ACLU of Vermont Sues Scott Administration for Withholding Opioid Settlement Records, Open Meeting Violations
Department of Health violated public records and open meeting laws, undermining the work of Opioid Settlement Advisory Committee
FOR IMMEDIATE RELEASE
July 17, 2024
Contact: Emily Hagan-Howe, Communications Director, ACLU of Vermont, [email protected], 802-223-6304 x121
(Montpelier, VT) – The ACLU filed a lawsuit against the Scott administration today to obtain public records related to the Opioid Settlement Advisory Committee that were wrongfully withheld by the Vermont Department of Health (DOH) and to challenge the administration’s behind-closed-doors alteration of the Committee’s recommendations to the legislature. The records at issue could shed light on political interference by the Scott administration to undermine the legislature’s response to Vermont’s opioid epidemic.
Among the records ACLU is seeking are emails exchanged within the Scott administration before Commissioner of Health Dr. Mark Levine presented an altered version of the Advisory Committee’s final recommendations to the legislature—eliminating the Committee’s recommendation to fund OPCs, a life-saving harm reduction measure that was ultimately adopted by the legislature over the governor’s veto this year. Dr. Levine denied the ACLU access to the administration’s internal correspondence, citing “executive privilege.” The lawsuit also challenges the alteration itself—and subsequent actions of the Department—as violations of Vermont’s Open Meeting Law.
Harrison Stark, Senior Staff Attorney, ACLU of Vermont: “Policymaking should not happen behind closed doors, and that is especially true when the policies in question have life and death consequences. By playing politics and violating both the Vermont Open Meeting Law and the Vermont Public Records Act, the Scott administration not only threatened Vermonters’ access to life-saving overdose prevention centers—it also eroded trust between government officials and the people it is supposed to represent.”
The Opioid Settlement Advisory Committee was created by the legislature in 2022. Its members include public health experts and people with direct experience with substances use disorder, with Dr. Levine as the non-voting chair. The Committee is charged with making recommendations on how to spend the state’s share of opioid settlement money paid by drug companies.
After months of deliberations, Committee members ranked their funding priorities during a meeting in late December 2023, with $2.6 million in funding for Vermont’s first OPCs receiving the most votes. Dr. Levine informed Committee members they would connect via email to finalize the recommendations for the legislature and “ensure there’s still consensus for what’s being listed.”
Following that meeting, Dr. Levine and DOH staff exchanged a series of emails with the Governor’s staff regarding the Committee’s recommendations generally and OPCs specifically. Unredacted portions of the records suggest that the Governor’s staff provided feedback on and revisions to the Committee’s recommendations, despite the Governor having no authorized role in their work.
Dr. Levine shared a copy of the Committee’s final report with its members one business day before submitting it to the legislature. The final recommendations differed significantly from the Committee’s deliberations; most notably, Dr. Levine unilaterally reallocated the $2.6 million that the Committee had overwhelmingly agreed should be used to fund OPCs. Dr. Levine did not respond to multiple questions posed by Committee members via email about those changes prior to submitting the report to the legislature.
In his letter to lawmakers, Dr. Levine implied that the Committee as a whole chose to omit OPCs from its recommendations and stated that OPCs were not included as a spending priority “because H.72 contains a provision for an alternate financing mechanism.” That statement was misleading because H.72 had not yet been passed or signed into law—and Governor Scott had signaled his intention to veto the legislation, which he later did.
In response to the ACLU’s records request, DOH redacted most of the emails’ contents, citing “executive privilege”—despite the fact that “executive privilege” applies only to direct communications with the Governor about genuine executive decision-making. Additionally, the ACLU wrote to Dr. Levine on February 15, 2024 regarding several violations of Vermont’s Open Meeting Law, including making unilateral changes to the recommendations; informing the Committee of his changes over email alone; and failing to publish accurate minutes reflecting the Committee’s consensus. Dr. Levine declined to “cure” these alleged violations.
Lia Ernst, Legal Director, ACLU of Vermont: “If the Scott administration opposed this life-saving harm reduction strategy, it should have had that debate in the light of day. Claiming ‘executive privilege’ as a means of avoiding accountability is out of step with Vermont values, and it denies Vermonters their right to transparent and responsive government.”
A copy of the filing is available here.
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