Sen. Brian Campion (D-Bennington) and the empty witness chair
Updated at 4:10 p.m.
The chief author of Vermont S.260, a waterways cleanup bill, has accused Gov. Phil Scott’s administration of failing to communicate its concerns with the constitutionality of the measure. In response, administration officials assert that they are merely observing protocol.
Sen. Chris Bray (D-Addison) is chair of the Natural Resources and Energy Committee, which crafted the legislation. It would establish a path toward a federally mandated cleanup of state waterways. In a March 20 letter to lawmakers, Scott objected to the bill on two grounds: that it creates a new tax or fee — which it does not — and that it violates the separation of powers between the legislative and executive branches.
The latter point has mystified lawmakers, and Bray sought an expert opinion from legislative attorneys. Counsel Michael O'Grady found no basis for Scott's separation of powers claim, according to Bray. "There are many instances where this happens, where the legislature directs the administration to do something," Bray said, paraphrasing O'Grady. "It's the normal course of things."
The administration had offered no public explanation of Scott’s constitutional objection since he sent the letter more than two weeks ago.
Since receiving Scott’s letter, Bray has sent three letters of his own to the administration seeking written clarification. He said the only response was an offer of a one-on-one meeting. Bray turned down the offer, believing that since the Senate had approved S.260 unanimously on a roll-call vote, the entire body deserved an on-the-record explanation, preferably in writing.
"The other thing, when we're talking about something like a veto, that's a powerful legal tool," Bray said, "so we need to look at any potential veto very carefully. A conversation is not well suited to that kind of analysis."
After receiving no written response, Bray invited Administration Secretary Susanne Young to testify before his committee, offering her three time slots on Thursday's calendar. He said that Young notified him Wednesday that she would not appear, but he decided to keep one time slot open just in case — along with an empty chair meant to provide a concrete image of her absence.
Bray, who's been in the legislature since 2007, said that in his experience, "It's unprecedented to have a secretary refuse to come to a committee."
At Scott’s weekly press conference Thursday afternoon, Young offered a lengthy explanation based on precise adherence to the legislative process. She said that when the bill was being written in Bray’s committee, she and other officials testified about their concerns. The bill went to the Senate Agriculture Committee after Bray’s panel approved it. There, Young said, the bill was amended in ways that addressed the administration’s points.
After that, on the Senate floor, the Agriculture amendments were voted down and the Natural Resources version was approved and sent to the House.
“S.260 has left the Senate,” argued Scott. “It’s gone out of the chamber and it’s gone over to the House. So we’re focusing on the House.”
That may be, but it seems awfully picky to use that as grounds to spurn Bray’s request.
Young and Agency of Natural Resources Secretary Julie Moore offered a printout of written testimony Moore gave Wednesday to the House Natural Resources, Fish & Wildlife Committee. In it, Moore gave an overview of administration objections to the bill. Young said that the document was shared with Bray on Wednesday.
But Moore’s testimony fails to provide a detailed account of the separation of powers concerns. “As passed in the Senate, S.260 raises a number of significant separation of powers issues,” she wrote. She then outlines one such issue — that the bill would add lawmakers to the Clean Water Fund Board, which now includes five members of Scott’s cabinet. That puts legislators into “the process that ultimately makes budget recommendations to the legislature,” which ignores the constitutional provision giving the governor “independent authority to bring such business before the legislature as he deems necessary.”
So there’s one constitutional objection. As for the rest, we still have no full accounting. Otherwise, Moore’s testimony made policy-based arguments against the bill.
On Thursday morning, Bray did not disclose that he had been given Moore’s testimony in lieu of a personal appearance by Young. But given its nonspecific language, Bray would almost certainly seek further definition.
"I take the governor at his word that he's looking for ways to work together," Bray said. "In order to get to some sort of resolution, we need a clear definition of the problem from their perspective."
He noted that the legislature is five weeks away from its scheduled adjournment, so time is running short to resolve differences and avoid extending the session and, if possible, a gubernatorial veto.
Correction, April 6, 2018: An earlier version of this post misstated Chris Bray's tenure in the Senate. In fact, he's been in the legislature since 2007; he was elected to the Senate in 2012.