Sen. Joe Benning (R-Caledonia) plans to file a resolution on November 1 seeking Sen. Norm McAllister's ouster from the Vermont Senate if the Franklin County Republican refuses to resign by then.

Benning delivered the news Friday in a letter to McAllister, who was arrested in May and charged with sexual assault. McAllister, a 64-year-old Highgate farmer, pleaded not guilty to three felony and three misdemeanor charges involving three women — one of whom has since died — and is awaiting trial.

In last week's Seven Days, McAllister insisted he would not resign his Senate seat, nor take a plea deal. That prompted Benning to write his colleague, who, he claims, promised last spring to step down by November if his case was still pending.

“It is therefore with some dismay that I am reading news reports quoting you as determined to go to trial and refusing to resign,” Benning wrote, adding that McAllister’s return to the Statehouse in January would be “extraordinarily uncomfortable for every individual in the building, including you” and would leave the Senate “in complete disarray.”


Benning enclosed a draft resignation letter, which he encouraged McAllister to sign. 

"I believe it allows you to put a good spin on it and leave open the possibility of your return in the event of an acquittal," Benning wrote. "I cling to the hope that you are a man of your word and will live up to our last phone conversation."

In the draft resignation letter, Benning suggests that McAllister cite a desire to avoid distracting the Senate and to ensure that his Franklin County constituents are properly represented.


It's unclear whether McAllister will take Benning's advice. The former did not immediately return a call seeking comment, and the latter said he hadn't heard from McAllister since sending the letter. Adding another dimension to the situation, Benning told Seven Days he is scheduled to be deposed this week ahead of the trial.

Benning's actions appear to have caused a split within the nine-member Republican caucus. The Caledonia Republican, who serves as minority leader, emailed his letter to his colleagues and Lt. Gov. Phil Scott Friday and asked for their input. He said he would not file the resolution on behalf of the caucus unless its members instructed him to do so. 

From: Joe Benning
To: Senate Republican Caucus and Lt. Gov. Phil Scott
Sent: October 16, 2015 at 9:35:47 AM EDT

Subject: Norm update

Dear All:

By now you have all probably heard Norm being quoted in the news that he is intending to go to trial and he will not voluntarily resign from his senate seat. He had given me his word back in May that, if his case wasn’t resolved by November, he would resign in order to give the Franklin County Republican committee time to nominate potential replacements. We are now also up against a filing deadline for any bills/resolutions that will receive action when the session resumes.

Accordingly I have sent him the attached letter, along with a prospective letter of resignation that I drafted some time ago. Should he not voluntarily resign prior to November 1st, I do indeed intend to file a resolution for expulsion. I will NOT do that as Minority Leader unless collectively you folks have decided I should. Please let me know how you feel. If you would prefer we discuss this as a caucus, please advise and I will try to arrange for a conference call.

Joe B.

Sen. Peg Flory (R-Rutland) responded to her colleagues by email, saying that she “strongly disagree[d] with bringing a resolution for expulsion.” Flory said that McAllister should be afforded the presumption of innocence and could come to his own conclusion about whether to resign.

From: Peg Flory 

To: Senate Republican Caucus and Lt. Gov. Phil Scott
Sent: Sunday, October 18, 2015 4:19 PM


Joe:

I read the article a couple of times and I'm not sure it says that he will definitely NOT resign. I don't know if he will or not, but that is HIS choice.

I agree that the case will be a distraction during the next Session. Many of us will be called to testify and will, undoubtedly, be hounded by the press. Unfortunately, this will occur whether Norm resigns or not.

It will come as no surprise to you that I strongly disagree with bringing a resolution for expulsion. We still have, in this Country, the presumption of innocence (although it seems with sex accusations that presumption is fictitious). Under the process for expulsion, Norm would be allowed to "defend" himself. How this could be done, with a pending criminal case, is beyond me. I feel strongly that we should let the system work and not interfere.

For just one second, let us assume that Norm is innocent and this is a set up. Wouldn't this set a dangerous precedent? All someone would have to do to remove an elected official would be to make damning, spurious allegations, particularly of a sexual nature.

If you decide to go ahead and file, please do NOT do it as Leader and please make sure it is know that not all of the Caucus agrees.

I have no idea what position the rest of our Caucus members are taking on this issue but I remain firmly opposed.

Peg

In response, Benning argued that "the Senate is not a court of law — it is a body politic." He said that it wasn't the institution's role to judge guilt or innocence, but rather to ensure that it can "function properly." Under the current circumstances, Benning said, "I do not believe it can."

From: Joe Benning
To: Senate Republican Caucus and Lt. Gov. Phil Scott
Sent: Oct 18, 2015, at 7:38 PM

Peg:

Good discussion. I appreciate the conversation and we should definitely keep everybody in the loop in case they want to weigh in. I’d like to make my own position clear.

For 32 years as a criminal defense attorney I have fought for the concept that a person is innocent until proven guilty beyond a reasonable doubt in a court of law. I’ve taken several sexual assault cases to jury and I know how important that “golden rule” is. No person should ever be deprived of their liberty unless the State can meet that burden.

But the Senate is not a court of law- it is a body politic. It is not subject to the Rules of Evidence or the presumption of innocence. It is not in the business of deciding guilt or innocence. It operates under Mason’s Rules, designed to keep it functioning free from disruption. It is authorized to correct itself when necessary to ensure proper function. One of its powers is expulsion. Those rules are there for a reason. Without them, the business of the body politic can be brought to a halt.

In Norm’s case the Senate is faced only with the question of whether his presence is disruptive to the body politic. Should this come to a vote (and I SINCERELY hope Norm does not place us in the positon of having to go there), I would vote for expulsion to give the body politic the best case scenario for conducting business. His presence in the building will be the media circus of the century, and all of us will be under the microscope in how we deal with him. Some of us will detest his presence; some of us will stand by him. Internal polarization will spill over into our relations with each other, which will affect our work. In addition, stripped of his committee assignments, Franklin County and our own caucus are not fully represented. For those reasons I would argue expulsion and replacement are appropriate.

I note your concern that Norm’s criminal case might “be a set up.” The first element of the criminal charges against him is whether there was sexual contact. My understanding is that Norm himself has freely admitted to that element with both women. The only remaining element is whether that sexual contact was in some manner coerced in a power imbalance. That is for a jury to decide in a courtroom, a process that will not likely be concluded prior to adjournment. But whether a criminal court jury agrees with your concern is not relevant to the Senate’s instant problem. Our sole concern is whether, under current circumstances, the body politic can function properly. I do not believe it can.

Again, I appreciate the discussion and I hope others will weigh in. Should a resolution be necessary, I will ask for a caucus vote on whether I am authorized to act as minority leader or not and I will abide by the result.

Joe B.

Flory responded again, arguing that McAllister was nevertheless "entitled to present his case" prior to expulsion. Though she agreed that the Senate "will be an absolute zoo" if he declined to resign, such a threat did not justify forcing McAllister's hand. "For me, the scrutiny of the press or the wagging tongues, or the personal discomfort we might face should never be a reason for expulsion," she wrote.

From: Peg Flory 

To: Senate Republican Caucus and Lt. Gov. Phil Scott
Sent: Mon, Oct 19, 2015 at 9:09 AM

I understand your position and I'm aware that this is not the same as a jury trial and the difference in evidence. However, under the Rules for Expulsion, Norm is entitled to present his case and evidence and I don't see how he can do this with a pending criminal case.

I agree with you that, should Norm choose to not resign, it will be an absolute zoo in the Statehouse (even more than the usual zoo). I also agree that our interactions with Norm will be under a microscope. Where I disagree with you is whether that justifies expulsion.

For me, the scrutiny of the press or the wagging tongues, or the personal discomfort we might face should never be a reason for expulsion. If "the body politic can't function" because of the scrutiny and chaos the press would exert because of his presence, we have a bigger problem than Norm. Although I understand Expulsion does not determine guilt or innocence and "the accused" is not entitled to the presumption of innocence, the fact remains that we would be looking to expel a member, NOT because he has done something illegal (at least nothing yet proved) but rather we would expel him because he has been charged and we are unwilling to deal with the "media circus".

I thing you (and Probably the press) are incorrect that he has admitted to having a sexual relationship with two of the women. I don't believe he has ever admitted to having a sexual relationship with either the older lady who died or the intern.

Peg

Not everybody seemed to think it wise to continue the conversation over email. Sen. Dustin Degree (R-Franklin) replied to his colleagues with the suggestion that “this is a conversation best had in person — or over the phone.”

"I agree, Dustin," Benning responded. "I’ll try to set something up for a phone conference/meeting with the caucus."

According to Benning, such a meeting has not yet been scheduled.