, and law enforcement officers who are actively participating in criminal or juvenile proceedings involving the child.

(E)  The child who is the subject of the proceeding, the child’s parents, guardian, custodian, and guardian ad litem may inspect such records and files upon approval of the family court judge.

(F)  Any other person who has a need to know may be designated by order of the family court.

(2)  Records and files inspected under this subsection shall be marked: UNLAWFUL DISSEMINATION OF THIS INFORMATION IS A CRIME PUNISHABLE BY A FINE UP TO $2,000.00.

(c)  Upon motion of a party in a divorce or parentage proceeding related to parental rights and responsibilities for a child or parent-child contact, the court may order that court records in a juvenile proceeding involving the same child or children be released to the parties in the divorce proceeding.  The public shall not have access to records from a juvenile proceeding that are filed with the court or admitted into evidence in the divorce or parentage proceeding.

(d)  Such records and files shall be available to state’s attorneys and all other law enforcement officers in connection with record checks and other legal purposes.

(e)  Any records or reports relating to a matter within the jurisdiction of the court prepared by or released by the court or the department for children and families, any portion of those records or reports, and information relating to the contents of those records or reports shall not be disseminated by the receiving persons or agencies to any persons or agencies, other than those persons or agencies authorized to receive documents pursuant to this section.

(f)  This section does not provide access to records sealed in accordance with section 5119 of this title unless otherwise provided in section 5119.

§ 5118.  Limited exception to confidentiality of records of juveniles maintained by the family court 

(a)  For the purposes of this section:

(1)  “Delinquent act requiring notice” means conduct resulting in a delinquency adjudication related to a listed crime as defined in 13 V.S.A. § 5301(7).

(2)  “Independent school” means an approved or recognized independent school under 16 V.S.A. § 166.

(b)  While records of juveniles maintained by the family court should be kept confidential, it is the policy of the general assembly to establish a limited exception for the overriding public purposes of rehabilitating juveniles and protecting students and staff within Vermont’s public and independent schools.

(c)  Notwithstanding any law to the contrary, a court finding that a child has committed a delinquent act requiring notice shall, within seven days of such finding, provide written notice to the superintendent of schools for the public school in which the child is enrolled or, in the event the child is enrolled in an independent school, the school’s headmaster.

(d)  The written notice shall contain only a description of the delinquent act found by the court to have been committed by the child and shall be marked: “UNLAWFUL DISSEMINATION OF THIS INFORMATION IS A CRIME PUNISHABLE BY A FINE UP TO $2,000.00.”  The envelope in which the notice is sent by the court shall be marked:  “CONFIDENTIAL:  TO BE OPENED BY THE SUPERINTENDENT OR HEADMASTER ONLY.”

(e)  The superintendent or headmaster, upon receipt of the notice, shall inform only those persons within the child’s school with a legitimate need to know of the delinquent act, and only after first evaluating rehabilitation and protection measures that do not involve informing staff or students.  Persons with a legitimate need to know are strictly limited to only those for whom the information is necessary for the rehabilitation program of the child or for the protection of staff or students.  “Need to know” shall be narrowly and strictly interpreted.  Persons receiving information from the superintendent or headmaster shall not, under any circumstances, discuss such information with any other person except the child, the child’s parent, guardian, or custodian, others who have been similarly informed by the superintendent or headmaster, law enforcement personnel, or the juvenile’s probation officer.

(f)  The superintendent and headmaster annually shall provide training to school staff about the need for confidentiality of such information and the penalties for violation of this section.

(g)  The written notice shall be maintained by the superintendent or headmaster in a file separate from the child’s education record.  If the child transfers to another public or independent school, the superintendent or headmaster shall forward the written notice in the original marked envelope to the superintendent or headmaster for the school to which the child transferred.  If the child either graduates or turns 18 years of age, the superintendent or headmaster then possessing the written notice shall destroy such notice.

(h)  If legal custody of the child is transferred to the commissioner, or if the commissioner is supervising the child’s probation, upon the request by a superintendent or headmaster, the commissioner shall provide to the superintendent or headmaster information concerning the child which the commissioner determines is necessary for the child’s rehabilitation or for the protection of the staff or students in the school in which the child is enrolled.

(i)  A person who intentionally violates the confidentiality provisions of this section shall be fined not more than $2,000.00.

(j)  Except as provided in subsection (i) of this section, no liability shall attach to any person who transmits, or fails to transmit, the written notice required under this section.

§ 5119.  Sealing of records  

(a)(1)  In matters relating to a child who has been adjudicated delinquent on or after July 1, 1996, the court shall order the sealing of all files and records related to the proceeding if two years have elapsed since the final discharge of the person unless, on motion of the state’s attorney, the court finds: 

(A)  the person has been convicted of a listed crime as defined in 13 V.S.A. § 5301 or adjudicated delinquent of such an offense after such initial adjudication, or a proceeding is pending seeking such conviction or adjudication; or 

(B)  rehabilitation of the person has not been attained to the satisfaction of the court. 

(2)  At least 60 days prior to the date upon which a person is eligible to have his or her delinquency record automatically sealed pursuant to subdivision (1) of this subsection, the court shall provide such person’s name and other identifying information to the state’s attorney in the county in which the person was adjudicated delinquent.  The state’s attorney may object, and a hearing may be held to address the state’s attorney’s objection. 

(3)  The order to seal shall include all the files and records relating to the matter in accordance with subsection (d) of this section; however, the court may limit the order to the court files and records only upon good cause shown by the state’s attorney.

(4)  The process of sealing files and records under this subsection for a child who was adjudicated delinquent on or after July 1, 1996, but before July 1, 2001 shall be completed by January 1, 2010.  The process of sealing files and records under this subsection for a child who was adjudicated delinquent on or after July 1, 2001 but before July 1, 2004 shall be completed by January 1, 2008. 

(b)  In matters relating to a child who has been adjudicated delinquent prior to July 1, 1996, on application of the child or on the court’s own motion and after notice to all parties of record and hearing, the court shall order the sealing of all files and records related to the proceeding if it finds: 

(1)  the person has not been convicted of a listed crime as defined in 13 V.S.A. § 5301 or adjudicated delinquent for such an offense after such initial adjudication, and no new proceeding is pending seeking such conviction or adjudication; and 

(2)  the person’s rehabilitation has been attained to the satisfaction of the court. 

(c)  On application of a person who, while a child, was found to be in need of care or supervision or, on the court’s own motion, after notice to all parties of record and hearing, the court may order the sealing of all files and records related to the proceeding if it finds: 

(1)  the person has reached the age of majority; and

(2)  sealing the person’s record is in the interest of justice.

(d)  Except as provided in subdivision (a)(3) and subsection (h) of this section or otherwise provided, orders issued in accordance with this section shall include the files and records of the court, law enforcement, prosecution, and the department for children and families related to the specific court proceeding that is the subject of the sealing. 

(e)(1)  Except as provided in subdivision (2) of this subsection, upon the entry of an order sealing such files and records under this section, the proceedings in the matter under this act shall be considered never to have occurred, all general index references thereto shall be deleted, and the person, the court, and law enforcement officers and departments shall reply to any request for information that no record exists with respect to such person upon inquiry in any matter.  Copies of the order shall be sent to each agency or official named in the order. 

(2)(A)  Any court, agency, or department that seals a record pursuant to an order under this section may keep a special index of files and records that have been sealed.  This index shall only list the name and date of birth of the subject of the sealed files and records and the docket number of the proceeding which was the subject of the sealing.  The special index shall be confidential and may be accessed only for purposes for which a department or agency may request to unseal a file or record pursuant to subsection (f) of this section. 

(B)  Access to the special index shall be restricted to the following persons: 

(i)  the commissioner and general counsel of any administrative department; 

(ii)  the secretary and general counsel of any administrative agency;

(iii)  a sheriff;

(iv)  a police chief; 

(v)  a state’s attorney; 

(vi)  the attorney general; 

(vii)  the director of the Vermont crime information center; and

(viii)  a designated clerical staff person in each office identified in subdivisions (i)–(viii) of this subdivision (B) who is necessary for establishing and maintaining the indices for persons who are permitted access. 

(C)  Persons authorized to access an index pursuant to subdivision (B) of this subdivision (2) may access only the index of their own department or agency. 

(f)(1)  Except as provided in subdivisions (2), (3), and (4) of this subsection, inspection of the files and records included in the order may thereafter be permitted by the court only upon petition by the person who is the subject of such records, and only to those persons named in the record. 

(2)  Upon a confidential motion of any department or agency that was required to seal files and records pursuant to subsection (d) of this section, the court may permit the department or agency to inspect its own files and records if it finds circumstances in which the department or agency requires access to such files and records to respond to a legal action, a legal claim, or an administrative action filed against the department or agency in relation to incidents or persons that are the subject of such files and records.  The files and records shall be unsealed only for the minimum time necessary to address the circumstances enumerated in this subdivision, at which time the records and files shall be resealed. 

(3)  Upon a confidential motion of the department for children and families, the court may permit the department to inspect its own files and records if the court finds extraordinary circumstances in which the state’s interest in the protection of a child clearly outweighs the purposes of the juvenile sealing law and the privacy rights of the person or persons who are the subjects of the record, and the sealed record is necessary to accomplish the state’s interest.  The motion may be heard ex parte if the court, based upon an affidavit, finds a compelling purpose exists to deny notice to the subject of the files and records when considering whether to grant the order.  If the order to unseal is issued ex parte, the court shall send notice of the unsealing to the subject of the files and records within 20 days unless the department provides a compelling reason why the subject of the files and records should not receive notice.  The files and records shall be unsealed only for the minimum time necessary to address the extraordinary circumstances, at which time the files and records shall be resealed. 

(4)  Upon a confidential motion of a law enforcement officer or prosecuting attorney, the court may permit the department or agency to inspect its own files and records if the court finds extraordinary circumstances in which the state’s interest in public safety clearly outweighs the purposes of the juvenile sealing law and the privacy rights of the person or persons who are the subjects of the record, and the sealed record is necessary to accomplish the state’s interest.  The motion may be heard ex parte if the court, based upon an affidavit, finds a compelling public safety purpose exists to deny notice to the subject of the files and records when considering whether to grant the order.  If the order to unseal is issued ex parte, the court shall send notice of the unsealing to the subject of the files and records within 20 days unless the law enforcement officer or prosecuting attorney provides a compelling public safety reason why the subject of the files and records should not receive notice.  The files and records shall be unsealed only for the minimum time necessary to address the extraordinary circumstances, at which time the files and records shall be resealed. 

(5)  The order unsealing a record must state whether the record is unsealed entirely or in part and the duration of the unsealing.  If the court’s order unseals only part of the record or unseals the record only as to certain persons, the order must specify the particular records that are unsealed or the particular persons who may have access to the record, or both. 

(g)  On application of a person who has pleaded guilty to or has been convicted of the commission of a crime committed under the laws of this state prior to attaining the age of majority, or on the motion of the court having jurisdiction over such a person, after notice to all parties of record and hearing, the court shall order the sealing of all files and records related to the proceeding if it finds:  

(1)  two years have elapsed since the final discharge of the person;  

(2)  the person has not been convicted of a listed crime as defined in 13 V.S.A. § 5301 or adjudicated delinquent for such an offense after the initial conviction, and no new proceeding is pending seeking such conviction or adjudication; and

(3)  the person’s rehabilitation has been attained to the satisfaction of the court. 

(h)(1)  In matters relating to a person who was charged with a criminal offense on or after July 1, 2006 and prior to the person attaining the age of majority, the files and records of the court applicable to the proceeding shall be sealed immediately if the case is dismissed.

(2)  In matters relating to a person who was charged with a criminal offense prior to July 1, 2006 and prior to the person attaining the age of majority, the person may apply to seal the files and records of the court applicable to the proceeding.  The court shall order the sealing, provided that two years have elapsed since the dismissal of the charge. 

(i)  Upon receipt of a court order to seal a record relating to an offense for which there is an identifiable victim, a state’s attorney shall record the name and date of birth of the victim, the offense, and the date of the offense.  The name and any identifying information regarding the defendant shall not be recorded.  Victim information retained by a state’s attorney pursuant to this subsection shall be available only to victims’ advocates, the victims’ compensation program, and the victim and shall otherwise be confidential. 

(j)  For purposes of this section, to “seal” a file or record means to physically and electronically segregate the record in a manner that ensures confidentiality of the record and limits access only to those persons who are authorized by law or court order to view the record.  A “sealed” file or record is retained and shall not be destroyed unless a court issues an order to expunge the record. 

(k)  The court shall provide assistance to persons who seek to file an application for sealing under this section. 

(l)  Any entities subject to sealing orders pursuant to this section shall establish policies for implementing this section and shall provide a copy of such policies to the house and senate committees on judiciary no later than January 15, 2007. State’s attorneys, sheriffs, municipal police, and the judiciary are encouraged to adopt a consistent policy that may apply to each of their independent offices and may submit one policy to the general assembly. 

§ 5120.  Indian Child Welfare Act

The federal Indian Child Welfare Act, 25 U.S.C. Section 1901 et seq., governs any proceeding under this title that pertains to an Indian child, as defined by the Indian Child Welfare Act, and prevails over any inconsistent provision of this title.

§ 5121.  CASE PLANNING PROCESS

The department shall actively engage families, and solicit and integrate into the case plan the input of the child, the child’s family, relatives and other persons with a significant relationship to the child.  Whenever possible, parents, guardians and custodians shall participate in the development of the case plan.

§ 5122.  MISCONDUCT DURING COURT PROCEEDINGS

A person who engages in misconduct while participating in a court proceeding under chapters 51, 52, or 53 of this title may be subject to appropriate sanctions, including criminal charges, as provided by relevant law, regulation, rule, or employment policy.  The confidentiality requirements of subsection 5110(c) of this title shall not apply to the extent necessary to report and respond to allegations of misconduct under chapters 51, 52, and 53 of this title.  This section shall not be construed to create a private right of action or a waiver of sovereign immunity.

Second: In Sec. 2, 33  V.S.A. § 5203(e), by striking out subdivisions (1), (2), and (3) in their entirety.

Third: In Sec. 2, 33 V.S.A. § 5221(c), after the word “child’s” and inserting the word custodial

Fourth:  In Sec. 2, 33 V.S.A. § 5223(b), after the word “notice” by inserting the following: ,including the noncustodial parent,  

Fifth:  In Sec.2, 33 V.S.A. § 5224, after the words “child or” by striking out the word “parent” and inserting in lieu thereof the following: custodial parent, guardian, or custodian 

Sixth:  In Sec. 2, 33 V.S.A. § 5225, by striking out subsection (c) in its entirety and inserting in lieu thereof a new subsection (c) to read as follows:

(c)  At the preliminary hearing, the court shall appoint a guardian ad litem for the child.  The guardian ad litem may be the child’s parent, guardian, or custodian.  On its own motion or motion by the child’s attorney, the court may appoint a guardian ad litem other than a parent, guardian, or custodian.

Seventh:  In Sec. 2, 33 V.S.A. § 5230(b)(6), by striking out the word “parents” and inserting in lieu thereof the following: parent, guardian, or custodian

Eighth:  In Sec. 2, 33 V.S.A. § 5235, by striking out subsection (j) in its entirety and inserting in lieu thereof new subsections (j) and (k) to read as follows:

(j)  In accordance with 13  V.S.A. § 5363, the restitution unit is authorized to make payments to victims of delinquent acts where restitution was ordered by a court prior to July 1, 2008.

(k)(1)  The restitution unit may bring an action to enforce a restitution order issued under this section in the superior or small claims court of the county where the offender resides or in the county where the order was issued. In an action under this subsection, a restitution order issued in a juvenile proceeding shall be enforceable in superior or small claims court in the same manner as a civil judgment. Superior and small claims court filing fees shall be waived for an action under this subsection, and for an action to renew a restitution judgment.

(2)  An action under this subsection may be brought only after the offender reaches 18 years of age, and shall not be subject to any limitations period.

(3)  For purposes of this subsection, a restitution order issued in a juvenile proceeding shall not be confidential.

Ninth:  In Sec. 2, 33 V.S.A. § 5251(2), by striking out the figure: “52” and inserting in lieu there the figure: 51

Tenth:  In Sec. 2, 33 V.S.A. § 5252, by striking out subsection (a) in its entirety and inserting in lieu thereof a new subsection (a) to read as follows:

(a)  If an officer takes a child who is alleged to be delinquent into custody, the officer shall immediately notify the child’s custodial parent, guardian, or custodian and release the child to the care of child’s custodial parent, guardian, or custodian unless the officer determines that the child’s immediate welfare or the protection of the community, or both, require the child’s continued removal from the home.

Eleventh: In Sec. 2, 33 V.S.A. § 5252(c), after the word “child’s” where it twicely appears, by inserting the word custodial

Twelfth: In Sec. 2, 33 V.S.A. § 5253(a)(2), after the word “made” by striking out the words “without hearing or notice to the custodial parent, guardian, or custodian” and inserting in lieu thereof the word ex parte

Thirteenth: In Sec.2, by striking § 5254 in its entirety and inserting in lieu thereof a new § 5254 to read as follows:

§ 5254.  Notice of Emergency Care Order and Temporary Care Hearing

(a)  Notice to custodial parent.  An officer shall deliver a copy of the emergency care order or conditional custody order to the custodial parent, guardian, or custodian of the child.  If delivery cannot be made in a timely manner, the officer shall otherwise notify them or cause them to be notified of the order, the date, time, and place of the temporary care hearing, and the parent’s right to counsel.  If the custodial parent, guardian, or custodian cannot be located, the officer shall so certify to the court in an affidavit describing the efforts made to locate the parent, guardian, or custodian.

(b)  Notice to noncustodial parent.  The department shall make reasonable efforts to locate any non custodial parent and provide the noncustodial parent with the emergency care or conditional custody order, notice of the date, hour, and place of the temporary care hearing and of the right to counsel.  If the noncustodial parent cannot be located, the department shall provide to the court, in writing, a summary of the efforts made to locate the parent.

(c)  Notice to other parties.  The court shall notify the following persons of the date and time of the temporary care hearing:

(1)  The state’s attorney.

(2)  The department.

(3)  An attorney to represent the child.

(4)  A guardian ad litem for the child.

(5)  An attorney to represent each parent.  The attorney may be court appointed in the event the parent is eligible, or may be an attorney who has entered an appearance on behalf of a parent.

Fourteenth:  In Sec. 2, 33 V.S.A. § 5255(d), after the words “noncustodial parent” by inserting the words and his or her attorney

Fifteenth:  In Sec.2, 33 V.S.A., by striking §5256 in its entirety and inserting in lieu thereof a new § 5256 to read as follows:

§ 5256.  Temporary Care Order

(a)  The court shall order that custody be returned to the child’s parent, guardian, or custodian, unless the court finds by a preponderance of the evidence that return to the home would be contrary to the welfare of the child because of any of the following:

(1)  The child cannot be controlled at home and is at risk of harm to self or others.

(2)  Continued residence in the home will not protect the community because of the serious and dangerous nature of the act the child is alleged to have committed.

(3)  The child’s welfare is otherwise endangered.

(b)  Upon a finding that any of the conditions set forth in subsection (a) of this section exists, the court may issue such temporary orders related to the legal custody of the child as it deems necessary and sufficient to protect the welfare and safety of the child and the safety of the community, including, in order of preference:

(1)  A conditional custody order returning legal custody of the child to the custodial parent, guardian, or custodian, subject to such conditions and limitations as the court may deem necessary and sufficient to protect the child and the community.

(2)(A)  Upon a personal appearance and a request by a noncustodial parent for temporary legal custody and upon a determination that parentage is not contested, the noncustodial parent shall present to the court a care plan that describes the history of the noncustodial parent’s contact with the child, including any reasons why contact did not occur, and that addresses:

(i)  the child’s need for a safe, secure, and stable home;

(ii)  the child’s need for proper and effective care and control sufficient to protect the community; and

(iii)  the child’s need for a continuing relationship with the custodial parent, if appropriate.

(B)  The court shall consider court orders and findings from other proceedings related to the custody of the child.

(C)  The court shall transfer legal custody to the noncustodial parent unless the court finds by a preponderance of the evidence that the transfer would be contrary to the child’s welfare because any of the following exists:

(i)  The care plan fails to meet the criteria set forth in subdivision (2)(A) of this subsection.

(ii)  Transferring temporary legal custody of the child to the noncustodial parent could result in substantial danger to the physical health, mental health, welfare, or safety of the child or safety of community.

(iii)  The child or another child residing in the same household as the noncustodial parent has been physically or sexually abused by the noncustodial parent or a member of the noncustodial parent’s household, or another person known to the noncustodial parent.

(iv)  The child or another child residing in the same household as the noncustodial parent is at substantial risk of physical or sexual abuse by the noncustodial parent or a member of the noncustodial parent’s household, or another person known to the noncustodial parent.  It shall constitute prima facie evidence that a child is at substantial risk of being physically or sexually abused if:

(I)  a noncustodial parent receives actual notice that a person has committed or is alleged to have committed physical or sexual abuse against a child; and

(II)  the noncustodial parent knowingly or recklessly allows the child to be in the physical presence of the alleged abuser after receiving such notice.

(v)  The child or another child in the noncustodial parent’s household has been neglected, and there is substantial risk of harm to the child who is the subject of the petition.

(D)  If the noncustodial parent’s request for temporary custody is contested, the court may continue the hearing and place the child in the temporary custody of the department pending further hearing and resolution of the custody issue.  Absent good cause shown, the court shall hold a further hearing on the issue within 30 days.

(3)  An order transferring temporary legal custody of the child to a relative, provided:

(A)  The relative seeking legal custody is a grandparent,

great-grandparent, aunt, great-aunt, uncle, great-uncle, stepparent, sibling, or step-sibling of the child.

(B)  The relative is suitable to care for the child.  In determining suitability, the court shall consider the relationship of the child and the relative and the relative’s ability to:

(i)  Provide a safe, secure, and stable environment.

(ii)  Exercise proper and effective care and control of the child sufficient to protect the community.

(iii)  Protect the child from the custodial parent to the degree the court deems such protection necessary.

(iv)  Support reunification efforts, if any, with the custodial parent.

(v)  Consider providing legal permanence if reunification fails.

(C)  In considering the suitability of a relative who is entitled to preferential consideration, the court may order the department to conduct an investigation and file a written report of its findings with the court.  The court may place the child in the temporary custody of the department pending such investigation.

(4)  A temporary care order transferring temporary legal custody of the child to a relative who is not listed in subdivision (3)(A) of this subsection or a person with a significant relationship with the child, provided that the criteria in subdivision (3)(B) of this subsection are met.  The court may make such orders as provided in subdivision (3)(C) of this subsection to determine suitability under this subdivision.

(5)  A temporary care order transferring temporary legal custody of the child to the commissioner.

(c)  If the court transfers legal custody of the child, the court shall issue a written temporary care order. 

(1)  The order shall include:

(A)  a finding that remaining in the home is contrary to the child’s welfare and the facts upon which that finding is based; and

(B)  a finding as to whether reasonable efforts were made to prevent unnecessary removal of the child from the home.  If the court lacks sufficient evidence to make findings on whether reasonable efforts were made to prevent the removal of the child from the home, that determination shall be made at the next scheduled hearing in the case but, in any event, no later than 60 days after the issuance of the initial order removing a child from the home.

(2)  The order may include other provisions as may be necessary for the protection and welfare of the child, such as:

(A)  Conditions of release.

(B)  Establishing parent-child contact under such terms and conditions as are necessary for the protection of the child.

(C)  Requiring the department to provide the child with services if legal custody has been transferred to the commissioner.

(D)  Requiring the department to refer a parent for appropriate assessments and services, including a consideration of the needs of children and parents with disabilities.

(E)  Requiring genetic testing if parentage of the child is at issue.

(F)  Requiring the department to make diligent efforts to locate the noncustodial parent.

(G)  Requiring the custodial parent to provide the department with names of all potential noncustodial parents and relatives of the child.

(d)  If a party seeks to modify a temporary care order in order to transfer legal custody of a child from the commissioner to a relative or a person with a significant relationship with the child, the relative shall be entitled to preferential consideration under subdivision (b)(3) of this section, provided that a disposition order has not been issued and the motion is filed within 90 days of the date that legal custody was initially transferred to the commissioner.

Sixteenth:  In Sec. 2, 33 V.S.A., by striking out § 5258 in its entirety and inserting in lieu thereof a new § 5258 to read as follows:

§ 5258.  PostDisposition Review and Permanency Review for Delinquents in Custody

Whenever custody of a delinquent child is transferred to the commissioner, the custody order of the court shall be subject to a postdisposition review hearing pursuant to section 5320 of this title and permanency reviews pursuant to section 5321 of this title. 

Seventeenth:  In Sec. 2, 33 V.S.A. § 5263(b), after the word “juvenile” where it appears the second time, by striking out the words “and the parents or the guardian or custodian of the child, if other than parent” and inserting in lieu thereof the following: and a custodial parent, guardian, or custodian

Eighteenth:  In Sec. 2, 33 V.S.A. § 5263(c), after the words “signature of a” by inserting the word custodial

Nineteenth:  In Sec. 2, 33 V.S.A. § 5284(b)(2)(A), after the word “offender;” by striking out the word “or” and inserting in lieu thereof the word and

Twentieth: In Sec. 2, 33 V.S.A. § 5286(c)(1), after the word “youth” by striking out the word “offender

Twenty-first:  In Sec. 2, 33 V.S.A. § 5293(a)(2)(A)(i), after the word “her” by striking out the word “parents” and inserting in lieu thereof the words custodial parent

Twenty-second:  By adding a new section to be numbered Sec. 5 to read as follows:

Sec. 5.  33 V.S.A. § 5802 is added to read:

§ 5802.  SEPARATION OF VICTIM OF SEXUAL ASSAULT AND PERPETRATOR

The commissioner of the department for children and families shall develop policies applicable when the department knows or learns that a sexual assault perpetrator and his or her victim have been simultaneously placed at the facility.  The policies shall include processes and procedures for continued separation of or minimizing incidental contact between the perpetrator and the victim, while ensuring that they both receive educational and other appropriate services.

Twenty-third:  By adding a new section to be numbered Sec. 6 to read as follows:

Sec. 6.  JUVENILE JURISDICTION POLICY AND OPERATIONS COORDINATING COUNCIL

(a)  The juvenile jurisdiction policy and operations coordinating council is established in order to plan and develop the steps advisable to better address age appropriate responses to older youth within the juvenile justice system.  The council shall report to the House and Senate Committees on Judiciary on or before December 15, 2008.  The report may consider the Juvenile Justice Jurisdiction Study submitted to the agency of human services in December 2007 as well as other relevant information and recommend any changes to Vermont juvenile justice jurisdiction policy the council decides are advisable.  With respect to any policy changes recommended, the report shall include:

(1)  Necessary statutory changes;

(2)  Necessary structural modifications to the juvenile system, including personnel and programming requirements and changes; and

(3)  Cost implications and financial impacts.

     (4)  Review of the impact on 16- and 17-year olds of being commingled with older offenders.

     (5)  A summary of evidence-based research on outcomes and recidivism rates by juvenile offenders and juvenile delinquents, including comparisons of minors processed as juvenile delinquents with minors processed as adult offenders. 

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

(1)  The administrative judge or designee.

(2)  The court administrator or designee.

(3)   The defender general or designee.

(4)  The attorney general or designee.

(5)  The executive director of the department of state's attorney’s and sheriffs or designee.

(6)  The commissioner of the department for children and families or designee.

(7)  The director of the juvenile justice commission or designee.

(8)  The commissioner of corrections or designee.

(9)  The commissioner of public safety or designee.

(10)  A mental health professional with experience working with juveniles, appointed by the Vermont council of developmental and mental health services.

(11)  A law enforcement officer with experience working with juveniles, appointed by the commissioner of public safety.

Twenty-fourth: By adding a new Sec. 7 to read as follows:

Sec. 7.  REPORT FROM THE DEPARTMENT FOR CHILDREN AND FAMILIES

(a)  No later than December 1, 2008, the department for children and families shall report to the general assembly on the following:

(1)  Procedures used to identify parents with disabilities.

(2)  Procedures for modifying case plans, disposition case plans, service plans and permanency plans to include the use of adaptive equipment and parental supports for parents with disabilities.

(3)  Procedures used to assess family strengths and weaknesses as they relate to children and parents with disabilities.

(4)  The state’s ability to accommodate the court-related needs of children and parents with disabilities as they relate to juvenile judicial proceedings.

(b)  In preparation of the report, the department for children and families shall consult with:

(1)  The family support project at the University of Vermont.

(2)  The Vermont judiciary.

(3)  The office of the defender general.

(4)  The department of aging and independent living.

Twenty-fifth:  By adding a new section to be numbered Sec. 8 to read as follows:

Sec. 8.  33 V.S.A. chapter 53 is added to read:

Chapter 53.  Children in Need of Care

or Supervision

§ 5301.  Taking into custody 

A child may be taken into custody:

(1)  Pursuant to an order of the family court under the provisions of this chapter.

(2)  By an officer when the officer has reasonable grounds to believe that the child is in immediate danger from his or her surroundings and that removal is necessary for the child’s protection.

(3)  By an officer when the officer has reasonable grounds to believe that the child has run away from a custodial parent, a foster parent, a guardian, a custodian, a noncustodial parent lawfully exercising parent-child contact, or care provider.

§ 5302.  Request for Emergency Care Order  

(a)  If an officer takes a child into custody pursuant to subdivisions 5301(1) and (2) of this title, the officer shall immediately notify the child’s custodial parent, guardian, or custodian and release the child to the care of the child’s custodial parent, guardian, or custodian unless the officer determines that the child’s immediate welfare requires the child’s continued absence from the home.

(b)  If the officer determines that the child’s immediate welfare requires the child’s continued absence from the home, the officer shall:

(1)  Remove the child from the child’s surroundings, contact the department, and deliver the child to a location designated by the department.  The department shall have the authority to make reasonable decisions concerning the child’s immediate placement, safety and welfare pending the issuance of an emergency care order.

(2)  Prepare an affidavit in support of a request for an emergency care order and provide the affidavit to the state’s attorney.  The affidavit shall include:  the reasons for taking the child into custody; and to the degree known, placements with which the child is familiar; the names, addresses, and telephone number of the child’s parents, guardian, custodian, or care provider; the name, address, and telephone number of any relative who has indicated an interest in taking temporary custody of the child.  The department may prepare an affidavit as a supplement to the affidavit of the law enforcement officer if the department has additional information with respect to the child or the family.

(c)  If the child is taken into custody during regular court hours, the state’s attorney shall immediately file a request for an emergency care order accompanied by the supporting affidavit or direct the immediate return of the child to the child’s custodial parent, guardian, or custodian.  If the child is taken into custody after regular court hours or on a weekend or holiday, the state’s attorney or officer shall contact a judge to request an emergency care order or return the child to the child’s custodial parent, guardian, or custodian.  If an order is granted, the state’s attorney shall file the supporting affidavit with the court on the next day that the court is open.

(d)  If the judge denies a request for an emergency care order, the state’s attorney shall direct immediate return of the child to the child’s custodial parent, guardian, or custodian.    

§ 5303.  Procedure for runaway children  

(a)  If an officer takes a child into custody pursuant to subdivision 5301(3) of this title, the officer shall deliver the child to:  

(1)  the child’s custodial parent, foster parent, guardian, custodian, or noncustodial parent lawfully exercising parent-child contact; or

(2)  a shelter designated by the department pursuant to section 5304 of this title as qualified to assist children who have run away for the purpose of reuniting them with their parents, guardian, or legal custodian.

(b)  Upon delivery of a child to a shelter, the shelter program director or his or her designee, shall notify the child’s parents, guardian, or custodian that the child has been taken into custody and make reasonable efforts to mediate the differences between the parties.

(c)  A child may remain at a designated shelter for a period not to exceed seven days.

(d)  Upon expiration of the seven-day period or sooner at the request of the child or the custodial parent:

(1)  the child shall be released to his or her custodial parent, foster parent, guardian, custodian, or noncustodial parent lawfully exercising

parent-child contact; or

(2)  an officer shall seek an emergency care order pursuant to section 5302 of this title.

(e)  Unless otherwise ordered by the court, the custody status of the child shall remain the same during the period of time the child is at the shelter.

§ 5304.  Designated shelters for runaway children  

The commissioner shall designate shelters throughout the state where a child taken into custody pursuant to subdivision 5301(3) of this title may be housed for a period not to exceed seven days.

§ 5305.  Emergency Care Order; CONDITIONAL CUSTODY ORDER

(a)  Transfer of temporary custody.  If the court determines that the child’s continued residence in the home is contrary to the child’s welfare, the court may issue an emergency care order transferring temporary custody of the child to the department pending a temporary care hearing.  The determination may be made ex parte, provided that it is reasonably supported by the affidavit prepared in accordance with section 5302 of this title. 

(b)  Contents of emergency care order.  The emergency care order shall contain: 

(1)  a written finding that the child’s continued residence in the home is contrary to the child’s welfare and the factual allegations that support that finding;

(2)  the date, hour, and place of the temporary care hearing to be held pursuant to section 5307 of this title; and

(3)  notice of a parent’s right to counsel at the temporary care hearing.

(c)  Conditional custody order.  If the court determines that the child may safely remain in the custody of the custodial parent, guardian, or custodian subject to such conditions and limitations necessary and sufficient to protect the child pending a temporary care hearing, the court may deny the request for an emergency care order and issue an emergency conditional custody order.  An emergency conditional custody order shall contain the date, hour, and place of the temporary care hearing and notice of a parent’s right to counsel at the hearing.

§ 5306.  Notice of Emergency Care Order and TEMPORARY CARE Hearing

(a)  Notice to custodial parent.  An officer shall deliver a copy of the emergency care order or conditional custody order to the parent, guardian, or custodian of the child.  If delivery cannot be made in a timely manner, the officer shall otherwise notify the custodial parent or cause them to be notified of the order, the date, the time and place of the temporary care hearing, and the parent’s right to counsel.  If the custodial parent, guardian, or custodian cannot be located, the officer shall so certify to the court in an affidavit describing the efforts made to locate the parents.

(b)  Notice to noncustodial parent.  The department shall make reasonable efforts to locate any noncustodial parent and provide the noncustodial parent with the emergency care order or conditional care order, notice of the date, hour, and place of the temporary care hearing, and right to counsel.  If the noncustodial parent cannot be located, the department shall provide to the court, in writing, a summary of the efforts made to locate the parent.

(c)  Failure to locate.  The hearing shall not be delayed by reason of not being able to locate either the custodial or noncustodial parent.

(d)  Notice to other parties.  The court shall notify the following persons of the date and time of the temporary care hearing:

(1)  The state’s attorney.

(2)  A representative of the department.

(3)  An attorney to represent the child.

(4)  A guardian ad litem for the child.

(5)  An attorney to represent each parent.  The attorney may be court-appointed in the event the parent is eligible, or may be an attorney who has entered an appearance on behalf of a parent. 

§ 5307.  Temporary Care Hearing

(a)  A temporary care hearing shall be held within 72 hours of the issuance of an emergency care order or conditional custody order under section 5305 of this title.  State holidays shall be excluded from the computation of 72 hours.   If the custodial parent, guardian, or custodian has not been notified in accordance with section 5306 of this title and does not appear or waive appearance at the temporary care hearing and files thereafter with the court an affidavit so showing, the court shall hold another temporary care hearing within one business day of the filing of the affidavit as if no temporary care hearing had theretofore been held.

(b)  If the state’s attorney is seeking a temporary care order, he or she shall file a petition in accordance with section 5308 of this title prior to the temporary care hearing.  If the state’s attorney elects not to file a petition, he or she shall so notify the court and the court shall vacate the emergency care order and order the return of the child to the custodial parent, guardian, or custodian.

(c)  The following persons shall be present at the temporary care hearing:

(1)  The child, unless the child is under 10 years of age and the presence of the child is waived by the child’s attorney.  For good cause shown, the court may waive the presence of a child who is 10 years of age or older.

(2)  The child’s custodial parent, guardian, or custodian, unless the parent, guardian, or custodian cannot be located or fails to appear in response to notice.

(3)  The child’s guardian ad litem.

(4)  An attorney for the child.

(5)  An attorney for the custodial parent, if requested.

(6)  The department.

(7)  The state’s attorney.

(d)  A noncustodial parent and his or her attorney shall have the right to be present at the hearing; however, the hearing shall not be delayed by reason of the inability of the department to locate the noncustodial parent.

(e)  The department shall provide the following information to the court at the hearing:

(1)  Any reasons for the child’s removal which are not set forth in the affidavit required pursuant to subsection 5302(b) of this title.

(2)  Services, if any, provided to the child and the family in an effort to prevent removal.

(3)  The need, if any, for continued custody of the child with the department pending a hearing to adjudicate the merits of the petition.

(4)  Services which could facilitate the return of the child to the custodial parent, guardian, or custodian.

(5)  The identity and location of a noncustodial parent, a relative, or person with a significant relationship with the child known to the department who may be appropriate, capable, willing, and available to assume temporary legal custody of the child.  If the noncustodial parent cannot be located, the department shall provide to the court, in writing, a summary of the efforts made to locate the parent.

(6)  Additional information as required by the Uniform Child Custody Jurisdiction Act pursuant to 15 V.S.A. § 1037 and the Indian Child Welfare Act pursuant to 25 U.S.C. Section 1901 et seq. 

(f)  All parties shall have the right to present evidence on their own behalf and examine witnesses.  Hearsay, to the extent it is deemed relevant and reliable by the court, shall be admissible.  The court may, in its discretion, limit testimony and evidence to only that which goes to the issues of removal of the child from the home and the child’s temporary legal custody.

(g)  The temporary care hearing shall also be a preliminary hearing on the petition.

§ 5308.  Temporary Care Order

(a)  The court shall order that legal custody be returned to the child’s custodial parent, guardian, or custodian unless the court finds by a preponderance of the evidence that return home would be contrary to the child’s welfare because any one of the following exists:

(1)  A return of legal custody could result in substantial danger to the physical health, mental health, welfare, or safety of the child.

(2)  The child or another child residing in the same household has been physically or sexually abused by a parent, guardian, or custodian, or by a member of the child’s household, or another person known to the parent, guardian, or custodian.

(3)  The child or another child residing in the same household is at substantial risk of physical or sexual abuse by a parent, guardian, or custodian, or by a member of the child’s household, or another person known to the parent, guardian, or custodian.  It shall constitute prima facie evidence that a child is at substantial risk of being physically or sexually abused if:

(A)  a parent, guardian, or custodian receives actual notice that a person has committed or is alleged to have committed physical or sexual abuse against a child; and

(B)  the parent, guardian, or custodian knowingly or recklessly allows the child to be in the physical presence of the alleged abuser after receiving such notice.

(4)  The custodial parent, guardian, or guardian has abandoned the child.

(5)  The child or another child in the same household has been neglected and there is substantial risk of harm to the child who is the subject of the petition.

(b)  Upon a finding that any of the conditions set forth in subsection (a) of this section exists, the court may issue such temporary orders related to the legal custody of the child as it deems necessary and sufficient to protect the welfare and safety of the child including, in order of preference:

(1)  A conditional custody order returning legal custody of the child to the custodial parent, guardian, or custodian, subject to such conditions and limitations as the court may deem necessary and sufficient to protect the child.

(2)(A)  Upon a personal appearance and a request by a noncustodial parent for temporary legal custody and upon a determination that parentage is not contested, the noncustodial parent shall present to the court a care plan that describes the history of the noncustodial parent’s contact with the child, including any reasons why contact did not occur, and that addresses:

(i)  the child’s need for a safe, secure, and stable home;

(ii)  the child’s need for proper and effective care and control; and

(iii)  the child’s need for a continuing relationship with the custodial parent, if appropriate.

(B)  The court shall consider court orders and findings from other proceedings related to the custody of the child.


(C)  The court shall transfer legal custody to the noncustodial parent unless the court finds by a preponderance of the evidence that the transfer would be contrary to the child’s welfare because any of the following exists:

(i)  The care plan fails to meet the criteria set forth in subdivision (2)(A) of this subsection.

(ii)  Transferring temporary legal custody of the child to the noncustodial parent could result in substantial danger to the physical health, mental health, welfare, or safety of the child.

(iii)  The child or another child residing in the same household as the noncustodial parent has been physically or sexually abused by the noncustodial parent or a member of the noncustodial parent’s household, or another person known to the noncustodial parent.

(iv)  The child or another child residing in the same household as the noncustodial parent is at substantial risk of physical or sexual abuse by the noncustodial parent or a member of the noncustodial parent’s household, or another person known to the noncustodial parent.  It shall constitute prima facie evidence that a child is at substantial risk of being physically or sexually abused if:

(I)  a noncustodial parent receives actual notice that a person has committed or is alleged to have committed physical or sexual abuse against a child; and

(II)  the noncustodial parent knowingly or recklessly allows the child to be in the physical presence of the alleged abuser after receiving such notice.

(v)  The child or another child in the noncustodial parent’s household has been neglected, and there is substantial risk of harm to the child who is the subject of the petition.

(D)  If the noncustodial parent’s request for temporary custody is contested, the court may continue the hearing and place the child in the temporary custody of the department pending further hearing and resolution of the custody issue.  Absent good cause shown, the court shall hold a further hearing on the issue within 30 days.

(3)  An order transferring temporary legal custody of the child to a relative, provided:

(A)  The relative seeking legal custody is a grandparent, great-grandparent, aunt, great-aunt, uncle, great-uncle, stepparent, sibling, or step-sibling of the child.

(B)  The relative is suitable to care for the child.  In determining suitability, the court shall consider the relationship of the child and the relative and the relative’s ability to:

(i)  Provide a safe, secure, and stable environment.

(ii)  Exercise proper and effective care and control of the child.

(iii)  Protect the child from the custodial parent to the degree the court deems such protection necessary.

(iv)  Support reunification efforts, if any, with the custodial parent.

(v)  Consider providing legal permanence if reunification fails.

(C)  In considering the suitability of a relative who is entitled to preferential consideration, the court may order the department to conduct an investigation and file a written report of its findings with the court.  The court may place the child in the temporary custody of the department pending such investigation.

(4)  A temporary care order transferring temporary legal custody of the child to a relative who is not listed in subdivision (3)(A) of this subsection or a person with a significant relationship with the child, provided that the criteria in subdivision (3)(B) of this subsection are met.  The court may make such orders as provided in subdivision (3)(C) of this subsection to determine suitability under this subdivision.

(5)  A temporary care order transferring temporary legal custody of the child to the commissioner. 

(c)  If the court transfers legal custody of the child, the court shall issue a written temporary care order. 

(1)  The order shall include:

(A)  a finding that remaining in the home is contrary to the child’s welfare and the facts upon which that finding is based; and

(B)  a finding as to whether reasonable efforts were made to prevent unnecessary removal of the child from the home.  If the court lacks sufficient evidence to make findings on whether reasonable efforts were made to prevent the removal of the child from the home, that determination shall be made at the next scheduled hearing in the case but, in any event, no later than 60 days after the issuance of the initial order removing a child from the home.

(2)  The order may include other provisions as may be necessary for the protection and welfare of the child, such as:

(A)  Establishing parent-child contact under such terms and conditions as are necessary for the protection of the child.

(B)  Requiring the department to provide the child with services.

(C)  Requiring the department to refer a parent for appropriate assessments and services, including a consideration of the needs of children and parents with disabilities.

(D)  Requiring genetic testing if parentage of the child is at issue.

(E)  Requiring the department to make diligent efforts to locate the noncustodial parent.

(F)  Requiring the custodial parent to provide the department with names of all potential noncustodial parents and relatives of the child.

(d)  If a party seeks to modify a temporary care order in order to transfer legal custody of a child from the commissioner to a relative or a person with a significant relationship with the child, the relative shall be entitled to preferential consideration under subdivision (b)(3) of this section, provided that a disposition order has not been issued and the motion is filed within 90 days of the date that legal custody was initially transferred to the commissioner.

§ 5309.  Filing of a petition 

(a)  The state’s attorney having jurisdiction shall prepare and file a petition alleging that a child is in need of care or supervision upon the request of the commissioner or, in the event the child is truant from school, upon the request of the superintendent of the school district in which the child is enrolled or resides.  If the state’s attorney fails to file a petition within a reasonable amount of time, the department or the superintendent of the school district may request that the attorney general file a petition on behalf of the department.

(b)  If the court has issued an emergency care order placing the child who is the subject of the petition in the temporary legal custody of the department or has issued a conditional custody order, the state’s attorney shall file the petition on or before the date of the temporary care hearing.  

(c)  A petition may be withdrawn by the state’s attorney at any time prior to the hearing thereon, in which event the child shall be returned to the custodial parent, guardian, or custodian, the proceedings under this chapter terminated, and all files and documents relating thereto sealed under section 5119 of this title.

(d)  Upon the request of the agency of human services, the state’s attorney may file a petition pursuant to subsection (a) of this section alleging that a 16- to 17.5-year-old youth who is not in the custody of the state is a child in need of care or supervision under subdivision 5102(2)(B)(ii) of this title when the child meets the criteria set forth in subdivision 5102(2)(B)(ii) of this title.  The petition shall be accompanied by a report from the department which sets forth facts supporting the specific requirements of subdivision 5102(2)(C) of this title and that it is in the best interests of the child to be considered as a child in need of care or supervision.

§ 5310.  Petition, contents 

(a)  The petition shall be supported by an affidavit of an officer or the department. 

(b)  The petition shall contain the following:

(1)  A concise statement of the facts which support the conclusion that the child is a child in need of care or supervision together with a statement that it is in the best interests of the child that the proceedings be brought. 

(2)  The name, date of birth, telephone number, and residence address, if known, of the child, the custodial and noncustodial parents, the guardian or custodian of the child if other than parent.  If a parent is a participant in the Safe At Home Program pursuant to 15 V.S.A. § 1152, the petition shall so specify.

(3)  Jurisdictional information required pursuant to the Uniform Child Custody Jurisdiction Act, 15 V.S.A. § 1032 et seq.

§ 5311.  Service of Summons and Petition; no request for temporary care Order; PRELIMINARY HEARING

(a)  When the state’s attorney files a petition but does not request a temporary care order, the court shall set a date for a preliminary hearing on the petition no later than 15 days from the date the petition is filed and issue a judicial summons addressed to the custodial parent, guardian, custodian, or care provider.  A copy of the petition shall be attached to the summons.  The court shall make reasonably diligent efforts to serve a noncustodial parent with a copy of the summons and petition.

(b)  The summons shall contain:

(1)  The name and address of the person to whom the notice is directed.

(2)  The date, time, and place for the preliminary hearing on the petition.

(3)  The name of the minor on whose behalf the petition has been brought.

(4)  Notice of a parent’s right to counsel.

(5)  A statement that the parent, guardian or custodian may be liable for the cost of the support of a child if the child is placed in the legal custody of the department.

(6)  An order directing the parent, guardian, custodian, or care provider to appear at the hearing with the child.

(c)  The summons and petition may be served by mailing a copy by certified mail return receipt requested to the child and to the child’s parent, guardian, custodian, or care provider.  Service of the summons and petition may also be made by any sheriff, deputy, or constable.  The court shall provide a copy of the summons to the state’s attorney and a copy of the summons and petition to the department and the attorney for the child. 

(d)  Notice and a copy of the petition shall be served on all persons required to receive notice as soon as possible after the petition is filed and at least five days prior to the date set for the preliminary hearing.

(e)  A party may waive service of the petition and notice by written stipulation or by voluntary appearance at the hearing.

(f)  Once a parent, guardian, or custodian has been served, the court shall provide notice of hearing either directly or by mail.  The parent shall be responsible for providing the court with information regarding any changes in address. 

§ 5312.  Failure to Appear at Preliminary Hearing    

(a)  If a parent, guardian, or custodian has been served by certified mail with the petition and notice of hearing and fails to appear at the preliminary hearing, the court may order that the parent, guardian, or custodian be served with a judicial summons ordering the person to appear in court with the child at a specified date and time.

(b)  If, after being summoned to appear, the parent, guardian, or custodian fails to appear or fails to bring the child to court as ordered, the court may issue a pick-up order or warrant pursuant to section 5108 of this title. 

§ 5313.  Timelines for pretrial and merits hearing

(a)  Pretrial hearing.  At the time of the temporary care hearing or at the preliminary hearing on the petition if there is no request for temporary legal custody, the court shall set a pretrial hearing on the petition.  The hearing shall be held within 15 days of the temporary care hearing or the preliminary hearing.  In the event that there is no admission or dismissal at or before the pretrial hearing, the court shall set the matter for a hearing to adjudicate the merits of the petition.

(b)  Merits hearing.  If the child who is the subject of the petition has been removed from the legal custody of the custodial parent, guardian, or custodian pursuant to a temporary care order, a merits hearing shall be held and merits adjudicated no later than 60 days from the date the temporary care order is issued.  In all other cases, merits shall be adjudicated in a timely manner in the best interests of the child.

§ 5314.  Filing of Initial Case Plan 

(a)  If a temporary care order is issued transferring legal custody of the child to the commissioner, the department shall prepare and file with the court an initial case plan for the child and the family within 60 days of removal of a child from home.  The department shall provide a copy of the case plan to the parties, their attorneys, and the guardian ad litem.

(b)  The initial case plan shall not be used or referred to as evidence prior to a finding that a child is in need of care or supervision.

§ 5315.  Merits Adjudication 

(a)  At a hearing on the merits of a petition, the state shall have the burden of establishing by a preponderance of the evidence that the child is in need of care and supervision.  In its discretion, the court may make findings by clear and convincing evidence.

(b)  The parties may stipulate to the merits of the petition.  Such stipulation shall include a stipulation as to the facts that support a finding that the child is in need of care and supervision.

(c)  If the merits are contested, all parties shall have the right to present evidence on their own behalf and to examine witnesses.

(d)  A merits hearing shall be conducted in accordance with the Vermont Rules of Evidence.  A finding of fact made after a contested temporary care hearing based on nonhearsay evidence may be adopted by the court as a finding of fact at a contested merits hearing provided that a witness who testified at the temporary care hearing may be recalled by any party at a contested merits hearing to supplement his or her testimony.  

(e)  If the merits are contested, the court after hearing the evidence shall make its findings on the record. 

(f)  If the court finds that the allegations made in the petition have not been established, the court shall dismiss the petition and vacate any temporary orders in connecting with this proceeding.

(g)  If the court finds that the allegations made in the petition have been established based on the stipulation of the parties or on the evidence if the merits are contested, the court shall order the department to prepare a disposition case plan within 28 days of the merits hearing and shall set the matter for a disposition hearing.

(h)  The court in its discretion and with the agreement of the parties may waive the preparation of a disposition case plan and proceed directly to disposition based on the initial case plan filed with the court pursuant to section 5314 of this title.      

§ 5316.   Disposition Case Plan

(a)  The department shall file a disposition case plan ordered pursuant to subsection 5315(g) of this title no later than 28 days from the date of the finding by the court that a child is in need of care or supervision. 

(b)  A disposition case plan shall include, as appropriate:

(1)  A permanency goal.  The long-term goal for a child found to be in need of care and supervision is a safe and permanent home.  A disposition case plan shall include a permanency goal and an estimated date for achieving the permanency goal.  The plan shall specify whether permanency will be achieved through reunification with a custodial parent, guardian, or custodian; adoption; permanent guardianship; or other permanent placement.  In addition to a primary permanency goal, the plan may identify a concurrent permanency goal.

(2)  An assessment of the child’s medical, psychological, social, educational, and vocational needs.

(3)  A description of the child’s home, school, community, and current living situation.

(4)  An assessment of the family’s strengths and risk factors, including a consideration of the needs of children and parents with disabilities.

(5)  A statement of family changes needed to correct the problems necessitating state intervention, with timetables for accomplishing the changes.

(6)  A recommendation with respect to legal custody for the child and a recommendation for parent-child contact and sibling contact, if appropriate.

(7)  A plan of services that shall describe the responsibilities of the child, the parents, guardian, or custodian, the department, other family members, and treatment providers including a description of the services required to achieve the permanency goal.  The plan shall also address the minimum frequency of contact between the social worker assigned to the case and the family.

(8)  A request for child support.

(9)  Notice to the parents that failure to substantially accomplish the objectives stated in the plan within the time frames established may result in termination of parental rights.

§ 5317.  Disposition Hearing 

(a)  Timeline.  A disposition hearing shall be held no later than 35 days after a finding that a child is in need of care and supervision.

(b)  Hearing procedure.  If disposition is contested, all parties shall have the right to present evidence and examine witnesses.  Hearsay may be admitted and may be relied on to the extent of its probative value.  If reports are admitted, the parties shall be afforded an opportunity to examine those making the reports, but sources of confidential information need not be disclosed.

(c)  Standard of proof.  If the court terminates the parental rights of one or both parents, the standard of proof on the issue of termination shall be clear and convincing evidence.  On all other issues, the standard of proof shall be a preponderance of the evidence.

(d)  Termination of parental rights.  If the commissioner or the attorney for the child seeks an order at disposition terminating the parental rights of one or both parents and transfer of legal custody to the commissioner without limitation as to adoption, the court shall consider the best interests of the child in accordance with section 5114 of this title.

(e)  Further hearing.  On its own motion or on the motion of a party, the court may schedule a further hearing to obtain reports or other information necessary for the appropriate disposition of the case.  The court shall make an appropriate order for the temporary care of the child pending a final disposition order.  The court shall give scheduling priority to cases in which the child has been removed from home.

§ 5318.  Disposition Order

(a)  Custody.  At disposition, the court shall make such orders related to legal custody for a child who has been found to be in need of care and supervision as the court determines are in the best interest of the child, including:

(1)  An order continuing or returning legal custody to the custodial parent, guardian, or custodian.  Following disposition, the court may issue a conditional custody order for a fixed period of time not to exceed two years.   The court shall schedule regular review hearings to determine whether the conditions continue to be necessary.

(2)  When the goal is reunification with a custodial parent, guardian, or custodian an order transferring temporary custody to a noncustodial parent, a relative, or a person with a significant relationship with the child.  The order may provide for parent-child contact.   Following disposition, the court may issue a conditional custody order for a fixed period of time not to exceed two years.  The court shall schedule regular review hearings to evaluate progress toward reunification and determine whether the conditions and continuing jurisdiction of the juvenile court are necessary.

(3)  An order transferring legal custody to a noncustodial parent and closing the juvenile proceeding.  The order may provide for parent-child contact with the other parent.  Any orders transferring legal custody to a noncustodial parent issued under this section shall not be confidential and shall be made a part of the record in any existing parentage or divorce proceeding involving the child.  On the motion of a party or on the court’s own motion, the court may order that a sealed copy of the disposition case plan be made part of the record in a divorce or parentage proceeding involving the child.

(4)  An order transferring legal custody to the commissioner.  

(5)  An order terminating all rights and responsibilities of a parent by transferring legal custody and all residual parental rights to the commissioner without limitation as to adoption.

(6)  An order of permanent guardianship pursuant to 14 V.S.A. § 2664.

(7)  An order transferring legal custody to a relative or another person with a significant relationship with the child.  The order may be subject to conditions and limitations and may provide for parent-child contact with one or both parents.  The order shall be subject to periodic review as determined by the court.

(b)  Case plan.  If the court orders the transfer of custody pursuant to subdivision (a)(2), (4), or (5) of this section, the court shall establish a permanency goal for the minor child and adopt a case plan prepared by the department which is designed to achieve the permanency goal.  If the court determines that the plan proposed by the department does not adequately support the permanency goal for the child, the court may reject the plan proposed by the department and order the department to prepare and submit a revised plan for court approval.

(c)  Sixteen- to 17.5-year olds.  In the event that custody of a 16- to 17.5-year old is transferred to the department pursuant to a petition filed under subsection 5309(d) of this title services to the child and to his or her family shall be provided through a coordinated effort by the agency of human services, the department of education, and community-based interagency teams. 

(d)  Modification.  A disposition order is a final order which may only be modified based on the stipulation of the parties or pursuant to a motion to modify brought under section 5113 of this title. 

(e)  Findings.  Whenever the court orders the transfer of legal custody to a noncustodial parent, a relative, or a person with a significant relationship with the child, such orders shall be supported by findings regarding the suitability of that person to assume legal custody of the child and the safety and appropriateness of the placement.    

§ 5319.  Parent-Child Contact and Contact with Siblings and Relatives

(a)  The court shall order parent-child contact unless the court finds that it is necessary to deny parent-child contact because the protection of the physical safety or emotional well-being of the child so requires.  Except for good cause shown, the order shall be consistent with any existing parent-child contact order.

(b)  The court may determine the reasonable frequency and duration of parent-child contact and may set such conditions for parent-child contact as are in the child’s best interests including whether parent-child contact should be unsupervised or supervised.

(c)  Parent-child contact may be modified by stipulation or upon motion of a party or upon the court’s own motion pursuant to section 5113 of this title. 

(d)  The court may terminate a parent-child contact order in a juvenile proceeding upon a finding that:

(1)  a parent has without good cause failed to maintain a regular schedule of contact with the child and that the parent’s failure to exercise regular contact has had a detrimental impact on the emotional well-being of the child; or

(2)  continued parent-child contact in accordance with the terms of the prior order will have a detrimental impact on the physical or emotional well-being of the child.

(e)  Upon motion of the child’s attorney, the court may also order contact between the child and the child’s siblings, an adult relative with whom the child has a significant relationship, or an adult friend with whom the child has a significant relationship.

(f)  Failure to provide parent-child contact due to the child’s illness or other good cause shall not constitute grounds for a contempt or enforcement proceeding against the department.


§ 5320.  Post-Disposition Review Hearing

If the permanency goal of the disposition case plan is reunification with a parent, guardian, or custodian, the court shall hold a review hearing within 60 days of the date of the disposition order for the purpose of monitoring progress under the disposition case plan and reviewing parent-child contact.  Notice of the review shall be provided to all parties.  A foster parent, preadoptive parent, or relative caregiver shall be provided with notice of any post disposition review hearings and an opportunity to be heard at the hearings.  Nothing in this section shall be construed as affording such person party status in the proceeding.

§ 5321.  Permanency hearing 

(a)  Purpose.  Unless otherwise specified therein, an order under the authority of this chapter transferring legal custody or residual parental rights and responsibilities of a child to the department pursuant to subdivision 5318(a)(4) or (5) of this title shall be for an indeterminate period and shall be subject to periodic review at a permanency hearing.   At the permanency hearing, the court shall determine the permanency goal for the child and an estimated time for achieving that goal.  The goal shall specify when:

(1)  legal custody of the child will be transferred to the parent, guardian, or custodian;

(2)  the child will be released for adoption;

(3)  a permanent guardianship will be established for the child;

(4)  a legal guardianship will be established for the child pursuant to an order under chapter 111 of Title 14; or

(5)  the child will remain in the same living arrangement or be placed in another planned permanent living arrangement because the commissioner has demonstrated to the satisfaction of the court a compelling reason that it is not in the child’s best interests to:

(A)  return home;

(B)  have residual parental rights terminated and be released for adoption; or

(C)  be placed with a fit and willing relative or legal guardian.

(b)  The court shall adopt a case plan designed to achieve the permanency goal. 

(c)  A permanency review hearing shall be held no less than every 12 months with the first hearing to be held 12 months after the date the legal custody of the child was transferred, subject to the following exceptions:

(1)  If the child was three years of age or younger at the time of the initial transfer of legal custody, the court may order that permanency review hearings be held as frequently as every three months.

(2)  If the child is between the ages of three and six at the time of the initial transfer of legal custody, the court may order that permanency review hearings be held as frequently as every six months.

(d)  If the court shortens the time for the permanency review hearing for a younger sibling, that shortened review interval shall be applied to all siblings in the family who are in the legal custody of the department.  

(e)(1)  The department shall file with the court a notice of permanency review together with a case plan and recommendation for a permanency goal.  The department shall provide notice to the state’s attorney having jurisdiction and to all parties to the proceeding in accordance with the rules for family proceedings.  The court shall hold a permanency review hearing within 30 days of the filing of notice by the department.  Failure to give such notice or to review an order shall not terminate the original order or limit the court’s jurisdiction.

(2)  A foster parent, preadoptive parent, or relative caregiver for the child shall be provided notice of and an opportunity to be heard at any permanency hearing held with respect to the child.  Nothing in this subsection shall be construed as affording such person party status in the proceeding.

(f)  All evidence helpful in determining the questions presented, including hearsay, may be admitted and relied upon to the extent of its probative value even though not competent at an adjudication hearing. 

(g)  The permanency hearing may be held by an administrative body appointed or approved by the court.  The administrative body may consist of one but not more than three persons.  No person employed by the department shall be a member of the administrative body.  In the event that the administrative body determines that the existing order should be altered, it shall submit its recommendation to the court for its consideration.  In the event that the administrative body determines that the existing order should not be altered, its determination shall be binding unless any party requests review by the court within ten days of receipt of the determination.  A copy of the determination shall be sent to each party and to the court.  The court, on its own motion or on the request of any party, shall conduct a review de novo within 30 days of receipt of such request.

(h)  Upon the filing of a petition for a finding of reasonable efforts and a report or affidavit by the department for children and families with notice to all parties, the court shall hold a hearing within 30 days of the filing of the petition to determine, by a preponderance of the evidence, whether the department for children and families has made reasonable efforts to finalize the permanency plan for the child that is in effect at the time of the hearing.  The hearing may be consolidated with or separate from a permanency hearing.  Reasonable efforts to finalize a permanency plan may consist of:

(1)  reasonable efforts to reunify the child and family following the child’s removal from the home, where the permanency plan for the child is reunification; or

(2)  reasonable efforts to arrange and finalize an alternate permanent living arrangement for the child, in cases where the permanency plan for the child does not include reunification.

§ 5322.  Placement of a Child in a Facility Used for Treatment of Delinquent Children

A child found by the court to be a child in need of care and supervision shall not be placed in or transferred to an institution used solely for the treatment or rehabilitation of delinquent children unless the child has been charged with or adjudicated as having committed a delinquent act.

     And by renumbering the remaining sections to be numerically correct.

Thereupon, pending the question, Shall the Senate concur in the House proposal of amendment?, on motion of Senator Sears, the Senate refused to concur in the House proposal of amendment and requested a Committee of Conference.

Thereupon, pursuant to the request of the Senate, the President announced the appointment of

                                         Senator Nitka

                                         Senator Kitchel

                                         Senator Sears

as members of the Committee of Conference on the part of the Senate to consider the disagreeing votes of the two Houses.

Rules Suspended; House Proposal of Amendment Concurred In

S. 354.

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

An act relating to public agency deferred compensation plans.

Was taken up for immediate consideration.

The House proposes to the Senate to amend the bill in Sec. 2, 3 V.S.A. § 651(f), by striking out the last sentence in its entirety and inserting in lieu thereof the following: An investment program established by the teachers’ board shall be optional for public agencies set forth in subdivision 650(4)(C) of this title.  The public agency shall be the trustees of its plans created under Subsection 403(b) of the Internal Revenue Code.

Thereupon, the question, Shall the Senate concur in the House proposal of amendment?, was decided in the affirmative.

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

H. 783.

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

An act relating to home improvement fraud.

Was taken up for immediate consideration.

Senator Sears, for the Committee on Judiciary, to which the bill was referred, 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.  13 V.S.A. § 2029 is amended to read:

§ 2029. HOME IMPROVEMENT FRAUD

(a) As used in this section, "home improvement" includes the fixing, replacing, remodeling, removing, renovation, alteration, conversion, improvement, demolition, or rehabilitation of or addition to any building or land, or any portion thereof, which is used or designed to be used as a residence or dwelling unit. Home improvement shall include the construction, replacement, installation, paving, or improvement of driveways, roofs, and sidewalks, and the limbing, pruning, and removal of trees or shrubbery and other improvements to structures or upon land that is adjacent to a dwelling house.

(b) A person commits the offense of home improvement fraud when he or she knowingly enters into a contract or agreement, written or oral, for $500.00 or more, with an owner for home improvement, or into several contracts or agreements for $2,500.00 or more in the aggregate, with more than one owner for home improvement, and he or she knowingly:

(1) promises performance that he or she does not intend to perform or knows will not be performed, in whole or in part;

(2) misrepresents a material fact relating to the terms of the contract or agreement or to the condition of any portion of the property involved;

(3) uses or employs any unfair or deceptive act or practice in order to induce, encourage, or solicit such person to enter into any contract or agreement or to modify the terms of the original contract or agreement; or

(4) when there is a declared state of emergency, charges for goods or services related to the emergency a price that exceeds two times the average price for the goods or services and the increase is not attributable to the additional costs incurred in connection with providing those goods or services.

(c) It shall be a permissive inference that the person acted knowingly under subdivision (b)(1) of this section if the person fails to perform the contract or agreement and, when the owner requests performance of the contract or agreement or a refund of payments made, the person fails to:

(1) return the payments or deliver the materials or make and comply with a reasonable written repayment plan for the return of the payments; or

(2) make and comply with a reasonable written plan for completion of the contract or agreement.

(d) A person convicted of home improvement fraud shall register with the department of labor office of attorney general. The court shall notify the department of labor office of attorney general of a conviction under this section. A person who is sentenced pursuant to subdivisions (e)(2), (3), or (4) of this section shall not engage in home improvement activities for compensation unless he or she has filed a surety bond or an irrevocable letter of credit with the department of labor in an amount of not less than $50,000.00. The department shall release the letter of credit at such time when:

(1) any claims against the person relating to home improvement fraud have been paid;

(2) there are no pending actions or claims against the person for home improvement fraud; and

(3) the person has not been engaged in home improvement activities for at least six years and has signed an affidavit attesting to such.

(e)(1) A person who violates subsection (b) of this section shall be imprisoned not more than two years or fined not more than $1,000.00, or both, if the loss to a single consumer is less than $1,000.00.

(2) A person who is convicted of a second or subsequent violation of subdivision (1) of this subsection shall be imprisoned not more than three years or fined not more than $5,000.00, or both.

(3) A person who violates subsection (b) of this section shall be imprisoned not more than three years or fined not more than $5,000.00, or both, if:

(A) the loss to a single consumer is $1,000.00 or more; or

(B) the loss to more than one consumer is $2,500.00 or more in the aggregate.

(4) A person who is convicted of a second or subsequent violation of subdivision (3) of this subsection shall be imprisoned not more than five years or fined not more than $10,000.00, or both.

(5) A person who violates subsection (d) or (f) of this section shall be imprisoned for not more than two years or fined not more than $1,000.00, or both.

(f)  A person who is sentenced pursuant to subdivision (e)(2), (3), or (4) of this section may engage in home improvement activities for compensation only if:

(1)  the work is for a company or individual engaged in home improvement activities, and the person first notifies the company or individual of the conviction and notifies the office of attorney general of the person’s current address and telephone number; the name, address, and telephone number of the company or individual for whom the person is going to work; and the date on which the person will start working for the company or individual; or

(2)  the person notifies the office of attorney general of the intent to engage in home improvement activities, and that the person has filed a surety bond or an irrevocable letter of credit with the office in an amount of not less than $50,000.00, and pays on a regular basis all fees associated with maintaining such bond or letter of credit.

(g)  The office of attorney general shall release the letter of credit at such time when:

(1)  any claims against the person relating to home improvement fraud have been paid;

(2)  there are no pending actions or claims against the person for home improvement fraud; and

(3)  the person has not been engaged in home improvement activities for at least six years and has signed an affidavit so attesting.

(h)  A person who is convicted of fraudulent acts related to home improvement shall be required to comply with subsections (d) and (f) of this section.

(i)  A person may be required to comply with subsections (d) and (f) of this section by an assurance of discontinuance, a consent decree, a civil judgment, or other court order.

Sec. 2.  9 V.S.A. § 4005a is added to read:

§ 4005a.  FUND HELD IN TRUST; COMMINGLING; NO EFFECT ON TITLE TO REAL PROPERTY

(a)  For the purposes of this section:

(1)  “Claim” means any valid claim for materials furnished or services rendered in the construction, repair, remodeling, improvement, or renovation of any building or structure for which the claimant has a lien or the right to claim a lien.

(2)  “Express trust” means funds that have been paid by an owner, for or in connection with services, labor, or materials used in an improvement of real property, which are to be held by a contractor or subcontractor, in express trust, for those services, labor, or materials.  Any such contractor or subcontractor who accepts money from any owner or contractor shall become the trustee of the express trust that is created pursuant to this section.  The amounts received by such contractor or subcontractor under or in connection with each building project shall be a separate trust and the contractor or subcontractor, or any successor or assign or both of such contractor or subcontractor that hold such trust funds, shall be a trustee thereof.  These funds are not required to be held in any separate account by a contractor or subcontractor.  Such trust shall be effective against and shall have priority over any unsecured interest of a party seeking payment from such contractor or subcontractor for claims other than those that are due and owing by reason of the specific building project for which the trust was created, whether such creditors are foreign attachment or other judicial lien creditors, a trustee in bankruptcy or similar creditors or representatives or creditors of the contractor or subcontractor.

(b)  Funds held in express trust are not required to be held in any separate account by a contractor or subcontractor.

(c)  No express trust shall be required for a federal, state, or municipal project.

(d)  The amount payable to any contractor or subcontractor under any contract for the construction, repair, remodeling, improvement, or renovation of any building or structure shall, upon receipt by such contractor or subcontractor, be held in express trust by such contractor or subcontractor for the payment of all claims that are due and owing, or to become due and owing, by such contractor or subcontractor by reason of such construction, repair, remodeling, improvement, or renovation.

(e)  Any amount required to be held in express trust under this section shall be applied to the payment of the corresponding claims specified in this section.

(f)  Nothing herein shall be construed to create a lien on real property.  The existence of an express trust under this section shall not prohibit the filing or enforcement of a lien against the affected real property pursuant to chapter 51 of Title 9 by any claimant.  A priority lien of a secured lender shall not be subordinate to an express trust.

(g)  In the case of an express trust which is not held by a corporation, limited liability partnership, or limited liability company, liability for sums due under this section shall only attach to the principal or head of the company which holds the funds under the express trust.

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 proposals of amendment forthwith.

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

Rules Suspended; Proposal of Amendment; Third Reading Ordered

H. 863.

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

An act relating to creation and preservation of affordable housing and smart growth development.

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 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.  LEGISLATIVE ACKNOWLEDGMENT

The general assembly gratefully thanks and acknowledges Gregory Brown, the executive director of the Chittenden County regional planning commission for:

(1)  His time, commitment, and tenacity in helping to make the Vermont Neighborhood program a reality. 

(2)  His earlier, equally outstanding efforts that greatly contributed to the creation of the Vermont downtown program. 

(3)  His strong and committed leadership as the executive director of the Chittenden County regional planning commission between March 2003 and July 1, 2008, when he is scheduled to retire.

* * * Vermont Neighborhoods Program * * *

Sec. 2.  24 V.S.A. § 2791(15) is added to read:

(15)  “Vermont neighborhood” means an area of land that is in a municipality with an approved plan, a confirmed planning process, zoning bylaws, and subdivision regulations, and is in compliance with all the following:

(A)  Is located in one of the following:

(i)  A designated downtown, village center, new town center, or growth center.

(ii)  An area of land that is within the municipality and outside but contiguous to a designated downtown, village center, or new town center and is not more than 100 percent of the total acreage of the designated downtown, 50 percent of the village center, or 75 percent of the new town center.

(B)  Contains substantially all the following characteristics:

(i)  Its contiguous land, if any, complements the existing downtown district, village center, or new town center by integrating new housing units with existing residential neighborhoods, commercial and civic services and facilities, and transportation networks, and is consistent with smart growth principles.                    

(ii)  It is served by either a municipal sewer infrastructure or a community or alternative wastewater system approved by the agency of natural resources.

(iii)  It incorporates minimum residential densities of no fewer than four units of single-family, detached dwelling units per acre, and higher densities for duplexes and multi-family housing.

(iv)  It incorporates neighborhood design standards that promote compact, pedestrian-oriented development patterns and networks of sidewalks or paths for both pedestrians and bicycles that connect with adjacent development areas.

Sec. 3.  24 V.S.A. § 2793d is added to read:

§ 2793d.  DESIGNATION OF VERMONT NEIGHBORHOODS

(a)  A municipality that has a duly adopted and approved plan and a planning process that is confirmed in accordance with section 4350 of this title, has adopted zoning bylaws and subdivision regulations in accordance with section 4442 of this title, and has a designated downtown district, a designated village center, a designated new town center, or a designated growth center served by municipal sewer infrastructure or a community or alternative wastewater system approved by the agency of natural resources, is authorized to apply for designation of a Vermont neighborhood.  A municipal decision to apply for designation shall be made by the municipal legislative body after at least one duly warned public hearing.  Designation is possible in two different situations:

(1)  Per se approval.  If a municipality submits an application in compliance with this subsection for a designated Vermont neighborhood that would have boundaries that are entirely within the boundaries of a designated downtown district, designated village center, designated new town center, or designated growth center, the downtown board shall issue the designation.

(2)  Designation by downtown board.  If an application is submitted in compliance with this subsection by a municipality that does not have a designated growth center and proposes to create a Vermont neighborhood that has boundaries that include land that is not within its designated downtown, village center, or new town center, the expanded downtown board shall consider the application.  This application may be for approval of one or more Vermont neighborhoods that are outside but contiguous to a designated downtown district, village center, or new town center.  The application for designation shall include a map of the boundaries of the proposed Vermont neighborhood, including the property outside but contiguous to a designated downtown district, village center, or new town center and evidence that the municipality has notified the regional planning commission and the regional development corporation of its application for this designation. 

(b)  Within 45 days of receipt of a completed application, the expanded downtown board, after opportunity for public comment, shall designate a Vermont neighborhood if the board finds the applicant has met the requirements of subsections (a) and (c) of this section.  When designating a Vermont neighborhood, the board may change the boundaries that were contained in the application by reducing the size of the area proposed to be included in the designated neighborhood, but may not include in the designation land that was not included in the application for designation.  A Vermont neighborhood decision made by the expanded board is not subject to appeal.  Any Vermont neighborhood designation shall terminate when the underlying downtown, village center, new town center, or growth center designation terminates.

(c)  The applicant shall demonstrate all of the following:

(1)  The municipality has a duly adopted and approved plan and a planning process that is confirmed in accordance with section 4350 of this title, and has adopted zoning bylaws and subdivision regulations in accordance with section 4442 of this title.

(2)  The cumulative total of all Vermont neighborhood land located within the municipality but outside a designated downtown district, designated village center, or designated new town center is not more than 100 percent of the total acreage of the designated downtown district, 50 percent of the village center, or 75 percent of the new town center.

(3)  The contiguous land of the Vermont neighborhood complements the existing designated downtown district, village center, or new town center by integrating new housing units with existing residential neighborhoods, commercial and civic services and facilities, and transportation networks, and the contiguous land, in combination with the designated downtown development district, village center, or new town center, is consistent with smart growth principles established under subdivision 2791(13) of this title.

(4)  The Vermont neighborhood shall be served by either of the following:

(A)  A municipal sewer infrastructure.

(B)  A community or alternative wastewater system approved by the agency of natural resources.

(5)  The municipal zoning bylaw requires both of the following for all land located within the Vermont neighborhood:

(A)  Minimum residential densities shall require all the following:

(i)  No fewer than four units of single-family, detached dwelling units per acre, exclusive of accessory apartments.

(ii)  Higher density for duplexes and multi-family housing.

(B)  Neighborhood design standards that promote compact, pedestrian-oriented development patterns that include all the following:

(i)  Pedestrian scale and orientation of development.  Networks of sidewalks or paths, or both, are provided and available to the public to connect the Vermont neighborhood with adjacent development areas, existing and planned adjacent sidewalks, paths, and public streets and the designated downtown, village center, or new town center.

(ii)  Interconnected and pedestrian-friendly street networks.  Street networks are designed to safely accommodate both pedestrians and bicycles through the provisions of sidewalks on at least one side of the street, on-street parking, and traffic-calming features.

(d)  Incentives for Vermont neighborhoods include the following:

(1)  The agency of natural resources shall charge no more than a $50.00 fee for wastewater applications under 3 V.S.A. § 2822(j)(4) where the applicant has received an allocation for sewer capacity from an approved municipal system.  Act 250 fees under 10 V.S.A. § 6083a for residential developments in Vermont neighborhoods shall be 50 percent of the fee otherwise applicable.

(2)  Fifty percent of Act 250 fees under 10 V.S.A. § 6083a for proposed development in Vermont neighborhoods shall be paid upon application, and 50 percent shall be paid within 30 days of the issuance or denial of the permit.

(3)  No land gains tax under chapter 236 of Title 32 shall be levied on a transfer of land in a Vermont neighborhood.

(4)  The municipality in which a designated Vermont neighborhood is located may retain and reallocate 75 percent of the state education tax portion of the property tax on the increased grand list value of the homes and lots for housing units constructed in the Vermont neighborhood that do not exceed the maximum affordable price as determined by the Vermont housing finance agency and that meet the definition of homestead as defined in 32 V.S.A. §5401(7) for a period of three years after the issuance of a certificate of occupancy for the first unit and successive units in the Vermont neighborhood.  Additionally, the value of rental property constructed in a Vermont neighborhood that is rent restricted to no more than the HUD fair market rents by contract, deed restriction, or other enforceable provision for at least 15 years shall contribute to the tax increment eligible for reallocation to the municipality.  The municipality may retain the reallocation under this subsection provided it is used only to finance municipal infrastructure.

(e)   Initial designation shall be for a period of five years, after which, the expanded state board shall review a Vermont neighborhood concurrently with the next periodic review conducted of the underlying designated entity, even if the underlying designated entity was not designated originally by the expanded state board.  However, the expanded board may review compliance with the designation requirements at more frequent intervals.  If at any time the expanded state board determines that the designated Vermont neighborhood no longer meets the standards for designation established in this section, it may take any of the following actions:

(1)   Require corrective action.

(2)  Remove the Vermont neighborhood designation, with that removal not affecting any of the benefits previously awarded to the designated Vermont neighborhood.

(3)  Limit eligibility for the benefits established in this chapter, with the limitation not affecting any of the benefits previously awarded to the designated Vermont neighborhood.

* * * New Town Center Acreage * * *

Sec. 4.  24 V.S.A. §2793b(b)(2)(A) is amended to read:

(A) A map of the designated new town center. The total area of land encompassed within a designated new town center shall not exceed 125 acres.  In a municipality with a population greater than 15,000, the total area of land encompassed within a designated new town center may include land in excess of 125 acres provided that the additional area is needed to facilitate the redevelopment of predominately developed land in accordance with the smart growth principles defined under subdivision 2791(13) of this title.

* * * Agency of Natural Resources Fees * * *

Sec. 5.  3 V.S.A. § 2822(j)(4)(D) is amended to read:

(D)  Notwithstanding the other provisions of this subdivision,:

* * *

(ii)  when a potable water supply is subject to the fee provisions of this subdivision and subdivision (j)(7)(A) of this section, only the fee required by subdivision (j)(7)(A) shall be assessed; and

(iii)  when a project is subject to the fee provision for the subdivision of land and the fee provision for potable water supplies and wastewater systems of this subdivision, only the higher of the two fees shall be assessed; and

(iv)  when a project is located in a Vermont neighborhood, as designated under 24 V.S.A. chapter 76A, the fee shall be no more than $50.00 in situations in which the application has received an allocation for sewer capacity from an approved municipal system.

* * * Act 250 Provisions * * *

Sec. 6.  10 V.S.A. § 6001(3)(B) and (C) are amended to read:  

(3)(A)  “Development” means:

* * *

(B)(i)  Notwithstanding the provisions of subdivision (3)(A) of this section, if a project consists exclusively of any combination of mixed income housing or mixed use and is located entirely within a growth center designated pursuant to 24 V.S.A. § 2793c or within a downtown development district designated pursuant to 24 V.S.A. § 2793, “development” means:

(i)(I)  Construction of mixed income housing with 100 200 or more housing units or a mixed use project with 100 200 or more housing units, in a municipality with a population of 20,000 15,000 or more.

(ii)(II)  Construction of mixed income housing with 50 100 or more housing units or a mixed use project with 50 100 or more housing units, in a municipality with a population of 10,000 or more but less than 20,000 15,000.

(iii)(III)  Construction of mixed income housing with 30 50 or more housing units or a mixed use project with  30 50 or more housing units, in a municipality with a population of 5,000 6,000 or more and less than 10,000.

(iv)(IV)  Construction of mixed income housing with 25 30 or more housing units or a mixed use project with 25 30 or more housing units, in a municipality with a population of 3,000 or more but less than 5,000 6,000.

(v)(V)  Construction of mixed income housing with 25 or more housing units or a mixed use project with 25 or more housing units, in a municipality with a population of less than 3,000.

(VI)  Construction of 10 or more units of mixed income housing or a mixed use project with 10 or more housing units where the construction involves the demolition of one or more buildings that are listed on or eligible to be listed on the state or national register of historic places.  However, demolition shall not be considered to create jurisdiction under this subdivision if the division for historic preservation has determined the proposed demolition will have no adverse effect, an effect that will not be adverse provided that specified conditions are met, or an adverse effect that will be adequately mitigated, and if any imposed conditions are enforceable through a grant condition, deed covenant, or other legally binding document.

(ii)  Notwithstanding the provisions of subdivision (3)(A) of this section, if a project consists exclusively of mixed income housing located entirely within a Vermont neighborhood designated pursuant to 24 V.S.A. § 2793d, but outside of a growth center designated pursuant to 24 V.S.A. § 2793c or a downtown development district designated pursuant to 24 V.S.A. § 2793, “development" shall be determined in accordance with the numerical thresholds established in subdivision (3)(B)(i) of this section.

(C)  For the purposes of determining jurisdiction under subdivisions (3)(A) and (3)(B) of this section:

(i)  Housing units constructed by a person partially or completely outside a designated downtown development district or designated growth center shall not be counted to determine jurisdiction over housing units constructed by a person entirely within a designated downtown development district or designated growth center.

(ii)  Within any continuous period of five years, housing units constructed by a person located entirely within a designated downtown district or, designated growth center, or designated Vermont neighborhood shall be counted together with housing units constructed by a that person located partially or completely outside a designated downtown development district or, designated growth center, or designated Vermont neighborhood to determine jurisdiction over the housing units constructed by a person partially or completely outside the designated downtown development district or, designated growth center, or designated Vermont neighborhood and within a five-mile radius.

(iii)  All housing units constructed by a person within a designated downtown development district or, designated growth center within any continuous period of five years, commencing on or after the effective date of this subdivision, or designated Vermont neighborhood shall be counted together, but only if the housing units are part of a discrete project located on a single tract or multiple contiguous tracts of land.

* * *

(v)  Notwithstanding subdivision (C)(iii) of this subdivision (3), any affordable housing units, as defined by this section, (3)(A)(iv) and subdivision (19) of this section, jurisdiction shall be determined exclusively by counting housing units, and when counting housing units to determine jurisdiction, only housing units in a discrete project on a single tract or multiple contiguous tracts of land shall be counted, regardless of whether located within an area designated under 24 V.S.A. chapter 76A, provided that the housing units are affordable housing units, as defined by this section, that are subject to housing subsidy covenants as defined in 27 V.S.A. § 610 that preserve their affordability for a period of 99 years or longer, and that are constructed by a person within a designated downtown development district, designated village center, or designated growth center, shall count toward the total number of housing units used to determine jurisdiction only if they were constructed within the previous 12-month period, commencing on or after the effective date of this subdivision.

* * *  Rules on Mixed Income Housing * * *

Sec. 7.  10 V.S.A. § 6001(27) is amended to read:

(27)  “Mixed income housing” means a housing project in which at least 15 percent of the total housing units are affordable housing units:

(A)  Owner-occupied housing, the purchase price of which does not exceed the new construction, targeted area purchase price limits established and published annually by the Vermont housing finance agency; or

(B)  Housing that is rented by the occupants whose gross annual household income does not exceed 60 percent of the county median income, or 60 percent of the standard metropolitan statistical area income if the municipality is located in such an area, as defined by the United States Department of Housing and Urban Development for use with the Housing Credit Program under Section 42(g) of the Internal Revenue Code, and the total annual cost of the housing, as defined at Section 42(g)(2)(B) is not more than 30 percent of the gross annual household income as defined at Section 42(g)(2)(C), and with a duration of affordability of no less than 15 years.

* * * Act 250 Fees * * *

Sec. 8.  10 V.S.A. § 6083a(d) is amended to read:

(d)  Fees for residential development in a Vermont neighborhood designated according to 24 V.S.A. §2793d shall be no more than 50 percent of the fee otherwise charged under this section with 50 percent due with the application and 50 percent due within 30 days after the permit is issued or denied.


* * * Chapter 117 Conditional Use Appeals * * *

Sec. 9.  24 V.S.A. § 4471(e) is added to read:

(e)  Notwithstanding subsection (a) of this section, a determination by an appropriate municipal panel shall not be subject to appeal if the determination is that a proposed residential development within a designated downtown development district, designated growth center, or designated Vermont neighborhood seeking conditional use approval will not result in an undue adverse effect on the character of the area affected, as provided in subdivision 4414(3)(A)(ii) of this title.

* * * Report * * *

Sec. 10.  REPORT ON POLLUTION CONTROL SYSTEM

By no later than January 15, 2009, the secretary of natural resources shall report to the legislative committees on natural resources and energy with regard to the agency’s implementation of and compliance with the municipal pollution control priority system rules, and as to the impact of these rules on development.

* * * VHFA Sunset Repeal * * *

Sec. 11.  10 V.S.A. § 625(1) is amended to read:

(1)  The residential housing is primarily for occupancy by persons and families of low and moderate income, or qualifies for financing with proceeds of federally tax-exempt obligations, or at least 20 percent of the units are for occupancy by persons and families of low and moderate income;

* * * Land Gains Tax * * *

Sec. 12.  32 V.S.A. § 10002(p) is added to read:

(p)  Also excluded from the definition of “land” is any land in a Vermont neighborhood designated in accordance with 24 V.S.A. § 2793d.

* * * Housing Tax Credit * * *

Sec. 13.  32 V.S.A. § 5930u is amended to read:

§ 5930u.  TAX CREDIT FOR AFFORDABLE HOUSING

(a)  As used in this section:

(1)  “Affordable housing project” or “project” means a rental housing project identified in 26 U.S.C. § 42(g) or owner-occupied housing identified in 26 U.S.C. § 143(e) and (f) and eligible under the Vermont housing finance agency allocation plan criteria.

* * *

(9)  “Allocation plan” means the plan recommended by the committee and approved by the Vermont housing finance agency, which sets forth the eligibility requirements and process for selection of eligible housing projects to receive affordable housing tax credits under this section.  The allocation plan shall include requirements for creation and retention of affordable housing for low income persons, and requirements to ensure that eligible housing is maintained as affordable by subsidy covenant, as defined in 27 V.S.A. § 610 on a perpetual basis, and meets all other requirements of the Vermont housing finance agency related to affordable housing.

(b)(1)  Affordable housing credit allocation.  Prior to the placement of an affordable housing project in service, the owner, or a person having the right to acquire ownership of a building, may apply to the committee for an allocation of affordable housing tax credits under this section.  The committee shall advise the allocating agency on an affordable housing tax credit application based upon published priorities and criteria.  An eligible applicant may apply to the allocating agency for an allocation of affordable housing tax credits under this section related to an affordable housing project authorized by the allocating agency under the allocation plan.  In the case of a specific affordable rental housing project, the eligible applicant must also be the owner or a person having the right to acquire ownership of the building and must apply prior to placement of the affordable housing project in service.  In the case of owner-occupied housing units, the applicant must apply prior to purchase of the unit and must ensure that the allocated funds will be used to ensure that the housing qualifies as affordable for all future owners of the housing.  The allocating agency shall issue a letter of approval if it finds that the applicant meets the priorities, criteria, and other provisions of subdivision (2) of this subsection.  The burden of proof shall be on the applicant.

(2)  Upon receipt of a completed application, an allocation of affordable housing tax credits with respect to a project under this section shall be granted to an applicant, provided the applicant demonstrates to the satisfaction of the committee all of the following:

(A)  The owner of the project has received from the allocating agency a binding commitment for, a reservation or allocation of, an out-of-cap determination letter for, Section 42 credits, or meets the requirements of the allocation plan for development of units to be owner-occupied;

(B)  The project has received community support.

* * *

(g)  In any fiscal year, the allocating agency may award up to $400,000.00 in total first-year credit allocations to all applicants under this subchapter for rental housing projects; and may award up to $100,000.00 per year for owner‑occupied unit applicants.  In any fiscal year, total first-year allocations plus succeeding-year deemed allocations shall not exceed $2,000,000.00 $2,500.000.00.

* * * Property Transfer Tax * * *

Sec. 14.  32 V.S.A. § 9602(1) is amended to read:

A tax is hereby imposed upon the transfer by deed of title to property located in this state.  The amount of the tax equals one and one quarter one-quarter percent of the value of the property transferred, or $1.00, whichever is greater, except as follows:

(1)  with respect to the transfer of property to be used for the principal residence of the transferee:  the tax shall be imposed at the rate of five-tenths of one percent of the first $100,000.00 in value of the property transferred and at the rate of one and one quarter one-quarter percent of the value of the property transferred in excess of $100,000.00; except that no tax shall be imposed on the first $110,000.00 in value of the property transferred if the purchaser obtains a purchase money mortgage funded in part with a homeland grant through the Vermont housing and conservation trust fund or which the Vermont housing and finance agency or U.S. Department of Agriculture and Rural Development has committed to make or purchase and tax at the rate of one and one-quarter percent shall be imposed on the value of that property in excess of $110,000.00.

Sec. 15. 24 V.S.A. § 2792(a) is amended to read:

(a)  A "Vermont downtown development board," also referred to as the "state board," is created to administer the provisions of this chapter. The state board members shall be composed of the following permanent members, or their designees:

(1)  The secretary of commerce and community development;.

(2)  The secretary of transportation;.

(3)  The secretary of natural resources;.

(4)  The secretary of human services;

(5)  The commissioner of public safety;.

(6)  The commissioner of housing and community affairs; and

(5)  A person appointed by the governor from a list of three names submitted by the Vermont natural resources council, the preservation trust of Vermont, and smart growth Vermont.                  

(6)  A person appointed by the governor from a list of three names submitted by the Association of Chamber Executives.               

(7)  Three public members representative of local government, one of whom shall be designated by the Vermont league of cities and towns, and two shall be appointed by the governor.

Sec. 16.  SMART GROWTH; STUDY COMMITTEE

(a)  A smart growth study committee is created to:

(1)  Study Act 250 (10 V.S.A. § 6086) criterion 5, relating to traffic, criterion 9(H), relating to scattered development, and criterion 9(L), relating to rural development, to determine the effectiveness of those criteria to promote compact settlement patterns and prevent sprawl and to make recommendations to improve the effectiveness of those criteria in preserving the economic vitality of Vermont’s existing settlements and preventing sprawl development.

(2)  Evaluate the development potential and impact on natural resources of existing designated downtowns and village centers to determine if their size and the land area immediately surrounding them are adequate to accommodate additional housing in Vermont neighborhoods or if more flexibility is needed to promote needed housing development.

(3)  Make recommendations for incentives designed to motivate municipalities to develop Vermont neighborhoods and new housing.

(b)  The committee shall be composed of the following 12 members:

(1)  Two members of the house, one from the committee on general, housing and military affairs and one from the committee on natural resources and energy, who shall be entitled to expenses and per diem pursuant to 2 V.S.A. § 406 or 32  V.S.A. § 1010.

(2)  Two members of the senate, one from the committee on economic development, housing and general affairs and one from the committee on natural resources and energy.    

(3)  A representative from each of the following organizations: 

(A)  Vermont homebuilders and remodelers association.

(B)  Lake Champlain regional chamber of commerce.

(C)  Vermont planners association.

(D)  Vermont association of planning and development agencies.

(E)  Smart growth Vermont.

(F)  Vermont natural resources council.

(G)  Vermont natural resources board.

(H)  Vermont association of realtors.

(c)  The four legislative members shall be entitled to the per diem compensation and reimbursement of necessary expenses as provided to members of standing committees under 2 V.S.A. § 406 for attendance at a meeting when the general assembly is not in session.

(d)   The chair shall be elected by the members of the study committee from among the four legislative members.  The committee shall meet as needed, and legislative counsel shall provide administrative support. 

(e)  The committee shall issue a report on its findings and recommendations to the house committees on general, housing and military affairs and on natural resources and energy and the senate committees on economic development, housing and general affairs and on natural resources and energy on or before January 15, 2009. 

* * * State Surplus Land Inventory * * *

Sec. 17.  STATE SURPLUS LAND IN CLOSE PROXIMITY TO OR WITHIN A DOWNTOWN, VILLAGE CENTER, OR NEW TOWN CENTER; INVENTORY AND PROGRAM PROPOSALS 

(a)  The secretary of commerce and community affairs, in consultation with Vermont housing finance agency, the Vermont housing and conservation board, and any other interested parties, shall:

(1)  Compile an inventory of state lands deemed to be surplus to state needs and located in close proximity to or within a designated downtown, a designated village center, or a designated new town center that would be appropriate for developing housing that meets the community housing needs as identified and defined in a local housing needs assessment.

(2)  Develop program recommendations for the use of suitable state surplus land that will ensure that housing development on this land includes a substantial amount of affordable housing, including permanently affordable housing.

(3)  Recommend processes and mechanisms for transfer of the land to assure its use for housing development whether by outright sale, long-term lease, or some other appropriate mechanism.

(b)  On or before January 15, 2009, the secretary of commerce and community development shall issue a report that includes an inventory of state surplus land and recommendations for the issues listed under subsection (a) of this section.  The report shall be provided to the house committees on corrections and institutions and on general, housing and military affairs and the senate committees on institutions and on economic development, housing and general.

* * * Economic Stimuli * * *

Sec. 18.  3 V.S.A. § 523(e) is amended to read:

(e)  The committee may formulate policies and procedures deemed necessary and appropriate to carry out its functions.  Notwithstanding the foregoing, the committee shall consider, consistent with chapter 147 of Title 9, subsection 472a(b) of this title, 16 V.S.A. § 1943a(b), and 24 V.S.A. § 5063a(b), investing up to $17,500,000.00 with the Vermont housing finance agency to assist in its homeownership financing programs for persons and families of low and moderate income as defined in 10 V.S.A. § 601(11).

Sec. 19.  INVESTMENT OF STATE MONEYS

The treasurer is hereby authorized to establish a short-term credit facility for the Vermont housing finance agency in an amount of up to $30,000,000.00 to be used as interim financing for its homeownership mortgage loan program as authorized under chapter 25 of Title 10.

Sec. 20.  10 V.S.A. § 632(d) is amended to read:

(d)  In order to assure the maintenance of the debt service reserve requirement in each debt service reserve fund established by the agency, there may be appropriated annually and paid to the agency for deposit in each such fund, such sum as shall be certified by the chair of the agency, to the governor or the governor-elect, the president of the senate, and the speaker of the house, as is necessary to restore each such debt service reserve fund to an amount equal to the debt service reserve requirement for such fund.  The chair shall annually, on or about February 1, make and deliver to the governor or the governor-elect, the president of the senate, and the speaker of the house, his or her certificate stating the sum required to restore each such debt service reserve fund to the amount aforesaid, and the sum so certified may be appropriated, and if appropriated, shall be paid to the agency during the then current state fiscal year.  The principal amount of bonds or notes outstanding at any one time and secured in whole or in part by a debt service reserve fund to which state funds may be appropriated pursuant to this subsection shall not exceed $125,000,000.00 $155,000,000.00, provided that the foregoing shall not impair the obligation of any contract or contracts entered into by the agency in contravention of the Constitution of the United States of America.

* * * Effective Dates, Transitional Provisions, and Sunset * * *

Sec 20.  TRANSITIONAL PROVISION

The owner or applicant of any undeveloped land located in a designated approved Vermont neighborhood that was previously subject to a land use permit for residential development under chapter 151 of Title 10 as of the effective date of this act, shall have the option of proceeding in accordance with the provisions of 24 V.S.A. §2793d and not those required by any issued land use permit.

Sec. 21.  EFFECTIVE DATES; SUNSET

This act shall take effect on passage except that:

(1)  Sec. 11 of this act shall take effect on July 1, 2008, at which time the prospective repeal provisions of Sec. 7a of No. 189 of the Acts of the 2005 Adj. Sess. (2006) shall have no force or effect.

(2)  Sec. 13 of this act, amending 32 V.S.A. § 5930u, shall apply to fiscal year 2009 and after.

(3)  Sec. 14 of this act, amending 32 V.S.A. § 9602, shall apply to transfers on or after July 1, 2008.

(4)  Sec. 19 of this act shall expire on June 30, 2009.

And after passage, the title of the bill is to be amended to read:

     AN ACT RELATING TO CREATING VERMONT NEIGHBORHOODS AND ENCOURAGING SMART GROWTH DEVELOPMENT.

Thereupon, the bill was read the second time by title only pursuant to Rule 43, and pending the question, Shall the Senate propose to the House to amend the bill as recommended by the Committee on Economic Development, Housing and General Affairs?, Senator Illuzzi moved to substitute a proposal of amendment for the proposal of amendment of the Committee on Economic Development, Housing and General Affairs as follows:

Sec. 1.  LEGISLATIVE ACKNOWLEDGMENT

The general assembly gratefully thanks and acknowledges Gregory Brown, the executive director of the Chittenden County regional planning commission, for:

(1)  his time, commitment, and tenacity in helping to make the Vermont Neighborhood program a reality. 

(2)  his earlier, equally outstanding efforts that greatly contributed to the creation of the Vermont downtown program. 

(3)  his strong and committed leadership as the executive director of the Chittenden County regional planning commission between March 2003 and July 1, 2008, when he is scheduled to retire.

* * * Vermont Neighborhoods Program * * *

Sec. 2.  24 V.S.A. § 2791(15) is added to read:

(15)  “Vermont neighborhood” means an area of land that is in a municipality with an approved plan, a confirmed planning process, zoning bylaws, and subdivision regulations, and is in compliance with all the following:

(A)  is located in one of the following:

(i)  a designated downtown, village center, new town center, or growth center; or

(ii)  an area of land that is within the municipality and outside but contiguous to a designated downtown, village center, or new town center and is not more than 100 percent of the total acreage of the designated downtown, 50 percent of the village center, or 75 percent of the new town center.

(B)  contains substantially all the following characteristics:

(i)  its contiguous land, if any, complements the existing downtown district, village center, or new town center by integrating new housing units with existing residential neighborhoods, commercial and civic services and facilities, and transportation networks, and is consistent with smart growth principles;

(ii)  it is served by either a municipal sewer infrastructure or a community or alternative wastewater system approved by the agency of natural resources;

(iii)  it incorporates minimum residential densities of no fewer than four units of single-family, detached dwelling units per acre, and higher densities for duplexes and multi-family housing; and

(iv)  it incorporates neighborhood design standards that promote compact, pedestrian-oriented development patterns and networks of sidewalks or paths for both pedestrians and bicycles that connect with adjacent development areas.


Sec. 3.  24 V.S.A. § 2793d is added to read:

§ 2793d.  DESIGNATION OF VERMONT NEIGHBORHOODS

(a)  A municipality that has a duly adopted and approved plan and a planning process that is confirmed in accordance with section 4350 of this title, has adopted zoning bylaws and subdivision regulations in accordance with section 4442 of this title, and has a designated downtown district, a designated village center, a designated new town center, or a designated growth center served by municipal sewer infrastructure or a community or alternative wastewater system approved by the agency of natural resources, is authorized to apply for designation of a Vermont neighborhood.  A municipal decision to apply for designation shall be made by the municipal legislative body after at least one duly warned public hearing.  Designation is possible in two different situations:

(1)  Per se approval.  If a municipality submits an application in compliance with this subsection for a designated Vermont neighborhood that would have boundaries that are entirely within the boundaries of a designated downtown district, designated village center, designated new town center, or designated growth center, the downtown board shall issue the designation.

(2)  Designation by downtown board in towns without growth centers.  If an application is submitted in compliance with this subsection by a municipality that does not have a designated growth center and proposes to create a Vermont neighborhood that has boundaries that include land that is not within its designated downtown, village center, or new town center, the expanded downtown board shall consider the application.  This application may be for approval of one or more Vermont neighborhoods that are outside but contiguous to a designated downtown district, village center, or new town center.  The application for designation shall include a map of the boundaries of the proposed Vermont neighborhood, including the property outside but contiguous to a designated downtown district, village center, or new town center and verification that the municipality has notified the regional planning commission and the regional development corporation of its application for this designation. 

(b)  Designation Process.  Within 45 days of receipt of a completed application, the expanded downtown board, after opportunity for public comment, shall designate a Vermont neighborhood if the board determines the applicant has met the requirements of subsections (a) and (c) of this section.  When designating a Vermont neighborhood, the board may change the boundaries that were contained in the application by reducing the size of the area proposed to be included in the designated neighborhood, but may not include in the designation land that was not included in the application for designation.  A Vermont neighborhood decision made by the expanded board is not subject to appeal.  Any Vermont neighborhood designation shall terminate when the underlying downtown, village center, new town center, or growth center designation terminates.

(c)  Designation Standards.  The board shall determine that the applicant has demonstrated all of the following:

(1)  the municipality has a duly adopted and approved plan and a planning process that is confirmed in accordance with section 4350 of this title, and has adopted zoning bylaws and subdivision regulations in accordance with section 4442 of this title;

(2)  the cumulative total of all Vermont neighborhood land located within the municipality but outside a designated downtown district, designated village center, or designated new town center is not more than 100 percent of the total acreage of the designated downtown district, 50 percent of the village center, or 75 percent of the new town center;

(3)  the contiguous land of the Vermont neighborhood complements the existing designated downtown district, village center, or new town center by integrating new housing units with existing residential neighborhoods, commercial and civic services and facilities, and transportation networks, and the contiguous land, in combination with the designated downtown development district, village center, or new town center, is consistent with smart growth principles established under subdivision 2791(13) of this title;

(4)  the Vermont neighborhood shall be served by one of  the following:

(A)  a municipal sewer infrastructure; or

(B)  a community or alternative wastewater system approved by the agency of natural resources; and

(5)  the municipal zoning bylaw requires the following for all land located within the Vermont neighborhood:

(A)  minimum residential densities shall require all the following:

(i)  no fewer than four units of single-family, detached dwelling units per acre, exclusive of accessory apartments; and

(ii)  higher density for duplexes and multi-family housing; and

(B)  neighborhood design standards that promote compact, pedestrian-oriented development patterns that include the following:

(i)  pedestrian scale and orientation of development.  Networks of sidewalks or paths, or both, are provided and available to the public to connect the Vermont neighborhood with adjacent development areas, existing and planned adjacent sidewalks, paths, and public streets and the designated downtown, village center, or new town center; and

(ii)  interconnected and pedestrian-friendly street networks.  Street networks are designed to safely accommodate both pedestrians and bicycles through the provisions of sidewalks on at least one side of the street, on-street parking, and traffic-calming features.

(d)  Vermont Neighborhood Incentives for Municipalities and Developers.  Incentives for Vermont neighborhoods include the following:

(1)  the agency of natural resources shall charge no more than a $50.00 fee for wastewater applications under 3 V.S.A. § 2822(j)(4) where the applicant has received an allocation for sewer capacity from an approved municipal system; and 

(2)  Act 250 fees under 10 V.S.A. § 6083a for residential developments in Vermont neighborhoods shall be 50 percent of the fee otherwise applicable.  Fifty percent of the reduced fees shall be paid upon application, and 50 percent shall be paid within 30 days of the issuance or denial of the permit.

(3)  Land Gains Tax Exemption.  No land gains tax under chapter 236 of Title 32 shall be levied on a transfer of land in a Vermont neighborhood.

(4)  Municipal Revenue Sharing on Affordable Units. 

     (A)  Municipal Revenue Sharing; Affordable Units.  The municipality in which a designated Vermont neighborhood is located may retain and reallocate 75 percent of the state education tax portion of the property tax on the increased grand list value of the homes and lots for housing units constructed in the Vermont neighborhood that do not exceed the maximum affordable price as determined by the Vermont housing finance agency and that meet the definition of homestead as defined in 32 V.S.A. §5401(7) for a period of three years after the issuance of a certificate of occupancy for the first unit and successive units in the Vermont neighborhood. 

     (B)  Affordable Rental Housing.  The value of rental property constructed in a Vermont neighborhood that is rent restricted to no more than the HUD fair market rents by contract, deed restriction, or other enforceable provision for at least 15 years shall contribute to the tax increment eligible for reallocation to the municipality. 

     (C)  Municipal Infrastructure.  The municipality may retain the reallocation under this subsection provided it is used only to finance municipal infrastructure.

(e)  Length of Designation.  Initial designation of a Vermont neighborhood shall be for a period of five years, after which, the expanded state board shall review a Vermont neighborhood concurrently with the next periodic review conducted of the underlying designated downtown, village center, new town center or growth center, even if the underlying designated entity was originally designated by the downtown board and not by the expanded state board.  However, the expanded board, on its motion, may review compliance with the designation requirements at more frequent intervals.  If at any time the expanded state board determines that the designated Vermont neighborhood no longer meets the standards for designation established in this section, it may take any of the following actions:

(1)   require corrective action within a reasonable time frame;

(2)  remove the Vermont neighborhood designation, with that removal not retroactively affecting any of the benefits already received by the municipality or land owner in the designated Vermont neighborhood; and

(3)  prospectively limiting benefits authorized in this chapter, with the limitation not retroactively affecting any of the benefits already received by the municipality or land owner in the designated Vermont neighborhood.

* * * New Town Center Acreage * * *

Sec. 4.  24 V.S.A. §2793b(b)(2)(A) is amended to read:

(A) A map of the designated new town center. The total area of land encompassed within a designated new town center shall not exceed 125 acres.  In a municipality with a population greater than 15,000, the total area of land encompassed within a designated new town center may include land in excess of 125 acres provided that the additional area is needed to facilitate the redevelopment of predominately developed land in accordance with the smart growth principles defined under subdivision 2791(13) of this title.

* * * Codifying Agency of Natural Resources Incentives * * *

Sec. 5.  3 V.S.A. § 2822(j)(4)(D) is amended to read:

(D)  Notwithstanding the other provisions of this subdivision,:

* * *

(ii)  when a potable water supply is subject to the fee provisions of this subdivision and subdivision (j)(7)(A) of this section, only the fee required by subdivision (j)(7)(A) shall be assessed; and

(iii)  when a project is subject to the fee provision for the subdivision of land and the fee provision for potable water supplies and wastewater systems of this subdivision, only the higher of the two fees shall be assessed; and

(iv)  when a project is located in a Vermont neighborhood, as designated under 24 V.S.A. chapter 76A, the fee shall be no more than $50.00 in situations in which the application has received an allocation for sewer capacity from an approved municipal system.

* * * Codifying Higher Act 250 Thresholds * * *

Sec. 6.  10 V.S.A. § 6001(3)(B) and (C) are amended to read:  

(3)(A)  “Development” means:

* * *

(B)(i)  Smart Growth Jurisdictional Thresholds.  Notwithstanding the provisions of subdivision (3)(A) of this section, if a project consists exclusively of any combination of mixed income housing or mixed use and is located entirely within a growth center designated pursuant to 24 V.S.A. § 2793c or within a downtown development district designated pursuant to 24 V.S.A. § 2793, “development” means:

(i)(I)  Construction of mixed income housing with 100 200 or more housing units or a mixed use project with 100 200 or more housing units, in a municipality with a population of 20,000 15,000 or more.

(ii)(II)  Construction of mixed income housing with 50 100 or more housing units or a mixed use project with 50 100 or more housing units, in a municipality with a population of 10,000 or more but less than 20,000 15,000.

(iii)(III)  Construction of mixed income housing with 30 50 or more housing units or a mixed use project with  30 50 or more housing units, in a municipality with a population of 5,000 6,000 or more and less than 10,000.

(iv)(IV)  Construction of mixed income housing with 25 30 or more housing units or a mixed use project with 25 30 or more housing units, in a municipality with a population of 3,000 or more but less than 5,000 6,000.

(v)(V)  Construction of mixed income housing with 25 or more housing units or a mixed use project with 25 or more housing units, in a municipality with a population of less than 3,000.

(VI)  Historic Buildings.  Construction of 10 or more units of mixed income housing or a mixed use project with 10 or more housing units where the construction involves the demolition of one or more buildings that are listed on or eligible to be listed on the state or national register of historic places.  However, demolition shall not be considered to create jurisdiction under this subdivision if the division for historic preservation has determined the proposed demolition will have: no adverse effect; no adverse effect provided that specified conditions are met; or, will have an adverse effect, but that adverse effect will be adequately mitigated.  Any imposed conditions shall be enforceable through a grant condition, deed covenant, or other legally binding document.

(ii)  Notwithstanding the jurisdictional provisions of subdivision (3)(A) of this section, the higher jurisdictional thresholds set forth in subdivision 3(B)(i) of this section shall apply if a project consists exclusively of mixed income housing located entirely within a Vermont neighborhood designated pursuant to 24 V.S.A. § 2793d(a)(2).  In a designated downtown and in a designated growth center, the higher jurisdictional thresholds in subdivision 3(B)(i) shall apply to a project that consists exclusively of any combination of mixed income housing or mixed use and is located entirely within a growth center designated pursuant to 24 V.S.A. § 2793c or within a downtown development district designated pursuant to 24 V.S.A. § 2793.

(C)  For the purposes of determining jurisdiction under subdivisions (3)(A) and (3)(B) of this section:

(i)  Housing units constructed by a person partially or completely outside a designated downtown development district or designated growth center shall not be counted to determine jurisdiction over housing units constructed by a person entirely within a designated downtown development district or designated growth center.

(ii)  Five Year, Five Mile Jurisdiction Threshold.  Within any continuous period of five years, housing units constructed by a person located entirely within a designated downtown district or, designated growth center, or designated Vermont neighborhood shall be counted together with housing units constructed by a that person located partially or completely outside a designated downtown development district or, designated growth center, or designated Vermont neighborhood to determine jurisdiction over the housing units constructed by a person partially or completely outside the designated downtown development district or, designated growth center, or designated Vermont neighborhood and within a five-mile radius.

(iii)  Each Project Stands Alone.  All housing units constructed by a person within a designated downtown development district or, designated growth center within any continuous period of five years, commencing on or after the effective date of this subdivision, or designated Vermont neighborhood shall be counted together, but only if the housing units are part of a discrete project located on a single tract or multiple contiguous tracts of land.

* * *

(v)  Per Project Increased Thresholds for Land Subdivision in Vermont Neighborhood; Per Project Threshold for Permanently Affordable Housing.  Notwithstanding subdivision (C)(iii) of this subdivision (3), any affordable housing units, as defined by this section, (3)(A)(iv) and subdivision (19) of this section, jurisdiction shall be determined exclusively by counting housing units, and when counting housing units to determine jurisdiction, only housing units in a discrete project on a single tract or multiple contiguous tracts of land shall be counted, regardless of whether located within an area designated under 24 V.S.A. chapter 76A, provided that the housing units are affordable housing units, as defined by this section, that are subject to housing subsidy covenants as defined in 27 V.S.A. § 610 that preserve their affordability for a period of 99 years or longer, and that are constructed by a person within a designated downtown development district, designated village center, or designated growth center, shall count toward the total number of housing units used to determine jurisdiction only if they were constructed within the previous 12-month period, commencing on or after the effective date of this subdivision.

* * *  Rules on Mixed Income Housing * * *

Sec. 7.  10 V.S.A. § 6001(27) is amended to read:

(27)  “Mixed income housing” means a housing project in which at least 15 percent of the total housing units are affordable housing units:

(A)  (Owner occupied Housing)  owner-occupied housing, the purchase price of which does not at the time of first sale exceed the new construction, targeted area purchase price limits established and published annually by the Vermont housing finance agency; or

(B)  (Affordable Rental Housing)  housing that is rented by the occupants whose gross annual household income does not exceed 60 percent of the county median income, or 60 percent of the standard metropolitan statistical area income if the municipality is located in such an area, as defined by the United States Department of Housing and Urban Development for use with the Housing Credit Program under Section 42(g) of the Internal Revenue Code, and the total annual cost of the housing, as defined at Section 42(g)(2)(B) is not more than 30 percent of the gross annual household income as defined at Section 42(g)(2)(C), and with a duration of affordability of no less than 15 years.

* * * Act 250 Fees In Vermont Neighborhood * * *

Sec. 8.  10 V.S.A. § 6083a(d) is amended to read:

(d)  Vermont Neighborhood Fees.  Fees for residential development in a Vermont neighborhood designated according to 24 V.S.A. §2793d shall be no more than 50 percent of the fee otherwise charged under this section, with 50 percent due with the application, and 50 percent due within 30 days after the permit is issued or denied.

* * * Vermont Neighborhood Chapter 117 Conditional Use Appeals * * *

Sec. 9.  24 V.S.A. § 4471(e) is added to read:

(e)  Vermont Neighborhood.  Notwithstanding subsection (a) of this section, a determination by an appropriate municipal panel shall not be subject to appeal if the determination is that a proposed residential development within a designated downtown development district, designated growth center, or designated Vermont neighborhood seeking conditional use approval will not result in an undue adverse effect on the character of the area affected, as provided in subdivision 4414(3)(A)(ii) of this title.

* * * Report * * *

Sec. 10.  REPORT ON POLLUTION CONTROL SYSTEM

By no later than January 15, 2009, the secretary of natural resources shall report to the legislative committees on natural resources and energy with regard to the agency’s implementation of and compliance with the municipal pollution control priority system rules, and as to the impact of these rules on development.

* * * VHFA Sunset Repeal * * *

Sec. 11.  10 V.S.A. § 625(1) is amended to read:

(1)  The residential housing is primarily for occupancy by persons and families of low and moderate income, or qualifies for financing with proceeds of federally tax-exempt obligations, or at least 20 percent of the units are for occupancy by persons and families of low and moderate income;

* * * Land Gains Tax * * *

Sec. 12.  32 V.S.A. § 10002(p) is added to read:

(p)  Vermont Neighborhood.  Also excluded from the definition of “land” is any land in a Vermont neighborhood designated in accordance with 24 V.S.A. § 2793d.


* * * Housing Tax Credit * * *

Sec. 13.  32 V.S.A. § 5930u is amended to read:

§ 5930u.  TAX CREDIT FOR AFFORDABLE HOUSING

(a)  As used in this section:

(1)  “Affordable housing project” or “project” means a rental housing project identified in 26 U.S.C. § 42(g) or owner-occupied housing identified in 26 U.S.C. § 143(e) and (f) and eligible under the Vermont housing finance agency allocation plan criteria.

* * *

(9)  “Allocation plan” means the plan recommended by the committee and approved by the Vermont housing finance agency, which sets forth the eligibility requirements and process for selection of eligible housing projects to receive affordable housing tax credits under this section.  The allocation plan shall include requirements for creation and retention of affordable housing for low income persons, and requirements to ensure that eligible housing is maintained as affordable by subsidy covenant, as defined in 27 V.S.A. § 610 on a perpetual basis, and meets all other requirements of the Vermont housing finance agency related to affordable housing.

(b)(1)  Affordable housing credit allocation.  Prior to the placement of an affordable housing project in service, the owner, or a person having the right to acquire ownership of a building, may apply to the committee for an allocation of affordable housing tax credits under this section.  The committee shall advise the allocating agency on an affordable housing tax credit application based upon published priorities and criteria.  An eligible applicant may apply to the allocating agency for an allocation of affordable housing tax credits under this section related to an affordable housing project authorized by the allocating agency under the allocation plan.  In the case of a specific affordable rental housing project, the eligible applicant must also be the owner or a person having the right to acquire ownership of the building and must apply prior to placement of the affordable housing project in service.  In the case of owner-occupied housing units, the applicant must apply prior to purchase of the unit and must ensure that the allocated funds will be used to ensure that the housing qualifies as affordable for all future owners of the housing.  The allocating agency shall issue a letter of approval if it finds that the applicant meets the priorities, criteria, and other provisions of subdivision (2) of this subsection.  The burden of proof shall be on the applicant.

(2)  Upon receipt of a completed application, an allocation of affordable housing tax credits with respect to a project under this section shall be granted to an applicant, provided the applicant demonstrates to the satisfaction of the committee all of the following:

(A)  The owner of the project has received from the allocating agency a binding commitment for, a reservation or allocation of, an out-of-cap determination letter for, Section 42 credits, or meets the requirements of the allocation plan for development of units to be owner-occupied;

(B)  The project has received community support.

* * *

(g)  In any fiscal year, the allocating agency may award up to $400,000.00 in total first-year credit allocations to all applicants under this subchapter for rental housing projects; and may award up to $100,000.00 per year for owner‑occupied unit applicants.  In any fiscal year, total first-year allocations plus succeeding-year deemed allocations shall not exceed $2,000,000.00 $2,500.000.00.

* * * Property Transfer Tax * * *

Sec. 14.  32 V.S.A. § 9602(1) is amended to read:

A tax is hereby imposed upon the transfer by deed of title to property located in this state.  The amount of the tax equals one and one quarter one-quarter percent of the value of the property transferred, or $1.00, whichever is greater, except as follows:

(1)  with respect to the transfer of property to be used for the principal residence of the transferee:  the tax shall be imposed at the rate of five-tenths of one percent of the first $100,000.00 in value of the property transferred and at the rate of one and one quarter one-quarter percent of the value of the property transferred in excess of $100,000.00; except that no tax shall be imposed on the first $110,000.00 in value of the property transferred if the purchaser obtains a purchase money mortgage funded in part with a homeland grant through the Vermont housing and conservation trust fund or which the Vermont housing and finance agency or U.S. Department of Agriculture and Rural Development has committed to make or purchase and tax at the rate of one and one-quarter percent shall be imposed on the value of that property in excess of $110,000.00.

Sec. 15. 24 V.S.A. § 2792(a) is amended to read:

(a)  A "Vermont downtown development board," also referred to as the "state board," is created to administer the provisions of this chapter. The state board members shall be composed of the following permanent members, or their designees:

(1)  The the secretary of commerce and community development;

(2)  The the secretary of transportation;

(3)  The the secretary of natural resources;

(4)  The secretary of human services;

(5)  The the commissioner of public safety;

(6)  The commissioner of housing and community affairs; and

(5)  a person appointed by the governor from a list of three names submitted by the Vermont Natural Resources Council, the Preservation Trust of Vermont, and Smart Growth Vermont;

(6)  a person appointed by the governor from a list of three names submitted by the Association of Chamber Executives; and               

(7)  Three three public members representative of local government, one of whom shall be designated by the Vermont league of cities and towns, and two shall be appointed by the governor.

Sec. 16.  SMART GROWTH; STUDY COMMITTEE

(a)  A smart growth study committee is created to:

(1)  study Act 250 (10 V.S.A. § 6086) criterion 5, relating to traffic, criterion 9(H), relating to scattered development, and criterion 9(L), relating to rural development, to determine the effectiveness of those criteria to promote compact settlement patterns and prevent sprawl and to make recommendations to improve the effectiveness of those criteria in preserving the economic vitality of Vermont’s existing settlements and preventing sprawl development;

(2)  evaluate the development potential of existing designated downtowns new town centers and village centers to determine if their size and the land area immediately surrounding them are adequate to accommodate additional housing in Vermont neighborhoods.  If more flexibility is needed to promote needed housing development, evaluate the community and natural resource impacts of developing those lands; and

(3)  make recommendations for incentives designed to encourage municipalities to develop Vermont neighborhoods and new housing.

(b)  The committee shall be composed of the following 12 members:

(1)  two members of the house, one from the committee on general, housing and military affairs and one from the committee on natural resources and energy, appointed by the speaker of the House;

(2)  two members of the senate, one from the committee on economic development, housing and general affairs and one from the committee on natural resources and energy, appointed by the President pro tempore;    

(3)  a representative from each of the following organizations: 

(A)  Vermont Homebuilders and Remodelers Association.

(B)  Lake Champlain Regional Chamber of Commerce.

(C)  a municipal planner appointed by Vermont Planners Association.

(D)  a regional planner appointed by Vermont Association of Planning and Development Agencies.

(E)  Smart Growth Vermont.

(F)  Vermont Natural Resources Council.

(G)  Vermont Natural Resources Board.

(H)  Vermont Association of Realtors.

(c)  The four legislative members shall be entitled to per diem compensation and reimbursement of necessary expenses as provided to members of standing committees under 2 V.S.A. § 406 for attendance at a meeting when the general assembly is not in session.

(d)   The chair shall be elected from any of the four legislative members by the members of the study committee from among the four legislative members.  The committee shall meet as needed, and the legislative council shall provide administrative support. 

(e)  The committee shall issue a brief report on its findings and recommendations and draft legislation to the house committees on general, housing and military affairs and on natural resources and energy and the senate committees on economic development, housing and general affairs and on natural resources and energy on or before January 15, 2009. 

* * * State Surplus Land Inventory * * *

Sec. 17.  STATE SURPLUS LAND IN CLOSE PROXIMITY TO OR WITHIN A DOWNTOWN, VILLAGE CENTER, OR NEW TOWN CENTER; INVENTORY AND PROGRAM PROPOSALS 

(a)  The secretary of commerce and community affairs, in consultation with Vermont Housing Finance Agency, the Vermont Housing and Conservation Board, and any other interested parties, shall:

(1)  compile an inventory of state lands deemed to be surplus to state needs and located in close proximity to or within a designated downtown, a designated village center, a designated new town center or a designated growth center that would be appropriate for developing housing that meets the community housing needs;

(2)  develop program recommendations for the use of suitable state surplus land that will ensure that housing development on this land includes a substantial amount of affordable housing, including permanently affordable housing; and

(3)  recommend processes and mechanisms for transfer of the land to assure its use for housing development whether by outright sale, long-term lease, or some other appropriate mechanism.

(b)  On or before January 15, 2009, the secretary of commerce and community development shall issue a report that includes an inventory of state surplus land and recommendations developed pursuant to the goals of subsection (a) of this section.  The report shall be provided to the house committees on corrections and institutions and on general, housing and military affairs and the senate committees on institutions and on economic development, housing and general.

* * * VHFA Economic Stimuli * * *

Sec. 18.  3 V.S.A. § 523(e) is amended to read:

(e)  The committee may formulate policies and procedures deemed necessary and appropriate to carry out its functions.  Notwithstanding the foregoing, the committee shall consider, consistent with chapter 147 of Title 9, subsection 472a(b) of this title, 16 V.S.A. § 1943a(b), and 24 V.S.A. § 5063a(b), investing up to $17,500,000.00 with the Vermont housing finance agency to assist in its homeownership financing programs for persons and families of low and moderate income as defined in 10 V.S.A. § 601(11).

Sec. 19.  INVESTMENT OF STATE MONEYS

The treasurer is hereby authorized to establish a short-term credit facility for the Vermont housing finance agency in an amount of up to $30,000,000.00 to be used as interim financing for its homeownership mortgage loan program as authorized under chapter 25 of Title 10.

Sec. 20.  10 V.S.A. § 632(d) is amended to read:

(d)  In order to assure the maintenance of the debt service reserve requirement in each debt service reserve fund established by the agency, there may be appropriated annually and paid to the agency for deposit in each such fund, such sum as shall be certified by the chair of the agency, to the governor or the governor-elect, the president of the senate, and the speaker of the house, as is necessary to restore each such debt service reserve fund to an amount equal to the debt service reserve requirement for such fund.  The chair shall annually, on or about February 1, make and deliver to the governor or the governor-elect, the president of the senate, and the speaker of the house, his or her certificate stating the sum required to restore each such debt service reserve fund to the amount aforesaid, and the sum so certified may be appropriated, and if appropriated, shall be paid to the agency during the then current state fiscal year.  The principal amount of bonds or notes outstanding at any one time and secured in whole or in part by a debt service reserve fund to which state funds may be appropriated pursuant to this subsection shall not exceed $125,000,000.00 $155,000,000.00, provided that the foregoing shall not impair the obligation of any contract or contracts entered into by the agency in contravention of the Constitution of the United States of America.

* * * Effective Dates, Transitional Provisions, and Sunset * * *

Sec 21.  TRANSITIONAL PROVISION

The owner or applicant of any undeveloped land located in a designated approved Vermont neighborhood that was previously subject to a land use permit for residential development under chapter 151 of Title 10 as of the effective date of this act, shall have the option of proceeding in accordance with the provisions of 24 V.S.A. §2793d and not those required by any issued land use permit.

Sec. 22.  EFFECTIVE DATES; SUNSET

This act shall take effect on passage except that:

(1)  Sec. 11 (VHFA Sunset Repeal) of this act shall take effect on July 1, 2008, at which time the prospective repeal provisions of Sec. 7a of No. 189 of the Acts of the 2005 Adj. Sess. (2006) shall have no force or effect.

(2)  Sec. 13 (VHFA Home Ownership Tax Credit) of this act, amending 32 V.S.A. § 5930u, shall take effect July 1, 2008.

(3)  Sec. 14 (Low Income Home Ownership Program) of this act, amending 32 V.S.A. § 9602, shall apply to transfers on or after July 1, 2008.

(4)  Sec. 19 (Short Term Loan form State Treasury to VHFA) of this act shall expire on June 30, 2009.

And after passage, the title of the bill is to be amended to read:

     AN ACT RELATING TO MUNICIPAL PLANNING, CREATING VERMONT NEIGHBORHOODS AND ENCOURAGING SMART GROWTH DEVELOPMENT.

Which was agreed to.

Senator Cummings, for the Committee on Finance, to which the bill was referred, reported recommending that the bill be amended as recommended by the Committee on Economic Development, Housing and General Affairs, as substituted, with the following amendments thereto:

First:  In Sec. 3.24 V.S.A. §2793d(d) by striking out subdivisions (3) and (4) and inserting in lieu thereof the following:

(3)  No land gains tax under chapter 236 of Title 32 shall be levied on the a transfer of undeveloped land in a Vermont neighborhood which is the first transfer of that parcel following the original designation of the Vermont neighborhood.

(4)  A municipality in which a designated Vermont neighborhood is located may retain and reallocate 75 percent of the state education tax portion of the property tax on the increased grand list value of affordable housing constructed in the Vermont neighborhood for a period of three years after the issuance of a certificate of occupancy for each housing unit.  For the purposes of this section, “affordable housing” means either or both of the following:

(A)  An owner occupied home in a Vermont neighborhood that is a homestead as defined in 32 V.S.A. §5401(7) and the price of which does not exceed the maximum affordable price as determined by the Vermont housing finance agency.

(B)  Rental housing that is located in a Vermont neighborhood that is rent restricted by contract, deed restriction, or other enforceable provision, to no more than the HUD fair market rental for at least 15 years.

Second:  In Sec. 3 in 24 V.S.A. § 2793d(d)(4)(A), by striking out subdivision (A) and inserting in lieu thereof a new subdivision (A) to read:

     (A) The municipality in which a designated Vermont neighborhood is located may create a tax increment financing district to include all or a portion of the Vermont neighborhood under Subchapter 5 of Chapter 53 of Title 24, subject to approval limitations related to that subchapter.

Third:  By striking out Sec. 12 and inserting in lieu thereof the following:

Sec. 12:  32 V.S.A. §10002(p) is added to read:

(p)  Also excluded from the definition of “land” is a transfer of undeveloped land in a Vermont neighborhood which is the first transfer of that parcel following the original designation of  the Vermont neighborhood.

Fourth:  In Sec. 16, by striking out subsection (b) and inserting in lieu thereof the following:

(b)  The committee shall be composed of the following 13 members:

(1)  Two members of the house, one from the committee on general, housing and military affairs and one from the committee on natural resources and energy, who shall be entitled to expenses and per diem pursuant to 2 V.S.A. § 406 or 32  V.S.A. § 1010.

(2)  Two members of the senate, one from the committee on economic development, housing and general affairs and one from the committee on natural resources and energy.    

(3)  A representative from each of the following organizations: 

(A)  Vermont homebuilders and remodelers association.

(B)  Lake Champlain regional chamber of commerce.

(C)  Vermont planners association.

(D)  Vermont association of planning and development agencies.

(E)  Smart growth Vermont.

(F)  Vermont natural resources council.

(G)  Vermont natural resources board.

(H)  Vermont association of realtors.

(I)  Vermont league of cities and towns.

Fifth:  By striking out Sec. 20 and inserting in lieu thereof the following:

Sec. 20.  VERMONT NEIGHBORHOOD REPORT; AGENCY OF COMMERCE AND COMMUNITY AFFAIRS

On or before January 15, 2013, the secretary of commerce and community affairs shall issue a report on the status of the Vermont neighborhood program to the senate committees on economic development, housing and general affairs, on natural resources and energy, and on finance, and the house committees on general, housing and military affairs, on natural resources and energy, and on ways and means.  The report shall include all the following:

(1)  The number of Vermont neighborhood applications and designations.

(2)  The number of housing units, including a description, size, selling price, and location of each, permitted and constructed in each Vermont neighborhood.

(3)  The number and description of rental housing properties permitted or constructed in each Vermont neighborhood and the rental charges for each unit.

(4)  Any other information useful to determining the success of the Vermont neighborhood program to stimulate housing development and encourage smart growth.

Sixth:  By striking out Sec. 22 and inserting in lieu thereof the following:

Sec. 21.  EFFECTIVE DATES; SUNSET

(a)  This act shall take effect on passage except that:

(1)  Sec. 11 shall take effect on July 1, 2008, at which time the prospective repeal provisions of Sec. 7a of No. 189 of the Acts of the 2005 Adj. Sess. (2006) shall have no force or effect.

(2)  Sec. 13, amending 32 V.S.A. § 5930u, shall take effect July 1, 2008.

(3)  Sec. 14, amending 32 V.S.A. § 9602, shall apply to transfers on or after July 1, 2008.

(b)  Secs. 2 and 3, Vermont neighborhood program, shall sunset on June 30, 2013.

(c)  Sec. 19, investment of state moneys, shall sunset on June 30, 2009.

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

Thereupon, and pending the question, Shall the proposal of amendment of the Committee on Economic Development, Housing and General Affairs, as substituted be amended as recommended by the Committee on Finance?, Senator Cummings, on behalf of the Committee on Finance, requested and was granted leave to withdraw the sixth proposal of amendment of the Committee on Finance.

Which was agreed to.

Thereupon, the pending question, Shall the proposal of amendment of the Committee on Economic Development, Housing and General Affairs, as substituted be amended as recommended by the Committee on Finance, in the first through fifth proposals of amendment?, was decided in the affirmative.

Thereupon, pending the question, Shall the Senate propose to the House to amend the bill as recommended by the Committee on Economic Development,
Housing and General Affairs, as substituted, as amended was decided in the affirmative.

Thereupon, pending the question, Shall the bill be read the third time?, Senator Illuzzi moved to amend the proposal of amendment by adding a new Sec. 1a to read as follows:

Sec. 1a.  FINDINGS AND PURPOSE

     (a)  Vermont is facing a shortage of housing necessary to meet the needs Vermonters.

     (b)  The General Assembly over the past decade has enacted legislation to encourage municipalities to approve compact residential neighborhoods in and around traditional villages and downtowns and in planned growth centers in accordance with smart growth principles.

     (c)  Among the strategies to expedite the development of housing in these locations is to exempt certain residential development from Act 250, the state’s land use law, where it is demonstrated that such proposed land use review is redundant with municipal land use, and, through the careful targeting of eligible locations to impacted areas served by infrastructure, the potential for unplanned impact to natural resources and environmental quality is negligible.

     (d)  Targeting state incentives to smart growth locations must be balanced with careful planned development in the surrounding countryside.  To this end, strategies for improving certain Act 250 criteria to better manage scattered residential development and to curb strip development along the state’s highways should be examined and brought back before the General Assembly for review and consideration.

     (e)  Through targeted exemptions to Act 250, coupled with strengthening criteria related to scattered development, rural growth areas, transportation and settlement patterns, Vermont can better achieve the state’s planning and development goal of maintaining Vermont’s historic settlement pattern of compact village and urban centers separated by rural countryside.

     (f)  Through the use of higher Act 250 thresholds, coupled with strengthening criteria related to scattered development, rural growth areas, transportation and settlement patterns, Vermont can better achieve the state’s planning and development goal of maintaining Vermont’s historic settlement pattern of compact village and urban centers separated by rural countryside.

     (g)  As of May 1, 2008, there are 23 designated downtowns and 76 village centers, but not all of the designated downtown or village centers have zoning bylaws or subdivision regulations, reducing the number of Vermont Neighborhood eligible village centers to 24 and designated downtowns to 22.  There is one designated growth center.  Therefore, the regulatory relief and municipal revenue incentive provided by this act will initially apply to those 46 communities.

     (h)  The regulatory relief and the municipal revenue incentive for these 46 municipalities may encourage other municipalities to undertake the task of seeking designation as a downtown, village center or town growth center, enacting zoning bylaws and subdivision regulations, and then proceeding to obtain designation as a Vermont Neighborhood.

Thereupon, pending the question, Shall the proposal of amendment be amended as recommended by Senator Illuzzi?, Senator Illuzzi requested and was granted leave to withdraw the proposal of amendment.

Thereupon, third reading of the bill was ordered.

Appointments to Committees of Conference

S. 241.

     The President announced a change in the membership of the Committee of Conference on the part of the Senate to consider the disagreeing votes of the two Houses upon Senate bill entitled:

An act relating to the special veteran and gold star registration plates.

                                         Senator Kitchel

                                         Senator Mazza

                                         Senator Scott

S. 342.

     The President announced a change in the membership of the Committee of Conference on the part of the Senate to consider the disagreeing votes of the two Houses upon Senate bill entitled:

     An act relating to Lake Champlain commemorative motor vehicle plates.

                                         Senator Collins

                                         Senator Mazza

                                         Senator Scott

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. 336, S. 354, H. 112, H. 353, H. 691, H. 783, H. 881, H. 890.


Message from the House No. 61

     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 considered Senate bills of the following titles:

S. 227.  An act relating to angel investors.

S. 270.  An act relating to the agreement among the states to elect the President by national popular vote.

S. 361.  An act relating to authority to lease the state lottery.

S. 373.  An act relating to full funding of decommissioning costs of a nuclear plant.

And has passed the same in concurrence.

The House has considered Senate bills of the following titles:

S. 168.  An act relating to operating a motor vehicle under the influence of alcohol or drugs.

S. 250.  An act relating to decreasing the amounts of cocaine and heroin required to be possessed to trigger drug trafficking penalties.

S. 281.  An act relating to end-of-life care and pain management.

S. 284.  An act relating to the Department of Banking, Insurance, Securities, and Health Care Administration.

S. 304.  An act relating to a groundwater withdrawal permit program.

S. 311.  An act relating to the use value appraisal program.

S. 345.  An act relating to lowering the cost of workers’ compensation insurance.

S. 357.  An act relating to domestic violence.

S. 364.  An act relating to a comprehensive vertical audit and reliability assessment of the Vermont Yankee nuclear facility.

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

     The House has considered Senate proposals of amendment to House bills of the following titles:

     H. 306.  An act relating to telemarketing.

     H. 330.  An act relating to repeal of the law relating to municipal trailer park ordinances.

     H. 777.  An act relating to the certificate of need program.

     H. 867.  An act relating to health insurance plan coverage for athletic trainer services.

     And has severally concurred therein.

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

     H. 859.  An act relating to increasing substance abuse treatment, vocational training, and transitional housing for offenders in order to reduce recidivism, increase public safety, and reduce corrections costs.

     And has concurred therein with proposals 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. 203.  An act relating to increasing the amount of an estate to which a surviving spouse is entitled when the deceased spouse dies without a will.

And has refused to concur therein and asks for a Committee of Conference upon the disagreeing votes of the two Houses;

And the Speaker has appointed as members of such Committee on the part of the House

                                         Rep. Flory of Pittsford

                                         Rep. Jewett of Ripton

                                         Rep. Grad of Moretown

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

     S. 240.  An act relating to repealing the sunset of the law enforcement exemption to the social security breach notice act.

And has severally concurred therein.

Pursuant to the request of the Senate for a Committee of Conference upon the disagreeing votes of the two Houses on House bill of the following title:

H. 748.  An act relating to permitting students to possess and self-administer emergency medication.

The Speaker has appointed as members of such committee on the part of the House

                                         Rep. Clark of Vergennes

                                         Rep. Gilbert of Fairfax

                                         Rep. Barnard of Richmond

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

J.R.S. 66.  Joint resolution relating to weekend adjournment.

And has adopted the same in concurrence.

     The House has adopted concurrent resolutions of the following titles:

     H.C.R. 280.  Concurrent resolution congratulating Windsor School District Superintendent Brenda Needham on being named the 2007 Vermont Superintendent of the Year and Frederick H. Tuttle Service Award recipient.

     H.C.R. 281.  Concurrent resolution congratulating the State Street School in Windsor on winning the 2007 Fall Fit & Healthy Kids Challenge.

     H.C.R. 282.  Concurrent resolution honoring the Vermont Council on World Affairs for its facilitation of Vermonters’ increased understanding of world affairs and international visitors’ knowledge of Vermont.

     H.C.R. 283.  Concurrent resolution congratulating Robert Hamlin on his extraordinary high school wrestling career.

     H.C.R. 284.  Concurrent resolution congratulating the 2007 Stowe High School Raiders Division III championship field hockey team.

     H.C.R. 285.  Concurrent resolution congratulating the 2008 Stowe High School Raiders 2008 championship girls Division II Nordic ski team.

     H.C.R. 286.  Concurrent resolution congratulating the 2008 Marion Gray Women’s History Month Scholarship Contest winners.

     H.C.R. 287.  Concurrent resolution congratulating the Stowe High School Raiders 2007 Division III championship soccer team.

     H.C.R. 288.  Concurrent resolution congratulating Chandler Kennedy on her victories in state and international country music vocal competitions.

     H.C.R. 289.  Concurrent resolution congratulating the United Counseling Service of Bennington on its 50th anniversary.

     H.C.R. 290.  Concurrent resolution congratulating the National Life Group on the 160th anniversary of its charter and for the company’s forward-thinking energy efficiency and environmental conservation initiatives.

     H.C.R. 291.  Concurrent resolution congratulating the winners in the Vermont MATHCOUNTS competition.

     H.C.R. 292.  Concurrent resolution congratulating Dr. Marshall Land of Shelburne on being named the first R. James McKay Jr. M.D. Green & Gold Professor in Pediatrics at the University of Vermont’s College of Medicine.

     H.C.R. 293.  Concurrent resolution congratulating Vermont’s 2008 All-Vermont Academic Team members, New Century Scholar, and Senator Stafford and Senator Aiken award winners.

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

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

     S.C.R. 52.  Concurrent resolution honoring Robert Stiller for his entrepreneurial achievements and vision.

And has adopted the same in concurrence.

Senate Concurrent Resolutions

     The following joint concurrent resolutions, having been placed on the consent calendar on the preceding legislative day, and no Senator having requested floor consideration as provided by the Joint Rules of the Senate and House of Representatives, is hereby adopted on the part of the Senate:

   By Senators Miller, Ayer, Bartlett, Campbell, Carris, Collins, Condos, Coppenrath, Cummings, Doyle, Flanagan, Hartwell, Illuzzi, Kitchel, Kittell, Lyons, MacDonald, Maynard, Mazza, McCormack, Mullin, Nitka, Racine, Scott, Sears, Shumlin, Snelling, Starr, White,

S.C.R. 52.

Senate concurrent resolution honoring Robert Stiller for his entrepreneurial achievements and vision.

     [The full text of the Senate concurrent resolutions appeared in the Senate calendar addendum for Thursday, April 24, 2008, and, if adopted in concurrence by the House, will appear in the volume of the Public Acts and Resolves to be published for this session of the sixty-ninth biennial session of the Vermont General Assembly.]

House Concurrent Resolutions

     The following joint concurrent resolutions having been placed on the consent calendar on the preceding legislative day, and no Senator having requested floor consideration as provided by the Joint Rules of the Senate and House of Representatives, are hereby adopted in concurrence:

H.C.R. 280

House concurrent resolution congratulating Windsor School District Superintendent Brenda Needham on being named the 2007 Vermont Superintendent of the Year and Frederick H. Tuttle Service Award recipient

Offered by:  Representatives Sweaney and Adams

Offered by:  Senators Campbell, McCormack and Nitka

H.C.R. 281

House concurrent resolution congratulating the State Street School in Windsor on winning the 2007 Fall Fit & Healthy Kids Challenge

Offered by:  Representatives Sweaney and Adams

Offered by:  Senators Campbell, McCormack and Nitka

H.C.R. 282

House concurrent resolution honoring the Vermont Council on World Affairs for its facilitation of Vermonters’ increased understanding of world affairs and international visitors’ knowledge of Vermont

Offered by:  Representative Johnson and others

Offered by:  Senator Mazza

H.C.R. 283

House concurrent resolution congratulating Robert Hamlin on his extraordinary high school wrestling career

Offered by:  Representative Barnard and others

H.C.R. 284

House concurrent resolution congratulating the 2007 Stowe High School Raiders Division III championship field hockey team

Offered by:  Representative Scheuermann

H.C.R. 285

House concurrent resolution congratulating the 2008 Stowe High School Raiders 2008 championship girls Division II Nordic ski team

Offered by:  Representative Scheuermann and others


H.C.R. 286

House concurrent resolution congratulating the 2008 Marion Gray Women’s History Month Scholarship Contest winners

Offered by:  Representative Malcolm and others

Offered by:  Senators Mullin, Carris, Maynard, Condos, Coppenrath, Flanagan, Kitchel, Lyons, Miller, Racine and Snelling

H.C.R. 287

House concurrent resolution congratulating the Stowe High School Raiders 2007 Division III championship soccer team

Offered by:  Representative Scheuermann

H.C.R. 288

House concurrent resolution congratulating Chandler Kennedy on her victories in state and international country music vocal competitions

Offered by:  Representative Peaslee and others

H.C.R. 289

House concurrent resolution congratulating the United Counseling Service of Bennington on its 50th anniversary

Offered by:  Representative Mook and others

Offered by:  Senators Hartwell and Sears

H.C.R. 290

House concurrent resolution congratulating the National Life Group on the 160th anniversary of its charter and for the company’s forward-thinking energy efficiency and environmental conservation initiatives 

Offered by:  Representatives Anderson and Kitzmiller

Offered by:  Senators Cummings, Doyle and Scott

H.C.R. 291

House concurrent resolution congratulating the winners in the Vermont MATHCOUNTS competition

Offered by:  Representative Jewett and others


H.C.R. 292

House concurrent resolution congratulating Dr. Marshall Land of Shelburne on being named the first R. James McKay Jr. M.D. Green & Gold Professor in Pediatrics at the University of Vermont’s College of Medicine

Offered by:  Representative Hunt and others

Offered by:  Senators Condos, Miller, Racine and Snelling

H.C.R. 293

House concurrent resolution congratulating Vermont’s 2008 All-Vermont Academic Team members, New Century Scholar, and Senator Stafford and Senator Aiken award winners

Offered by:  Representative Mook and others

     [The full text of the House concurrent resolutions appeared in the Senate calendar addendum for Thursday, April 25, 2008, and will appear in the volume of the Public Acts and Resolves to be published for this session of the sixty-ninth biennial session of the Vermont General Assembly.]

Adjournment

On motion of Senator Shumlin, the Senate adjourned, to reconvene on Monday, April 28, 2008, at ten o’clock in the forenoon pursuant to J.R.S. 66.



Published by:

The Vermont General Assembly
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Montpelier, Vermont


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